Free Speech

by Tim Cushing


Filed Under:
anti-slapp, nevada, pamela boling, reviews

Companies:
iqtaxx, yelp



Tax Prep Company Tries To Sue Unhappy Customer Into Silence; Hit With Damages In Anti-SLAPP Order

from the or,-how-to-make-one-opinion-REALLY-MATTER dept

An anti-SLAPP win has just been handed down in Nevada, one of the few states with a strong anti-SLAPP law. At the center of the failed defamation lawsuit is (you guessed it) a negative review of a business posted at Yelp.

Pamela Boling (represented by Marc Randazza) hired IQTaxx to prepare her taxes, including the filing of a hardship notice. IQTaxx failed to do so. Boling tried to speak to the company about its failure to file the hardship paperwork, but after several attempts she was routed to a third-party number which informed her that the tax preparer's number was no longer in service.

Boling turned to Yelp and left a review detailing her experience with the company. Her review was headlined "This is MALPRACTICE!" Shortly thereafter, IQTaxx sent a cease-and-desist to Boling over her "exaggerated emotional rant review" -- wording it should have known would be fatal to its claims of defamation. Defamation does not cover exaggerations or emotional rants, but rather false statements purporting to be facts.

The court finds the company has failed to satisfy both prongs of Nevada's anti-SLAPP test. Not only that, but it has failed in pretty much all respects when it comes to pursuing a libel suit.

There is no dispute that Yelp is a well-known public forum. and Defendant has provided evidence that her allegedly defamatory statements were not made with knowledge of their falsity. Plaintiff failed to provide evidence tending to show that Defendant knew her statements were false when she made them. Defendant thus made the statements at issue in good faith under NRS 41.637(4). Defendant proved by a preponderance of the evidence that her statements were on a matter of public interest, in a public forum, and were made without knowledge of their falsity.
As for the second prong -- prevailing on the suit's merits -- the court similarly finds almost nothing to work with.
Plaintiff has failed to meet its burden under NRS 41.660(3)(b). Statements of opinion and rhetorical hyperbole are not actionable, as Supreme Court precedent establishes that "there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, 418 US. 323, 339-40 (1974).
In other words, the Supreme Court has said the best defense against speech one doesn't like is more speech, not lawsuits.

The court adds that the context of the disputed assertions also plays a significant part in its interpretation.
Context is vitally important in determining whether a reasonable person is likely to view a statement as one of fact, or one of protected opinion or rhetorical hyperbole. The context of Defendant's statements is Yelp, a well-known online forum for consumer reviews. The Internet is the modern equivalent of the soapbox on the sidewalk, and web sites such as Yelp are the type of public forum that is protected under the First Amendment.

The public has become accustomed to seeing fiery rhetoric on online fora, and courts recognize that this context makes it less likely that a reader will interpret statements published in such places as actionable statements of fact.
The court then notes that IQTaxx's sole claim basically doomed its lawsuit from the start.
Plaintiff only asserts that the statement "This is MALPRACTICE!" is defamatory, meaning that only Defendant's September 11, 2015 Yelp review is properly considered in determining whether Plaintiff has met its burden. The statement "This is MALPRACTICE!" with the term "malpractice" in all capital letters and with an exclamation mark, in the context of a Yelp review, is a protected statement of rhetorical hyperbole that cannot make out a claim for defamation.

[...]

Defendant's statements are protected statements of emotional hyperbolic opinion. The average Yelp user would not read the statement "This is MALPRACTICE!" with the central term in all capital letters and with an exclamation mark as a carefully considered legal opinion.
IQTaxx must now pay Boling $1,000 in statutory damages, and the person it tried to sue in shutting up can also go after it for legal fees. The tax preparer has several options available to address the negative review, but chose the one that hurt it the most. Rather than just being known for questionable customer service, the company is now known for suing critics and losing badly.


Reader Comments

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  • identicon
    Scote, 12 Apr 2016 @ 2:39pm

    Having lost spectacularly, IQTaxx is probably telling its lawyers "This is MALPRACTICE!". :-)

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 12 Apr 2016 @ 4:59pm

    How many more of these cases showing questionable claims clogging dockets & silencing protected speech do we need before we get a Federal Anti-Slapp law.

    reply to this | link to this | view in chronology ]

    • icon
      klaus (profile), 12 Apr 2016 @ 11:34pm

      Re:

      Having just read that Led Zep are being sued in LA by someone who thinks the 1971 classic Stairway to Heaven copied their earlier work, I'm doubting a federal SLAPP will come about. It's baffling, this infatuation that Americans have with the Law. Does any other country have a Judge Judy?

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 13 Apr 2016 @ 4:28am

      Re:

      A federal Anti-SLAPP law would take away one of the favorite threats large companies have to use against people that say 'mean' things about them, those companies tend to 'donate' lavishly to politicians, so not any time soon I'd think.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Apr 2016 @ 11:10pm

    IQTaxx WAS set up as a scam.
    Get as many customers as you can, hire NO STAFF who can actually file taxes and then run away with the money.

    They haven't filed a single proper tax document for a SINGLE CUSTOMER from 2014 upto when they finally decided to take the money they'd effectively stolen and run.

    The entire company was a scam from day one and every single person involved should get 10-15 years hard labor.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Apr 2016 @ 12:29am

    How the hell can randazza still practice law after his crimes?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Apr 2016 @ 2:35pm

      Re:

      Did you READ the story? Randazza is representing the woman who got scammed, not the scammers.....

      NEXT. TIME. READ. THE. FULL. ARTICLE.


      sheesh.

      reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 14 Apr 2016 @ 2:43am

      Re:

      The man messed up. We all do. Let it go. He's quit doing that and has returned to doing things we like him for: standing up for free speech.

      If he crosses the line again we'll call him out again but in this case the man did the right thing and justice was done.

      reply to this | link to this | view in chronology ]

  • icon
    got_runs? (profile), 13 Apr 2016 @ 10:16am

    IQTaxx is a sham.

    reply to this | link to this | view in chronology ]


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