Yesterday District Judge Lasnik of the Western District of Washington granted Avvo.com’s motion to dismiss the class action complaint filed against the site earlier this year, ruling that the plaintiffs’ claims were barred by the First Amendment and Washington’s Consumer Protection Act (“CPA”). If you aren’t familiar with the case,
Plaintiffs’ primary challenge is to the accuracy and validity of the numerical rating system used by Avvo to compare attorneys. Defendants assert that the opinions expressed through the rating system, (i.e., that attorney X is a 3.5 and/or that an attorney with a higher rating is better able to handle a particular case than an attorney with a lower rating), are absolutely protected by the First Amendment and cannot serve as the basis for liability under state law.
Directing that “the key issue is whether the challenged statement could ‘reasonably have been interpreted as stating actual facts’ about plaintiff,” the court found in favor of Avvo. Among its findings-
- Avvo’s website contains numerous reminders that the Avvo rating system is subjective. The ratings are described as an “assessment” or “judgment,” two words that imply some sort of evaluative process.
- Neither the nature of the information provided nor the language used on the website would lead a reasonable person to believe that the ratings are a statement of actual fact.
- [T]he Avvo rating system is an abstraction. (“No reasonable consumer would believe that Avvo is asserting that plaintiff Browne is a ‘5.5.’”)
- [D]efendants’ rating is . . . virtually impossible to prove wrong.
- Defendants fairly describe the nature of the information on which Avvo’s ratings are based and make it clear that (a) there may be other relevant data that the rating does not consider and (b) the conversion of the available information into a number involves judgment, interpretation, and assessment.
- Consumers and the attorneys profiled have access to the underlying information and, while they may disagree with a particular rating and/or the implied comparisons drawn therefrom, “[t]here is no objective standard by which one can measure an advocate’s abilities with any certitude or determine conclusively the truth or falsity of [Avvo’s] statements . . . .”
Thus “[t]o the extent that [plaintiffs] seek to prevent the dissemination of opinions regarding attorneys and judges . . . the First Amendment precludes their cause of action.”
The opinion also includes an analysis and rejection of related claims under the CPA (plaintiffs also argued that (i) Avvo mischaracterized its rating systems, (ii) some of the data included in profiles is inaccurate, and (iii) Avvo’s overall business model is coercive). The court declined to address Avvo’s Section 230 defense, noting that “[p]laintiffs have disavowed any claim based on content that Avvo obtained from a third-party.”
Interestingly, the court seemed to leave the door open to claims against Avvo by individuals who rely on Avvo ratings to their detriment (“Consumers who were misled by the information and ratings provided by Avvo are the direct victims of the alleged wrongdoing.”) However, the remark was made while observing the remoteness of plaintiffs’ asserted damages, and may more properly be construed to mean that consumers directly harmed by an Avvo-rated attorney’s conduct would have a stronger position under the CPA than the plaintiffs do here, and that such a consumer claim would be made against the subject attorney.
Plaintiffs’ request for leave to amend their complaint was denied, so perhaps the Ninth Circuit will be the next stop for their claims.
Kudos to Avvo, which has responded to the decision on its blog. And thank you to Venkat Balasubramani for notifying me last night of Judge Lasnik’s ruling.