February 27, 2007

Chops' Beef With LaBan

The Daily News reported last week that Chops and Alex Plotkin, the managing member of Chops, sued Craig LaBan and the Philadelphia Inquirer for libel. The subject of the lawsuit is this three-line review of Chops in the “Or Try These” sidebar to LaBan’s Feb. 4 review of Fleming’s in Radnor:

A serious power-lunch crowd makes this sunny room feel like “the Palm on City Line.” A recent meal, though, was expensive and disappointing, from the soggy and sour chopped salad to a miserably tough and fatty strip steak. The crabcake, though, was excellent. Revisited January 2007.
No matter how unkind, a restaurant review typically is not fertile ground for a successful libel action. Those who sue restaurant critics often don’t win for one or both of the following two reasons:

1. Restaurant Reviews Are Considered Opinions. Generally, opinions are privileged (and, therefore, not actionable), while statements of fact are not. The distinction between fact and opinion, though, is not always clear. For example, even statements of fact in restaurant reviews can be considered part of the opinion when read in context of the entire review. Of course, statements of fact are protected if they are true. But statements of fact don’t have to be 100% true to be protected; they only have to be substantially true.

2. Restaurants Are Seen As Public Figures. If you’re a public figure, you can’t win a libel suit merely by proving that what somebody wrote was false. You also have to show that the false statement was made with “actual malice.” This means you have to show that the person either knew that what he or she was writing was false or that he or she entertained serious doubts as to the truth of the statement but published it anyway. Public figures have this higher burden because they’re expected to use the public forum to which they have access to set the record straight. Restaurants are considered limited public figures for purposes of a review because they are places of public accommodation seeking public patrons.

Plotkin has a beef with two words in the review: strip steak. In his complaint (which I obtained from the court), Plotkin alleges that LaBan “ate a steak sandwich without the bread, not a strip steak . . . .” But it’s still not clear what the sandwich was made of. Although Plotkin alleges that “[t]here is a significant difference in the meat, preparation of and presentation to the customer of a steak sandwich compared to a strip steak,” he does not come out and say that the sandwich was not made with strip steak. If the sandwich was made with strip steak, or if LaBan believed it was made with strip steak, Plotkin may have a tough time proving the libel claim.

Plotkin’s complaint also contains some extraordinary allegations that are bridge-burners, to say the least. For example, Plotkin claims LaBan has a “vendetta” against him because Plotkin “jokingly” threatened to reveal his identity to a room full of Chops patrons in 2002. He also claims that LaBan’s invite to participate in his weekly Q&A forum was a “set up” during which LaBan planned to further embarrass Plotkin with the aid of (and I love this phrase) “sham ‘bloggers’.”

But perhaps the most brazen allegation is the one in which Plotkin drops the F-bomb—fraud. Plotkin does not assert a cause of action for fraud; however, he does allege that LaBan fraudulently publishes food reviews based on what he is told by others instead of his own personal experiences.

Vendetta? Sham-bloggery? Fraud? These are bold allegations. But will it all backfire?

There’s another reason you don’t often see restaurants suing critics—it’s not good for business. Restaurants need critics. Even if a review is less than stellar, it’s still press. Negative reviews certainly can sting, and it’s instinctive to want to fight back. But there is something worse than a negative review: no reviews at all. Or perhaps even worse, a positive review that no one can trust.

In other words, Plotkin’s lawsuit could have a chilling effect. Reviewers may now believe that if they say something negative about Chops, they too could get sued. How many restaurant critics do you think are going to rush out to review Chops now that it has a reputation of suing a restaurant critic? My guess is very few, if any. What critic is going to take that risk? It could be long time before you read another review of Chops, positive or negative.

But that’s only half of it. Let’s say someone does give Chops a positive review sometime in the future. Aren’t you going to wonder whether the reviewer was influenced by the fear of getting sued? Can a favorable review of Chops be trusted at this point? Possibly. But as a result of Plotkin’s lawsuit—win, lose or draw—these are questions that could dog every positive word that is written about Chops for a long time to come.

Disclaimer:

The information provided in this blog post is not intended to be legal advice, but merely conveys general information related to certain legal issues and the possible contents of a steak sandwich someone else ate. (Keep in mind, I write a food and wine blog. Any lawyer who has time to write a food and wine blog probably isn’t worth listening to for legal advice.) The information is not guaranteed to be correct, complete or current. PhilaFoodie makes no warranty, expressed or implied, about the accuracy or reliability of the information in this post or at any other website to which this post is linked. (Nobody really reads or links to this blog anyway, but, hey—belts and suspenders, yo.) The views and opinions expressed herein are PhilaFoodie's and are not the views or opinions of his employer.

This information is not intended to create any legal relationship between PhilaFoodie and the person reading this post. This post is not intended to create and does not create an attorney-client relationship between the reader and PhilaFoodie. This post is not soliciting clients and does not propose any type of transaction. You should not act or rely on any information in this post without seeking the advice of an attorney. (Again, I’m makin’ it up as I go along here, folks. Just in case that wasn’t clear by now.) The determination of whether you need legal services and your choice of a lawyer are very important matters that should not be based on blog posts, especially posts from a food and wine blog for cryin’ out loud.


4 comments:

Mike said...

Great post, with lots of interesting thoughts about the legal side of things. But your comments on the chilling effect of the lawsuit is even more interesting, I think.

You hit something on the head with your post. The suit will probably fail, thanks to its merits (or lack thereof) and the fact that LaBan has the resources of the Inquirer behind him, and one would think they're well versed in First Amendment law and have relatively deep pockets.

What happens if/when a restaurant owner sues an independent blogger for something they post? It really won't matter if the suit has merit. The blogger will be forced into a situation where he/she needs to hire a lawyer. The expense and aggravation alone would have a significant chilling effect on online food writing.

Mike

Chef Scott said...

Just found your site. I too am a lawyer by day and blog over at The Portly Chef. Would love to exchange links. Could you provide me with the LaBan complaint, if you have it by email?

PhilaFoodie said...

Chef Scott: Shoot me an email and let's make arrangements to get you a copy of the complaint: philafoodie@yahoo.com.

ClaireWalter said...

Your post and other reports of restaurants suing critics over negative reviews inspired me to write about the topic at http://culinary-colorado.blogspot.com/2007/03/restaurant-critics.html