by Paul Alan Levy
The Manhattan Lasik Center secures customers, in part, by offering discounts through Groupon and similar online marketing programs. For a $1795 Groupon, for example, a customer can get lasik treatment for both eyes. Several reviews posted on Yelp, however, suggest that it is not at all unusual for patients to appear with the Groupon or some similar deal only to be told that they are not candidates for lasik treatment but only for other, more expensive services for which additional payments must be made.
Michael Linden faced this treatment when he came to one of Manhattan Lasik’s five offices, and complained about it on Yelp. Manhattan Lasik did not take kindly to this criticism, and hired a lawyer named Frederic Abramson to send a demand letter asserting that Linden had made “a series of unwarranted and defamatory attacks,” and that “the statements made in reference to are utterly false and without merit.” Abramson demanded that Linden take down his Yelp review and pay Manhattan Lasik’s attorney fees and costs.
Yelp, which is increasingly concerned about companies that create false images about their business by posting false positive reviews, or by intimidating its users into withdrawing fair criticism, referred Linden to us for possible assistance.
Reasons to Question the Demand
Abramson has already achieved his fifteen minutes of infamy for litigation tactics as a copyright troll. His own history, the fact that the letter was so unspecific about which of the statements in the Yelp review was claimed to be false, coupled with the poor quality of the writing, and the foolish closing, which repeated the thoroughly discredited contention that the letter was copyrighted and “use of this letter in positing, in full or in part, will subject you to further causes of action,” undercut the credibility of Abramson's threat to sue (he also needs to hire a web designer who knows how to create proper internal links). I have posted the letter and linked it above so that readers can assess its merits -- if Abramson wants to sue someone for infringing his copyright, he knows where to find me.
Still, the post contained both statements of fact (Linden’s purchase of a Groupon and the seller’s refusal to provide the covered service while trying to upsell Linden with a more expensive service), and rhetorical statements of opinion (that the Groupon was a “bait and switch,” and that Manhattan Lasik were “scumbags” or “classless scammers”). The first task then, was to determine whether the plaintiff was taking issue with the underlying facts. At the same time, because Public Citizen generally does not handle cases in which defamation is the central issue, we had to try to locate counsel for Linden in case he was sued.
Evaluating the Claimed Defamation
When I first contacted Abramson to ask what parts of the letter were allegedly false, he began by blustering that everything was defamatory, but when I laughingly asked whether it was false that the doctor “was very nice,” he quickly focused instead on the use of words like “scumbag.” Linden, he complained, had come in with a Groupon, the service covered by the Groupon would not have been right for his condition, and Linden, he said, simply refused to accept that he needed to buy a different kind of service even though, Abramson said, the reasons were given to him repeatedly. So Abramson was admitting that the underlying factual statements were true, but complaining about the opinion words used. In a similar case, a judge in Manhattan ruled that the words “scam” and “bait-and-switch” plainly reflected the consumer’s personal opinion of his dealings with a business. Abramson knows about this case, having blogged about it himself a few years ago.
Abramson also complained that discount coupons were a major source of his client’s business, and have been a source for years, and he stands to suffer serious harm if consumers learn from Yelp that his discount coupons might not be worth a four-figure investment. But as Med Express recently learned the hard way, companies can't sue for defamation just because criticism can hurt business, the criticism has to be based on deliberate falsehood. And once the words are deemed opinion, they are constitutionally protected. And by the same token, I pointed out to him that if consumers needed to worry about whether the $1700 they would be spending up front for a Groupon might not do them any good, that was valuable information for consumers that ought not be suppressed.
That, indeed, is one of the worrisome aspects of the case. Since posting his own review, Linden has heard from another Yelp reviewer who, apparently, took down a similar post because Manhattan Lasik threatened to sue him.
But apart from the defensibility of the phrase “bait and switch” as opinion based on disclosed fact, it occurred to me that there might be even more basis for the opinion, so I asked Abramson if he had any data on the frequency with which patients coming in with the discount coupon get the lasik surgery, and how often patients are told that they need some other kind of medical treatment. He did not know the answer to the question but was also unwilling to commit to providing such information once he got it from his client – he blustered that he might make us get the information using discovery in a libel suit. I will be surprised if he is willing to reveal the information short of litigation, although libel litigation does not seem to me to be a viable option for his clients.
Finding Counsel for Linden
Although there is a good chance that Abramson will be sufficiently deterred by my initial contacts with him from pursuing a libel suit against Linden, we do not want to count on his good judgment. Consequently, we have reached out to lawyers in the New York area who might be willing to take the case on terms that Linden can afford. Unfortunately, New York's anti-SLAPP statute is too narrowly framed to give Linden a means of financing his defense through a contingent fee agreement, but two private practitioners with experience handling online defamation cases have expressed interest so far. One of them raised the interesting question whether there might be a viable claim against Manhattan Lasik for false advertising. We have forwarded information about Manhattan Lasik to consumer protection litigators at the New York State Attorney General’s office.