Avvo and Advertising in the Land of Lincoln
Illinois attorney Ms. Moira Bernstein is the latest advocate to take on Avvo.com, the Seattle-based lawyer information and rating site. On February 4, 2016, Ms. Bernstein filed a class action complaint against Avvo, Inc. (“Avvo”) in Cook County, Illinois. According to the allegations, Ms. Bernstein alleges on behalf of herself–and all lawyers similarly situated in the Land of Lincoln–that their rights of publicity have been violated by Avvo.com. Ms. Bernstein’s legal theories likely face significant headwinds there in the Windy City.
Advocating Against Avvo
Ms. Bernstein’s class action Complaint asserts that Avvo created a page containing information about her that was allegedly gleaned from publicly-available sources such as bar admission information and other regulatory records. (Her avvo.com page indicates that she practices in the area of “family, mediation, real estate, litigation.”). She does not claim that any of the factual information about her is wrong or inaccurate. Instead, her claims appear to be centered on two advertising models used by Avvo: “Avvo Advertising” and “Avvo Pro.” Avvo Advertising is a service where lawyers pay to have short bios and a picture in a “sponsored listing” on the Avvo.com platform. Ms. Bernstein takes legal umbrage at this practice because she does not advertise her services on Avvo.com and these sponsored listings appear on the same page that lists factual information about her. (Think of the “sponsored listings” on Ms. Bernstein’s Avvo page like the “Sponsored Ads” one might see at the top and to the side of a Google® search result). Ms. Bernstein can allegedly stop sponsored listings from appearing on her page, but in order to do so she must subscribe to the “Avvo Pro” service, which will then keep Ms. Bernstein’s page free of other lawyer listings. Thus, Ms. Bernstein takes aim at the Avvo Advertising because she has not granted permission for these lawyers to be listed next to her. And, the only way she can remove them is to sign up for Avvo Pro, which she does not want to do. So, Ms. Bernstein filed the class action suit on behalf of herself and all other “non-paying” Illinois lawyers that are listed on Avvo.
Will Bernstein’s Claims Get Cooked in Cook County?
Ms. Bernstein is not the first attorney to joust with Avvo. And if past performance is indicative of future results, her class action suit faces some pretty long odds. Lawyers who have previously challenged Avvo’s rating service have come up short. The first challenge happened back in 2007 when a Seattle lawyer claimed the Avvo methodology violated the Washington Consumer Protection Act. The case was dismissed, as the Court found Avvo’s “opinion” and criteria used for rating lawyers was “absolutely protected by the First Amendment.” That lawyer may not have liked Avvo’s “secret sauce” (or the rating it produced) but that grievance could not be redressed in a court of law. In another case, a lawyer ran into a judicial brick wall when the trial court found the lawyer’s complaint against Avvo violated Washington’s anti-SLAPP law, which resulted in the Court awarding Avvo’s fees and costs. There, the unsuccessful lawyer asserted claims regarding Avvo’s alleged misrepresentation of the lawyer’s address and practice area, as well as the use of his photo in his Avvo profile. There is a similar case pending in federal court in California where Avvo is seeking to SLAPP that suit—the hearing on that case is set for March 2016. Avvo is at least 2-0 in cases involving lawyers disgruntled over their Avvo ratings. While Ms. Bernstein’s allegations may not take direct aim at her Avvo rating, the relief she seeks (injunctive relief, actual damages, and punitive damages) effectively seeks to shut down Avvo in Illinois or at least significantly alter how it provides information to the public. Courts have been loathe to do so in the past and Ms. Bernstein’s attempt to do so now may fall on deaf judicial ears.
Additionally, even given the facts as alleged, it’s not at all that clear that there is a “commercial purpose” regarding the use of Ms. Bernstein’s name. The Illinois statute defines a commercial purpose, in relevant part, as the public use or holding out of an individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; or (ii) for purposes of advertising or promoting products, merchandise, goods, or services. There are no facts alleged that Ms. Bernstein’s name, image, or likeness was used in order to entice lawyers to sign up for the Avvo Advertising or Avvo Pro services so that their sponsored links could be listed next to her listing. Instead, it is the lawyers listed in the “sponsored links” that are being held out in connection with the advertising of their services.
Finally, like most state statutes involving the right of publicity, Illinois has a rather gaping exception related to “news” or “public affairs”—even if those news and public affairs are set forth in “advertisements” or “commercial announcements.” As the U.S. District Court for the Northern District of Illinois previously noted when analyzing this statutory exception “speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Here, factual information about lawyers gleaned from publicly available sources certainly seems to fit comfortably within that broad statutory exception, even if that information appears adjacent to a paid for advertisement about another lawyer.
So, how will Ms. Bernstein’s claims fare in the Land of Lincoln? Our 16th President himself once said that, “In law it is a good policy to never plead what you need not, lest you oblige yourself to prove what you cannot.” Good advice that Ms. Bernstein perhaps should have heeded before she pleaded.