In August 2013, Yelp sued McMillan for breach of contract, intentional interference with contract, unfair competition, and false advertising. Yelp believes that McMillan orchestrated fake reviews on the Yelp page for his bankruptcy law practice - an accusation McMillian denies. McMillan filed an anti-SLAPP motion in response to Yelp's suit. But McMillan's SLAPP motion appeared doomed to fail under the commercial speech exemption from SLAPP set forth in CCP 425.17(c). All of McMillan's statements that Yelp's suit alleged causes harm were statements of fact about McMillan's own services as a bankruptcy attorney designed to secure commercial transactions for his services and were published to actual or potential customers through Yelp's website. A recent ruling by Judge Joan M. Lewis confirmed this analysis denying the SLAPP motion under the commercial speech exemption of CCP 425.17(c). There will likely be an ensuing appeal but, in my opinion, it is not likely to succeed for the reasons set forth above. This appears to be a classic textbook example of a complaint alleging harm based on defendant's commercial speech activity as defined in CCP 425.17(c). Simpson-Strong-Tie v. Gore (2010) 49 Cal.4th 12.
Of more fundamental importance are the so-called extortion suits that have been filed against Yelp for burying or even deleting positive reviews unless the business buys advertising from Yelp. The Ninth Circuit has dismissed two such suits against Yelp over the past year holding that Yelp has the right to run its website as it sees fit - including the right to refuse to remove false entries, the right to bury positive reviews and bring negative ones to the top through its use of "filtered reviews" and in Levitt v. Yelp, the Ninth Circuit recently even went so far as to hold that Yelp could delete positive review/entries on its site.
What is a poor business owner to do in these cases of legalized "extortion" One Ninth Circuit Justice stated that Yelp's threat to bury or delete positive reviews is "hard bargaining" at best. But what about the unequal bargaining power between the small business and giant Yelp where the Yelp ratings are often the lifeblood of a small business. I think in some circumstances this kind of hard bargaining can rise to the level of unconscionability - both procedural and substantive. It would appear to be a contract of adhesion (procedural) and substantively so one-sided and oppressive as to shock the court's conscience in extreme cases. After all that business earned those positive reviews and that part of the Levitt holding that allows Yelp to altogether delete a positive review may sweep too far. Time will tell as this body of law develops along with the anti-SLAPP and other cyber laws.
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