Glassdoor must reveal anonymous poster who claimed company was racist, sexist, and hired illegals

By Joy Waltemath

By Lorene D. Park, J.D.

A company was properly granted a petition to take depositions to learn the identity of individuals who posted anonymous negative reviews about its employment practices online, ruled a Texas Court of Appeals. Also affirming the denial of the website host’s anti-SLAPP motion, the appellate court found that the petitioner had a viable business disparagement claim arising from factual assertions that it hired illegal immigrants and discriminated based on race, among other statements in the online posts. As for damages, the company provided evidence that it spent $88,450 to overcome the negative effects of the posts, including having to pay a recruiting service to fill positions (Glassdoor Inc. v. Andra Group, LP, March 24, 2017, Whitehill, B.).

Glassdoor operates what it describes as a free jobs and career website, which offers access to “user-generated . . . ratings and reviews.” Between July 8, 2014 and June 30, 2015, negative comments about Andra Group were posted in 10 anonymous reviews on Glassdoor’s site. One was posted by someone claiming to be an interview candidate; the others were by individuals claiming to be current or former Andra employees. According to Andra, the anonymous posts contained false and defamatory statements, including an October 2014 review stating that its “[h]iring practices are illegal;” that it is “violating labor laws,” and that racial harassment was a “daily occurrence.” Another review stated that it hired “illegal immigrants.”

Rule 202 petition. Determined to find out who posted the derogatory statements, Andra filed a petition under Rule 202, which allows a person to seek a court order authorizing a deposition for two purposes: “(i) to perpetuate or obtain a person’s testimony for use in an anticipated suit or (ii) to investigate a potential claim or suit.” The rule requires at least 15 days’ notice of hearing on all persons to be deposed and, “if suit is anticipated,” on those it expects to have interests adverse to the petitioner in the anticipated suit. The rule authorizes service by publication on unnamed persons. If a court grants Rule 202 relief, it must find that allowing the deposition may prevent a failure or delay of justice in an anticipated suit or that the likely benefit of the deposition “to investigate a potential claim outweighs the burden or expense of the procedure.”

Deposition allowed on two reviews. Here, Andra wanted testimony “to investigate potential claims for defamation or business disparagement.” It also stated that it did not anticipate any claims against Glassdoor, but only potential claims against those “who posted false and defamatory statements.” In response, Glassdoor and two anonymous (Doe) individuals who allegedly authored posts filed a Chapter 27 (anti-SLAPP) dismissal motion. The trial court denied their motion and granted in part Andra’s Rule 202 petition, limiting the deposition to five statements contained in two specific posts. Neither were written by the Doe parties.

Proper notice. Affirming, the Texas appeals court first rejected Glassdoor’s assertion that Andra failed to give proper notice. It did not give the anonymous reviewers notice, but it was not required to do so if its petition was intended to investigate a potential suit and not to perpetuate testimony for an “anticipated” suit. Glassdoor made much of the fact that Andra referred to the reviewers as “Potential Defendants,” but that was also consistent with a petition to simply “investigate potential claims.” Also, while Glassdoor claimed Andra must anticipate suit because it already had the reviews, the appeals court found that additional information would be needed for Andra to assess potential claims, including whether the posts had any truth to them.

Benefit of discovery outweighed expense. Nor did the trial court err in finding that the likely benefit of allowing the depositions about the anonymous reviews outweighed the burden or expense of the procedure. Although Glassdoor argued that any claims would be time-barred and they were not actionable anyway, the appeals court disagreed. The limitations period doesn’t necessarily run from the date of the original post and there was evidence that Andra experienced pecuniary loss in 2015, after the disparaging posts appeared, because that was the first year it had to use recruiting agencies to fill job positions. There was also evidence that the negative reviews on Glassdoor caused potential employees to not deal with Andra, which had a reduced pool of qualified applicants. It allegedly spent $88,450 to overcome the negative effects of the reviews.

More than opinion or hyperbole. Also, while Glassdoor claimed the posts were non-actionable opinion or hyperbole, the appeals court found that they included statements of verifiable fact. Indeed, the trial court limited the deposition to these statements: (1) Andra’s hiring practices are illegal, (2) it is violating labor laws, (3) it has engaged in harassment based on race and sexual orientation, (4) illegal immigrants are working there, and (5) a specific supervisor (identified by name) is racist and sexist. These, said the court, could support a business disparagement claim.

First Amendment argument rejected. For the same reasons, the court rejected Glassdoor’s First Amendment argument because the right to speak anonymously must be balanced against the right of others to hold accountable those who engage in speech not protected by the First Amendment. Because the evidence raised a genuine question on whether Andra has a viable business disparagement claim, the First Amendment argument did not show the trial court acted arbitrarily by ordering discovery.

No error in denying Glassdoor’s anti-SLAPP motion. The appeals court also affirmed the denial of the appellants’ Chapter 27 motion to dismiss. Chapter 27 allows a defendant to seek dismissal of frivolous claims related to the exercise of free speech. Here, for the reasons above, the court found that Andra had a viable business disparagement claim and had evidence of special damages, including affidavits proving up additional recruiting expenses caused by the negative reviews posted on Glassdoor. Because there was a factual basis for Andra’s Rule 202 petition and evidence of a viable claim, and because Glassdoor failed to establish a valid defense by preponderance of the evidence, it was not entitled to dismissal under Chapter 27.

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