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Avvo’s First Amendment Rights Trump Legal Challenges

Two putative class-action lawsuits that took aim at the way Avvo uses sponsored listings to earn revenue have fizzled out, with one case ending in a settlement and the other in a dismissal.
We first reported on the lawsuits in the June issue of Attorney Journal. We were interested in the cases—one being litigated in Illinois, and the other in California—due to the fact that many of our clients use Avvo’s online attorney directory as part of their marketing campaigns.

KEY ISSUE: UNLAWFUL USE OF LAWYERS' IDENTITIES OR PROTECTED SPEECH?
The central issue that emerged in both cases was whether Avvo unlawfully generated revenue by using the identities of lawyers who do not buy sponsored listings on the directory—without the lawyers’ consent—or whether Avvo was simply exercising its right to free speech.
On September 12, a federal court judge in Illinois found that it was the latter and dismissed a lawsuit that was filed against the Seattle-based company in February 2016. As The Cook County Record reports, the judge compared Avvo’s attorney listings to the Yellow Pages.
That ruling came six weeks after the named plaintiff in a similar lawsuit in California voluntarily dismissed his complaint and agreed to a settlement with Avvo that would allow him to pay only a portion of the company’s attorney fees, according to Courthouse News (CN).
CN reports that the plaintiff reached the settlement after it became “very, very clear” that a federal court judge would strike his complaint under California’s anti-SLAPP law, which imposes attorney fees on plaintiffs who seek to suppress protected speech.
“This is further validation that publishers like Avvo needn’t obtain the consent of their subjects prior to exercising their First Amendment rights,” Avvo’s chief legal officer, Josh King, said in a September 13 press release issued by the company after the ruling in the Illinois case.
“The purpose of a free and unfettered media is to provide transparency and openness,” King added. “While we never felt like the principle was really at risk here, we’re pleased at the explicit recognition that our efforts to help people better understand lawyers and the legal profession are fully protected by the First Amendment.”

LAWSUITS BROUGHT RIGHT OF PUBLICITY, MISAPPROPRIATION CLAIMS
As we noted in May, Avvo has successfully fended off many other legal challenges in the past, including:

  • An unfair and deceptive trade practices claim brought by a pair of Seattle lawyers after the online legal directory launched in 2007 (reported in the Seattle Times)
  • A lawsuit alleging false advertising and misrepresentation that a Florida lawyer filed in 2010 (reported in Geekwire). In the two recent lawsuits, the plaintiffs did not challenge the way Avvo lists lawyers from across the country.

The listings are based on information from public records such as state bar directories. The public can view the listings for free. A lawyer can also “claim” his or her listing and manage it for no charge.

Instead, the plaintiffs attacked the way Avvo generates revenue by selling advertising and marketing space on the lawyer profile pages through programs such as:

  • Avvo Advertising, in which lawyers pay a monthly fee to have their ads displayed as "sponsored listings" that can appear on the profile pages of other lawyers.
  • Avvo Pro, in which lawyers can pay a monthly fee to keep other attorneys' sponsored listings off their profile pages.

Both lawsuits alleged that Avvo violated their states’ right of publicity laws: California—Cal. Civ. Code § 3344 and Illinois—765 ILCS 1075.
Those laws bar the use of a person’s identity and likeness for commercial purposes without getting prior consent from the person. The lawsuits also alleged common law misappropriation claims.
The plaintiffs sought damages and a ruling that would have barred Avvo from using the identities of the named plaintiffs and other class members.

WITH ANTI-SLAPP DECISION LOOMING, CALIFORNIA CASE SETTLES
Aaron H. Darsky, a San Francisco lawyer, filed the California lawsuit in December 2015 in the U.S. District Court for the Northern District of California. (Docket No. 3:15-cv- 05495-HSG).
In his complaint, Darsky acknowledged that Avvo’s attorney listings “may be a permissible First Amendment exercise.”
However, he claimed, “Avvo’s business practices go far beyond that mere exercise” by using the names and likenesses of attorneys in the directory, without their consent, to sell advertising or marketing space to other attorneys. In that sense, Darsky alleged, the online directory amounts to unprotected commercial speech.
The lawsuit noted that, according to Bloomberg News, Avvo had a valuation of $650 million and raised $132 million in funding.
“The revenues generated by Avvo come almost exclusively from its unauthorized use” of the names and likenesses of attorneys who, like Darsky, do not use Avvo’s advertising and marketing services, the complaint stated.
As CN reports, Avvo responded by filing a motion to strike Darsky’s complaint under California’s anti-SLAPP law. The law allows sanctions to be imposed on those who bring lawsuits against parties who are merely exercising their constitutional right to free speech.
If successful, an anti-SLAPP motion can result in a lawsuit being dismissed, and the plaintiff can be ordered to pay a defendant’s attorney fees.
Here, according to CN, it became clear that U.S. District Judge Haywood S. Gilliam would rule in Avvo’s favor. CN indicates that Darsky agreed to drop his claim in exchange for paying only a portion—but not all—of Avvo’s legal fees.

ILLINOIS LAWSUIT ENDS IN DISMISSAL
The lawsuit in Illinois had been initially brought in state court by a Chicago attorney, Moria Bernstein. The ABA Journal posted the complaint. It ended up in the U.S. District Court for the Northern District of Illinois, The Cook County Record reports. (Docket No. 1:16-cv-02833).
In May, John Vrdolyak assumed status as the named plaintiff. The switch came after Avvo asserted that Bernstein had “claimed” her Avvo profile, triggering a forum selection clause in the Avvo user agreement that would have forced the case to be moved to a Seattle federal court, the Record reports.
The case stayed in Chicago, where it was dismissed by U.S. District Judge Robert W. Gettleman on September 12. In the decision, Gettleman found that, while Avvo’s sponsored listings were commercial in nature, those listings did not convert the entire online directory into commercial speech. Instead, the directory is more like the Yellow Pages—a publication in which ads can be placed—and as such, it is a form of protected speech, Gettleman held.
“The court agrees with [Avvo] that to hold otherwise would lead to the unintended result that any entity that publishes truthful newsworthy information about individuals such as teachers, directors and other professionals, such as a newspaper or yellow page directory, would risk civil liability simply because it generated revenue from advertisements placed by others in the same field,” Gettleman stated, according to the Record.
The Record did not indicate whether the plaintiff planned to appeal the decision, or whether Avvo would seek a recovery of attorney fees.

Guy Loranger

Guy Loranger is the Web Content Editor for Consultwebs.com. His role allows him to interact regularly with clients on developing website pages, press releases, blogs and other Web content that promotes their firm’s practice areas and enhances their search engine rankings. He is also Google Analytics IQ certified. www.consultwebs.com.

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Filed Under: Featured StoriesMarketing

About the Author: Guy Loranger is the Web Content Editor for Consultwebs.com. His role allows him to interact regularly with clients on developing website pages, press releases, blogs and other Web content that promotes their firm’s practice areas and enhances their search engine rankings. He is also Google Analytics IQ certified. www.consultwebs.com.

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