The U.S. District Court in Seattle dismissed a lawsuit against a website that profiles and rates lawyers, doctors and dentists across the country under the Washington anti-SLAPP statute.
The complaint, originally filed in Florida by an attorney certified in health law, was moved to Washington — where the company is based — because of a forum selection clause in the Avvo.com user agreement. This clause — that all users of Avvo.com must agree to — requires any legal dispute brought against the website be resolved under the laws of Washington.
This decision reinforced the strength of Washington's anti-SLAPP law, said Bruce Johnson, a media lawyer at Davis Wright Tremaine, who represented Avvo.com. Johnson said the website acts like newspaper websites, and "just because you go on the web and do something interesting and different doesn’t mean you are suddenly going to be subject to consumer protection laws if somebody disagrees with your opinions."
Larry Joe Davis Jr., filed a lawsuit in a Florida state court, under the Florida Deceptive and Unfair Trade Practices Act after a prospective client – who viewed his profile on Avvo.com – called in regard to a hostile work environment claim. According to the opinion, the caller had selected Davis, who practices health law in St. Petersburg, Fla., because "he was the 'lowest rated employment lawyer' and assumed he was 'desperate for employment.'"
After the phone call from the would-be prospective client, Davis visited the posting on the website that labeled him an employment and labor lawyer to correct any misinformation. In order to change the information provided, Davis was required to create a profile and agree to the terms of service.
According to court documents, Davis attempted to remove himself from the service and was unsuccessful. He filed a lawsuit, for damage to his business, in August 2010. It was transferred to Washington in September 2011.
Davis claimed Avvo.com engaged in deceptive acts in trade or commerce when it misrepresented his practice, and possibly other lawyers' information, in an attempt to coerce lawyers to participate in the website to correct the misinformation. The district court held that Washington courts have established that the website does not engage in trade or commerce and therefore this claim did not form the basis of a complaint under the state's Consumer Protection Act.
Compared to Florida, Washington offers greater protection to free speech made in the public interest, under its anti-SLAPP law, according to The Reporters Committee's SLAPP Stick Guide. (SLAPP stands for strategic lawsuits against public participation.) In Washington, the anti-SLAPP statute is intended to guarantee protection to citizens for statements made on matters of public concern, in a public forum, without fear of litigation for sharing information on public issues.
The court found that the lawsuit was "an action involving public participation" because Avvo.com provides information to the public on choosing a health care professional or lawyer. Avvo.com also provides a forum for peer endorsements and for clients and patients to post reviews. The court concluded the website was a "vehicle for discussion of public issues … distributed to a large and interested community," furthering the court's conclusion that the lawsuit arose out of protected activity.
Contrary to Washington, Florida offers relatively narrow protection under its anti-SLAPP laws, for suits by government entites or involving homeowners associations.
Under the Washington anti-SLAPP statute, once Avvo.com proved Davis' claims involved a matter of public participation, the burden of proof was placed upon him. The court found that Davis failed to show by "clear and convincing evidence" that he would be successful on his claims and dismissed the case. The Washington law provides that the prevailing party be awarded $10,000 and is entitled to reasonable attorney's fees and costs incurred during the litigation on successful motions.
Davis is still listed on the Avvo.com website as an employment lawyer.
Related Reporters Committee resources:
· SLAPP Stick: Fighting frivolous lawsuits against journalists: Florida
· SLAPP Stick: Fighting frivolous lawsuits against journalists: Washington