Minding My Own Business, On Lines & Inner Nets, Technically Lawful

Despite Denials, Court says Yelp! May Alter Ratings as Ad Sales Tactic

yelp_logo (1)How much trust do you put in online reviews of local businesses? A lot of people use  them as a decision-making tool before spending their hard-earned money on a good or service. Quite often and understandably, small business owners with a poor review or rating want to sue the messenger.

Recently, Yelp! was sued for manipulating some small businesses’ online ratings after the companies would not buy, or quit, advertising on Yelp!’s website. Continuing to deny what restaurateurs have said was true for years, Yelp! says it does not rearrange positive and negative reviews so they are higher or lower on a review list. At times in can seem the reviews are posted without any discernible reason other than to impact consumers’ perceptions.

However, Yelp! got another positive review from a federal court last week and this one is at the top of the list. The Ninth Circuit Court of Appeals, ruled in Yelp!’s favor and confirmed the business owners that brought the suit did not sufficiently allege they suffered from “economic extortion.”  The allegations included that the businesses’ ranking’s had plunged following negative encounters with Yelp! staff or sales reps usually over ad sales. The Court explained:

The business owners may deem the posting or order of user reviews as a threat of economic harm, but it is not unlawful for Yelp to post and sequence the reviews. As Yelp has the right to charge for legitimate advertising services, the threat of economic harm that Yelp leveraged is, at most, hard bargaining.

Did you catch that? Yelp! may legally post the reviews it wants to, and not the ones it does not, and in any order it wants. That means Yelp! has the right to not post particular reviews (good or bad), can bury a bad review or raise an older, positive review from the obscure second or unseen third page to the most prominent top spot on page one.

The yelpblindly trusted, and unreliable, user reviews we dutifully turn to and place so much credence in before making a purchasing decision may lawfully be manipulated by the companies that own them. Worse yet, the purely portrayed common man’s opinion may be dishonestly altered in order to deceive consumers to make a profit.

The other conduct Yelp! was accused of was writing negative reviews itself. The Court didn’t find it plausible and found dismissal of the claim proper. Although Yelp! has admitted it used to pay folks to write reviews during its infancy, the Court determined the factual allegations were insufficient to allow the case to continue.promo_yelp

In 2007, the CEO for Yelp! even wrote in a blog post (where else?) for The New York Times “there was a time in our earlier days where we experimented with paying for reviews directly in cities outside of San Francisco to help get the ball rolling in our otherwise empty site.”  Yet, pleading this fact coupled with some rather weak allegations did not suffice.

But the Court does offer an assurance to small business owners everywhere when it concludes the opening the Court’s written opinion by hinting there may be a way to attack Yelp!’s alleged conduct:

We emphasize that we are not holding that no cause of action exists that would cover conduct such as that alleged, if adequately pled. But for all the reasons noted, extortion is an exceedingly narrow concept as applied to fundamentally economic behavior. The business owners have not alleged a legal theory or plausible facts to support the theories they do argue.

The hint is nice. Kinda like “Come on lawyers, the answer is right there! Just use it!”

Don’t worry Yelp!. I won’t say what claim to use either . . .

More on This:

The Terrible Yelp Ruling Isn’t So Bad–The New Yorker

Court rules for Yelp in suit over online ratings – SFGate.

MKT

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Appealing Appeals Applied, Technically Lawful

Is Your Cell Phone Private?

“The Right to be Let Alone— the Most Comprehensive of Rights and the Right Most Valued by Civilized Men.”1

An Unreasonable Intrusion upon Seclusion

– William L. Prosser, Legal Scholar (1960)

Tomorrow, the US Supreme Court hears arguments over the constitutionality of searching a person’s cell phone without a warrant. This Fourth Amendment area of law is complex and always nuanced. Warrantless search cases usually boil down to whether or not the person has a reasonable expectation of privacy at the time of the search. If there is a reasonable expectation, then the search may be found unconstitutional because it violates the Fourth Amendment’s protections.

My cell phone is my best friend

Carrie Underwood, Country Music Star (2013)

In the two cases the Court hears tomorrow, Riley v. California and United States v. Wurie, the former involves a smartphone and the latter a flip phone. The big difference between the two is the amount of data they may store and the advanced functions one is capable of performing. This results in one device conceivably having more confidential and private data than the other. On the flip side, how confidential and private do you consider your phone’s data? Do you ever leave it out of reach? Do you charge it in an open place that’s accessible by others? Is it password protected? Is it encrypted?

Use technology rather than being used by it

– Neil Postman, Cultural Critic (1996)

I am unsure if the Court is well-equipped to decide technology cases. It was only 4 years ago they decided a sexting case involving a warrantless search of a government employee’s pager. City of Ontario vs. Quon, 130 S.Ct. 2619 (2010). Yes, a pager in 2010. Last summer Justice Sotomayor stated the Justices do not use e-mail even internally (but their staff does). In another technology case involving streaming TV earlier this month, Justice Scalia didn’t seem to understand HBO is not a broadcast TV channel you must pay to obtain. Chief Judge Roberts, whose initial drafts of decisions are written longhand in pen and on paper instead of with a word processor on a computer, asked during oral arguments in the 2010 pager case what is the difference between an email and a pager.

042914_0240_IsYourCellP4.png  

Google policy is to get right up to the creepy line and not cross it 

    – Eric Schmidt, CEO Google

In prehistoric technological times, the Court decided we had a lower expectation of privacy in our gas powered, internal combustion vehicles (Motor Vehicle Exception) than in our homes. Carroll v. United States, 267 U.S. 132 (1925). Armed with only probable cause, a search of your car without a warrant is permitted. Id. More recently, but still in a technologically antiquated time, the Court decided a person in a telephone booth had a reasonable expectation of privacy (Hey, does anyone remember telephone booths? Or payphones?). Katz v. U.S., 389 U.S. 347, 350 (1967). But a person does not have a reasonable right to privacy in the actual numbers they have dialed to call someone on the phone. Smith v. Maryland, 442 U.S. 735 (1979).

A business cannot expect privacy. California Bankers Ass’n v. Schultz, 416 U.S. 21, 65 (1974). However, the government is not allowed to gather evidence against you via surgery—yes—medical surgery. Winston v. Lee, 470 U.S. 753, 758 (1985). Reasonably expecting your garbage is private would be a mistake. California v. Greenwood, 486 U.S. 35 (1988). In 1990, the Court said sobriety checkpoints are a reasonable way to search and seize (and catch drunks driving). Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). If you work for the government, your office is not private if your are suspected of work-related misconduct. Samson v. California, 547 U.S. 843 (2006). Although the rule established may be a “freedom-destroying cocktail” that encourages “malevolent” tipsters to make false reports, an anonymous tipster can now call 911 and the cop is authorized to stop you and search your car (despite your obedient driving skills) without anything more. Navarette v. California, __ U.S. __ (2014).

noeye

You already have zero privacy – get over it

– Scott McNealy, Co-Founder Sun Microsystems

You have to wait until sometime around June 2014 to find out if the US Supreme Court thinks your cell phone data is private. But in the meantime, below is a poll to indicate how private you believe your cell phone is. Let’s at least find out how people that actually use computers, cell phones, the internet and all kinds of modern electronic wizardry believe the right to be let alone is.

 

1 Olmstead v. U.S., 277 U.S. 438, 478 (1928) (Brandeis,J., dissenting) and see The Right to Privacy, “Samuel Warren and Louis Brandeis, 4 Harvard L.R. 193 (Dec. 15, 1890)

 

MKT

 

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Litigation of Business | Business of Litigation, Technically Lawful

And now a commercial interruption . . .

Lorman Distinguished Faculty MemberAnyone visiting this blog can click the link and be taken to a website to read about the following publication that I am an author who donated one whole section! It’s surely a page turner!

JUDGMENT ENFORCEMENT IN MINNESOTA

CD & Reference Manual

Multiple CD Set with bound 326 page manual
Copyright 2014

If you are interested in this product and want to purchase it with a 50% savings. Click the following link:

http://www.lorman.com/bookstore/392638TMX?discount_code=T1043297&p=13389

MKT

 

 

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Attorneys & Lawyers & Counselors, Discovered on Demand, Litigation of Business | Business of Litigation, Publicly Recorded, Technically Lawful

Blog Cheating a/k/a The INTRODUCTION TO LOCATING ASSETS

I’m going to post some stuff I already have written. It is interesting and topical for this blog; maybe even educational. But it will be recycled (at least for me–that’s the cheating part). The first version was written circa 2003, updated every year or two, with the last revision in 2010.

I know this is highly unusual, but tonight I will post the part called INTRODUCTION and then the next section BUSINESS FILING RECORDS. If I don’t lose all my readers, we can progress from there. I’ll watch the analytics.  Without further ado, here comes the title (the INTRODUCTION is right after that part):

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Post Judgment Creditors’ Rights

Uncovering Assets

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PUBLIC RECORDS

Information is the oxygen of the modern age.

Ronald Reagan (b. 1911), former U.S. President. (London, June 14, 1989).

A.            INTRODUCTION 

Locating, retrieving and analyzing debtors’ assets is one of the most important aspects of successfully collecting a debt. Finding debtors’ assets can be difficult, time-consuming, expensive and not always fruitful.  But finding debtors’ assets is the first step in successfully collecting a debt.  Since many debtors hide assets or deny the existence of assets, it is generally a wise practice to dig up some information from public records prior to contacting a debtor.  Accordingly, this guide is designed to provide a method that may be utilized to provide a creditor or a creditors’ agent/representative an effective and economical way to find debtors’ assets.

Just like anything else, locating debtors’ assets can be done in a variety of ways, including physically going to governmental record depositories and researching and copying any asset information uncovered.  Some agencies even provide a great deal of information with just a phone call.

Computer assisted public record access and research has greatly expanded in recent years. It may be done via private and governmental pay subscription, computer-based systems. A couple of private service providers are Westlaw (www.westlaw.com) and Lexis-Nexis (www.lexis.com). Both of these providers are expensive, but for any firm collecting numerous debts it is an invaluable resource. 

Governmental Internet websites are rapidly expanding what information they provide. Many of these websites still provide information for free, but it appears there is a definite trend to charge (usually minimally) for access to the information via the Internet.  

The following is not an exhaustive discussion on access and research into Minnesota’s public records. It does discuss a few valuable resources for locating debtors’ assets and how to obtain that information via computer, telephone, mail or the good old “going down to the courthouse.” It is written as a primer for finding public record information.   

 

More to come.

MKT

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