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Case Study

Landmark Case Won Using Anti-SLAPP Law Defense; Win Supports First Amendment

1st Amendment Cyber

Background
Avvo is an online legal and health professional directory and Q&A forum. It posts attorney and doctor profiles using content gathered from publicly available information including state bar associations, state courts and lawyers’ and law firms’ websites.

Attorneys from Wilson Elser’s Data Security & Cyber Liability practice represented Avvo in this matter. A Florida-based attorney sued Avvo for false advertising and misrepresentation, claiming that his profile was incorrect, specifically that his practice area was inaccurate and that it wrongly indicated that he had been sanctioned by the Florida State Bar, which was factually correct. The plaintiff’s demand included punitive and exemplary damages and statutory attorneys’ fees on four separate claims.

Approach
Wilson Elser, with local counsel, removed the case to the U.S. District Court for the Middle District of Florida, and then successfully moved to transfer the case to U.S. District Court for the Western District of Washington, based upon the forum selection clause on Avvo’s website.

When the case was transferred to Washington, the defense filed a motion for dismissal and sought relief under the state’s Anti-SLAPP (Strategic Lawsuits against Public Participation) statue, which allows a defendant company or person to file a special motion to strike any claim that is based on his or its statements about an issue of public concern. In addition to dismissing the lawsuit, prevailing under this statue entitles the defendant to receive reimbursement of attorneys' fees, court costs, and an automatic statutory damage award of $10,000. The court may also order the plaintiff or the plaintiff's attorney to pay the defendant's attorneys' fees.

Results
Wilson Elser prevailed under the Anti-SLAPP statute. The court granted Avvo’s motion to dismiss and awarded the company the $10,000 statutory penalty and nearly $50,000 in attorneys’ fees and costs.

This is a significant win as the court awarded statutory damages and attorneys' fees against a plaintiff for bringing suit. Before the Anti-SLAPP Act, companies that provided information to assist consumers in making informed choices had no legitimate recourse when they were unfairly sued for communicating something that a plaintiff did not like. The defendant companies had to incur the cost of defending themselves, even when the lawsuit was unfounded.

The Anti-SLAPP Act provides for rapid resolution of lawsuits filed primarily to chill free speech, and effectively applies a “loser pays” solution to make plaintiffs reconsider filing baseless lawsuits.

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