What Are Appropriate Compensatory Damages for 3 Fake Competitor Reviews? The Surprising Answer–Fireworks Restoration v. Hosto

By Eric Goldman

The Fireworks Restoration Company v. Hosto, ED97181 (Mo. App. Ct. May 9, 2012)

Hosto and Mitchell formed two companies together. Eventually, the relationship soured, and they acrimoniously split their empire. Still grousy, Hosto (pretending to be former customers) posted three fake derogatory Google and Yahoo reviews of the company operated by Mitchell. After a John Doe lawsuit, Yahoo disclosed enough information to identify Hosto as the author, and Hosto confessed to the vendetta. Thus, we have the unusual situation where a pseudonymous review author isn’t contesting authorship. After a trial, the jury ruled in favor of Fireworks Restoration’s (the plaintiff’s) defamation claim.

So far, everything makes sense. But then we get to the remedies, and things get puzzling. The jury awarded $1 in compensatory damages and $150k in punitive damages. On appeal, the court rejects Hosto’s attempts to undermine the jury award: that Mitchell’s company didn’t suffer any reputational harm; that Missouri law doesn’t allow nominal damages; and that the punitive damages were unconstitutionally large in light of the compensatory damages award. As a result, the jury verdict stands.

What to make of this jury verdict? One way to interpret it is that the jury felt that the company suffered no real harm, but Hosto’s behavior was so outrageous it needed to be punished anyway. While the jury’s first conclusion might seem initially counterintuitive, it’s entirely possible that the company suffered no actual harm from the negative fake reviews. Research indicates that a few negative reviews mixed into an otherwise all-positive review set lifts sales conversion because the negative reviews increase the credibility of the positive reviews and help prospective consumers visualize and assess the possible bad outcomes from their wrong choices. Without more detail, for all we know, Hosto could have done his target a favor.

Yet, the judge refuses to put the burden on the plaintiff to find actual lost customers:

We reject Defendant’s contention that Plaintiff needed to produce testimony from potential customers who opted to turn elsewhere due to the web reviews. With the internet, consumers are able to compare businesses and their wares with unprecedented speed. Interpersonal contact is characteristically absent, so if a consumer declines to engage a business it encounters on the internet, that consumer continues his or her search and the business has no knowledge it has been passed by. As such, it would be unreasonably burdensome to impose upon a business plaintiff the requirement that it locate potential customers that it never knew in order to successfully demonstrate actual damage to its reputation. The deleterious impact of such a constraint far outweighs any benefits it would have in proving reputational harm.

In the end, the lesson from this case is obvious and hardly novel: fake competitive reviews are a bad idea. The jury verdict here shows that the jury will punish anyone caught red-handed. At the same time, the jury was quite savvy about the compensatory damages from fake negative reviews. I hope future judges will be equally savvy.

I was a little surprised the punitive damages award survived the constitutional analysis. Punitive damages 150,000x the compensatory award sounds extremely dicey in light of recent Supreme Court jurisprudence. Effectively sidestepping the quantitative metrics, the appellate court had no problem condemning Hosto’s bad motives:

From the outset, Defendant’s conduct evinced a calculated desire to seriously damage Plaintiff’s business reputation and, in doing so, deliver, in Defendant’s words, “the knock-[out] punch [he] had looked forward to delivering for so long.” Defendant admitted that he was “bitter and wanted revenge.”…Even after having time to consider his actions, Defendant did not cease his conduct. Instead, he testified that he went online to post an additional fictitious review because he “felt something satisfying in” posting the initial derogatory reviews. Not until he received notification of Plaintiff’s suit did Defendant demonstrate any contrition, and even then his apologies were couched in a desire to forego litigation.

As Confucius said, “Before you embark on a journey of revenge, dig two graves.”

For a similar defamation damages ruling by the New Jersey Supreme Court, see W.J.A. v. D.A., A-77-10 (N.J. May 16, 2012), holding that:

Where a plaintiff does not proffer evidence of actual damage to reputation, the doctrine of presumed damages permits him to survive a motion for summary judgment and to obtain nominal damages, thus vindicating his good name. Compensatory damages, however, will continue to require proof of actual damage to reputation.

Later, the court says:

In today’s world, one’s good name can too easily be harmed through publication of false and defaming statements on the Internet. Indeed, for a private person defamed through the modern means of the Internet, proof of compensatory damages respecting loss of reputation can be difficult if not well-nigh insurmountable. We question why New Jersey’s longstanding common law tradition of presumed damages — for defamation claims by private citizens on matters that do not involve public concern -– should be altered now to force an average citizen to ferret out proof of loss of reputation from any of the worldwide potential viewers of the defamatory Internet transmission about that otherwise private person.