A month later, I believe this issue to have finally blown over. However, it's still entirely possible that Videomadness may sue my wife for defamation, but at least now they don't have their sister company -- Picture 2000 -- holding our DVDs and wall portrait hostage in the meantime. All I've got to say is that these Picture 2000 and Videomadness guys are not exactly what I think of when I think of "good people."
Instead, I'm more likely to think of "asshat" or "douchebag" whenever I think of Video Madness or Picture 2000.
[2008.05.21 - Exhibiting the power of the people] But hey, it could be worse - at least it didn't get to the point that it did with Beso Restaurant in St. Louis, MO. Check out the yelp lashback after the restaurant's owner not only threatened a negative reviewer with a lawsuit, but with her life (implicitly). What's really sad is that the tone of voice that the restaurant owner in that article took in his threatening voicemail reminded me way too much of the tone of voice that Bob Farnsworth, owner of Videomadness, took with me via e-mail.
Confused? Well, read on for an entertaining (in a sad way) tale.
The Backstory: 2008/02/11, 1:00PM [click to show/hide]
[2008/02/11] My wife has been told that she will be sued by Video Madness, the company that was sub-contracted to do our wedding video. Their claim is that her negative yelp review (click here to read | mirrored on this server) -- that complains about my name having been misspelled in the video (among other things) -- constitutes slander (or if you want to split hairs, I think it's libel, not slander) since they were merely sub-contracted by our photographer (Picture 2000) and we didn't sign a contract with them directly.
Now I'm not a lawyer, but I was surprised that they would opt to take legal action without first attempting to contact her and try to work something out. Ordinarily, I'd expect them to first try to find a way to have the user (in this case, my wife) remove the review (or otherwise convince him/her to do so), and only seek legal action if repeated efforts are ignored.
When I first heard this from my wife over the phone, I was confused (it's not like my wife wrote that the employees there club baby seals or anything outrageous like that), so I sent an e-mail to the contact that was listed on the company's website. Here is the e-mail thread:
My e-mail to Video Madness [show/hide] Dear (comapny rep's first name),My wife Sherylen was told that Video Madness is suing her in response to a review on yelp.com.
Actual link: http://www.yelp.com/biz/videomadness--videography-san-jose#hrid:XwyjujCWJeixG8i2T_u0TQ
Now I admit that I am not a lawyer, so I don't know all the details of what's fair and what's not (in a legal sense), but before I make any rushes to judgement, I was wondering if you could help me out by explaining, from the point of view of Video Madness, what is wrong, and how we can work it out.
I'm confident that this has to just be a misunderstanding on one of our parts....
Thank you for your time,
Jonathan
Their response [show/hide] The basis for the action is simple. Your wife has slandered us in the public marketplace. We have no contract with you or your wife. You did not hire us. You hired picture 2000. Who they subcontract is their business, but your defaming us in the public marketplace without ever having contracted services with us is indefensible.
However, as past history has demonstrated, neither one of you hesitate [sic] to broadcast your views in the public marketplace - with or without grounds.
--
Best Regards,
(company rep's name)
So it seems to me the guy doesn't like us since we're active yelpers. Fine. But you don't see the Carl's Jr. across the street from my workplace threatening to sue me because I mentioned their TV's fuzzy reception, do you? And last time I checked, it's not against the law to have an opinion or share it with others (of course, I fully understand that there are people out there who don't want to hear my opinion, and that's fine - they have the right to ignore me. just as i am free to express my opinion).
From a customer service standpoint, though (and to use an analogy), I wonder if the rep. who sent me this e-mail goes to a resturant and expects his waiter to be responsible for the quality of his food instead of the chef; after all - he gives his order to the waiter (the verbal contract, eh?). So what if the waiter then "sub-contracts" this order to the chef to be cooked and then brought to the table for him? If the steak is under-cooked, then the chef shouldn't be held liable since he/she wasn't directly asked by the customer to make a steak...is that how it is? (NOTE for clarification: I'm being sarcastic here).
Further, as I understood it, slander/libel by definition refers to someone making false and unprivileged statements and trying to pass them off as the truth (as per California Civil Codes 44-46). From what I know, nothing written by my wife in her review is deceptively untruthful. Or even un-deceptively untruthful:
I'm pretty hacked off at the moment, so I'll leave it at this for now. I'll post updates with information as it becomes available.
On another note, Picture 2000, though also not accredited with the BBB, has no complaints, as per their BBB page here [bbb.org].
My point with the video: it doesn't matter who we signed the contract with; if Video Madness was ultimately the one who made this error, then it's fair game to hold them accountable for it (even if it takes the form of a negative yelp review). In summary, they provided us with a service (producing this video), and we were not satisfied with parts of it (yes, I'm especially picky about misspellings of my name). Contract or not, my wife shared her experiences with the provision of this service.
Oh, and for the record, the correct spelling is "Jonathan," just like the 2006 NHL Rocket Richard Trophy winner's first name.
I'll keep this in mind, but for now, I think I'd like to take it one step at a time. I'm glad my mom sent me off to that ritzy private high school (because pretty much everyone I know from high school is brilliant at what they do in the "real world" now).
Granted, I believe this form was actually given to Picture 2000, who in turn submitted it to VM, but I also believe that there was no doubt to us by filling out this paper who we were asking to do the videography for our event. The footer on this page reads:
Telephone (408) 441-1619 | www.videomadness.com | Fax (408) 977-1619NOTE: I initially had reservations about posting the phone/fax/url up here, but since this information is freely obtainable via a Google search, I think it's in the public domain.
And I do believe it *is* our business who was subcontracted by Picture 2000 to make our wedding video because the product that was given to us fell below the standards we expected, and we would like that to be corrected. And which company's name appears on the DVD? Not Picture 2000 - but rather, Video Madness.
I love working with (him)! He's professional, easy to work with, unobtrusive, a "People Person", has a great sense of humor, provides phenomenal service and an incredibly creative finished product...
I think this was a quote from a Wedding Guide review. On a side note, I remember someone at Formal Headquarters (the so-called "tux place from H-E-double-hockey-sticks") commenting that the same parent company owns Picture 2000, Video Madness, and the Wedding Guide as well. But I could be mistaken, as there are a million different wedding guide type things out there.
EDIT: I was wrong. As far as I can tell, Picture 2000 is owned separately from Video Madness and the Wedding Guide [Picture 2000 whois result here]. On the other hand, a whois search for videomadness.com and yourbrideguide.com shows that both domains (and possibly, both companies) are owned by the same person. So it comes as no surprise to me that there are glowing reviews of Video Madness posted at www.yourbrideguide.com -- The Wedding Guide.
Anyway, I thought I'd throw the quote out there, and ponder a hypothetical question: if he wasn't threatening to sue my wife, would I get along with him? I mean, if he's a people person with a good sense of humor, then I'm sure he'd have been good fun to have around while watching the Giants beat the Pats in the Super Bowl (if he's into that, that is). It's a shame that my first impression of this guy was so confrontational.
First response:
Thanks for letting us know. I've forwarded your email to the appropriate person and they will follow up with you shortly. I took a look at your wife's review - there is nothing the company can base their lawsuit on, so I wouldn't worry about their threat too much. If you don't hear from someone soon, please feel free to let me know. Second response:
Thanks for contacting Yelp.
As you might expect, we aren't in a position to give people specific legal advice. We do recommend that you make every effort to ensure that your reviews comply with our Terms of Service and review guidelines. Ultimately, however, your words are your responsibility, and we hope that you can find a way to resolve this matter with the business at issue. We apologize that our role is necessarily limited in these situations.
If you have any other questions, please contact us using our feedback form: http://www.yelp.com/contact
Somewhere along the line, I stumbled across the Yelp Business Owner's Guide (http://www.yelp.com/business) Here's a snipet/quote from the page (added emphasis is mine):
My business has been reviewed on Yelp. Now what should I do?
Congratulations! Now that you are in the game, we recommend getting personally involved in the Yelp community - primarily as an individual and also as someone actively putting your business' best foot forward on Yelp. We've come up with this simple list of DOs and DON'Ts for business owners, and we hope you'll keep us posted on what works best.
First the DON'Ts:
- DON'T review your own business anonymously or get your friends to do the same. (see below for alternatives)
- DON'T overestimate the impact of a single negative review. It happens to even the best businesses. In fact, in speaking to Yelp users, we've learned that negative reviews sprinkled in with favorable reviews often act to enhance the credibility of the positive reviews by illustrating the honesty and openness of the Yelp environment. That said, if you see a trend of negative reviews, you may want to take this feedback and determine if there is a way to improve your business.
- DON'T lash out at the people who have written negative reviews about you. Tempting as that may be, we see that backfiring in some cases as the Yelp community may up the ante and even engage in "vigilante justice" by spreading more negativity (see below for alternative).
- DON'T offer incentives or payment for your customers to write positive reviews about your business on Yelp. This sort of "shilling" often causes ill will with both current and potential customers. In addition, these paid reviews violate Yelp's Review Guidelines and will be removed.
Of course, this ain't a legally binding set of guidelines by any means, but you'd think that any business owner who's serious about his or her reputation on Yelp would at least consult the Yelp Business Owner's Guide, eh?
Withholding further commentary until it happens.
And if it doesn't happen, and it turns out this guy was just bluffing, then I'll probably just have to get back to actually doing work at work, instead of preparing for a legal defense. :)
Legally (according to California Civil Code 1559), this means my wife and I can hold both Picture 2000 and/or Video Madness responsible for providing videography service and the DVD, for better or worse...mostly "worse" right now. And, this means I can sue Video Madness directly, if it comes down to that, to ensure fulfillment of said benefit.
Isn't information empowering? Putting all of this together: My wife and I are legally entitled to sue a company (Video Madness) for failure to provide a service (production of a wedding DVD with my name spelled correctly), yet this same company claims that our commenting negatively about their failure to provide this service is "indefensible" and "slanderous." Go figure.
Granted, we probably won't sue them, since it would be pretty damn frivolous, but hey, you never know how much money could be at stake in the end (which would reduce the frivolousness ever so slightly).
It appears that Video Madness could perhaps be threatening us with a SLAPP suit [reference.com]. But hey, scroll down to the part that describes the suit in California, and it appears that we could get the anti-SLAPP motion to work in our favor, and in the worst case, use a SLAPback....
Also, if Video Madness does proceed to file suit, it would seem to fall under the category of barratry [reference.com], which under California criminal/civil law, is a misdemeanor. Good to know.
At the advice of my lawyer-friend, we asked Picture 2000 for the completed/corrected DVD (which they claim to have), and gave them final specifications for the 16x20 wall-print which was specified in our contract. No, we didn't *demand* them (not yet, at least), and we haven't (yet) threatened them with legal action to force them to uphold the contract. But as it is, I guess we might have to.
Here's the reply from Picture 2000 to our inquiry for the corrected DVD (which Picture 2000 had completed and ready to go, per an e-mail they sent my wife on Feb 7, 2008):
I can not [sic] give you anything at the moment, as I mentioned that Video Madness is talking to their lawyer to take action on your Yelp post. You should be getting a call or be served with court paperwork sometimes [sic] soon.
At the risk of sounding like a glutton for punishment, let me just say that we're still anxiously waiting to be served, so we can have our day in court and/or counter-sue for breach of contract (and perhaps demand our money back). After all, truth is an absolute defense to a defamation claim (according to EFF's Bloggers' FAQ), and since the yelp.com review still does not make any false statements of fact, I have a hard time understanding what they could be pursuing.
On a side note, I know that lawyer fees are pretty insane (upwards of $250/hr on average or something like that). I really would like to know where Video Madness is coming up with all the money to pay for their lawyer consultation time, since it seems to be taking a really long time and they seem to be spending an awful lot of time talking to a lawyer....
So I've sent a "nice" version of a demand letter (via e-mail) to Picture 2000 kindly requesting that they fulfill their contractual obligations within two weeks, or else I'll be suing them in small claims court for breach of contract. Well, this, and asking them to find out when Videomadness plans on serving us, becuase we'd like that to be expedited. Or rather, I sent this to them on Thursday Feb 28, and they have yet to respond.
If I hear nothing from them by Friday March 7, I'll write up a formal demand letter and send it to them via certified mail. Or maybe I'll have an attorney write it, you know, to increase the scare factor and prove to these guys that I'm serious.
If nothing comes of that, I will be filing court papers on March 14. I've begun the process of filling out the Small Claims Court forms for either a counter-suit [if Video Madness isn't bluffing and my wife gets served], or my own suit initiated against Picture 2000 and Video Madness -- forms SC120 and SC100, respectively. In addition to breach of contract, I will also claim damages for emotional distress, since Picture 2000 has been holding the threat of a Videomadness lawsuit over our heads for three whole weeks now without any forseeable action, and using it as an excuse to refuse to honor the contract.
How much money do you suppose one night of lost sleep is worth?
Amazing what a threat of a lawsuit for breach of contract will do to a company that relies on contracts with their clients, eh? Picture 2000 got in touch with Videomadness on my behalf and got the owner of VM to admit what we knew all along: all he wants is for the yelp post to be taken down and then we can receive our DVD and such. Here's the exact message relayed to me:
(Videomadness rep addressing Picture 2000 rep:)
Hi (Picture 2000 Rep's Name),My position is simple. They hired you. We did the work - for you. Our timetable determined - by you. At the time I was notified of the libelous statements online the corrected DVD was here and waiting at the office. I have no desire other than to see the post removed and the client receive their DVD.
(commentary from Picture 2000 rep:)
So as far as I understand you can simply remove the post and pick up your DVD.
Well then, why the heck didn't he say so three weeks ago when I shot him an e-mail and asked him what we could do about the situation? Why did he have to get all defensive and start bullying us around? Sheesh.
I'll have to sleep on this and think of what to say in response. The Videomadness guy still clings to his allegation that the post is libel, so I'll have to think of some sort of concession he'll have to give me to make us take the post down (since legally, it's not libel at all). I don't consider a defamation suit by Videomadness to be a threat at this point since they essentially have no case. So not filing suit against my wife is no longer something that I'd consider to be a concession on their part.
Further, it seems to me that what Videomadness wants is to shift any possible "blame" for the delay in getting us our DVD off of themselves and squarely onto Picture 2000. At least in the context of the yelp.com community. And perhaps this explains why Picture 2000 is so adamant about having the review removed completely, and why they're holding our DVDs and wall portrait hostage: if all my wife did was to more explicitly reiterate that the contract was with Picture 2000 and not Videomadness, this would make Picture 2000 look bad while letting Videomadness off the hook a little. Removing it completely will wash both companies clean of their misgivings. Interesting.
I'll let the two of them sort that out amongst themselves...in the meantime, one lawyer that my wife and I have showed this e-mail thread to actually thought that Videomadness was attempting to sue Picture 2000 for defamation because of this particular part of the thread....
There's a saying: "You'll catch more flies with honey than you will with vinegar/a sledgehammer." I guess it's time to end this by taking the high road and playing nice, eh?
Last night I was filled with crazy ideas on how to respond. I was ready to fire off an emotionally-charged mail with the following demands:
But then I realized that this just ain't worth it. Or rather, these Video Madness guys aren't worth the potential firestorm that these demands could stir up. So instead, I assessed my situation and came to the following conclusions:
With this in mind, I just shot off an e-mail to Picture 2000 proposing the following compromise: if we remove the yelp post and no longer pursue legal action for breach of contract (a concession on our part), then they give us the source video/raw footage/master tape/whatever-you-want-to-call-it with all six hours of unedited video from our wedding in addition to all their other contractual obligations (their concession).
The way I see it, at this point, it's only fair for both sides to concede some ground in order to reach a compromise. I'll spare Videomadness the embarrassment of admitting that they're wrong, and I'll spare both Picture 2000 and Videomadness their business reputation (darn - and here I was all set to seek help from the San Jose Mercury News' Action Line column too...oh well). In return, they enable us to get our own edited DVD made to our liking without us having to hassle them or deal with them ever again.
We'll see if they try to play hardball again....
No dice. The Videomadness rep believes I live on another planet and is clinging to the "lack of privity of contract" excuse. Admittedly, asking for raw footage was a bit of a stretch (if indeed, they've made a corrected DVD), but it seems they're unwilling to compromise on anything...it's either their way, or the highway.
(Videomadness rep's commentary)
Let him leave the post. I will pursue things on my end. He lives in a different world or planet. I have no obligation to provide him raw footage now or in the future. I have no contract with him. I think court is the only place he wants to be.
(Picture 2000 rep's commentary)
So looks like we are where we started and you are the one who likes to make things complicated. You will be served from Video madness sometime soon.
Time to talk to a lawyer. And maybe my doctor too.
I applaud them, and what appears to be their New York-based lawyer, for finally spelling out their demands to my wife. Never mind their claim that I flat-out refused to do what they asked (namely: get her to take down a yelp post without them giving up any ground). Without this -- spelling out their demands to my wife -- they would have had no grounds on which to even file a lawsuit seeking damages.
On the flip-side, however, this means they've actually got all the bases covered and could actually file suit legitimately in a California court. Maybe we'll actually get served...finally.
My wife's going to call them and try to get an out-of-court compromise with Picture 2000, if they're willing to compromise, that is. Hopefully they'll actually take her seriously and come to an agreement. And no matter what the case, I wonder if they'll be surprised when they find out that I was the "nice" one attempting to settle with them.
At this point, I'd be happy with no DVD and no wall print if my wife can get us our money back for this part (about $3000 worth, if you believe videomadness.com's average videography costs). Realistically, I'd say a fair compromise would be for Picture 2000 to give us what's due on the contract, and for my wife to agree to update (as opposed to removing completely) the review to align with her impressions of the most recent corrected DVD. Separate lawsuit from Videomadness be damned. We'll deal with that if it comes.
But it's not my call, since I have yet to guess my wife's yelp.com password. :)
That, and I'm done talking to these guys directly. This has got to be the worst customer-service nightmare in the history of, well, customer service. I'll think of something better before I review them on yelp...after a six-month cooling-off period from the date on which we get everything from them...if I feel they're even worth my effort to review, that is.
I imagine that if Picture 2000 and/or Videomadness value their reputation and their time, they'll back off. Otherwise, imagine the bad press they'd get if this were to go to any sort of court action for real.
Further, I'm hoping that the "years and years" part doesn't come to pass. Maybe, once Picture 2000 and Videomadness see that we're serious, they'll stop playing games with us, because let's face it, I'm tired of this stuff. That's why we off-loaded it to a professional.
This, in response to the demand letter sent to them by our lawyer threatening legal action for breach of contract. No mention was made by Picture 2000 of any Videomadness demands or anything related to a yelp post, only that they will comply and fulfill the contract.
Further, nothing was said by Picture 2000 about Videomadness' opinion/take on the situation. Let's face it: Videomadness (and their hurt feelings) should never have had a role in the fulfillment of a Picture 2000 contract in the first place. Maybe they've finally realized that.
And finally, for the first time in a month, an e-mail exchange with DouchebagPicture
2000 did not
end with the phrase, "you will be served sometime soon."
It's possible that Videoasshatsmadness may still sue us for defamation,
but for now, our lawyer has assured us that they've got no
case, and further, that he's got plenty of experience taking down people like Videomadness and/or their
lawyer(s) for malicious prosecution [wikipedia.org].
In fact, this guy boasts boxes full of files where he's driven these kinds of bullies into
bankruptcy, so for now, I'll consider this a done deal. And if it comes, at least it's not
being used as a lame excuse to delay enlarging a picture.
Well, there's a month of my life I'll never get back. Thank you, Picture 2000 and Video Madness. May the karma come around and give you what you deserve in a future life...or in a future contract.
And this saga has only strengthened my belief that weddings are best done either at the city hall courthouse, or at the drive-thru in Vegas. If I had done that (well, never mind that I would've been disowned by my wife's family), none of this silliness would have come about, and I'd theoretically have at least fifteen seasons' worth of Sharks season tickets in the bank...gaining interest....
*Shameless reference to T.S. Eliot's The Hollow Men, and the amusing oration of its last verse in T. Alessandri's English 2 class in 1994/95
I'm sure I'll get over it eventually, but for now, I'm nowhere near ready to make nice [azlyrics.com].
The UPS package left at my doorstep yesterday was none other than the large wall portrait. Rather than have Picture 2000 attempt to charge us for any digital touch-ups for an enlargement of a close-up shot of us, we instead elected to have them just print out the gigantic-group-shot from our wedding, complete with horse peeing on the grass.
Picture 2000 claimed it would cost an additional $75 for ditigal touch-ups, and we didn't want to argue the point with them. Of course, if none of this legal madness had ever come up, I'm pretty sure it would have been free. Bastards.
Oh well, I'm guessing that now I've got to convince someone to go to Picture 2000's offices during their business hours and pick up the DVDs in person. Now I realize that I probably misinterpreted Picture 2000's response to our lawyer: they said we can pick up the DVDs at their office, but then asked for a shipping address; fair enough - the shipping address was for the wall print, and we still have to figure out when to get someone to pick up the DVDs.
Almost done, methinks. Thankfully.
Not bad for a Thursday - got everything from the douchebags and profited over $100 on a Sharks ticket. Woot!
Questions/Comments/FreeLegalAdvice can be sent to suedforyelping-at-gmail-dot-com.
My full take on the situation when Videomadness and Picture 2000 Do Your Wedding, is a sad cautionary tale for any people considering getting married out there.