MINNEAPOLIS (CN) - FindLaw will support its opposition to negligence claims brought by a law firm that alleges its business "plummeted," forcing it to lay off employees after FindLaw redesigned its websites and search engine.
Ogleetree, Abbott, Clay & Reed sued FindLaw, West Publishing Corp., and Thomson Reuters Holdings in February.
According to an April 4 memorandum opinion that cites the original complaint
, Ogltree hired Findlaw to increase its exposure to potential clients on the Internet after seeing Findlaw's advertising and hearing a sales pitch from its marketing representative, Brian Vogel.
In an affidavit
, Bill Abbott, a managing partner of Ogletree, says he signed four contracts with FindLaw and paid FindLaw $61,900 for its marketing services, including website design services and search engine optimization.
Ogletree entered into a series of written agreements with FindLaw, on Nov. 27, 2012, and Jan. 23, Jan. 24, and June 14, 2013, according to the memorandum.
In the memorandum opinion, Ogletree stated that Vogel represented that FindLaw would make significant improvements to Ogletree's existing websites, resulting in its business "skyrocketing."
Vogel specifically represented to Ogletree that FindLaw would make Ogletree's Complawyers.net website "dominate" the Internet, and that Ogletree's other two websites would result in drastically better Google rankings, visitors to Ogletree's websites, conversion rankings, clients and drastically increase Ogletree's revenue, according to the memorandum.
Moreover, FindLaw represented that it "produces results" with "custom content" developed by FindLaw's "expert copy writers" and a "dedicated team of SEO experts," the memorandum states.
But Ogletree says it learned that FindLaw outsourced to Bangalore, India and had cut its staff in January 2013 by 25 percent.
Ogletree claims Vogel "bragged" that FindLaw had special knowledge of Google operations and relationships with Google management.
"He cited an example of how FindLaw escaped trouble with Google because of their relationship with someone in Google management. Vogel explained that FindLaw had been accused of selling 'paid links'' to their attorney customers but, that FindLaw executives had talked to Google out of penalizing FindLaw's Website and the matter was dropped. Since FindLaw had a special connection with Google, FindLaw could get favorable treatment from Google for their attorney customers," according to the memorandum.
But after FindLaw redesigned and launched Ogletree's revised websites, there were numerous errors, including missing content, changed webpage names, unauthorized outbound links, paid links to the Ogletree websites, increased code size and website latency, the memorandum states.
Six weeks after the websites had launched, Ogletree's rankings had not increased, but deceased.
Ogletree says Vogel's story changed and he claimed that "FindLaw's goal was not to increase Ogletree's rankings for the most vital keywords that he had promised, but that FindLaw's goal was to increase exposure to a broader area of potentially relevant search terms, in other words insignificant search terms. Vogel stated [that] if Ogletree wanted higher Google rankings for the search terms that it wanted, Ogletree would need additional FindLaw services, which required additional agreements and costs."
Based on FindLaw's promises, Ogletree signed a new contract, its last one, on June 14, 2013.
FindLaw has not followed through on its promises, Ogletree says, and the law firm has snared significantly fewer clients and business income after the redesigned websites and search engine optimization.
Abbott says business fell precipitously, to the point that Ogletree had to lay off employees, and that revenue will continue to plummet in future years because Ogletree's personal injury cases take up to five years to pay legal fees.
Findlaw disagrees. In a 25-page memorandum
in support of its motion to dismiss, FindLaw says: "The crux of the dispute is that the Ogletree Firm does not want to pay for these services and is therefore claiming dissatisfaction."
FindLaw claims that Ogletree entered into a "Master Services Agreement," which contains an explicit and binding limitation of liability that restricts damages to "the amount of charges paid by subscriber relative to the period of occurrence of events which are the basis of the claim." It disclaims liability "for any lost profits or any consequential, exemplary, incidental, indirect or special damages, arising from or in any way related to this agreement."
Findlaw says Ogletree is trying to do an end around this limitation by bringing claims of fraud, breach of warranty, negligence, misrepresentation and statutory violations.
Findlaw says Ogletree's complaint, with the exception of the breach of contract claim, should not survive a motion to dismiss. It claims that Ogletree failed to plead the fraud-based claims and the misrepresentation claim with the required specificity.
Though Ogletree asserts a fraud claim, the complaint contains nothing more than a few conclusory allegations that "FindLaw made material false representations to [the Ogletree Firm] in order to induce [the Ogletree Firm] into a series of contracts," FindLaw says. It claims that the remaining allegations are merely "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, [that] do not suffice" to defeat a motion to dismiss.
As for Ogletree's breach of warranty claim, FindLaw says, its disclaimer is in all capital letters and under the heading "DISCLAIMER OF WARRANTY." It uses the term "as is" and refers to "merchantability" and "fitness for a particular use."
Findlaw claims that Ogletree has the advantage over other merchants because of its understanding of the law and the effect of such disclaimers.
Ogletree claims that FindLaw breached its "duty of reasonable care." But FindLaw claims Ogletree failed to identify any basis for imposing such a duty. It claims there is no statutory reference for this purported "duty" because Findlaw's only duties were contractual. Therefore, the court should dismiss the negligence claim.
On Sept. 4, 2012 another law firm, Ferris & Salter P.C., of Michigan, sued FindLaw for malpractice, alleging that it had lost thousands of dollars in attorneys' fees because FindLaw destroyed the link that directed website inquiries to the firm's email accounts. In that case, U.S. District Judge John Tunheim ruled
that Ferris & Salter could not sue FindLaw for professional negligence because state law does not recognize such claims against computer consultants.
In the new case, U.S. District Judge Richard H. Kyle set a hearing date for May 5.