Competitor’s Google review accusing P of “scam” was nondefamatory opinion

Creditors Relief LLC v. United Debt Settlement LLC, 2019 WL
7288978, No. 17-7474 (D.N.J. Dec. 30, 2019)
Plaintiff CR is a New Jersey-based debt settlement company that
has allegedly “received significant publicity and an A+ rating from the Better
Business Bureau.” Defendant Marcel Bluvstein, a New York resident, is a
principal of New York-based Defendant United Settlement and New Jersey-based
Defendant EIIS. He contacted CR, stating that he was looking for debt relief
services, and received a standard client agreement. This call was allegedly a
sham – intended only to learn about Plaintiff’s business and gain access to this
Creditors Relief Agreement. Shortly thereafter, Bluvstein allegedly founded
United Settlement as a competing debt relief services business and allegedly
copied content from the CR website, including a “Recent Results” graphic showing
results obtained by CR. It also allegedly misrepresented statistics regarding
the total and average savings obtained by its clients.
After CR’s attorneys sent a letter to United Settlement and
Bluvstein alleging copyright infringement and false advertising, defendants
allegedly attacked CR online, e.g., with a Google review stating, “Beware of
this company! I called them to get advice on my business debt, after speaking
with my creditor I decided to deal with the matter myself. After the company
learned 1 settled my own debt they sent me a cease and desist and threatened to
sue.” Also: “This company is a scam! Read the reviews on the CEO Michael
Lupolover. Beware collects ridiculous fees and does NOT get the job done!” A
similar review on the BBB’s website allegedly caused Plaintiff’s BBB rating to
slip below A+. Initially posted by a “Marcel B.,” the poster’s name allegedly later
changed to “Ruth A.”

After finding that it couldn’t exercise personal jurisdiction over Bluvstein or
United Settlement, the court dismissed the remaining claims against EIIS.
First, competitor plaintiffs who didn’t suffer injury as
consumers don’t have standing under the New Jersey Consumer Fraud Act. There
aren’t definitive state cases, but the DNJ has come to this conclusion; here
the court rejects the specious argument that Citizens United bars such
discrimination against the corporate form, which isn’t even relevant because
corporations who are consumers of falsely advertised products/services
have standing under the NJCFA.
Defamation: Nothing defamatory here, just opinion. [The
court does not have to deal with the allegedly false pretense of being a
consumer, rather than a competitor. It is not opinion to say that “I called
them to get advice on my business debt”—it still might be a nondefamatory falsehood,
but defamation is not required for Lanham Act liability.] The BBB review:
Beware of this company, they are
un-American! I contacted Plaintiff in search for help with my business cash
advance loan. After getting the contract emailed to me … [I] did not sign the
contract …. When Michael L[upolover, member of Plaintiff] learned I opened my
own company and settled my own debt he sent me cease and desist letter and is
now threatening to sue. This company is un-American and feels entitled. Just
because I spoke to them they feel they own me and I have no rights, think again
Michael L[upolover]! This company is greedy and unfair …. Beware of this company!!
In the first statement above, the only plausibly defamatory
part was: “Beware of this company!” That’s opinion. In the second statement, “This
company is a scam!”; “Beware collects ridiculous fees”; and “does NOT get the
job done,” were possibilities. In the context of an online review, “scam” was
opinion, and the words surrounding the “scam” epithet were non-factual: “Read
the reviews on the CEO Michael Lupolover. Beware collects ridiculous fees and
does NOT get the job done!” “This does not imply fraud, which is provably true
or false, but instead suggests the speaker’s opinion as to the value of
Plaintiff’s services.” A reasonable reader would not understand an accusation
of crime or fraud, but would see name-calling and hyperbole. The third
statement: “Beware of this company, they are un-American!”; “This company is
un-American and feels entitled”; and “This company is greedy and unfair” were
also non-actionable opinions.
Tortious interference: failed for want of identification of
specific lost contracts/opportunities.
Lanham Act and copyright claims: failed because not alleged
against the remaining defendant, EIIS. Only Bluvstein and United Settlement allegedly
copied the Creditors Relief agreement and website.

from Blogger

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