Opinion
Index No. 651529/2022 MOTION SEQ. No. 001
03-03-2023
AMUZE, Plaintiff, v. BETTER BUSINESS BUREAU, THE BETTER BUSINESS BUREAU OF GREATER MARYLAND Defendant.
Unpublished Opinion
PRESENT: HON. DAKOTA D. RAMSEUR Justice.
DECISION + ORDER ON MOTION
DAKOTA D. RAMSEUR JUDGE.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 were read on this motion to/for -DISMISSAL.
In March 2022, plaintiff Amuze commenced this action against defendants Better Business Bureau and its affiliate the Better Business Bureau of Greater Maryland asserting causes of action for defamation, libel, and intentional infliction of emotional distress over four comments that consumers of Amuze posted to BBB-GM's online platform. In this motion sequence (001), defendants move to dismiss the complaint in its entirety pursuant to CPLR 3211 (g) (1) and (a) (7). Plaintiff opposes the motion; however, should the Court be inclined to grant the motion, it cross-moves for leave to amend the complaint pursuant to CPLR 3025. For the following reasons, defendants' motion is granted, and plaintiffs cross-motion to amend the complaint is denied. .
BACKGROUND
The Better Business Bureau of Greater Maryland (hereinafter, "BBB-GM") is a nonprofit organization that publishes online profiles of business located or headquartered within the geographic region of Maryland. The profiles provide a platform for consumers of these business to comment or complain publicly about their interaction with the businesses themselves. From 2019 through 2022, BBB-GM maintained an online profile for Amuze, an online clothing retailer. (NYSCEF doc. no. 2 at ¶6, amended complaint.) Amuze alleges that at least four statements listed on Amuze's BBB-GM profile defame it. These include the statements:
BBB-GM's profile of Amuze can be found at https://www.bbb.org/us/md/owings-inills/profile/online-retai ler/amuze-inc-0011-90274283.
(1) "This [sic] people are fraud.";
(2) "They promised me a full refund on March 31 st. I have all the messages to prove everything. It is now 11:36 pm on April 12th and I still have not gotten a refund.";
(3) "This company is guilty of unethical business practices."; and
(4) "They will charge a huge return shipping fee and offer credit for more defective or counterfeit merchandise." (Id. at ¶10.)
Plaintiff asserts that, at the time of publication, BBB-GM knew or should have known . that these statements were false, inaccurate, and/or erroneous. (Id. at ¶11, 20.) The original complaint does not allege any further operative facts. However, as plaintiff has moved pursuant to CPLR 3025, the Court below includes the allegations from plaintiffs proposed amended
According to plaintiffs proposed amended complaint, BBB-GM reached out in May of 2019 to "meet Plaintiff and learn more about Plaintiffs business, and fact-find." (NYSCEF doc. no. 14 at ¶8.) Plaintiff then "cooperated" with BBB-GM's request for information, "with the understanding that Defendant would ensure inaccurate, false or otherwise erroneous information" would be removed from its online profile. (Id. at ¶9.) On November 4, 2021, BBB-GM advised plaintiff that it had posted an "F" rating on its Amuze profile, because, in plaintiffs words, "Plaintiff refused to engage in Defendant's arbitrary dispute resolution process." (Id. at ¶17.) The proposed complaint further states that the BBB and BBB-GM letter grade "presents BBB's opinion" of the business's "marketplace behavior" and takes into account the business's responsiveness to customers complaints filed with them, its transparency, and the truthfulness of their advertising practices. (Id. at ¶13.) As to damages, plaintiff alleges that, as a result of BBB-GM's international reputation and authority in the industry, plaintiffs reputation has been harmed. (Id. at ¶¶29-30.)
As described above, plaintiff commenced this action against BBB and BBB-GM . asserting causes of action for defamation, libel per se, and intentional infliction of emotional distress ('TIED"). Herein, defendants move under CPLR 3211 (g) (1) to dismiss the complaint. They argue that plaintiffs claims involve "public petition and participation" as defined by Section 76-a of New York's Civil Rights Law, and therefore CPLR 3211 (g) (1) requires the Court to dismiss causes of action where plaintiff cannot demonstrate "a substantial basis in law" for its claims. As to whether plaintiff can demonstrate that substantial basis, defendants contend that Amuze's claims are barred under Section 230 of the federal Communications Decency Act (47 USC §230). Alternatively, defendants contend that plaintiffs causes of action must be dismissed under the traditional CPLR 3211 (a) (7) failure-to-state-a-cause-of-action standard as plaintiff has failed to plead the requisite elements of defamation, libel, and IIED. Plaintiff opposes, arguing that the cases defendants cite to do not establish this case as the subject of a § 76-a action; even if the action is governed under the "public petition and participation" standard, there is a substantial basis in law for its claims; and that the complaint in fact meets the notice pleading standards of CPLR 3211 (a) (7).
DISCUSSION
Motion to Dismiss Under CPLR 3211 (g) (1).
Under CPLR 3211 (g) (1), a motion to dismiss "shall be granted" where the moving party has demonstrated that the subject of the motion involves "public petition and participation" as defined by §76-a of New York's Civil Rights Law (known as New York's anti-SLAPP statute) unless the responding party "demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification, or reversal of existing law." (CPLR 3211 [g] [1].) §76-a defines an "action involving public participation" as a claim based upon "(a) (1) any communication in a place open to the public or a public forum in connection with an issue of public interest." (Civil Rights Law §76-a.) That same section requires "public interest" be construed broadly and shall mean any subject other than a purely private matter. (Id.) Reading these two provisions together, once the defendant has established that the subject of the action is both (1) based on communications in a public forum, and (2) concerns the public interest, then the Court must switch the burden to the plaintiff to demonstrate that its claim has a substantial basis in the law. In reviewing, the sufficiency of a claim under CPLR 3211 (g) (1), courts may consider exhibits and other documents submitted in evidentiary form that would not typically be allowed under a conventional CPLR 3211 (a) (7) motion.
Defendants have clearly established that the allegedly defamatory statements on defendants' Amuze profile are "communications... in a public forum" and concern the "public interest." In Aristocrat Plastic Surgery, P.C. v. Silva (206 A.D.3d 26, 30-31 [1st Dept 2022]) the First Department held that a patient's review of her plastic surgeon on an "internet recommendation platform," one which had a stated purpose of "being a key advisor for people considering plastic surgery," qualified for protection under §76-a because the review was posted in a public forum-the review platform and aggregator-and concerned a public interest- namely, consumer advice concerning medical practitioners. In reaching this conclusion that such reviews are "in the public interest," the First Department cited numerous cases in which allegedly defamatory statements posted on public websites were considered to be protected under §76-a. For example, in Center for Med. Progress v. Planned Parenthood Fedn. of Am., the federal court for the Southern District of New York found that allegedly defamatory statements concerned the public interest because they were published on Twitter and related to civil and criminal actions against the plaintiff. (551 F.Supp.3d 320, 322 [SDNY 2021].) And in Great Wall Med. P.C. v. Levine (74 Mise 3d 1224 [A] at *1 [Sup. Ct. NY County 2022]) this Court held that statements posted on public websites such as Yelp, ZocDoc, and Facebook concerning the defendant's experience with plaintiffs medical practice were "clearly intended as a warning to other women," and thus were made in connection with an issue of public importance.
Here, defendants have established that the reviews and complaints posted to BBB and BBB-GM profiles concern issues of public interest because such posts are intended to provide otherwise unavailable information about specific businesses to the public and future potential consumers. To the extent that plaintiff provides an opposition on this point, it lacks merit.
As defendants have established that the subject defamatory statements involve "public petition and participation" under §76-a, the Court turns to whether plaintiff has demonstrated a substantial basis in law for its claims. The Court finds that neither the original complaint nor the proposed amended complaint has put forth a substantial basis in law for plaintiffs claims.
Under Section 230 (c) (1) of the federal Communications Decency Act ("CDA"), "no provider... of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." (47 USC §230.) Section 230 (c) (1) shields a defendant from civil liability when (1) it is a provider of an interactive computer service as defined by §230 (f) (2); (2) the plaintiff's cause of action "treat[s] the defendant as the 'publisher or speaker' of the information;" and 3) the information is provided by an "information content provider" or, as is defined by §230 (f) (3) a "person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet." (See § 230 (c) (1), (f) (2), and (f) (3); Force v. Facebook, Inc., 934 F.3d, 53, 64 [2d Cir. 2019].) Courts, both in New York and throughout the country, construe §230 broadly in favor of immunity. (Id., citing FTC v. Lead Click Media, LLC, 838 F.3d 158,173 [2d Cir. 2016] and Marshall's Locksmith Serv. Inc. v. Google, LLC, 925 F.3d 1263,1267 [D.C. Cir. 2019] ["Congress inten[ded] to confer broad immunity for the re-publication of third-party content."].)
Here, BBB and BBB-GM have established that they are "internet computer service" providers. (See Lead Click Media, LLC, 838 F.3d at 174 ["Courts typically have held that internet service providers, website exchange systems, online message boards, and search engines fall within this [§ 230 (f) (2)] definition."].) As to elements two and three under Force v. Facebook, defendants establish that plaintiffs complaints treats them as if they were the "publisher or speaker" of the four allegedly defamatory complaints posted on Amuze's profile, when instead third parties were responsible for the "creation and development" of such complaints. Accordingly, defendants have established that §230 (c) (1) immunizes it from liability based on the four consumer complaints. .
Plaintiff contends that defendants are not the type of online platform that should be protected by § 230 because, unlike Facebook, Twitter, and Yelp, etc., the Better Business Bureau holds itself out as an entity that investigates consumer complaints and operates a sort of ad hoc dispute resolution mechanism. (See NYSCEF doc. no. 15 at 10, plaintiff memo of law.) In their view, defendants "preview or edit" user's posts (id. at 12), has a formal complaint process in which defendants asks businesses to respond to complaints (id.), and resulting grades are given . based upon its "investigation." If the Court understands plaintiffs argument correctly, it is essentially saying that BBB, BBB-GM, and other similar entities would lose the protection of §230 for conduct that, in the Court's view, amounts to exercising a "publisher's traditional editorial functions-such as deciding to publish, withdraw, postpone or alter content." (See Ascentive, LLC v. Opinion Corp., 842 F.Supp.2d 450,472 [EDNY 2011].)
It is worth noting that plaintiffs allegation that defendants "investigate" the veracity of consumer complaints is somewhat conclusory. Plaintiff does allege that someone from BBB-GM visited plaintiffs facility but such occasion was "to learn more about plaintiffs business." (NYSCEF doc. no. 14 at 8.) Plaintiff also screen shots or quotes from defendants' website, but none describe defendants' role as investigating the claims. Rather, it appears that BBB and BBB-GM reach out to those businesses that have had complaints filed against them and request that they reply to the complaints within a certain time frame. (Id. at 13, description of plaintiff s procedures for filing a complaint.) Defendants' website also holds itself out as a mediator in certain circumstances, but plaintiff does not allege that it sought from defendant such services.
The most basic problem with plaintiffs argument is that it has not alleged that defendants altered or in any way included its own views when displaying the consumer complaints. "A defendant will not be considered to have developed third-party content unless the defendant directly and 'materially' contributed to what made the content it self 'unlawful.'" (Facebook, Inc., 934 F.3d at 68.) An examination of Amuze's BBB-GM profile reveals that every complaint and review (which defendants display separately) are posted without comment and input from defendants. Moreover, where consumers have followed BBB-GM's procedures to submit what is specifically described as a "complaint," defendants post the complaints but provide businesses with the opportunity to respond. So while the Court recognizes that §230 immunity is not so broad as to cover internet platforms that take active roles in developing their own content (see Ascentive, 842 F.Supp.2d at 475), the allegation that defendants hold themselves out as neutral mediators or investigators-without allegations describing defendants' own input in the posts- does not transform defendants into "interactive content providers" under § 230 (f) (3). (See Saveene Corp, v. Reno, 2021 U.S. Dist. LEXIS 198342 at *6 [Whether defendant "reviews and investigates" information published on its platform is immaterial to a §230 analysis because the complaint "does not allege that [the defendant] assisted in the development of or contributed to [the allegedly defamatory material]; Nemet Chevrolet, Ltd. v. Consummeraffairs.com, 591 F.3d 250,258 [4th Cir. 2009] [holding that defendant consumeraffairs.com qualified for §230 immunity even though it reached out to "the consumer to ask questions about the complaint and to help her draft or revise her complaint"].)
The above discussion demonstrates that plaintiff is required to, but cannot, demonstrate a substantial basis in law for its claims. Because defendants are entitled to the immunity afforded by §230 to providers of interactive computer services that publish third-party content, plaintiffs' original complaint is fatally deficient.
Though CPLR 3211 (g) (1) and §230 provides an independent reason why the complaint must be dismissed, the Court recognizes that plaintiff fails to state a cause of action under CPLR 3211 (a) (7). CPLR 3211 (a) (7) motions require the court to afford the pleadings a liberal construction, accept the facts as alleged in complaint as true, and give the plaintiff the benefit of every possible favorable inference. (Leon v. Martinez, 84 N.Y.2d 83, 87 [1994]; JF Capital Advisors, LLC v. Lightstone Group, LLC, 25 N.Y.3d 759, 764 [2015].) The courts' inquiry is limited to assessing the legal sufficiency of the plaintiffs pleadings; accordingly, its only function is to determine whether the facts as alleged fit within a cognizable legal theory. (JF Capital Advisors, 25 N.Y.3d at 764.) Here, the Court must assess whether plaintiff has plead that alleged defamatory statements are (1) assertions of fact, capable of being proven true (as opposed to opinions); (2) false; and (3) published with the requisite degree of fault. (Frechtman v. Gutterman, 115 A.D.3d 102, 104 [1st Dept 2014].)
The Court notes that failure to plead a cause of action under CPLR. (a) (7) could also be viewed as a failure to plead a substantial basis in law for its claims under CPLR (g)(1).
The allegations that plaintiff "is a fraud," "guilty of unethical business practices," and "will charge a huge return shipping fee and offer credit for more defective or counterfeit merchandise" are all statements of pure opinion. Such statements are readily understood as conjecture, hypothesis, or speculation. (See Levin v. McPhee, 119 F.3d 189, 196 [2d Cir. 1997].) This is particularly true because the statements referring to plaintiff as a fraud and guilty of unethical business statements do not have a precise meaning and are exceedingly broad under the circumstances. (Thomas H v. Paul, 18 N.Y.3d 580, 584 [2012]; Hollander v. Cayton, 145 A.D.2d 605 [2d Dept 1988] [Statements that were "indefinite," "ambiguous," and incapable of being objectively characterized as true or false constituted nonactionable opinion.) Likewise, the statement about plaintiff charging huge return fees and credit for counterfeit merchandise is necessarily conjecture because it anticipates future-oriented behavior. Moreover, the surrounding context-that the reviews and complaints were posted in a public forum whose existence is designed to give outlet to consumers who, rightly or wrongly, feel mistreated by particular businesses-suggests to the reader that such statements are not intended to be recitations of fact. (Themed Rests., Inc. v. Zagat Survey, LLC, 21 A.D.3d 826 [1st Dept 2005] ["When the statements complained of are viewed in context, they suggest to a reasonable reader that the writer was a dissatisfied customer who [used a] consumers' grievance website to express an opinion."].) Taken together, no reasonable reader could have concluded that these three statements were conveying facts about plaintiff. (Davis v. Boeheim, 24 N.Y.3d 262, 269-270 [2014], citing Gross v. New York Times, 82 N.Y.2d 146, 152-153 [1993] [finding the dispositive inquiry is whether a reasonable [reader] could have concluded that defendants were conveying facts about the plaintiff].) Given that these statements are purely opinions, they are constitutionally protected.
As to the final statement regarding plaintiff s delay in giving refunds, neither complaint alleges facts that suggest the consumer's statement was false. The allegations are entirely conclusory that "at the time of such publication, the defendant knew or should have known that the statements contained therein were false." (NYSCEF doc. no. 2 at ¶11).
As described supra, plaintiff's proposed amended complaint alleges broader conduct on defendants' part as the source of its reputational injury. Whereas the original complaint solely based the reputational injury on the four consumer complaints on Amuze's profile, the proposed amended complaint, in addition to these complaints, also describes injury from defendants' publishing of an "F" letter grade on its profile. (See NYSCEF doc. no. 10 at ¶10.) However, even this rating system cannot form the basis of a defamatory cause of action. As plaintiff acknowledges, the letter rating represents "BBB's opinion of how the business is likely to interact with its consumers." (NYSCEF doc. no. 14 at ¶13.) As other courts have noted, the letter grade is "an evaluative judgment" not a "verifiable factual statement," and the nature of the information communicated by the letter grade would lead a reasonable person to believe that BBB was expressing an opinion. (Perfect Choice Exteriors, LLC v. Better Bus. Bureau of Cent. III., Inc., 99 N.E.3d 541, 550 [ Ill. App. Ct. 2018]; Castle Rock Remodeling, LLC v. Better Bus. Bureau of Greater St. Louis, Inc., 354 S.W.3d 234, 242-244 [Mo.Ct.App. 2011] [finding that BBB's rating not sufficiently factual to be susceptible of being proven true or false].) Accordingly, in its proposed amended complaint, plaintiff has not pled a cause of action for defamation.
Lastly, defendant moved to dismiss plaintiffs cause of action for intentional infliction of emotional distress. Plaintiff did not oppose this aspect of the motion and abandoned the cause of action in its proposed amended complaint. As such, it is also dismissed.
Accordingly, for the foregoing reasons, it is hereby
ORDERED that defendants Better Business Bureau and Better Business Bureau of Greater Maryland's motion to dismiss pursuant to CPLR 3211 (g) (1) and (a) (7) is granted and the complaint is dismissed in its entirety; and it is further
ORDERED that plaintiff s cross motion to amend the complaint pursuant to CPLR 3025 is denied; and it further
ORDERED that counsel for defendant shall serve a copy of this order, along with a notice of entry on all parties within twenty (20) days of entry.
This constitutes the decision and order of the Court.