BBB Defeats Defamation Lawsuit (After 7 Years)–Better Way v. BBB
A Better Way Wholesale Autos sells cars “as is.” Some buyers who experienced mechanical problems nevertheless felt hornswoggled, and over 100 of them complained to the Better Business Bureau (BBB). The vendor sued BBB because the low ratings were allegedly costing it profitable sales.
Defamation. The court says:
the heart of the plaintiff’s claim against CBBB in this count is that “Defendant CBBB’s ranking of Plaintiff is inaccurate and there is no calculation available which describes the method Defendant BBB used to arrive at that rating.” These claims are predicated, at least in part, on allegations that the grade assigned by BBB to Better Way was arrived at in error because BBB failed to properly enter the correct size of Better Way’s business into an algorithm used in formulating that grade…
But the vendor’s president admitted that “the letter grade resulting from the algorithm used in creating that grade is ‘subjective rather than objective.'” Plus, BBB disclaimed that its letter grade is its “opinion.” For those reasons, the court grants summary judgment to BBB.
In a footnote, the court says that the BBB would qualify for Section 230 protection for the buyers’ comments. Cite to Manchanda v. Google. The vendor argued that the BBB partially developed the comments, and the court summarily dismisses the assertion.
Connecticut UTPA. “At the core of the plaintiff’s CUTPA claims against the defendant are allegations that BBB engaged in unfair trade practices by failing to disclose the algorithms that underlie its grading system and by using algorithms that resulted in unfair grades being assigned to Better Way.” The court responds that the BBB disclosed its algorithm in discovery, and the underlying claims aren’t actionable because they are opinions.
Misrepresentation. “Insofar as the plaintiff is dissatisfied with the process through which that opinion is arrived at or
the substance of that opinion itself, dissatisfaction with either does not give rise to a claim of negligent misrepresentation.” The plaintiff claimed that the BBB required payment from vendors to get a top grade, but the BBB showed many contrary examples to defeat the claim.
Much of the court’s ruling turns on the fact that the plaintiff simply didn’t have any evidence to back up the claims, but the plaintiff nevertheless was able to keep this in court for 7 YEARS. We need more expedited procedures to kick doomed cases out of the courts much quicker than this.
This case dances around many of the standard issues in ranking and ratings cases, such as whether rating systems must disclose their algorithms or provide an explanation. The plaintiff’s litigation choices meant the court could sidestep some of the most interesting issues. In the end, the fact that the BBB is a non-actionable opinion resolves the key questions.
Case citation: A Better Way Wholesale Autos, Inc. v. Better Business Bureau of Connecticut, 2021 WL 5112673 (Conn. Superior Ct. Oct. 19, 2021)