Avvo Deflects Florida Lawyer's Tort Suit, Wins Fees and Penalty Under SLAPP Law

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Davis v. Avvo Inc., W.D. Wash., No. C11-1571RSM, 3/28/12

Key Holding: Florida lawyer's action against Avvo Inc. is tossed out under Washington's anti-SLAPP law as unlikely to succeed.

Potential Impact: The court's award of attorneys' fees and a $10,000 statutory penalty to Avvo may make other lawyers think twice about pressing similar lawsuits.

By Joan C. Rogers

Avvo, the lawyer-rating website, is protected by Washington's anti-SLAPP law from a Florida lawyer's tort action complaining of false advertising, the U.S. District Court for the Western District of Washington held March 28 (Davis v. Avvo Inc., W.D. Wash., No. C11-1571RSM, 3/28/12).

The court dismissed the lawsuit and awarded Avvo its attorneys' fees as well as a statutory $10,000 penalty.

Applying Washington law as per the terms of use for Avvo's website, the court found that the lawyer did not demonstrate a clear likelihood of winning his case under tort law and Washington's consumer protection act. The suit must end now, Judge Ricardo S. Martinez concluded, because Avvo's website qualifies as protected “public participation” under the anti-SLAPP law and the lawyer did not show that his claims would likely succeed.

'Beyond Unfair'
Avvo publishes an online searchable lawyer directory that rates lawyers on a scale from 1 to 10. Florida lawyer L. Joe Davis Jr. sued Avvo in August 2010, alleging that the company published misrepresentations about him in his online profile and that its business practices are “beyond unfair.” See 26 Law. Man. Prof. Conduct 561.

A Florida lawyer's suit against Avvo is dismissed as a “strategic lawsuit against public participation” because he did not prove a clear likelihood of winning his claims.

Judge Ricardo S. Martinez

Davis alleged, for example, that Avvo listed him as an employment lawyer when in fact he is a board-certified health law practitioner. He also asserted that a potential client who had used Avvo contacted him upon concluding that because he was the “lowest rated employment lawyer” he must be “desperate for employment.”

The complaint originally was filed in Florida state court. It was removed to Florida federal district court and subsequently transferred to Washington federal district court. Along the way, Davis amended the complaint several times.

After the action arrived in Washington, Avvo moved to strike the amended complaint as a “strategic lawsuit against public participation” that is forbidden under Washington's anti-SLAPP act, Wash. Rev. Code §4.24.525. The act provides a speedy way for defendants to escape frivolous lawsuits that are brought primarily to squash free speech on public issues.

Applying the act in this case, Martinez had no difficulty finding that the Avvo website is “an action involving public participation” that qualifies for anti-SLAPP protection. The profile pages on Avvo's website constitute a vehicle for discussion of public issues, he found, pointing out that the website provides potentially helpful information to the public and that the public can participate in the forum by providing reviews of lawyers.

Because the Avvo website is protected by the anti-SLAPP law, the burden shifted to Davis to show, by clear and convincing evidence, a probability of prevailing on his claims. After delving into those claims, Martinez concluded that Davis did not meet that burden.

Washington Law Applies
En route to that conclusion, the court held that Washington law applied to all of Davis's claims, because when he registered on Avvo's website to check it out and try to fix his profile, he specifically agreed to be bound by Washington law under the website's terms of use.

The terms of use agreement includes a forum selection clause that designated federal and state courts in King County, Wash., as the forum for disputes, along with a choice of law provision calling for the application of Washington law. When the Florida district court enforced the forum selection clause and transferred the case to Washington, it held that Davis is bound by the website's terms of use, Martinez noted.

Martinez concluded that the choice of law clause is enforceable because Florida, the transferring jurisdiction, views contractual choice of law provisions as valid unless the law of the chosen forum contravenes strong public policy.

In this case, Martinez noted, the Florida district court determined that the Washington Consumer Protection Act (WCPA) is substantially similar to Florida's deceptive trade practices act, and that the application of Washington law would not be unfair to Davis. Thus, the WCPA governs Davis's claims rather than Florida law, the court held.

Martinez added that as an experienced lawyer, Davis should have anticipated that the Washington district court would find him bound by the choice of law provision in the Avvo website's terms of use. Davis chose to oppose the motion to strike solely under Florida law even though the transfer order put him on notice that he was bound by the terms of use, he noted.

Profiles Aren't Trade or Commerce
The WCPA provides citizens with a private cause of action if they are injured in their business or property by a violation of the act. Wash. Rev. Code §19.86.090. To prevail, a plaintiff must prove (1) an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) affecting the public interest, (4) injury to the plaintiff's business or property, and (5) causation.

In his third amended complaint, Davis claimed that Avvo misrepresented his practice area by depicting him as an employment lawyer when he is actually a Florida-certified specialist in health law, and that Avvo misappropriated his image for placement on his profile page.

Martinez pointed out, however, that Browne v. Avvo Inc., 525 F. Supp.2d 1249, 24 Law. Man. Prof. Conduct 4 (W.D. Wash. 2007), held that Avvo's publication of information and ratings is not “trade or commerce” and therefore cannot form the basis of a claim under the WCPA.

Under Browne, Martinez decided, Davis cannot assert a claim under the WCPA for the alleged misrepresentation of his practice area or the use of his image, as these are part of his profile and thus aren't trade or commerce.

Davis asserted that Avvo misstates lawyers' practice areas as a way to force them to claim their profile so that they can correct it, and that Avvo then induces them to buy a “Pro” membership to prevent competitors' ads from appearing on their profile pages. This business tactic amounts to a deceptive practice in trade or commerce, he contended.

Martinez found that these conclusory allegations did not satisfy Davis's burden under the anti-SLAPP statute. Davis did not present any evidence to support the allegations, nor did he say how Avvo's supposedly deceptive act induced him to act or refrain from acting in some manner, so as to establish causation for his loss, Martinez said.

Nor did Davis allege any actual damages caused by the allegedly deceptive act, the court added. Although the complaint asserted that his time was wasted when the prospective client called Davis about an employment matter due to the erroneous Avvo listing, she apparently called him in spite of the advertisements by other attorneys on his profile page, not because of them, Martinez pointed out.

The court concluded that Davis failed to produce any evidence that would demonstrate a probability of prevailing under the WCPA. Nor did he produce any evidence to support his Florida state law claims for false advertising and misuse of likeness, or argue any elements of these claims under Washington law, Martinez said.

Attorneys' Fees and Penalty
The court found that as the prevailing party on the anti-SLAPP motion, Avvo is entitled to reasonable attorneys' fees and litigation costs together with a statutory award of $10,000 pursuant to Wash. Rev. Code §4.24.525(6)(a). Avvo will be awarded attorneys' fees incurred in bringing both the motion to transfer and the motion to strike, the court ruled.

Joe Davis of Davis & Harris, St. Petersburg, Fla., represented himself. Avvo's attorneys were Gregg D. Thomas, Paul R. McAdoo, and Susan T. Bunch of Thomas & LoCicero, Tampa, Fla.; Ambika K. Doran and Bruce E.H. Johnson of Davis Wright Tremaine, Seattle; and Geoffrey A. Belzer of Wilson Elser Moskowitz Edelman & Dicker, Chicago.

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