Yelp, and websites like it, have certainly added to the development of law in the First Amendment area. The Virginia Supreme Court is poised to decide the standard for unmasking anonymous commentators on websites like Yelp. Last month, a Texas law firm filed a defamation suit against a former client over his Yelp review; stay tuned for the likely anti-SPAPP motion there.
Which brings us to Dr. Akl and his former patient, John Kandrac. Kandrac visited Alk’s Washington Travel Clinic, and had a poor experience. He posted a review to Yelp in which he gave Akl one star (out of five), complained about being kept waiting for his appointment, that he had received another patient’s information in error, and about Akl’s bedside manner.
Unhappy about the review, Akl emailed Kandrac, who posed an amended review that modified certain aspects of the original review. Still unhappy, the Washington Travel Clinic and Akl filed a two-count complaint, asserting claims for defamation and tortious interference with prospective business advantage against Kandrac. They then filed an Amended Complaint, which provided more details about the back-and-forth between the parties that preceded the lawsuit.
The fact that Akl filed suit was not surprising because, as Kandrac’s anti-SLAPP brief explained, “he is a serial litigator who has filed no fewer than thirteen separate lawsuits in various jurisdictions against dozens of individuals . . .”. With respect to this suit, Kandrac argued that it was a classic SLAPP that must be dismissed because it arose from an act in furtherance of the right of advocacy on issues of public interest (i.e., it was a statement made on the Internet about an issue related to health, safety or a service in the marketplace). He thus argued that dismissal was appropriate because the review was protected opinion, was not defamatory, and was substantially true.
After the plaintiffs filed their opposition brief, and Kandrac filed his reply brief, the DC Superior Court issued an Omnibus Order that dismissed the majority of the Amended Complaint. The court held that “the claims at issue fall under the broad umbrella of the Anti-SLAPP Act” because Kandrac’s “reviews were clearly his communication of views about Plaintiff Akl’s practice to other members of the community and thus was related to a service in the marketplace.” Turning to whether the plaintiffs had provided prima facie evidence to demonstrate a likelihood of success on the merits, the court held that, for the majority of the claims, they had not because:
- whether Akl administered vaccines in a manner that was more painful than other doctors was a subjective opinion;
- Akl provided no evidence to support his claim that he did not take a phone call from another patient while attending to Kandrac;
- Akl provided no evidence to support his claim that he arrived on time for his appointment/not kept Kandrac waiting; and
- Akl provided no evidence that he did not keep patients waiting in the hallway.
The court held, however, that, while Kandrac wrote that he erroneously received another patient’s information, his affidavits state “that he only received receipts and apparently deleted email containing information about other patients.” As a result, the court held that “[p]laintiffs have put forward a sufficient prima facie showing of facts that could sustain a favorable judgment if credited by the trier of fact.”
There was then a flurry of dizzying submissions: Kandrac moved for reconsideration, arguing that, for the one surviving claim, plaintiffs had not offered any evidence of damages, and had thus not demonstrated a likelihood of success on the merits. The plaintiffs filed an opposition, arguing that damages are presumed where the “defamatory words are libel per se.” Kandrac replied that was wrong; the plaintiffs filed a surreply arguing that they were correct; then filed a supplemental brief; to which Kandrac responded.
In the interim, Kandrac filed a notice of appeal to the DC Court of Appeals from that aspect of the Superior Court’s Order denying his anti-SLAPP motion on the one statement. That appeal is stayed, pending the outcome of the reconsideration motion.