Thursday, March 6, 2014

5 Considerations as to Your Business’ Negative Internet Review

5 Considerations as to Your Business’ Negative Internet Review - Part I

As attorneys with a law firm which has a significant online presence, and as lawyers who represent small and medium businesses, we are very much aware of the power of the online review and/or rating given by consumers. In fact, in this day and age, the positive or negative nature of a company's reputation as declared by the internet can make or break your business.

Businessman pointing to the side over white backgroundFor many businesses, it is almost impossible to avoid at least the occasional negative comment or even merely a lukewarm review. Many times, the information posted online is not accurate, or at least is presented out of context and/or incomplete. All businesses which encounter this face the same question: what can we do about this negative online review?   Hopefully, after you have had a bit of time to think about it, one of your next questions is: what should we do about this negative online review? We have developed a list of 5 key considerations, and here is the first.

(1) Does the review contain opinion, “facts”, or both? As a general rule, it is more difficult to force the removal or editing of a review, once published, which contains merely an opinion. Stated from a legal perspective, a defamation claim is difficult, if not impossible, to bring regarding someone’s stated opinions, even if said opinions are perhaps unfair.

Thus, in some ways, a review such as “I spoke to the owner and could not believe how rude he was” is quite challenging to deal with. It is difficult to come up with an objective standard of what rude is and how to legally qualify “rude” behavior. In other words, this subjective interpretation of the owner’s alleged conduct is pretty much opinion and the accusation of rudeness is not a good basis for a defamation claim.

On the other hand, let’s take a second look at the above example to reconsider the fact vs. opinion issue: “I spoke to the owner and could not believe how rude he was.” Well, if we can’t effectively attack the “rudeness” aspect of this, what about something in that statement that can more easily be described as factual – something demonstrably true or false?

What if the individual to whom the consumer spoke was not the owner but merely a front line employee with no real managerial authority and the consumer knew that? That might be a whole different ball game. All of us, or at least most of us, can agree that a receptionist allegedly being rude to a customer would be less damaging in the eyes of other potential customers as compared to the owner of the business acting in such a manner. Of course, if you are talking about as going as far as a defamation suit, you would want very much to be able to prove that the consumer who posted the negative online review was aware that he/she had not spoken to the owner and had thus intentionally made a misstatement of fact.  

As you can see, this one example – a simple, single sentence review consisting of 13 words – can involve multiple legal issues and possibilities. Please stay tuned for updates on this topic, and please be careful how you handle these types of situations.

(Click Here for Part 2)

Monday, March 3, 2014

Carolina Consumers can Dispute Debts Verbally Under FDCPA

Carolina Consumers Can Dispute Debts Verbally Under FDCPA

As attorneys who represent clients in debt collection cases, whether credit card, mortgage, or other, we pay close attention to important legal decisions which impact our clients’ rights. A new Federal court ruling which impacts both North Carolina and South Carolina has been handed down and favors consumers instead of debt collectors.

Debt Collector - Medium

Consumers/borrowers have rights under the Fair Debt Collection Practices Act  and the FDCPA also sets forth certain mandatory requirements for debt collectors.

The United States District Court of Appeals for the Fourth Circuit (which has jurisdiction over North Carolina, South Carolina, Virginia, and West Virginia) recently overturned a lower court’s ruling and has confirmed that a consumer may dispute the validity of a debt verbally.

The FDCPA requires that a debt collector, within 5 days of the initial collection communication, send the alleged debtor a written notice which contains certain statements, including information regarding the alleged debtor’s rights. In this case, the letter from the debt collector stated that the consumer had the right to dispute the validity of the debt within 30 days, but that said dispute had to be in writing. Because the Fair Debt Collection Practices Act does not state that the dispute must be in writing, the lower court ruling which agreed that it had to be in writing was struck down.

As a result of this ruling, a consumer can call a debt collector within the allowed time frame and verbally dispute the validity of the debt. This dispute triggers duties on the part of the debt collector.

While having such disputes in writing makes sense for everyone in almost all situations, the United States Court Of Appeals is correct that the FDCPA does not state that these disputes must be written. This may result in an even messier state of affairs, and we would not be surprised to see the creditor / debt collection industry lobby for the FDCPA to be changed to require a written dispute.