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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.

Who is Responsible for the 36 Victims in Deadly Oakland Fire?

With 36 confirmed dead in an Oakland warehouse fire, many grieving families want answers as to what, and who, is responsible for the deadly fire that trapped so many during an electric dance party in a building with no smoke alarms or sprinkler systems.

The former warehouse was a dilapidated two-story structure that, from the outside, appeared to be abandoned because of the disrepair it was in.  In fact, a citation was issued to the owner sometime in November for hazardous trash and debris outside of the building, but city and state officials have also fielded numerous complaints over the years about dangerous conditions, drugs, all-night dance parties, neglected children, trash, thefts and squabbles at the warehouse.  Zoning officials were also investigating complaints of illegal construction on the property, as well as illegal residential use, but neither were confirmed by inspectors.

Witnesses have described the interior as a maze of man-made studios, workshops and residences with couches, pianos, beds, microwaves, refrigerators, hot plates, music equipment, a man-made staircase made of wooden pallets connecting the ground floor to the second story, and even RVs.  Power sources have been described as just numerous extension cords plugged into each other.

With all the speculation surrounding ignored building codes, dangerous conditions and what the building was actually being used for, it begs the question about who’s responsible.  Is it the owner of the building?  The manager?  The host of the party?  Or someone else?

These Types of Buildings Aren’t Uncommon in Bay Area

With skyrocket rent in the Bay area, these little communities aren’t uncommon.  Derek Ion Almena had signed a lease for the property and apparently subleased space to others in what’s become known as the “Ghost Ship”.  According to the Today show, Almena said he opened the warehouse to artists who couldn’t pay the rent because their dreams were “…bigger than your pocketbook.”

The warehouse owner’s, Chor N. Ng, daughter, Eva Ng, however, told the Los Angeles Times that the warehouse was leased as studio space for an art collective and not as a dwelling.  This will definitely make a difference because zoning standards are stricter for residential uses.  Almena insisted the building was leased to “city standards supposedly”, but the warehouse was permitted only as a one-story warehouse, not for entertainment or residential use.

An official report about the cause of the fire hasn’t been released yet, but there has been speculation that it started with a
refrigerator.

Everyone is Looking for Someone to Blame

What kind of claims should we expect to see here?  Wrongful death suits to start, which would likely name Ng and Almena for liability, but there’s a whole slew of people that could be put up to the plate.  Keep in mind that cioakland firevil tort cases like this only require a preponderance of the evidence, which is a much easier and lower standard to prove than the beyond a reasonable doubt standard in a criminal case.

Let’s take a closer look at potential targets that could get sued for liability.

  • The owner, Chor N. Ng. The first obvious choice for liability, even despite the fact that the owner of the building may have been blind to the fact that people were living within the building.  The owner will still have some liability, though, as landlords have a general responsibility to know what’s going on on their property.
  • The manager, Derek Ion Almena. The second obvious choice.  Did the lease allow him to sublease?  If not, this is definitely an argument Ng could use in her favor.  Landlord tenant law generally puts liability for damages on who is at fault for the fire.  Since this fire involved so many deaths, though, any action, or lack of action on behalf of the owner, that gives even a glimpse of responsibility is going to be scrutinized under a magnifying glass.
  • Promoter of the party. Who threw the electric dance party?  This may not be your first thought, but there’s likely liability here as well.  Almena’s wife and child, who lived in the building, were reportedly staying at a hotel that night, which eludes to the fact that Almena may have at least had knowledge of the party.
  • Contractors, engineers, or architects. Basically, anyone that has worked on the site throughout the years could be targets.
  • Manufacturers. Did an appliance within the building have faulty wiring that sparked or contributed to the fire?  There definitely seems to be some mitigating factors here, though, even if this is the case, especially when you consider the way witnesses described the makeshift and sloppy way power sources were hooked up.
  • The City of Oakland. However, this one seems less likely since they could assert governmental immunity and the city was already doing their part to investigate whether there was illegal use.  Even still, allegations that the warehouse has not been inspected for over 30 years could present issues for the city.

Depending on the outcome of the investigation, criminal liability could be possible for the owner and manager as well.  Arson hasn’t been ruled out yet and the local prosecutor has even said the state hasn’t ruled out the possibility of murder charges.

Nude Recordings of Minors Showering Not Lascivious Enough to Constitute Child Pornography

A Tennessee man’s sexual exploitation convictions have been overturned by the state’s highest court because his nude recordings of minors weren’t lascivious enough to be considered child pornography. Tennessee’s sexual exploitation laws are basically a reworded version of other production of child pornography laws, but unlike other states, Tennessee doesn’t consider the viewer’s intent of sexual arousal an element of the crime. Because of this distinction, a man’s recordings for his own perverse satisfaction ended up landing him a conviction for mere spying.

Thomas Whited was arrested for hiding a camera phone in the bathroom and bedroom used by his 12-year-old daughter. The phone was positioned in the bathroom to record his daughter as she prepared for a shower and after-shower bathroom activities.  The phone in the bedroom was planted just before Whited’s daughter and her 14-year-old friend entered the bedroom to change out of their bikini swimsuits into dry clothes.  The phone was eventually found by Whited’s wife, who reported her husband to the police after finding several videos of the young girls on the phone. nude recording in bathrooms

Whited was convicted of nine counts of especially aggravated sexual exploitation of a minor, one count of attempt to commit that offense, 13 counts of observation without consent, and one count of attempt to commit that offense. Whited appealed his case to the Tennessee Supreme Court, mainly on the fact that the videos didn’t include sexual activity and, because of that, couldn’t be considered sexual exploitation under the state’s statute, nor could they be considered lascivious.

If you have an image/video of a naked individual, at what point does that photo become obscene and considered child pornography?

Many Laws Require the Presence of Sexual Activity

Typically, images are considered child pornography when there is a visual depiction of sexually explicit conduct involving a minor. That’s a pretty broad definition though, so the question comes down to how sexually explicit conduct is defined.

The federal legal definition of sexually explicit conduct, in which the Tennessee court applied their own similar definition, doesn’t require images to depict sexual activity in order to be considered sexually explicit, but rather the federal code only requires a “lascivious exhibition of the genitals or pubic area of any person.”

What does lascivious exhibition even mean, then? Certainly, a word that’s meaning is, in a way, subjective. Black’s Law Dictionary defines lascivious as,

“tending to excite lust; lewd; indecent; obscene; relating to sexual impurity; tending to deprave the morals in respect to sexual relations.”

Despite the fact that what tends to excite an individual is subjective to each person, there are general ideas of what pornography looks like. In fact, Justice Potter Stewart so famously described his threshold for obscenity as not definable, but rather,

“…I know it when I see it…”

Mere Nudity Isn’t Enough

Mere nudity isn’t enough to establish lascivious exhibition of private body areas. If you have a hard time wrapping your head around this, case law has previously pointed out the example of innocent photographs of naked children in the bathtub.  How do you know it when you see it here?  It would be hard to distinguish one from the other when you’re looking at merely a naked person.

Courts developed what they called the Dost factors, which take many things into consideration when determining whether there’s lascivious exhibition, but the Tennessee Supreme Court rejected those standards and instead they looked at comparative cases and found these considerations significant in the case at hand:

  • The level and nature of the nudity in the videos,
  • The emphasis on the minor victim’s private body areas,
  • The fact that the victims were engaged in everyday activities ordinarily performed nude,
  • The defendant’s audible comments and interactions with the victims recorded on the videos, and
  • the defendants’ recorded actions depicting his voyeurism in setting up the camera.

What did the court say? The nude recordings of the daughter showering were “everyday activities ordinarily performed nude” and because the videos didn’t appear to be focused solely on the children’s private body parts, they weren’t necessarily lascivious exhibition.

Did Whited luck out on a technicality? It’s not an issue of whether the court got it wrong, but rather a question of whether Tennessee lawmakers will be redrafting their statutes to have a more inclusive definition of what constitutes child pornography.  I imagine they will after this case.  Had the Tennessee statute been inclusive of language defining sexual exploitation or pornography to include an element of intent of sexual arousal/gratification, the issue of lasciviousness would have been moot at that point.

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?