Your Periodic Reminder that Blogging About Litigation Can Generate More Litigation–Wexler v. Dorsey & Whitney

As I’ve mentioned many times, blogging about lawsuits has its own legal peril. By definition, I’m commenting on people who’ve shown a willingness to litigate, so there’s a higher-than-average chance they will want to litigate against me. Though I’m quite careful with my blog posts, I still get legal threats a couple of times a year, and my blog winds up on University Counsel’s desks about once a year.

Not even AmLaw 100 firms can avoid this trap. Many big firms have launched topical blogs to showcase their expertise, and today’s lawsuit involves one of them. Dorsey & Whitney runs a blog called “Consumer Financial Services Legal Update.” In 2018, firm attorney Artin Betpera (who has since switched to the Womble firm) made a post, “TCPA Class Certification Denial Exposes Major Spousal Scheme.” (The post was taken down in October 2018, but here’s the Wayback Machine version). The post covers a TCPA case involving AT&T (Wexler v. AT&T Corp., 323 F.R.D. 128 (E.D.N.Y. 2018)), which ran into problems because the named plaintiff (Dr. Wexler) and the plaintiff’s lawyer (Wexler) were spouses, which can create conflicts-of-interest. Wexler didn’t like Betpera’s post (which suggested the Wexlers take up salsa dancing 💃💃💃 instead of litigating together), so he sued Dorsey & Whitney and Betpera for defamation and the Lanham Act. The judge dismisses Wexler’s claims.

Defamation. The plaintiff primarily objected to the phrase “major spousal scheme” in the blog title. The court rejects this on several grounds:

• the title doesn’t refer to Wexler, and “a headline that makes no mention of the plaintiff is not actionable defamation”
• the word “scheme” refers to a plan and doesn’t imply deception or impropriety. Even the stronger word “scam” often isn’t actionable.
• “‘major spousal scheme’ is not capable of precise and specific meaning. This is an indication that the headline is a statement of opinion”
• “the headline is for a blog piece on a private firm’s website. These increasingly commonplace blogs act like a law firm’s editorial or op-ed page….Using ‘major spousal scheme’ in a similar online forum ensconces these words in a context ‘encouraging a freewheeling, anything-goes writing style’ characteristic of opinion writing, not factual recitation”

The court summarizes: “the words ‘major spousal scheme’ are a kind of rhetorical flourish—indicative of opinion—not fact…Rather than serving as a one-line factual recap of Judge Block’s decision, the headline is the author’s opinion about the underlying case that uses loose figurative language….the body of the piece in this case begins and ends with the author’s tongue-and-cheek musings about how he would like to spend time with his wife (camping and going to Greece) and what the Wexlers should do (try salsa dancing). Given this framing, no one could reasonably read the article and its headline as anything other than the author’s opinion and editorial gloss on a court decision.”

Lanham Act False Advertising. The blog post wasn’t firm advertising because:

the content of the article does not relate to Dorsey and does not mention by name or implication any services Dorsey provides.  The article reports on a case in which Dorsey was not involved, and the underlying opinion itself also did not mention Dorsey. While Dorsey’s motivation in having a blog, and publishing this particular article, may be to attract new clients, such motivation does not transform the article—describing a court’s decision in a case unrelated to Dorsey—into commercial speech.

While I agree with this result, state bar regulators might feel differently about law firm blog posts as commercial advertising.

Implications. Dorsey & Whitney got the courtroom win, but the plaintiff got a desired outcome of removing the post…even though the post wasn’t defamatory and Dorsey & Whitney had the financial strength to defend it in court. Perhaps the post removal had more to do with Betpera’s departure from the firm than the legal merits, but the consequences are still chilling.

The court was able to resolve this matter quickly without the aid of an anti-SLAPP law. Still, this is the kind of lawsuit that should be in the sweet spot of anti-SLAPP protection, so I consider this case another reason to support a federal anti-SLAPP law.

But even anti-SLAPP laws aren’t enough protection for legal bloggers, as I’m constantly reminded by the multi-year anti-SLAPP saga of USD Prof. Martin for his blog post on a legal case. Legal blogging is so risky. With each post, legal bloggers bet their houses and careers that they won’t be the plaintiff’s next defendant. 🤗🤗🤗 to all of the legal bloggers out there!

Case citation: Wexler v. Dorsey & Whitney, LLP, 2019 WL 5485265 (E.D.N.Y. Oct. 25, 2019)

UPDATE: The Second Circuit summarily affirmed the dismissal:

We agree with the magistrate judge that the headline in this case constitutes opinion and is therefore not actionable. The tenor of the article reflects that it is meant to be not only informative but also amusing and entertaining, making hyperbole in the headline expected and reasonable. The article’s placement on a law firm’s blog also suggests that it is informed, at least in part, by the firm’s and its author’s opinions. The context of the statement therefore cuts against a determination that it is an assertion of fact meant to be taken literally. The language “exposes major spousal scheme” also does not have a readily understood precise meaning of the nefarious sort that is advanced by Wexler – it could just as easily mean exactly what happened here, that the TCPA decision brought to light an ethically questionable arrangement by a married couple (here, to represent both the attorney’s and the class’s fiscal interests in a class action). The use of “major” does not change this analysis, as that is a relative term, the applicability of which is a matter of opinion. An average reader would not understand the headline to be “an attempt to convey with technical precision literal facts about” Wexler….Nor do we think that a reasonable reader would think that the headline was based on facts other than those disclosed in the article, which accurately describes the ruling of the court.

Wexler v. Dorsey & Whitney, 2020 WL 3864950 (2d Cir. July 9, 2020)