Judge Not At All Impressed By Class Action Lawsuit Claiming Yelp Reviewers Are Really Employees

from the the-court-is-Not-Your-Personal-Army dept

Late in 2013, a few like-minded individuals decided Yelp owed them money for all the reviews they had voluntarily written over the years. The class action suit bascially alleged Yelp’s machinery was lubricated with the blood of unpaid reviewers. The original filing threw off the shackles of normal, dry legal prose in favor of phrases like “thumbing its nose at workers… and taxing authorities,” “dependent on a horde of non-wage-paid reviewers,” “system of cult-like rewards and disciplines,” and “a 21st-century galley slave ship with pirates banging the drums.”

All in all, the original complaint reads more like a screed against content farming than a list of recognizable torts. Somehow, it has managed to survive a venue shift and the ineptitude of the plaintiffs’ counsel, as well as a complete dismissal. But only barely. And with the threat of Anti-SLAPP fees looming over it. In the opinion granting the smallest of leeway to the complaining party, the judge first notes that not only are they supposed to state coherent claims, but they’re also supposed to explain why they’re entitled to relief. The court has some problems with the claims themselves.

Here, each of the three named plaintiffs alleges that he or she “was hired by Yelp, Inc. as a writer and she fulfilled that job description and job functions.” Each plaintiff allegedly was “directed how to write reviews and given other such employee type direction from employer defendant.” Yelp allegedly controlled each plaintiff’s “work schedule and conditions.” Two of the three plaintiffs are alleged to have been “fired” with “no warning [and] a flimsy explanation.”

Clearly a violation of labor laws… except for the part where the plaintiffs wholly misrepresented the actual situation.

A reasonable inference to be drawn from the complaint, and from plaintiffs’ arguments, is plaintiffs use the term “hired” to refer to a process by which any member of the public can sign up for an account on the Yelp website and submit reviews, and the term “fired” to refer to having their accounts involuntarily closed, presumably for conduct that Yelp contends breached its terms of service agreement. A further reasonable inference is that plaintiffs and the putative class members may contribute reviews under circumstances that either cannot be reasonably characterized as performing a service to Yelp at all, or that at most would constitute acts of volunteerism.

As such, the labor law cited by the plaintiffs is inapplicable, since it does not cover voluntary acts, even if said acts are monetized by the defendant. That being said, the judge doesn’t completely close the door on this particular claim. He notes that it may be possible (but highly unlikely) that a recognizable labor law claim can be raised from this mess of a lawsuit and has given the plaintiffs 20 days to file an amended complaint.

Yelp asked the court for damages under California’s Anti-SLAPP law, claiming the lawsuit was nothing more than an attempt to chill its speech, seeing as the claims themselves were baseless and publishing reviews is (duh) a protected form of speech. The court has some sympathy for this argument, partially because the plaintiffs were unable to respond coherently to Yelp’s Anti-SLAPP motion.

Plaintiffs offer a strident argument, marked by ad hominem attacks on counsel, that the anti-SLAPP statute is inapplicable because they merely seek to hold Yelp liable under quasi-contractual theories for non-payment of wages, not for exercising any free speech rights. A plaintiff’s theory of liability, however, is not relevant to the question of whether the claim “arises from” a defendant’s exercise of free speech rights. As alleged, Yelp publishes information— reviews—regarding the services and goods various business establishments offer to the public. Plaintiff’s claims plainly arise from that conduct, which undisputedly involves speech on matters of public interest.

Unfortunately, the ad hominem attack on Yelp that was filed instead of a proper response is buried somewhere in the mess of a docket — something that has less to do with a venue move and the consolidation of filings, and more to do with the plaintiffs’ counsel being mostly incompetent. (A read through other filings makes it clear the counsel humored the plaintiffs’ desire to be cast as warriors railing against an unjust system, rather than steer them towards articulable arguments and claims.)

Both before and after the transfer of this action to this district, plaintiffs have filed various pleadings with confusing titles in the captions and/or garbled descriptions and/or incorrect event types in the electronic docket entries. As a result, the court in the Central District issued several orders striking certain of plaintiffs’ submissions. Complaining that plaintiffs’ filings in this district failed to comply with the local rules on notice, and that various ambiguities now exist as to what motions are pending and as to the briefing schedules, defendant seeks “administrative relief” under Local Rule 7-11. Defendant requests an order vacating the current hearing, and postponing at least one of plaintiffs’ motions until after a case management conference has been held.


More problematically, plaintiffs failed to set the hearing in the ECF system, with the result that no briefing schedule appeared in the docket entry. It is counsel’s responsibility to learn to use the ECF system correctly, and he is hereby directed to undertake appropriate steps to ensure that he and/or his office staff can file and docket pleadings in the proper manner.

Whether or not this sort of ineptitude led to the plaintiffs’ counsel being disciplined by the State Bar isn’t made explicit, but a later motion by the plaintiffs attempted to obtain an injunction against the Bar’s proceedings as well as add it (!) as a defendant. This was denied.

Whatever the case, the judge finds both prongs of the Anti-SLAPP test have been met (the second being the failure to state a viable claim), but says it’s still too early to consider the question of awarding fees. The plaintiffs have also asked for sanctions to be awarded against Yelp, but the judge notes he’s doing most of the work in discerning what it is the plaintiffs are actually seeking.

Plaintiffs seek sanctions against Yelp and its counsel. Although the precise basis of plaintiffs’ complaints and the scope of the relief they seek are difficult to discern from their rambling and invective-filled papers, the gist appears to be a contention that Yelp did not exercise good faith in connection with a court-ordered mediation session, and that it should therefore be placed into “default” status until it funds and participates in a new mediation session, and pays monetary penalties to the court. Plaintiffs have failed to make a persuasive showing that Yelp or its counsel engaged in sanctionable misconduct, or that the relief they seek would be warranted in any event. The motion for sanctions is denied.

The only remaining option for the plaintiffs at this point is to file a coherent set of claims that might have a chance at surviving more than a cursory examination. The plaintiffs may have entered the legal arena with every intention of extracting paychecks for their voluntary efforts, but given this opinion, the likelihood of them losing both the case and their money seems much more probable.

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Companies: yelp

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Comments on “Judge Not At All Impressed By Class Action Lawsuit Claiming Yelp Reviewers Are Really Employees”

Subscribe: RSS Leave a comment
Anonymous Coward says:

So, Yelp, by shutting down users, is exercising its free speech, eh? That's logic only a lawyer can come up with.

Yelp is a corporation and does not have any free speech rights.

It’s too bad that a good case of worker exploitation is obscured by poorly-worded claims.

And I wouldn’t bet a cent that Plaintiff counsel is actually incompetent: lawyers “throw” cases routinely based on needs of or “pull” in the bar association. Never trust a lawyer.

Anonymous Coward says:

Re: No

How can this be worker exploitation if the “work” is in no way considered or represented as a job? Yelp provides a platform by which the public can post reviews about public businesses so that the public can benefit from shared knowledge. If anyone posted a bunch of a reviews to Yelp and expected to get paid, then they were an idiot. Find me where on Yelp it states that users become employs and will get paid for the reviews they post.

I’m all about nailing abusive corporations for the shady and underhanded shit they often pull, but this is not one of those scenarios.

Mason Wheeler (profile) says:

Re: Re: No

Yelp provides a platform by which the public can post reviews about public businesses so that the public can benefit from shared knowledge.

Yeah, that’s the image they present to the public. In reality, they’re running an extortion racket, manipulating the reviews that are shown to make businesses that pay them money look better and businesses that don’t look worse, which, if people knew about it more, would destroy all confidence in the reliability of their site as a source of beneficial shared knowledge.

Anonymous Coward says:

Re: Re: Re: No

I don’t look at the ratings and only read the reviews and I read all the available reviews and not just the ones that are recommended. So even if those claims are true, they won’t affect my experience much. Every review I’ve posted shows up, even if they’re negative, so I’m not seeing at least my reviews disappear.

AJ says:

Re: So, Yelp, by shutting down users, is exercising its free speech, eh? That's logic only a lawyer can come up with.

I”m trying to understand why someone would expect payment when posting on yelp. When you sign up does it state you will be paid by review, or by word, or perhaps by review popularity? Is it like YouTube where you get a cut of the advertising dollars based on how many reviews your post gets? Is their anywhere on the site, at any time, that states you will receive financial gain by posting in any form at all?

Anonymous Coward says:

Re: So, Yelp, by shutting down users, is exercising its free speech, eh? That's logic only a lawyer can come up with.

No, Yelp, by shutting down users, is making a business decision. Just like Home Depot chooses to sell saws instead of apples. Or Pfizer chooses to invest in antibody-drug conjugates rather than antibiotics. Or HBO chooses to air Game of Thrones instead of football. Or Penguin House chooses to publish book A, rather than book B. Free speech has nothing to do with it.

Bergman (profile) says:

Re: So, Yelp, by shutting down users, is exercising its free speech, eh? That's logic only a lawyer can come up with.

Corporations have no speech rights? The US Supreme Court disagrees with you.

By the standards the plaintiffs are using to sue Yelp, you or I would count as Techdirt employees, which is obviously not true.

But assume you’re right. Immediately after the ruling, every website in the world deletes its comments section. How is that a win for anyone?

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