CBA Record October 2018

Y O U N G L A W Y E R S J O U R N A L

the initiation of litigation could be seen as a company’s attempt to silence an unfavor- able opinion that may be a legitimate gripe. News media could cover the lawsuit as big business silencing the small consumer. This external factor should be considered in the overall cost-benefit analysis before the initiation of any lawsuit. Conclusion Business owners should be prepared to deal with negative (or defamatory) reviews when they arise because the reviews can

anchor dragging down a business’ profile, which may leave a single remedy, litigation. (c) Lawsuits. Upon the evaluation of the review as defamatory, the business owner can consider a lawsuit against the reviewer for defamation along with other claims such as tortious interferences with exist- ing and prospective business relationships and false light. If the reviewer continues to post about the business, the business owner could seek injunctive relief for the reviewer’s continued harassment. When pursuing litigation, the business owner should subpoena the online review platform for the production of the elec- tronically stored versions of these reviews. Defamation per se requires a pleading of sufficient precision and particularity, so a business should not rely on its memory regarding an online review. Additionally, these platforms are not required to retain this information in perpetuity. The disadvantage of litigation is the large amount of time and fees expended. Given the ephemeral nature of Internet reviews, the sting from the defamatory review may subside by the time judgment against the reviewer is entered by the court. The significant cost of litigation should lead to a discussion between attorneys and their clients on the cost-benefit analysis of litiga- tion, especially when the type of defama- tory statement will determine whether damages will be presumed or proven, and in scenarios where the damages are difficult to prove. With a lost profit analysis, expert testimony may be required. Also, its budgeted time and expense for litigation business owner will increase sig- nificantly when the reviewer is anonymous or difficult to ascertain by the post. The business owner must file a separate petition for the limited purposes of receiving dis- covery for the identification of individual from whom the petitioner seeks relief. Ill. S. Ct. R. 224 (eff. May 30, 2008). Further, even if the business wins in the court of law, it could lose in the court of public opinion. From public’s perception,

occur and grow quickly and cause devas- tating effects to a business. Any response should consider the nature of the review (defamatory or negative), the context thereof, and strategies to address it. When the online mob begins to sharpen its pitch- forks, business owners should rally their troops and seek outside reinforcements for an attack.

Neil P. Johnson is an associate in the Chicago office of Golan Christie Taglia LLP.

Pro bono work has become a significant part of my practice. At the age of 6, I told my mother that I wanted to be an attorney because I wanted to help people. Giving back to underrepresented individuals gives me great pleasure because they are no less deserving than those with the financial means to afford an attorney. I

have been very fortunate to do the job that I love to do and in turn, provide a service to people who deserve it. I will continue to give back because I can. I love doing it.

Shunte’ S. Goss Law Offices of Shunte’ S. Goss

The Chicago Bar Association & The Chicago Bar Foundation 2018 Pro Bono Week Oct 22-26 chicagobarfoundation.org/probonoweek

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