by Paul Alan Levy
In mid-2009, Jennifer Choi posted a scathing Yelp review of a Phoenix repair shop called ToyoMotors, contending that her car was diagnosed as needing repairs that other shops assured her were unnecessary, and that its fees were excessive by comparison with its competitors. Four years later, ToyoMotors went on the offensive. It signed on with “Demand Force,” a digital marketing operation that elicits positive feedback from customers to spray around the Internet. A look at ToyoMotors' page on DemandForce reveals a feel-good version of Yelp, featuring a slew of positive reviews, the sort of web page we would see more often if the recent European Court of Justice decision, allowing people to purge the web of unfavorable information they would like to be forgotten, were to take hold in the United States.
But because American companies do not have any generalized right to have bad news forgotten, the only way to purge the web of Choi's criticism was for ToyoMotors to sue Choi. I am in no position to assess the soundness of Choi's criticisms, except to note that a few other consumers made similar criticisms in subsequent years, on Yelp and elsewhere. Moreover, some of the statements that ToyoMotors complaint alleges to be false strike me as rhetorical hyperbole that are unlikely to be found defamatory.
There is at least one respect, however, in which ToyoMotors' complaint is facially deficient: ToyoMotors did not sue until last year. The statute of limitations for defamation claims in Arizona, as in most states, is one year, and although the complaint alleged that the review remained online in 2013, Arizona, like most states, has adopted the “single publication rule," under which tort claims about publications cannot be brought over repeated publications of the same words by a single defendant; instead only one suit can be brought, and the time to sue begins at the original time of publication. Every jurisdiction that has addressed the application of the single publication rule to the Internet has held that it does so apply, although Arizona has never addressed the issue. Thus the suit against Choi for her 2009 review appears to be utterly baseless.
The complaint also alleges defamation claims over several additional negative reviews, posted by “Steven B.”, “Tom Bradford,” “Julie Skingly,” and others, making complaints similar to Choi’s; one such complaint was posted in 2010, but most were in 2013, hence within the limitations period. Although the complaint named several John Does as defendants, the lawyers filing the complaint, Robert Lewis and Amy Pokora, claimed that they had “reason to believe” that each of the critics was an alias for Choi. However, contradicting this allegation, ToyoMotors CEO Geesey has asserted online that these various detractors were “an angry non-client”; on one site, Geesey even claimed that it was a commercial competitor who was responsible for online complaints. Yet ToyoMotors’s counsel have been most lackadaisical about pursuing the theory that the criticisms were posted by somebody other than Choi – they sent subpoenas seeking identifying information to the hosts of the sites where the criticisms appeared, but then they either accepted objections and non-answers without contest or, in the case of an objection from Yelp, sought to enforce the subpoena using patently improper procedures. It is as if ToyoMotors, having obtained service on Choi, however baseless its complaint against her, is content to try to bully her into paying for the criticisms of others.
I tried to ask ToyoMotors’ counsel, Robert Lewis, about the apparent flaws in his complaint, but when I got him on the telephone he started exclaiming loudly about how he might sue me for defamation (assuming that I might make false statements) or extortion (if my statements were accurate), and threatening to file a bar complaint against me (apparently, for unauthorized practice of law in Arizona). When I followed up with specific emailed questions, he was unwilling to explain why he has any sound basis for proceeding against Choi.
Choi needs a lawyer; perhaps some public-spirited lawyer in Arizona will step up to represent her, however much of a bully opposing counsel may be.