LAW FIRM’S WEBSITE LANDS IT IN COURT

As with any other business, law firms and lawyers increasingly market their services.  And they use their websites as one tool in that effort.  But there is a fine line between aggressive marketing and defamation.   And a Connecticut based firm may have crossed it recently.

Lemberg Law, LLC is a Connecticut based, national law firm that serves clients in Arizona.  On its website it touts the following expertise:

“Lemberg Law represents consumers nationwide in debt collection abuse, telephone harassment, lemon law, auto fraud, personal injury, wage overtime and class action cases.”

So far, so good.  There’s nothing wrong with a law firm letting potential clients know what it’s good at.  But the website went on to say:

“Scary Harassment from 602-490-3955 / 60224903955 Is NOT forever”

“Delivery Financial Services may be harassing illegally. Sue for $500-$1,500 per call from 602-490-3955.”

To drive the point home further, the website included an example, where a woman set her alarm clock for 9:00 to make 10:15 Sunday Services.  But Delivery Financial Services wakes her up with a call at 6:45 looking to collect a debt.  According to the website, “Delivery Financial Services likely is going against the FDCPA because debt collectors can only phone between 8:00 a.m. and 9:00 p.m. in your time zone.”

The FDCPA is the Fair Debt Collection Practices Act, which regulates the behavior of debt collectors.  And as you may have guessed, Delivery Financial is a debt collector.

Delivery Financial filed a lawsuit alleging that the website defamed it by alleging that it engaged in conduct that violated the FDCPA.  Among other reasons Delivery Financial contended the statements were false is because they're closed on weekends, so a Sunday morning call wasn’t really a possibility.

In its motion, Lemberg argued that its website never actually accused Delivery Financial of anything – it used the qualifier “may” when talking about Delivery Financial’s harassment.  And the example that talked about the Sunday morning call was presented as a hypothetical, not a factual scenario.

The court was unpersuaded.  It found that “[a] communication is libel per se if on its face it tends to impeach one’s honesty, integrity, or reputation.”  In its view, the complaint set out enough facts to survive dismissal right out of the gate.  The opinion did not elaborate, but presumably must have concluded that while the example was a hypothetical, the specific reference to Delivery Financial making a call on a Sunday morning at least implies that it routinely engages in such conduct.  For purposes of a motion to dismiss, that implication was sufficient.

So the case lives on.  It is a long way from the finish line, and Lemberg may ultimately prevail.  But it is a cautionary tale.  If you want to tout your expertise on your website, you may want to avoid naming names.

IS FACEBOOK ADVERTISING DISCRIMINATORY?

A recently filed case in California federal court alleges that Facebook’s highly sophisticated advertising service, which allows advertisers to include and exclude specific classes of users from the advertisement’s audience violates the federal fair housing act.  The plaintiffs are asking the court to certify a nationwide class action to allow potentially thousands of plaintiffs to join the suit.

According to the complaint, Facebook's Ad Platform has an “Exclude People” and an “Include People” feature.   This means that an advertiser can work with Facebook to create an audience that is more likely receptive to the advertisement.  So, if the ad is for infant diapers, the advertiser would ask Facebook to hone in on young parents.  The advertiser may at the same time ask Facebook to exclude older users. There is nothing inherently wrong about that use of the feature.

But advertising is not a one size fits all proposition.  And advertisements for housing are subject to more scrutiny than other advertisements.  The Fair Housing Act of 1968 makes it unlawful:

“To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or any intention to make any such preference, limitation, or discrimination.”

And regulations promulgated under the Act include in the definition of discriminatory conduct:

“Selecting media or locations for advertising the sale or rental of dwellings which deny particular segments of the housing market information about housing opportunities because of race, color, religion, sex, handicap, familial status, or national origin.”

This means that targeted advertising, which may be innocuous for infant diaper ads is more problematic for housing advertisements.  And plaintiffs are using Facebook’s own description of the Ad Platform product against it. The complaint includes this passage from the Facebook website:

Why you see a particular ad

Our ad system prioritizes what ad to show you based on what advertisers tell us their desired audience is, and we then match it to people who might be interested in that ad. This means we can show you relevant and useful ads without advertisers learning who you are. We don’t sell any individual data that could identify you, like your name.

When an advertiser wants to reach…

Bike enthusiasts
Between 18 – 35 years old
Female
Within 20 miles of my store
Interested in bicycling
Mobile users

We show their ad to people like…

Facebook user 30 years old
Female
Menlo Pak, CA
Interested in bicycling, movies, cooking
iPhone user, car shopper, gamer

Plaintiffs contend that this capability has allowed Facebook, “as recently as 2019, [to mine] user data to create categories of users defined by race or skin color other than white and permitted advertisers to exclude those categories from the audience of housing advertisements.”  It also contends that “Facebook approved and published housing advertisements for sale and rental properties which excluded African Americans and single parents and/or that were based on sex, familial status and other protected classes from the ad’s target audience.”

If plaintiffs can prove these allegations, Facebook could have a problem.  Facebook may argue, however, that it is immune from liability under the Communications Decency Act. That federal law provides that an internet service provider is not considered the publisher of content submitted by a third party.  But typically, that protection does not apply when the internet service provider is involved in the content creation.

Plaintiffs seem to anticipate that defense in their complaint.  A large portion of the complaint focuses on the extent of Facebook’s involvement in the creation of the Ad Platform and its efforts to assist advertisers with creating the criteria for defining the audience.  Those allegations are no doubt directed at the CDA defense.

This one will be interesting to watch unfold.  As is often the case, it’s not so much the tool, as it is the way it’s used.