Appeals Court Shuts Down Bogus Private Enforcements of the ‘Yelp Law’–Moss v. GoDaddy

July 24, 2026 · by · in E-Commerce, Licensing/Contracts

The “Yelp Law,” California Civil Code 1670.8, has two main provisions:

(a)(1) A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.

(a)(2) It shall be unlawful to threaten or to seek to enforce a provision made unlawful under this section, or to otherwise penalize a consumer for making any statement protected under this section.

These laws seek to foster consumer reviews by stopping businesses from contractually restricting such reviews. The same principle animates the Consumer Review Fairness Act.

While pro-consumer review laws are good policy, California dubiously attached a private right of action to 1670.8. In its wake, a small group of lawyers have initiated a spate of bogus lawsuits. The lawyers overread businesses’ TOSes, twisting ordinary TOS provisions into putative restrictions on consumer reviews. Enforcement then becomes basically point-and-click. The lawyers search for the targeted TOS provision and then sue the associated business without showing any harm to any consumer. At that point, it becomes a numbers game: file enough lawsuits to cash in from quick but undeserved settlements.

The California appeals court ruling rejects this litigation scheme. The court says 1670.8’s private right of action only applies to (a)(2), not (a)(1). This distinction requires the lawyers to have actual gagged consumers to proceed. Virtual drive-by litigation based solely on TOS language, without more, won’t cut it.

The panel reaches this conclkusion because only (a)(2) contains the “it shall be unlawful” grammar that seemingly triggers penalties:

The differences between the two subdivisions permit a reasonable inference that the Legislature intended for subdivision (a)(1) to operate as a shield and for subdivision (a)(2) to provide the consumer with a sword when a seller threatens or takes action to enforce a waiver to stifle consumer speech.

On this point, the court sides with the Shofet case and ignores the Anderson case that reached the opposite conclusion.

The “shield” reference is confusing. A shield for whom, and against what? Later, the court says that TOS provisions that violate (a)(1) are unenforceable. However, that seems to render (a)(1) superfluous. If the legislature attaches a penalty to enforcing the TOS provision, doesn’t that penalty also simultaneously render the TOS provision unenforceable, at least implicitly?

This opinion isn’t precedential, so it is definitely not the final word on the matter. However, it’s also clear that this litigation genre is doomed, one way or another. The sooner, the better.

Even if (a)(1) doesn’t have a private right of action, businesses should still scrub their TOSes for any provisions that might be construed as restrictions on consumer reviews. Among other problems, enforcing those provisions could still trigger the private right of action.

Selected Blog Posts Regarding 1670.8