513 F.Supp.3d 292
E.D.N.Y2021Background:
- Plaintiffs: a medical practice and its operating physician who perform cosmetic injections (e.g., Botox, Voluma).
- Defendant received injections, then posted a multi‑version critical review on Yelp alleging improper products/practices and urging readers to avoid the practice.
- Review alleged use of prefilled syringes, "watered‑down Botox" or "fugazzi fillers," called the doctor "not a real" physician and "sociopathic," and accused the practice of violating COVID‑19 closure orders.
- Plaintiffs sued for defamation, trade libel (defamation per se), and tortious interference; defendant defaulted and plaintiffs moved for default judgment.
- The Court considered whether the Yelp postings were actionable statements of fact, whether the requisite fault standard was met, and whether the other tort claims were duplicative of defamation.
- Court denied the motion for default judgment and dismissed all claims.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether default judgment should be entered after clerk's default | Default judgment appropriate because defendant failed to defend | Defendant did not appear; but default alone does not entitle plaintiffs to judgment | Denied; default admits well‑pleaded facts but plaintiff still must prove liability on each claim |
| 2. Whether Yelp statements are actionable defamation (fact vs opinion) | Statements (e.g., using fake fillers, "watered‑down Botox", not a "real" doctor) are false factual assertions harming reputation | Statements are opinion, hyperbole, or loose rhetoric in a Yelp review context | Held nonactionable: court found statements were opinion, hyperbole, or, in context, not reasonably read as factual |
| 3. Whether any factual allegation (e.g., violating COVID orders) meets fault standard (actual malice) | Isolated factual claims harmed reputation and were false | Even if arguable, posting about a public business on public‑concern topics requires actual malice for a limited‑purpose public figure; no evidence of knowledge or reckless disregard | Held not shown: statements on public‑concern matters require actual malice; plaintiffs failed to allege or prove it |
| 4. Whether trade libel and tortious interference survive independently | Trade libel and interference seek distinct commercial harms beyond reputation | Claims arise from same statements and injuries as defamation | Dismissed as duplicative of defamation claim |
Key Cases Cited
- Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105 (2d Cir.) (default judgment standard; well‑pleaded allegations deemed admitted)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (U.S.) (distinguishing fact from opinion; opinions generally protected)
- Davis v. Boeheim, 24 N.Y.3d 262 (N.Y.) (three‑factor test to distinguish fact from opinion)
- Enigma Software Grp. USA, LLC v. Bleeping Computer LLC, 194 F. Supp. 3d 263 (S.D.N.Y.) (elements of defamation under New York law)
- Celle v. Filipino Reporter Enters., 209 F.3d 163 (2d Cir.) (whether words are defamatory is a legal question)
- Sorvillo v. St. Francis Preparatory Sch., [citation="607 F. App'x 22"] (2d Cir.) (mixed opinion actionable only if it implies undisclosed defamatory facts)
- Ratajack v. Brewster Fire Dep’t, Inc., 178 F. Supp. 3d 118 (S.D.N.Y.) (public‑concern standard; gross irresponsibility standard for fault)
- Biro v. Conde Nast, 883 F. Supp. 2d 441 (S.D.N.Y.) (definition and elements of defamation)