law firm blog about somebody else’s case isn’t commercial speech

Wexler v. Dorsey & Whitney, LLP, — F.Supp.3d —-,
2019 WL 5485265, No. 18-CV-3066-SJB (E.D.N.Y. Oct. 25, 2019)
Wexler, a lawyer proceeding pro se, sued Dorsey (a law firm
that does defendant-side Telephone & Consumer Protection Act work) and a
former employee, Betpera, for a blog post on Dorsey’s blog about consumer
financial services law.  The blog post
discussed a putative class action Wexler filed as counsel in the Eastern
District of New York under the TCPA against AT&T. In that case, a judge
found the putative class representative to be inadequate as a matter of law
because she was Wexler’s wife; for the case to proceed as a putative class
action, Wexler would have to withdraw as counsel and renounce any interest in a
future fee award.  Wexler v. AT&T
Corp., 323 F.R.D. 128, 129 (E.D.N.Y. 2018). (Wexler was joined by co-counsel
after the suit was filed.) Although Wexler was willing to do that, he wanted
the ability to seek fees for work up to that point based on quantum meruit. The
court thought that was still a conflict because that would come out of class
recovery, and therefore struck the class allegations.
Dorsey’s blog claims that “Dorsey’s attorneys have handled
dozens of nationwide TCPA class actions. They know the tricks used by class
action lawyers and how best to thwart them at the outset.”  After the opinion issued, Dorsey published a
“Legal Update” by Betpera, headlined “TCPA Class Certification Denial Exposes Major
Spousal Scheme.” After discussing Betpera’s own hobbies with his wife, then
summarizing the case, it concluded, “Maybe the Wexlers should try salsa dancing
instead.” A different website linked to the blog post with the title “Husband
Lawyer Tried Using His Spouse as Class Representative in TCPA Case,” and
offered, “Having read [the Dorsey article], my only question is, for how long
did they think they could get away with it?”
Defamation: “Major Spousal Scheme” can’t be defamatory; it’s
just opinion, especially in context. 
“Scheme” doesn’t necessarily mean deception or impropriety, even with
“expos[ure]” also in the headline. Overall, “major spousal scheme” “is not
capable of precise and specific meaning.” A law blog is like an editorial or op-ed
page, and thus the context “encourag[es] a freewheeling, anything-goes writing
style” “characteristic of opinion writing, not factual recitation.” Given that
the post “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) …. [N]o one could reasonably
read the article and its headline as anything other than the author’s opinion
and editorial gloss on a court decision.” Nor did the headline or article imply
the existence of undisclosed facts.
Lanham Act false advertising: the blog was not “commercial advertising or promotion.”  The post was on a website titled “Consumer
Financial Services Legal Update,” “with a web address different than Dorsey’s
firm website.” It was attributed to Dorsey and used Dorsey’s logo, but the
post’s content didn’t relate to Dorsey and didn’t mention by name or
implication any services Dorsey provides. Dorsey wasn’t involved in the
underlying case, which 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.”

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