Oral argument — Kenneth M Seaton v. TripAdvisor LLC

Mr. Seaton, I would like to talk to you for maybe five minutes, if you don't mind. Fine. Can you put the mic down please? I'll try to speak up. Thank you. As you probably know, this case involves my client, Mr. Seaton, who owns and operates a hotel. It's the Grand Resort Hotel down in Pigeon Forge, Tennessee, which is the heart of the Smokies. Travelers Mecca has really become one over the last 20 or 25 years, and so tourism in that part of the world is vital to their well-being. And the Defendant TripAdvisor is an internet-based company that is basically all things travel. They give travel advice, ratings, reviews, allow you to link in to all various hotels and so forth and make reservations. In 2011, TripAdvisor published its 2011 Dirtiest Hotels list. It's something they had done yearly for several years in which they rank what they purport to be the 10 dirtiest hotels in the country and rank them from one to ten, and then whoever gets number one gets a lot of publicity as being the dirtiest hotel. In 2011, the Grand Resort Hotel in Pigeon Forge hit number one, and that's when Mr. Seaton decided to look into the matter because it, as you might expect, affected his business and affected his reputation down there, especially that of his hotel. And there are a number of hotels in Pigeon Forge anymore. We filed suit initially in state court alleging defamation, false light invasion of privacy, which is a Tennessee common law tort and some other torts, and the case was eventually removed to federal court, which is how we ended up here. The district court judge granted TripAdvisor's motion to dismiss, and he held that the list itself could not be reasonably interpreted as defamatory. It was, as he put it, rhetorical hyperbole, as we see every day in commercials or various things on the Internet, articles, whatever, ranking and rating different services or whatever. Why isn't it hyperbole? Obviously, there could be other dirtier hotels. What we believe, what is at the central point of our argument, is that TripAdvisor alleges that the list itself is based solely on customer cleanliness ratings, a survey they did where their Internet users rate hotels they've stayed in for cleanliness and somehow score them or rank them or whatever and give each hotel a score. TripAdvisor says they have millions of users. And so, as the district court put it, the list is based on the millions of TripAdvisor users' opinions on the cleanliness of the hotel. If it's based on opinion, then wouldn't that hurt your position? That's our point. We don't object and we're not arguing that the user reviews are improper. What we think is that TripAdvisor says it was based on these customer reviews, but in reality it wasn't. That TripAdvisor made a subjective determination of who to place as the number one dirtiest hotel, who to place on the list, and came up with a list without any basis for doing so. But they're hiding behind the fact that they say it's based on TripAdvisor users' opinions and reviews. But we've never been disclosed any of that. You said it was a subjective determination. If it's a subjective determination by TripAdvisor, doesn't that again hurt your position? We don't think so. If they come up, if they create this list without any basis in fact, if it's not really an accurate reflection of their users' ratings on cleanliness, which is what they say it is, it doesn't have anything to do with anything else, if it's not an accurate reflection of that, then it's their own statement. And if it is, it's defamatory. Suppose that instead of TripAdvisor you have an individual who has a travel blog. And suppose that individual travels a lot and then has been to the XYZ Motel and writes in his blog, this is the dirtiest hotel I've ever been in. Would that be defamatory? If he stayed there, I think it's more easily interpreted by an individual who actually has been there as their opinion. I mean, it's a blurry line. But isn't this TripAdvisor thing the sort of aggregation of a bunch of people's opinions? No, we don't think it is. We think it's TripAdvisor created it and it's their own creation. It's their own opinion, but it's not based on any experience. And they're putting it forth, the list, they're putting forth the list as being factual in that it is a reflection of all of these actual hotel users' ratings. That's where our argument is. They put forth the list and a reasonable person would conclude, if you look at the list, if you look at the wording of the list, a reasonable person would conclude that it does accurately and factually reflect the aggregation of all of these TripAdvisor postings and gradings on cleanliness. They've referred to the cleanliness survey several times in the roost. So if it doesn't, if it doesn't accurately reflect that, then it's a defamatory statement. So you're saying they made it up? We're saying they made it up. So another hypo would be U.S. News & World Report ranks law schools and they'll rank the top one number one and the bottom one number 250. So if they say number 250 law school is the worst law school in the country, they can be sued for that? I think it would depend on what they use as a basis for that. They used all these surveys. Okay, if the surveys they use, however they compile them, if it shows some reasonable basis for putting whatever school 250 and some other school number one, I think it's an accurate reflection of a survey, of other people's opinions, whatever. But if they say this based on that, that they put somebody at number one for whatever reason and it harms them or hurts them and put somebody else at 250, it harms them or hurts them, there's no basis in fact, then it's defamatory. But our central argument is we have no problem with people posting reviews on the Internet. No problem whatsoever. It's when TripAdvisor says, here is our list based on TripAdvisor user claiming list ratings or as reported by TripAdvisor users. But if it's not as reported as TripAdvisor users, if they're just making it up because some people posted some really catchy, snippy comments about this particular hotel and they think it would be funny to put them at number one, then it's defamatory because it damages the man's reputation, the hotel's reputation, the business down there. Can they make any qualitative evaluations? Let's say they have a hotel that has 50 comments about, you know, this place really could do a better job cleaning up and then they have 10 comments about another place that are, they're fewer but they're more extreme. Can they evaluate between the two of them or do they, are you saying that's made up? I don't know. We have no idea of how they compiled the reviews, the ratings, the ratings, the scores, whatever it is. If you look at the list itself and the district court did, the district court did examine the actual list even though it was a motion to dismiss and if you read the district court's order, you'd understand that he said that without converting it to a motion for summary judgment. But beside each of the hotels, there are comments of how many, what percentage of users would recommend against staying at this hotel. We had brought up at one point that those percentages didn't correlate to one through ten. Number one might have had a lower one than one further down the list. Some supervisors responded that how many recommended against staying at the hotel didn't have anything to do with the list. It was apples and oranges as they said in the brief. The list was based on the user's cleanliness ratings but we've never seen cleanliness ratings. We don't know how they came up with that. Was it an average score? Was it a compilation of scores? Was it whatever? And you can have a defamatory statement if it's opinion but it implies having a basis in fact, then it can be defamatory as the Supreme Court said in the Milkovich case that just because it's opinion doesn't shield it completely from being a defamatory statement if it implies having a basis in fact. The list does imply having a basis in fact. A reasonable person looking at it would say, ooh, they've done a cleanliness survey and this hotel that's number one got the worst ratings of anybody. I know you're out of time there but what legal test are you asking us to employ here? Is there a case that sets out the test? I know there's this Joliffe case out of the Sixth Circuit. Is that the test for us here or is there some other case you would like us to look at? The only thing we're saying is the test is, and again I think the test at this stage, you all do a de novo review of the issue, the test is could a reasonable person interpret this statement of issue, in this case it's a list, as purporting to state something factual. Could a reasonable person do that? If you get past that stage you go to the jury. You don't have a governing test? I don't. It's a reasonable person standard and it's been set out in various ways but that's it, that's it. We say that if the list itself says the top ten dirtiest hotels according to traveler ratings for cleanliness, then would a reasonable person say that that list is an accurate reflection of those cleanliness ratings? I think you've answered. Thank you. Thank you. Thank you. Good morning, your honors. My name is Laura Handman and I'm here on behalf of TripAdvisor. You've just heard Mr. Shelton on behalf of Grand Resort ask this court to hold that an online top ten list ranking the dirtiest hotels could be understood by a reasonable visitor to the TripAdvisor website to be stating and asserting an objectively verifiable statement of fact. Now he does that without discussing any of the cases we've cited including this court's Sixth Circuit case in CompuServe v. Moody's of all the ratings and rankings and reviews that have been held to be subjective. He concedes the ranking is objective and he doesn't distinguish any of those cases. I hear him saying something different that if this accurately reflected the reviews they would not be complaining. He's saying that if you publish something that purports to be a compilation of opinions you're not going to be bound by those opinions if they're false but it has to be an accurate compilation of those opinions. Your Honor, the ranking is according to all the reviews and ratings which you can link to from the TripAdvisor website to see who gave the rating of terrible for cleanliness who gave the rating of excellent. You can look at the reviews yourself and see what the people said and then TripAdvisor does a synthesis of those ratings and that's the ranking. If the ranking itself just as in the Moody's ranking of creditworthiness the credit rating that they gave to CompuWear was itself, the court said an inherently subjective judgment then it doesn't matter in that case they did challenge how they got to it but the rating itself was an inherently subjective judgment and that means if it's not stating an objectively verifiable fact it's not actionable. And I might add that... But could you... Could you... decide, okay for whatever reason the person with TripAdvisor has a beef with a hotel having nothing to do with cleanliness. Could you call out a few negative remarks and make an assertion that based on our reviews reports this is the dirtiest hotel in America? No, no, in this case that, the links to all of the... I'm not asking you that. I'm trying to get you to focus on what I understand their position to be and I understand their position to be that yes, this type of review is insulated it's inherently subjective it's not a problem but if you affirmatively represent that this rating not this is our subjective view but this is a compilation of reports that we got from our participants that if you make that representation it has to be it has to be a compilation it has, there has to be whatever your formula is there has to be a formula that leads you to the point of looking at all your reviews and deciding that this is the dirtiest. Well, first of all there is nothing in the complaint or even in the proposed amended complaint that provides any of the specificity or plausible allegations that are required under Iqbal Twombly for any notion that that in fact you know, they threw the ratings and the reviews in the trash and created their own fabricated rating. But I would go beyond that and say that in all of our ratings cases the methodology was indeed challenged. In the Bar Association they didn't investigate any of the allegations by the lawyers that the judges that supported the ratings. All of them in CompuWear itself they challenged the methodology to reach the credit rating but the credit rating itself was an evaluative judgment and as such and in this case doubly so because it's based on evaluative judgments here about cleanliness which arguably is a subject on which it is inherently subjective to begin with and it's very hard to say what would be false or what would not be false as to an allegation of dirtiness and particularly we are given a top ten list of dirtiness which is hyperbolic in its own right Suppose that the survey of visitors to the hotel actually rated the hotel as very clean and suppose TripAdvisor said based on our ratings this hotel is the dirtiest hotel in America would there be a defamation claim there? Conceivably if they hadn't disclosed all the information on which the rating was based but they did and those ratings are themselves inherently subjective and here the only factual allegation that is offered is that 88% of people said that Palm Grove they did not recommend going to Palm Grove and 87% said that they didn't recommend going to Grand Resort and that rating though is based on an overall assessment cleanliness could be one part of that or not that part of it could be the view could be the service any number of factors that could have well gone into the decision not to recommend Grand Resort by one percentage point more people didn't recommend Palm Grove but that is the only factual challenge that is offered Why shouldn't there be discovery so that the plaintiffs could investigate further whether there was a basis for the ranking of their hotel as the dirtiest Because the methodology honestly would not convert what is a statement of opinion not objectively verifiable as a statement of fact into a verifiable statement of fact and so this is a kind of decision made on looking at the publication itself when none of the factual basis is challenged he doesn't say the reviews were wrong he doesn't allege that any of the statements in the reviews are wrong See to me that's the kind of thing he can challenge I mean whether they're right or wrong you receive them and that's what you're going on so I'm with you on that but to me it's an entirely different question whether you can say our reviewers found this to be our participants found this to be the dirtiest place in America and then not have the goods to support it Well but we do have those are all the reviews That's the question whether there should be some discovery But there has to be at least some plausible basis to think that there was anything that would cause the ranking not to at least be an evaluative judgment based on the reviews and ratings offered by the users who are all posted on the website and available for everyone to see if it's an opinion based on disclosed information where the information is not challenged as false that's protected opinion and all the cases both the First Amendment and Tennessee law make that very clear so that's frankly what has happened here is they give a ranking it's a kind of digest or synthesis of the reviews and ratings there's absolutely no basis that's been offered nothing plausible to state that there's any flaw in what has been presented and all the information is provided What if there were another place where 99% of the people that stayed there said it was the filthiest place they've ever been and they would never go back? Well again those would be part of the evaluative judgment of TripAdvisor to take a look at that take a look at you know present the reviews present the ratings they do look at the people who are posting those reviews see how many if they're constant whiners or not and do other checks but the point is the end result is not an objectively verifiable statement of fact that this is the dirtiest hotel that's a classically subjective judgment whether it's a credit rating an aviation safety rating a Zagat's restaurant rating you know all of those are rankings and you don't in those instances go back and see well you know did you add an upright? Those are Zagat's evaluation that's the aviation safety standards that were presented in the aviation safety case when Senator Wellstone's brain went down and they looked and gave a low grade to that charter service those are the ranking itself the rating itself is and Chief Judge Batchelder held in the Moody's case is itself inherently subjective judgment and that's what we have here so you don't get to the question what is the methodology if you don't have an objectively provable statement of fact and dirtiest is not an objectively provable statement of fact I would add that suppose that there were a way to evaluate dirtiest such as measuring the air quality would that then make it an objectively measurable fact that would potentially be defamatory well if there were and there's a case for example out of the Nebraska Supreme Court which talked about a health care club member's critique of the cleanliness of the health care club and for the most part that was viewed to be in a subjective evaluation when the health club member said or reported on what purported to be what the board of health actually found about the club's hot tub that could be a statement of fact so if you're and these reviews if you look at them they're inherently hyperbolic one of them talks about how greasy the carpet is you wouldn't want to put your luggage down these are not objective air quality measurements or anything like that it doesn't purport to be that these are users' experiences of hotels that they've stayed in and so it doesn't purport to be that objective quality I've been thinking about my grandmother's standard of cleanliness my grandmother Sophie probably had a very different standard of cleanliness than me and if she came to my house I'm sure she would be appalled at it and I think it's just fine it's that standard of cleanliness from the non-scientific point of view that is what TripAdvisor purports to offer isn't it an objective it seems to me to be an objective statement of fact that our conclusion that this is the dirtiest hotel is based upon our participants' reports they do say that it's according to ratings and rankings but there is absolutely no basis here other than this 87-88% they offer absolutely no basis for saying that those rankings that ranking which was itself an evaluation a synthesis it doesn't say we added them up and this is what it came to it's a judgment much like Moody's judgment this is the synthesis of what our reviews and ratings have found why should they not have a right to say all right let us see the files on you know your 50's dirtiest hotels or whatever and to see if there's any objective basis at all or even any methodology the objective basis is set forth in this case with the ratings so that's the information and it's not challenged here so the links if I could just clear up the facts here the links would take the planner for anybody to all of the reviews of all of the hotels yes that is my understanding and all the cleanliness ratings and all the other ratings the overall ratings and how many terrible reviews they got and how many excellent reviews because people fill in those little computer bubbles like you do on the SAT and the cleanliness from terrible to excellent so all that is available this is a classic example of where you have what even the plaintiff has said is a subjective judgment based on fully disclosed information none of which is challenged here as false and about reviews which are themselves largely subjective about a subject matter that is largely the plaintiff has been very clear that these determinations of whether something is capable of being understood as an objectively verifiable statement of fact is decided on motions to dismiss looking at the publications themselves because the courts are eager to avoid the chilling effect that such suits directed against speech of concern here to the traveling public can have and to avoid what the Milkovich court said was an intrusion into free expression unwarranted intrusion into free expression thank you thank you your honor she's talking about reviews and comparing this list to like a Zagat's review of whatever if that was the context everybody knows that a particular company it's their opinion that is an opinion of how credit worthiness coming up with a credit score anybody would understand that they have people that work for them that look at a lot of different factors of whether what a credit score should be or whether a restaurant is good or bad trip advisor here clearly says they are to trip restaurant and they are not going to be a bad trip to a restaurant and they are not going they are not going to be a bad trip to a restaurant and they are not going to be a