Published by LawTechie - October 17, 2011 - LawTechie

ecommerce lawyer new yorkThis case has a few interesting twists: Plaintiff (a lawyer) brought a case against the Avvo.com website for false advertising, unauthorized use of likeness, and other claims because he did not like the rating Avvo.com gave him after he registered as a website user in order to correct his auto-populated attorney profile.

Avvo moved to remove the case to Washington based on the forum selection clause in its website terms of use, and the court upheld Avvo’s motion despite plaintiff’s arguments that (1) he was fraudulently compelled to agree to the terms of use in order to fix his incorrect profile, and (2) his causes of action accrued before he “joined” Avvo, when Avvo incorrectly auto-populated his profile.

Some Background on Avvo.com

Attorneys have had a love-hate relationship since Avvo launched and began auto-populating attorney profiles and then rating attorneys 1 to 10 based on experience, renown, and ethical conduct. The largest complaint being that Avvo improperly influences consumer choice of attorney by giving higher ratings to attorneys who actively maintain their Avvo website profiles (e.g., by being active on the Avvo questions and answers feature, etc…).

A few years ago, after much criticism and as many lawsuits, Avvo discontinued rating auto-populated attorney profiles. Instead, auto-populated attorneys were rated either as “No Concern” or problematic if they had a public record of ethical issues. Attorneys who registered to edit their profiles with Avvo (thereby signing Avvo’s Terms of Use) were rated with the old 1 to 10 number system.

This Case

Plaintiff alleged that he initially noticed that his auto-populated Avvo profile contained incorrect biographical information. He then registered with Avvo to fix his information, at which point he was given a 1 to 10 rating which he did not like. After asking Avvo to remove his profile, which Avvo always refuses, he sued. Avvo moved to remove the case to Washington.

The Court found Plaintiff’s argument that he was fraudulently compelled to agree to Avvo’s terms of use unavailing:

Contrary to Davis’ argument that he was essentially compelled to join Avvo.com, the fact that Davis filed this action (and/or could have pursued preliminary injunctive relief) demonstrates that he had a very real alternative to accepting the Terms and forum selection clause.

Moreover,the Court did not like the technical legal game Plaintiff tried to play by arguing that all of the improper stuff happened before he agreed to the terms of use:

Davis should not be allowed to recast his claims from time to time in a manner designed to circumvent an otherwise enforceable forum selection clause.

This case is a good illustration of the strength of a properly executed ecommerce terms of use. On the other hand, I am not sure I agree that the fact that Plaintiff could have filed an action prior to trying to fix his profile should absolve Avvo of what seems like a pretty obvious ploy to “encourage” users to agree to the website terms of use. Usually, we want to exhaust all possible remedies (like trying to fix a profile) before we undertake the expense of going to court.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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