Avvo Defeats False Advertising Lawsuit Alleging Pay-to-Play–Davis v. Avvo
The plaintiff alleges that Avvo provides editorial benefits to lawyers who advertise on Avvo, which causes the advertisers to get prospective clients who would have chosen the non-advertising lawyers. There are some parallels to the lawsuits against Yelp alleging pay-to-play, most of which went nowhere. This lawsuit also goes nowhere.
Avvo’s Ratings. Applying the narrow definition of commercial speech, the court says the ratings don’t constitute commercial speech because they don’t propose a transaction:
The website is an informational directory of attorneys, which consumers can consult whether or not they intend to hire an attorney. And the complained-of website features simply provide information; they might be considered in making, but do not themselves propose, a commercial transaction. Moreover, that sponsored advertisements appear on the defendant’s website does not morph the website’s noncommercial features into commercial speech.
Instead, citing the key Browne v. Avvo ruling from over a decade ago, the court says the ratings are Avvo’s constitutionally protected opinion:
The defendant’s rating system is inherently subjective. The defendant chooses the inputs for its system and decides how to weigh them. The outcome of this process is a number that the defendant presents as an evaluation of an attorney’s quality. A reasonable consumer would view an Avvo rating as just that – the defendant’s evaluation. What factors the defendant believes to be important in assessing attorneys, and the result of the defendant’s weighing of those factors, cannot be proven false.
I like this result, even though it’s an oversimplification in at least two ways. First, the algorithm might misprocess its input data. Second, the algorithm may contain factors (or be subject to human intervention) that is inconsistent with the public disclosures about the algorithm’s workings. Saying that algorithmically produced numerical ratings can’t be “false” is itself a legal fiction.
“Pro” Verification. Avvo displays a “pro” badge for lawyers who pay to verify their information. The plaintiff alleges that consumers misunderstand the badge to communicate superiority. The court says the “pro” badge is puffery:
Taken in this context, “Pro” constitutes a broad commendation relaying a view of an attorney’s level of experience or skill that can only be subjective. The plaintiff cannot prove that the attorneys marked “Pro” are decidedly undeserving of the status, because in context the term has no definite meaning or defining factors….
Moreover, the plaintiff’s allegation that the defendant misleadingly touts attorneys who pay for its services as “highly qualified,” “the right,” or the “best” attorneys fails for the same reasons. Stating that attorneys embody these qualities, especially in the context of the defendant’s advertisements, can be seen only as subjective, commendatory statements of the defendant; in other words, mere puffery.
Removing Negative Reviews. The plaintiff claimed that Avvo favored positive reviews and disfavored/removed negative reviews for paying advertisers. The court says that Avvo discloses that it screens out reviews that don’t meet its Community Guidelines). Further, “a collection of client reviews reflects subjective judgments,” i.e., constitutionally protected opinions.
Lack of Injury. Even if Avvo pages appear prominently in Google search results, the plaintiff wasn’t able to show that consumers actually diverted from it:
The plaintiff does not offer any facts showing that consumers rely on the allegedly misleading Avvo ratings, pro badges, client reviews, or statements by the defendant in choosing or gauging the reputation of an attorney. Nor does the plaintiff offer facts connecting these attributes of the defendant’s website to reputational harm or lost business. Moreover, the plaintiff does not offer any basis for, or any evidence corroborating, his belief that he and others similarly situated have suffered any – much less “many millions of dollars” of – injury due to the defendant’s alleged misrepresentations. The only fact the plaintiff pleaded to support his theory of harm is that the defendant’s website holds a prominent presence on the internet, and thus consumers who perform a Google search with phrases like “top litigation attorney” will see the website on the first page of results. The plaintiff has asserted no facts to support a conclusion that any potential clients are likely to be dissuaded from hiring him because of anything that has appeared on the defendant’s website. Alleging that the defendant’s website has high visibility on the internet does not change the plaintiff’s mere subjective belief of harm into something more.
Case Citation: Davis v. Avvo, Inc., 2018 WL 6629269 (SDNY Dec. 19, 2018)
Prior Blog Posts on Avvo: