Here's the question before us today: Is calling a lawyer an extortionist redundant … or potentially libelous? (Hint: Only one of the choices is a joke.)
A Marquette University Law School professor named Eric Goldman on his blog calls a highly publicized class-action lawsuit filed against Yahoo last week a "shakedown" and those who brought it "extortionists."
Among the alleged "shakedown" artists and "extortionists" are five law firms and seven lawyers, including Ben Edelman, who has been described as "the most respected" independent adware expert on the Internet by no less of an authority than Network World.
I have no idea whether the lawsuit will prevail, but I do know a couple of things for certain: Goldman's characterization of the filing and those responsible for it would never have made it past any editor I know, as the words practically scream libel. And the tale may prove to be a cautionary one as your company contemplates jumping on the blog bandwagon.
The lawsuit in question contends that Yahoo and its ad sales subsidiary, Overture Services, promised advertisers who paid higher fees that their ads would be placed on "premium" Web sites such as CNN, The Wall Street Journal -- and Yahoo. However, according to the suit, the ads were also distributed via spyware and adware, as well as on so-called typo-squatting sites -- not exactly premium venues.
Goldman, who according to his blog "holds leadership positions in the American Bar Association and the Computer Law Association," addresses the merits of the suit in a generally academic fashion before winding up for the big finish:
"I think these lawsuits are nothing more than a shakedown for cash," he concludes. "Even unmeritorious class action lawsuits are expensive to defend, so the plaintiffs’ lawyers can exploit those defense costs for their personal largesse. They can make this argument to defendants: settle with me for a fraction of your total expected defense costs, and we’re both better off (defendants save some defense costs, plaintiffs’ lawyers grab some personal loot). …
"It may be cheaper for Yahoo to settle than fight," he continues, "but I hope Yahoo doesn’t reward the extortionists. Extortion shouldn’t pay, and I hope the plaintiffs find this out the hard way."
Being curious more than anything, I sent Goldman an e-mail asking how he'd defend his use of that language, fully expecting to receive something akin to backtracking in response.
"I see this lawsuit as a shakedown for cash," he repeated in his reply. "I see that process as synonymous with extortion. See Answers.com definition of extortion: 'The obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.' "
As you might expect, the other lawyers Goldman skewers are not amused.
Here's all Edelman would say: "I think the complaint (against Yahoo) speaks for itself. … Discussing Goldman's defamatory statements unduly dignifies them."
However, another of the plaintiff's attorneys, Thomas More Marrone of Feldman, Shepherd, Wohlgelernter, Tanner and Weinstock in Philadelphia, was a bit more expansive:
"(Goldman) read a piece of paper that was filed in court and he's making an accusation of criminal activity, which I just think is irresponsible," Marrone told me. … "It's like a guy standing on a street corner talking to his friends except he's writing it down and disseminating it to hundreds, thousands, millions of people."
But is it more than irresponsible? I asked Eric Robinson, a staff attorney for the Media Law Resource Center, who said he couldn't comment on the particulars of this situation, but offered the following guidance:
"In doing a quick search, I found court decisions holding both ways when dealing with similar accusations of 'extortion,' " Robinson responded in an e-mail. "Compare Palmer v. Mahin, 120 F. 737 (8th Cir. 1903) and Maloof v. Post Pub. Co., 306 Mass. 279, 28 N.E. 2d 458 (Mass. 1940) finding statements alleging extortion libelous with Blevins v. W.F. Barnes Corp., 768 So. 2d 386 (Ala. Civ. App., 1999) finding statement alleging extortion 'rhetorical hyperbole.'"
"The legal issue would likely be whether the statements were actual imputations of a crime, or were 'rhetorical hyperbole,' essentially a statement of opinion, not of fact. The former could be considered libelous, while the latter could not."
Of course, hyperbole is the eye of the beholder … or juror.
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