On August 20, 2012, San Francisco attorney Dawn Hassell signed an agreement to represent Ava Bird in a personal injury claim. Less than a month later, Hassell withdrew her representation because Bird was unresponsive to communications.
On January 28, 2013, Bird posted a one-star Yelp review about the attorney, writing that her case had “fallen through the floor” because Hassell had reneged on their agreement, adding that Hassell’s law firm didn’t “bother to communicate with me, the client, or the insurance company AT ALL” before withdrawing from the case on September 13, 2012.
Hassell sent a message to Bird, requesting she remove “factual inaccuracies and defamatory remarks” from Yelp. Bird refused and shortly after posted another negative review about the attorney’s firm using a fake name.
In response, Hassell posted a reply, stating that she “welcomed constructive criticism from clients” but took issue with Bird’s “malicious and untruthful review,” adding that during the 25 days she represented Bird, Hassell had communicated with her at least 15 times (12 in writing) and spoke to her insurance provider at least twice before withdrawing from the case.
In April 2013, Hassell sued Bird for defamation and intentional infliction of emotional distress. Bird never answered the complaint, but did acknowledge the lawsuit on Yelp.
In January 2014, the trial court held a hearing on a motion for a default judgment against Bird. The judge considered documentary evidence from Hassell and granted a default judgment against Bird for defamation, ordering her to remove the defamatory posts and awarding Hassell $557,918.75 in damages. In addition, the court ordered Yelp to remove Bird’s defamatory posts within five days.
Neither Bird nor Yelp complied with the court order, and to add insult to injury, Yelp highlighted Bird’s reviews. Hassell accused Yelp of “aiding and abetting Bird’s violation of the injunction.”
In May 2014, Yelp appealed to the Court of Appeals of California to overturn the trial court’s entire default judgment against Bird, including the order for Yelp to remove her posts. Yelp argued that Bird had not received proper service of the complaint; that Yelp was not a named party in the lawsuit; and that it was immune from any liability under the Communications Decency Act of 1996 (CDA), which gives websites and social media companies broad immunity from civil cases over the content users publish on their platforms.
How Would You Rule?
The Court of Appeals upheld the default judgment against Bird and ruled that Yelp was not immune from liability because removing the reviews posed no liability on Yelp. Bird was the only one liable for damages.
Yelp appealed to the California Supreme Court, which upheld the trial court’s default judgment against Bird. But in a 4–3 split, the court overturned the removal order against Yelp, finding that forcing a site to remove user-generated posts “can impose substantial burdens” on the online company. In the majority opinion, the chief justice wrote: “Even if it would be mechanically simple to implement such an order, compliance still could interfere with and undermine the viability of an online platform.”
A dissenting judge disagreed, warning, “The internet has the potential not only to enlighten but to spread lies, amplifying defamatory communications to an extent unmatched in our history.”
Bird’s defamatory reviews remain posted on Yelp. Bird has refused to comply with the injunction, and Yelp claims it is under no legal obligation to comply.
This article is featured in the March/April 2020 issue of The Saturday Evening Post. Subscribe to the magazine for more art, inspiring stories, fiction, humor, and features from our archives.
Featured image: BigTunaOnline / Shutterstock.com
Steve Weisman is a lawyer, college professor, author, and one of the country’s leading experts in cybersecurity, identity theft, and scams. See Steve’s other Con Watch articles.
Weight loss scams are among the most common, and with good reason. Many people want to lose weight, and most of the scam products promise to do that for you easily without diet or exercise. The unfortunate truth is that there is no magic formula for fast and easy weight loss, but con artists continue to prey on people looking for that quick solution to their weight difficulties.
In 2014, the Federal Trade Commission (FTC) and the State of Connecticut settled a case against the marketers of LeanSpa and refunded money to its victims. Now the FTC is making further refunds to people who lost money to them. LeanSpa promoted ineffective açaí berry and colon cleanse weight-loss products, falsely telling consumers that they could get free samples of these products if they paid a small shipping and handling cost. The truth is that the consumers were not only charged $79.95 for the “free” products, but also were billed monthly for additional products that were extremely difficult to cancel.
Weight loss scammers use a variety of methods to lure you into purchasing their worthless products. Many create websites that appear to feature articles from legitimate magazines or news organizations touting the miraculous weight loss products. Often they will use photos of celebrities and suggest that these celebrities endorse their products, which in many cases, they do not. Recently, a phony weight loss advertisement appeared on Instagram that contained photos of movie director Kevin Smith, who lost 60 pounds in the last year. The advertisement also contained Smith’s endorsement for the particular diet pills. However, while the before and after photos of Smith were real, having been taken from Smith’s own Instagram account, Smith took to Instagram to vehemently deny he had ever taken the diet pills or endorsed the product.
Even if a celebrity does endorse a product, it does not mean that it is effective. The FTC took legal action against former baseball great Steve Garvey for endorsing a weight loss product that was totally ineffective. Although a federal court ruled that Garvey did not knowingly misrepresent the effectiveness of the phony weight loss product, the fact remains that the product itself was worthless.
Many of the advertisements for phony weight loss products appear on social media. In June, Facebook changed its algorithm to reduce the distribution of phony weight loss products, although their efforts have not been totally effective.
As exemplified by the LeanSpa scam, many of the weight loss scam products are advertised as free trial offers. However, these free offers also ask for your credit card number, allegedly for identification purposes. The scammers then enroll the victim in monthly subscription programs that regularly charges their credit card. They also make it all but impossible to cancel the order or get a refund.
So how can you determine if a weight loss product is a scam or not? Here are the ten commandments of avoiding phony weight loss products.
- Be wary of any weight loss product that is sold exclusively either over the Internet or through mail-order advertisements.
- Don’t believe the claims of any weight loss product or program that promises that you can lose large amounts of weight quickly without dieting or exercise.
- No cream that you rub into your skin can help you lose substantial weight.
- Weight loss body wraps that purport to melt fat away don’t work. If you lose any weight, it is merely water loss. Once you rehydrate, you will gain back the lost weight.
- No product can block the absorption of fat or calories. There is no magic potion that will help you lose weight while still eating a high calorie diet.
- Spot reducing of hips, thighs or anywhere else is impossible.
- Seek advice from your doctor before starting any weight loss program or using any weight loss product.
- If a company touts scientific studies that support the miraculous claims they make for their product, you should check to see if there are any legitimate scientific studies that support their position.
- Be skeptical of celebrity endorsements. Often, as in the case of Kevin Smith, the celebrity didn’t endorse the product. Even if a celebrity endorses a product, it doesn’t mean the product is effective.
- Be particularly wary of weight loss products that claim to have a secret formula to drop weight without diet or exercise. There are no such secret formulas and if there were, they would not remain a secret for long.
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