Creating Fake Customer Reviews Site Could Be False Advertising And Trade Libel

Richard Raysman is a Partner in our New York office

As evidenced by the success and robust market capitalization of the consumer review site Yelp, Internet users are increasingly turning to "regular people" as a lodestar for whether to purchase goods or services. This is intuitively unsurprising, as the man on the street who decides to proffer his opinions without compensation is perceived to be more credible than a company showering encomiums on its business, presumably to increase profits. As the consumer review sites proliferate, and more users adhere to the recommendations therein, incentive grows to manipulate reviews, even at the expense of violating relevant laws.

A recent case in the Central District of California epitomizes both why a company will fabricate reviews, and which law is correspondingly violated. In American Bullion, Inc. v. Regal Assets, LLC, No. CV 14-01873 DDP (C.D. Cal. July 15, 2014) American Bullion, Inc. (American Bullion) sued a competitor Regal Assets, LLC (Regal Assets) alleging that the latter created misleading marketing websites as a means of disparaging American Bullion and promoting its business. As background, American Bullion and Regal Assets compete in the market to convince holders of individual retirement accounts (IRA) to add gold and other precious metals to the account. To market its services, American Bullion utilizes third-party affiliates that receive compensation for referred business. American Bullion alleged that Regal Assets and its individual officers have created and operated such affiliate sites. These sites purport to contain independent consumer reviews and do not evince any affiliation with Regal Assets.

The sites featured highly unfavorable, often false contentions about the history and business practices of American Bullion. For example, a number of the sites alleged that American Bullion had been found guilty of fraud by the Commodities Futures Trading Commission. In fact, the party found guilty in that action was American Bullion Exchange, a separate company. Likewise, the sites uniformly included negative reviews of American Bullion. Finally, Regal Assets created a site that urged users to "click here to visit American Bullion," but are then linked to the Regal Assets' website.

American Bullion brought causes of action for false advertising under the Lanham Act (15 U.S.C. 1125(a)) and a variety of state law causes of action, including defamation and trade libel. On a motion to...