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Can You Get Sued for Your Critical Yelp Review?

In a world where fast-food chains get blamed for customers biting off too big of pieces of chicken and coffee chains get sued for for under filling their lattes, it shouldn’t come as a surprise when someone gets sued for leaving a bad yelp review.  Yet, somehow… it still does.

Lan Cai, a 20-year-old nursing student, was seriously injured in a car accident.  Driving home from her waitressing shift late one night, she was struck by a drunk driver, ultimately leaving her with two broken bones in her lower back.  With the high costs of medical bills, Cai understandably critical yelp reviewsought out legal help to prove her damages.

Cai hired the Texas law firm of Tuan A. Khuu, who she claims was extremely unprofessional.  After writing about her experience with the firm on her Facebook page and via a Yelp review, Cai received cease and desist letter from Keith Nguyen, a lawyer at the Khuu firm, threatening suit if she didn’t remove her posts.  Cai refused and Nguyen proceeded with his lawsuit demanding close to $200,000.

What Did the Firm Sue for?

Defamation, libel per se, defamation per se, and injunctive relief.  The judge wasn’t buying it, though, and dismissed the case, ordering the Khuu firm to pay $26,831.55 in attorney’s fees.  The firm’s actions backfired and they have, unsurprisingly, received even more negative attention than they had to begin with.

This isn’t the first time a case like this has been brought before a court.  Earlier this year, a pet sitting business sued a Texas couple for up to 1 million for leaving a one-star review on Yelp.  What did the couple complain about on the review that was so harrowing to the pet sitting company?  Their fish had been overfed.

What’s to Stop Companies from Suing?

Well, it depends on where you live because there aren’t any federal protections, unless you count the First Amendment (which you should).  Let’s rephrase that to there aren’t any federal protections that address these specific issues surrounding negative reviews of online.

These suits aren’t uncommon and they fall under a classic SLAPP type lawsuit.  SLAPP lawsuits (Strategic Lawsuit Against Public Participation) , which are illegal in many jurisdictions, are intended to censor or silence critics by burdening them with the cost of legal defense in the hopes they comply with whatever it is the plaintiff wants them to do (or not do).

Sometimes you’ll also see companies trying to sue their customers/clients for leaving negative reviews because the client has signed some sort of non-disparagement clause.  What’s that, you ask?  Basically, it’s a clause in a contract (usually in the fine print) that prohibits the signor from taking any action that might negatively impact the business.

California has a law that’s been notoriously nicknamed the “Yelp Bill” because it renders these types of clauses null and void.  Others, like Texas, have laws that allow SLAPP lawsuits to be thrown out at early stages of litigation.  Remember the Texas couple with the fish?  They signed a non-disparagement clause.  Luckily for the couple, the case was dismissed, but I doubt it will be the last of its kind unless some kind of federal legislation is passed.

Negative Reviews May Prevail Depending On California Supreme Court Decision

The California Supreme Court is set to hear an appeal brought by Yelp involving a similar case similar to Cai’s.  In that case, a lower court ordered Yelp to remove a negative review off their website because a former client of a law firm left statements on the popular website that were found to be legally defamatory.

Yelp argues a favorable outcome for the law firm would open up the flood gates for businesses to force the company to remove critical reviews and, thus, infringing on free speech rights.  The law firm, on the other hand, argues their case is unique in that they’re only asking the company to remove the review that contained defamatory statements.

In theory, yes, defamatory statements made on the review site pose a different set of problems, but even still, forcing Yelp to remove the review will open up a can of worms.

If not, Hopefully Congress to the Rescue

How many of you have ever left a Yelp review?  How many of you have ever relied on one of those Yelp reviews when choosing a company to give business to?  Even something as simple as deciding what restaurant to go for dinner?

With big companies like Twitter, Facebook, Microsoft, and Yelp advocating for better consumer protection, Congress has started to listen.  Currently, Congress is trying to pass legislation through the House that would ensure customers are protected from any legal repercussions when leaving negative reviews online.

Last year, a similar bill was passed through the Senate and, although the two bills need to be merged before they can be officially signed into law by the president, both bills accomplish the same thing.  Business contracts for goods or services will be restricted from using non-disparagement clauses, or anything like it, that would prohibit negative reviews.

Why A Blind Trust Is So Important for a Trump Presidency

Not every U.S. President has used blind trusts during their time in office.  In fact, Obama was the most recent president that chose not to use a blind trust.  However, the Obamas had bank accounts, treasury notes, index funds and college savings that were unlikely to pose any direct conflicts of interest while in office. President elect Donald Trump can’t say the same thing regarding his financial portfolio—he’s set to be the wealthiest president in American history.

Trump’s attorney, Michel Cohen, recently announced that Trump’s massive business holdings would in fact be placed into a blind trust to be controlled by his three eldest children.  If you’re not sure whether that sounds like a conflict of interest in and of itself, let’s take a look at what a true blind trust should look like.

“Blind” means Blind

A blind trblind trustust is a trust in which the trustee has full discretion over the assets and the trust beneficiaries have no knowledge or communication of the holdings of the trust.  These are typically used by federal officials to avoid any potential conflicts of interest that may arise during their time in office.  The federal government recognizes “qualified blind trusts” (QBT), but in order for them to be qualified, the trusts must not be affiliated with, associated with, related to, or subject to the control or influence of the federal official.

A trustee has full discretion over the assets within a blind trust, which means a trustee should not be a current or former investment advisor, accountant, attorney, or relative.  In other words, in order for a trust to be completely blind, the trustee needs to essentially be a stranger.  At the very least, it should be someone that doesn’t have any personal incentive or ties to the federal official.

Not only do Trump’s children have financial beneficiary conflicts with managing the trust, but they continue to advise Trump on his transition team, making the details of the trust extremely accessible to Trump.  It’s a bit misleading for Cohen to represent Trump’s plans as a blind trust.  It’s not blind at all.

What’s another important requirement of a blind trust?  It’s hard for a trust owner to be truly bling to their holdings unless assets are liquidated and then transferred into the blind trust.  Doing so allows the the trustee to reinvest and/or manage the assets at their discretion, leaving a trust owner completely blind.  This would require Trump to sell everything, some of which he doesn’t even have the power to do without partner consent.  Letting his children take over and run the businesses isn’t enough for him to be completely blind.

Unprecedented Business Dealings Present Greater Conflict of Interest Threats

So, we’ve settled on the fact that, as of now, Trump’s blind trust will not actually be a blind trust.  Why should it matter, you ask?

Trump is unique from any other president in that so much of his wealth is tied to the “Trump” brand.  Trump has listed roughly 500 companies on his latest FEC filing and has business deals in more than half a dozen countries.  There has never been a president with as vast of business conflicts both domestically and internationally before and, even despite the best of intentions, anyone with the sheer number of companies as Trump would be hard pressed to make completely unbiased decisions.

A blind trust, a true one, would prevent partial decision making for personal economic interest, which is why conflict of interest laws were created in the first place.

In the wake of the Nixon Watergate scandal, the Ethics in Government Act of 1978 was passed, creating mandatory public disclosure laws for public officials and their immediate family.  In addition to public disclosure, the Act mandates that officials cannot use their public office for personal gain.  Congress has, however, exempted presidents and vice presidents from these conflict-of-interest laws on the basis that a presidency has so much power that any possible decisions or actions would be nearly impossible to be kept free from conflicts of interest; requiring the executive office to remove themselves from decision making when there’s a conflict could create constitutional issues.

There’s a deep seated principle that an official shouldn’t use public office for private gain and, even despite the looser legal requirements, most presidents have have opted to take measures to separate themselves from their personal financial assets in order to avoid conflicts of interest.  Nevertheless, Trump has construed these looser requirements to mean “the president can’t have a conflict of interest.”  I do believe that’s quite the opposite of the intent of the exemption but, even so, there isn’t really anything stopping Trump from continuing to operate business as usual.

So How About that Wall?

President-elect Donald Trump made building a wall on the US-Mexico border a pillar of his campaign. Post-election interviews reveal he intends to keep and act upon this campaign promise. No matter one’s opinion on whether building such a wall is right course of action, there are many practical concerns to be addressed.

How Big and How Expensive will it be?

The US-Mexico border is 1,989 miles long and the President-elect has proposed 35-foot-tall walls. As far as cost, some good estimates can be made as US Customs and Border Protection already began building some fences in 2007 and the Government Accountability Office released a report on the costs and issues faced. The GAO reported that the amount of fence constructed already has cost up to $5 million per mile. Basic math then tells us that this could cost $10 billion just for a fence along the entirety of the border. However, the President-elect has promised a “wall”, this may prove to be even more expensive. Furthermore, the current work was done to tackle areas of public land first to avoid dealing with private land owners. Eventually, the government must either get permission to build across private land or take the land through a process called eminent domain.

How will the Government Get the Land?

Trump and the WallCan the government really take land from private land owners? Yes, it can, both state governments and the federal government may do so. The Constitution specifically allows the government to do so as long as they pay fair market value for the land. That is, if the government wishes to seize the land and the owner refuses to sell it willingly the government may seize it against the owner’s wishes as long as the government pays fair market value.

Another requirement is the seized land must be used for some public purpose. This mean that eminent domain cannot be used to seize land for purely private purposes. For example, a state governor could not use eminent domain to seize land for their friend to build a private home on the land. On the other side, clearly public uses are easily approved, such as seizing land for public utility purposes like electricity poles and telephone cables. Many projects fall in the middle of this spectrum so the legitimacy of eminent domain is questionable in these areas. However, Supreme Court cases on this issue though have found this to be almost a non-issue. In particular, the Supreme Court case of Kelo v. City of New London rendered this issue almost unimportant. In Kelo, the city of New London, Connecticut wished to seize Ms. Susette Kelo’s home so that the headquarters of a private company could be built on the land. While Ms. Kelo asserted that this was a private use, the Supreme Court disagreed. The ruling in Kelo has set precedent that questionable eminent domain takings will usually be upheld by US courts.

Overall, a border wall would likely not encounter any issues with eminent domain. It’s clearly for a public purpose, national security and immigration. With this hurdle passed, the only issue would be fair market value for the land. US Customs and Border Protection has already estimated this cost to be about $800,000 per mile.

Is This Already Happening?

Yes, it is already happening. When US Customs and Border Protection began building these border fences in 2007 they needed some private land that is on the US-Mexico border. Many land owners willingly sold their land, while others chose to fight the taking in court. Unfortunately for the land owners, courts consistently ruled for the federal government. This very thing happened when US Customs and Border Protection needed Dr. Eloisa G. Tamez’s ancestral land to build a border fence. Dr. Tamez took the federal government to court. In 2013 a US court ruled that US Customs and Border Protection could take Dr. Tamez’s land that had been inhabited by her family since 1767. Dr, Tamez’s case is not unusual and similar incidents are very likely to occur if the President-elect carries out his campaign promise.

Is This Really Going to Happen?

It looks like the President-elect’s plan is entirely possible and plausible. The federal government would likely be able to acquire any border land it needs for the wall through eminent domain. The only hurdle would be the cost, which would have to be set aside by Congress. However, this likely will not be an issue either as Congress has consistently approved funding for border fencing and border patrols. Overall, if the President-elect decides the act upon this campaign promise there will be very little to stop him.

Marijuana is Legal for Recreational Use in Four More States; Now What?

On November 8th, California, Maine, Massachusetts, and Nevada joined the current four states and DC in the legalization of marijuana for recreational use. Some herald this as success, others decry it as a tragedy. What is beyond question is that those who do choose to use marijuana should keep in mind the limitations of the legalization measures and the continuing risks.

Possession Limits

As a baseline, all the passed measures require that you be at least 21 years old to possess marijuana. Under the new measures, there are limits to how much an individual may possess and grow for personal use. Possessing or growing more than allowed is still illegal, even under state law. California allows a person over 21 to possess 28.5 grams of marijuana, Maine allows two and a half ounces, and Massachusetts and Nevada allow one ounce. All four states allow a person over 21 to grow up to 6 marijuana plants and to keep the harvested marijuana for their personal use.

Growing Restrictions

In addition to the possession limits, there are requirements upon how you must go about growing marijuana. First, the marijuana must be for your own personal use or given in limited quantities to Marijuana Lawothers over 21. You may not accept payment for marijuana grown for personal consumption and can only give away a limited amount. The four measures vary slightly on location requirements for growing. Overall, all four require any marijuana be grown in a place where it is kept safely out of the reach of children.

Sale and Giving Away

Both selling and giving away marijuana are addressed in the new measures. In all four states, under the new measures, you may give away, without any sort of payment, up to one ounce of marijuana. Sale is absolutely forbidden unless you follow new state licensing and regulatory procedures to become a marijuana business.

Where and When?

All four measures also limit where and when marijuana may be used. The measures all prohibit marijuana use in public, including public establishments like bars. They also prohibit marijuana use in or near premises frequented by children such as community centers and schools. None of the measures change DUI laws so driving under the influence of marijuana is still a criminal act in these 4 states.

Effective Date

Each of these measures has their own effective dates. That is, the day that the measures become law. California’s measure was quickest, it was effective the day after the election, November 9, 2016. Massachusetts’ measure will take effect on December 15, 2016. Nevada’s measure will take effect on January 1, 2017. Maine has yet to establish a clear effective date due to a battle currently raging in Augusta.

The Maine Problem

The marijuana legalization measure in Maine prescribed that it would take effect 30 days after Governor LePage signs it. However, LePage has been a vocal opponent of the measure ever since it was allowed onto the ballot. Currently, LePage is making statements that the measure violates federal law and will require legislative tinkering to even be viable. The opponents of the measure are currently demanding a recount, as the measure passed on a margin of 4,000 votes. Needless to say, with the recount demands and his personal opposition, LePage is currently refusing to sign the measure. This leaves Maine law on the subject in limbo.

Still Illegal

Even with these measures passed, marijuana is still illegal across the US. Federal law still designates marijuana as a schedule one drug. This means, even if you follow all the rules set forth in the new measures, federal law enforcement such as the Drug Enforcement Agency, Bureau of Alcohol, Tobacco, and Firearms, Federal Bureau of Investigation, and Federal Marshalls may still arrest and prosecute you for possession, growing, or giving away marijuana. This comes from the fact that the United State’s federal system gives federal law supremacy over state law as explained here. To summarize, the new measures communicate to state, county, and city level police that they cannot arrest or prosecute anyone following the rules outlined in the measures but do not hold any sway over federal law enforcement.

Federal law enforcement trends on prosecuting marijuana possession have not been consistent. In this area, the President holds a lot of sway. Under the administrations of Presidents George W. Bush and Barack Obama, federal investigators and prosecutors have prosecuted those using or growing marijuana even in states that have legalized medical or recreational use. President-elect Donald Trump has not been clear in his views on marijuana. Years ago, he asserted that all drugs should be legalized. However, on the campaign trail, he proclaimed that he is ok with medicinal marijuana but not with recreational use. It is difficult to predict how a Trump administration will handle marijuana prosecution.

Overall, marijuana laws are changing. Marijuana is still not legal in the US, even for medicinal use. State laws, like the recreational marijuana measures, only protect marijuana users from state law enforcement. If you do choose to use marijuana under a state recreational marijuana measure, keep in mind the limits placed by the measure and the risks of federal prosecution.

Take Trump Tower

With President-Elect Trump using Trump Tower as his base of operations for his transition team, 5th Avenue in Manhattan is swamped by police, secret service, and security guards. If the rumors that Trump plans to spend weekends at Trump Tower are true, than New Yorkers could face diverted traffic, rerouted subways, and a no-fly zone over the city for the next four years. Security concerns are also abound, as having the President live in a skyscraper in the city will be a magnet for terrorists and madmen alike.

So far, New Yorkers have had to contend themselves with protests and taking the Trump name off some buildings. However, there may be a legal option that New York could pursue that would save them from this nightmare: Take Trump Tower.

Eminent Domain

Eminent Domain should be a familiar term to the President-Elect. Mr. Trump has spent years abusing eminent domain, a process whereby government can seize private property for public use if the property owner is given just compensation. New York may have the opportunity to turn the tides on the alleged billionaire. 

Eminent domain requires that the government seize property for public use, such as a highway. New York requires a determination that a property is necessary for construction of a public improvement. Although the state could come up with a feasible “public improvement,”  like a public park or charity, here the mere act of taking the tower could also be considered a public use. Trump’s mere presence is congesting traffic and disrupting the local economy. Having Trump in New York on a regular schedule for the next four years would destroy any public use around Trump tower and potentially endanger the lives of many Americans.

Trump’s lawyers would likely argue that Trump is putting his tower to public use, as he is the President-Elect and running the nation. However, America already has a location for that kind of use: the White House. It would be a huge waste of money to maintain both the White House and Trump Tower as headquarters for the nation’s Executive branch.

Civil Asset Forfeiture

Civil Asset Forfeiture allows the government to take property from alleged criminals. In order for the government to seize property under civil asset forfeiture, the property has to be associated with the crime. This definition allows the government to bypass traditional criminal due process – the defendant need not be found guilty for the government to seize the property. States have often abused civil asset forfeiture to seize all kinds of property, including cash, cars, and even real estate.

New York is probing the Trump Foundation for fraud. If New York were to bring criminal charges against Mr. Trump, they could assert civil forfeiture over Trump Tower if the state could show that Trump ran his foundation from his tower.

Conflicts of Interest

If New York were to seriously threaten Trump Tower, the President-Elect would almost certainly take to Twitter to insult everyone involved. Republicans would no doubt accuse New York of harassing the President-Elect through shady legal avenues.

Trump and his supporters should ask themselves though, how is it that Trump is the first President who could have his property taken from him ? Although Trump’s property is more prominent than most – Trump loves to put his name on buildings in big gold letters – there is another reason. Unlike prior Presidents, the President-Elect has neglected to place his businesses into a blind trust. Instead, he’s letting his kids run his businesses.

This presents serious conflicts of interest. If Trump had to choose between defending America and defending his property, which would Trump choose? Trump properties are in many locations around the country, including California and New York. It would not be difficult for the states most opposed to Donald Trump to threaten to seize his properties if Trump tries to push policies that those states do not want.

If blue states in America can threaten Trump’s properties, what about Trump’s real estate abroad? If Trump’s property in Scotland or Dubai were threatened, would Trump threaten military action to save his businesses, even if his businesses have nothing to do with America’s interests?



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