When Phil Buckley (who blogs at 1918.me) and his wife Kristen Buckley received a certified letter from a mover, perhaps they allowed themselves to hope, for a fleeting moment, that the envelope contained a check, or an apology for substandard service. It did not. It contained a very stupid and amateurish legal threat.
See, Kristen Buckley's parents had used a company called Casey Movers to move, and Kristen posted a negative review on Yelp on their behalf. In the context of the internet, the review was rather mild.
But Matthew Overstreet, "Sales Manager" of Casey Movers, thought that the review was unacceptable. Here's what he said in his threat letter, which you can see in Phil Buckley's epic post about the matter:
It's been to my attention [sic] that you have a review of Casey Movers on the website known as Yelp. While we appreciate constructive feedback, it is Casey Movers firm belief [sic] that your review is unnecessarily damaging to the company, and the employees and families that this company supports.
Although, [sic] we respect that you may have opinions regarding the service, Casey Movers shall not be damaged by following federal moving procedures as this review is unnecessarily deceiving to future clients.
I am politely asking you to remove the review by November 21, 2012 Please [sic] be advised that if the review remains online after November 21, 2012, Casey Movers will be filing a libel suit against you in which you must travel to Hingham District Court in Hingham, Massachusetts as a defendant.
There are a number of questionable things about this legal threat.
First, I think Mr. Overstreet means to say that it has been brought to his attention. But that's deceptive. Mr. Overstreet commented on the Yelp review in June 2012. Maybe he's just one of those people who thinks that scary letters have to say "it has been brought to my attention that" or "please be advised that" or "please stand by whilst I demonstrate that anyone with obstructed access to a typewriter can make a legal threat."
Second, Mr. Oversteet seems to believe that the test for whether expression is defamatory is whether it is "unnecessarily damaging." Ah, no.
Third, remember my mantra: vagueness in a legal demand is the hallmark of frivolous legal thuggery. Mr. Overstreet does not specify exactly what part of the Yelp review is false. Bogus legal threats rarely do. He intimates that Casey Movers is being criticized for following "federal moving procedures," but does not explain. If you look at Ms. Buckley's review, and his response, you'll see that she complained of the amount her parents were offered for compensation of damages, and Mr. Overstreet's response explaining insurance rates — but you won't see anything Mr. Overstreet has called out as a specific false statement of fact.
Fourth, Mr. Overstreet's gloating about where Ms. Buckley may be dragged for his defamation case may or may not be right as a matter of personal jurisdiction. But the gloating sounds openly malicious, will likely influence the way a judge views the case (I would get that paragraph in front of a judge hearing the case at every opportunity), and will be powerful evidence in any malicious prosecution lawsuit against Casey Movers.
Some people would have been intimidated into removing the Yelp review. Lawsuit threats — even marginally literate ones — can be scary, and nobody wants to have to interact with lawyers if they can avoid it. But Phil and Kristen Buckely aren't so easily threatened. Phil Buckley launched a masterful investigation of the web presence of Casey Movers and Matt Overstreet. That investigation produced evidence suggesting that Casey Movers was publishing positive notes from their customers — together with their phone numbers and email addresses — on the web without their permission. Phil also dug up evidence that raises, at least, serious questions about whether Casey Movers has been faking positive reviews online. Then The Consumerist picked it up, then I did.
Mr. Overstreet later backed down, somewhat, in a call with Mr. Buckley:
Matthew admitted that the way he reached out was not the right way and he does not expect us to remove the Yelp review. His concern is that he believes the numbers in the review are wrong and may be misleading. He said he would send along the checks to prove his point.
He also said that he felt the tone of the review was that if Casey Movers paid more money then Kristen would remove the review. I can tell you that was not and is not the goal of that review. The review was an honest outpouring of frustration with a below average moving experience. My in-laws and Kristen understand that moving is never perfect, and you make certain compromises in the coverage you choose and the company you entrust your all your worldly goods with.
I asked Matthew straight up if he intended to move forward with the lawsuit against my wife. He did not say, “no we don’t”, but he gave the general impression that they wouldn’t.
But see Mr. Buckley's update subsequent to that, about a suspicious new positive Yelp review. Maybe Mr. Buckley is too suspicious about that one — maybe all the kids are using stock photos on their Yelp reviews these days.
There are some lessons to be learned here.
1. Matthew Overstreet and Casey Movers have, with one letter, eviscerated their brand. Protip: don't do that. If you have a Matthew Overstreet working for you, supervise him. If you are a Matthew Overstreet, stop being Matthew Overstreet. Don't send out vague, error-ridden, legally incorrect, bumptious legal threats in an effort to improve your online reputation, because one day you're going to threaten a Phil and Kristen Buckley, and you're going to learn about the Streisand Effect.
2. If you have, in a weak moment, issued a stupid legal threat, you have two choices: withdraw it unequivocally and apologize profusely and hope to take the sting out of the bad publicity, or shut your damnfool mouth. Through his post-letter communications, Mr. Overstreet has put multiple nails in the coffin of any potential defamation suit his company might have had over the Yelp review. At this point, his admissions not only make it much easier to win such a suit, but make his company, and him personally, vulnerable to a malicious prosecution suit if they are foolish enough to sue the Buckleys. When your splenetic letter has been called out, don't double down. Don't even half-again down. Apologize or shut up.
3. If you must — perhaps for religious or genetic reasons — issue stupid defamation threats, try to confine them to mundane forums in which nobody will notice you. If you (1) threaten a customer for a bad review, or (2) threaten someone for something said on the internet, you are leaping into the frenetic ravenous maw of the easy-narrative-loving meme-hungry web, which absolutely adores circulating stories about legal threats based on bad reviews on the internet. And then you attract the attention of The Consumerist. And me. Because let me tell you, Matthew Overstreet: I like finding pro bono help for people threatened with bogus defamation claims, and even helping them directly sometimes. If you or Casey Movers push your threats further, I commit that I will do everything in my power to find pro bono representation for the Buckleys to (1) prevent you from extorting and retaliating against them through the cost of defense, and (2) empower them to cockroach-stomp you righteously.
4. Note that the Buckleys have options other than waiting, passively, to see if Casey Movers will file a frivolous lawsuit. They could also take an aggressive stance and sue Casey Movers for declaratory relief based on their lawsuit threat, like a blogger did in the Oatmeal drama. That would allow them to have more control over the forum and the timing and would put Casey Movers and Matthew Overstreet on the defensive. If more people did that, making stupid legal threats would have a higher cost.
5. At the risk of ending on a down note, but Phil Buckley is wrong about one thing. Though Casey Movers' suit is frivolous, Massachusetts' anti-SLAPP law won't be helpful in fighting it. I previously explained how anti-SLAPP laws work. As I said before, not all anti-SLAPP laws are created equal. Massachusetts' anti-SLAPP statute is strictly mediocre, because it is limited in scope to protecting speech related to petitioning the government. Though some states with such narrow anti-SLAPP laws have construed "petitioning the government" quite broadly, it is probably not broad enough to cover a negative Yelp review that doesn't call for changes to regulation or law. Compare that to California or Texas, where anti-SLAPP laws protect much broader ranges of speech, including nearly anything on a matter of public interest (which, in California, has been held to include product and service reviews online). What can you do about that? As I've said before, you can educate yourself about anti-SLAPP laws, lobby for a better anti-SLAPP law in your state, and push for a federal anti-SLAPP statute.
Last 5 posts by Ken White
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