Law firm slammed by client sues Yelp

Listen to this article

A Northern Virginia law firm is suing the consumer review site Yelp and a former divorce client for defamation for unflattering comments posted by the client.

Other businesses in Virginia have taken Yelp to task – and its users to court – for carrying negative reviews. But a legal action filed by Thomas K. Plofchan Jr. and Westlake Legal Group against Yelp and poster Christopher Schumacher appears to be the first Virginia suit by a lawyer about a negative review on Yelp.

In 2012, a contractor sued for defamation for posts on Yelp and Angie’s List implying his employees stole items from a customer’s home. In Dietz Development LLC v. Perez, the Virginia Supreme Court vacated an order directing the customer to delete the post. The contractor and the customer dueled to a draw in January, with a jury finding each had defamed the other, but awarding no damages, according to a news report.

When a Virginia carpet cleaning business alleged defamation by anonymous posters on Yelp, the Virginia Court of Appeals said Yelp had to provide information on the “John Doe” posters named as defendants in the defamation action. The contest in Yelp Inc. v. Hadeed Carpet Cleaning over Yelp’s ability to protect user identity is pending before the Supreme Court of Virginia.

Plofchan sued Yelp, as well as the Yelp user, filing his complaint in Loudoun County Circuit Court in 2012. He won a default judgment in October 2012 against both defendants for $200,000 in compensatory damages, and an injunction requiring Yelp to remove the post. Yelp is trying to set aside the judgment, claiming defective service of process. They have removed the suit to Alexandria federal court, where a motion to remand is pending.

In his complaint, Plofchan alleged that in 2009, Schumacher made critical comments about the law firm’s handling of a divorce case.

Plofchan said another lawyer in his firm handled the case and Plofchan did no work on the matter. But he did participate in a telephone conference call through the Virginia State Bar’s fee mediation program to resolve the firm’s fee dispute with Schumacher, who had moved to Arizona. Plofchan said the mediation concluded with a determination that the client should pay a reduced fee, and Schumacher responded with the bad review.

Plofchan’s complaint alleged he notified Yelp in writing on four occasions that Schumacher’s complaints about the law firm were “false and defamatory,” but the comments remained on the site.

The complaint said Schumacher’s statement that “Plofchan lied, denied and presented a perfect filibuster … true to huckster form,” charged “professional incompetence” and constituted defamation per se.

He also took issue with Schumacher’s comments that the law firm, formerly known as Plofchan & Associates, “has a history of messing up cases … (search Google) …” and their “SOP is to be reactive rather than proactive.”

The bar in general came in for criticism from Schumacher, who allegedly posted that his father had told him not to waste his time filing a grievance with the Virginia State Bar, as “all attorneys and judges are coworkers … they don’t piss in their own pool.”
Plofchan asked for $200,000 in compensatory damages and $200,000 in punitive damages.

Yelp complains in its court filings that it first received notice of the suit 18 months after entry of the default judgment. The review website says the default judgment is void because the trial court had no power to impose an unconstitutional prior restraint on speech on the website.

Yelp also argues it has immunity from liability for third-party statements under the Communications Decency Act, 47 U.S.C. § 230(c)(1), which protects interactive computer services.

Plofchan contends Yelp is different than some online review sites, because it’s not just a publisher, it’s participating in the process by evaluating and filtering content posted by others. Yelp classifies some reviews as “suspect,” but still makes them available.

Washington, D.C. lawyer Micah J. Ratner, who represents Yelp, did not return a call for comment. Kristen Whisenand, a spokesperson for Yelp, said in an email there are several reasons why Yelp’s automated software might not recommend certain reviews.

A review may be featured less prominently if Yelp thinks it might be posted by a less established user or the review suggests bias or it’s simply “an unhelpful rant or rave,” Whisenand said. Yelp also tries to ferret out fake reviews – business owners praising themselves or panning competitors.

These bulletin board companies are not public services, they are for-profit entities that are participating in the review process, according to Plofchan.

Lawyers, like contractors and carpet cleaners, are all service providers, according to Plofchan. “Our reputation is our stock in trade. Virginia law has a very clear demarcation of defamation per se,” which covers damage to professional reputation.

“You have to be very clear about factual allegations,” because “businesses need to be able to protect their reputations,” he said.