When I was a wee lad growing up as a chimney sweep on the mean streets of London – wait, that’s my Mary Poppins story (ask me about it after a few glasses of scotch). When I was a wee lad and just beginning
my journey to the dark side of the Force law school, I had a torts professor who taught a class nicknamed by many as ‘Sue the Bastards’ (yes, this is the type of education you get in exchange for crushing law school debt). I bring up this particular professor not to regale you with tales about the law school horrors that shaped me into the evil blood sucker man that I am today, but rather because I love quotes and he’s got a doozy for those evaluating whether to bring a lawsuit or not. So, without further ado, here is what this law professor told CNN in 2002 when discussing the sheer number of lawsuits filed by him:
Anytime I see wrongdoing, I will sue.
As a business owner or as an attorney advising that business owner, there’s a fair chance that someone, at some point, is going to do something that, to use hyper-technical legal terminology, really pisses you off. Does that mean you automatically ‘sue the bastard’ that wronged you? A lawyer never meets a qualified response he doesn’t like, so my answer to you is “maybe.” You’re obviously a cool-headed, reasonable person (you are reading this blog after all), so I assume you’ve already evaluated the strengths and weaknesses of your claims and the budget necessary for you to proceed before you’ve made the decision to sue. These are certainly important considerations to, well, consider, but if you’re not also thinking about Barbra Streisand, you’re potentially sailing into stormy waters.
We live in the age of this newfangled Internet world wide web thingamabob, with social media (Facebook, Twitter, etc.), highly entertaining blogs such as this, and internet forums providing a platform for billions to exchange ideas, stay connected, and
best each other’s high scores in Candy Crush better the world. If you’re not acknowledging and considering the power of the Internet prior to filing or threatening to file a lawsuit, then you and Babs may have something in common (if you’re a successful singer and multi-millionaire, you may have a few things in common). Without delving into tremendous detail (though I encourage you to read the Wikipedia link), the “Streisand Effect” occurs when an attempt to hide/censor information results in that information being publicized more widely. The term was coined after Ms. Streisand unsuccessfully sued a photographer to remove a certain aerial photo of her home from the Internet which, after news of the lawsuit surfaced, resulted in hundreds of thousands of downloads/views of the photo (and you thought I was crazy with the Streisand reference).
For as much as we lawyers like to believe otherwise, not everything we write becomes a matter of public importance that spreads through the Internet like wildfire. If a fuel supplier stiffs you on a delivery, chances are that your lawsuit for contractual damages is not going to make front page news (if it does, congratulations, you probably live in a very boring town). While your business relations with that particular fuel supplier will likely be strained (it’s probably a good idea to secure a different supplier before filing suit), you’re not likely to experience any fallout associated with negative publicity.
So when should you be acutely aware of the potential for backlash and negative publicity? Well, the Internet is a cruel mistress, and your guess is as good as mine. I suppose one warning sign is that your opponent is an individual rather than a corporation. People tend to be more emotional and take greater offense to being named as defendants in a lawsuit than a corporation might. People are also more likely to vent and express their frustration on the Internet, where a single negative comment can pick up steam and result in a discussion with hundreds of thousands (if not millions) of views. Another warning sign would be the relative ‘sexiness’ of the case – are the issues/principles at stake important to a large community of people? Are they important to a small, but vocal, community of people? Does your business depend on those people? Does your business depend on word of mouth? Recognizing these warning signs is just as important as evaluating the merits of your lawsuit – who cares if you win your case if you alienate your customer base in the process?
Failing to consider the power of the Internet can have… adverse consequences (understatement of the day). Probably the most notorious example of this is the recent case involving Kleargear, an Internet retailer selling nerd apparel and geek toys (yes – there is apparently a market for that). While I again encourage you to read the Wikipedia link, the gist of the story is that a couple took to the Internet to post a negative review of Kleargear after products they ordered were never delivered. When provided with the perfect opportunity to rectify the situation and garner some good PR in the process, Kleargear opted for a different path (to put it mildly).
Rather than resolve the issue amicably, Kleargear invoked non-disparagement language buried in its terms of service and demanded that the buyers pay it $3,500 for having the audacity to post a negative review. The buyers did not pay (shocking, I know), but instead filed their own lawsuit against Kleargear because Kleargear had reported the $3,500 to the credit reporting agencies as a debt owing to it (or, as I like to call it, doubling down on stupid). The good folks on the Internet caught wind of the dispute, and the rest as they say is history (nothing too major, just hundreds of news articles, thousands of Internet discussions, Kleargear disabling and locking down its Facebook and Twitter accounts, a default judgment against Kleargear in Utah, etc.). Whoever said there is no such thing as bad publicity clearly never met the management team at Kleargear.
The Kleargear example is not an isolated one. I’ve seen Internet discussions in my own cases that likely resulted in PR nightmares for opposing parties that likely never considered the potential effects of their actions in filing the lawsuits at issue. Does this mean you should never file a lawsuit where the potential for bad publicity exists? Probably not, but an educated decision of whether to file in the first place should take the potential for bad publicity into consideration. I’m willing to bet a few dollars (in Nevada of course, where it’s legal) that, with the benefit of hindsight, Kleargear (and a few of the companies I’ve litigated against) might do things differently in the future. Remember, only you can prevent forest fires. I mean, only you can decide whether the potential benefits of a lawsuit outweigh the potential risks. Actually, the forest fire slogan sounds better – let’s stick with that.
* If the above discussion didn’t blow your mind, then how about this tidbit… Did you know that the ‘hell hath no fury’ quote is not Shakespeare? It’s actually derived from a play by William Congreve, another old English wordsmith. Hope you were sitting down for that.