I was prepared to start this article with the sentence, “Jonathan Tasini's lawsuit is so meritless, it's laughable.” Once I began doing some research, though, I changed my mind. The lawsuit is probably meritless, but not to the degree that it’s laughable.

Tasini is attempting to file a class action lawsuit on behalf of "9,000 unpaid content providers" (that is, bloggers) who were allegedly bilked out of money by The Huffington Post (read the complaint here). Tasini claims the class members are owed $105 million for their work.

The first fact that leaps out at readers of the complaint is that the bloggers weren't really cheated out of anything. They signed no contracts. They were volunteers. How, then, can such a case even exist?

Tasini filed the case under a New York statute for "deceptive business practice" (N.Y. Gen. Oblig. Law § 349 [sic]) and a common law cause of action called "unjust enrichment." 

I. Unfair business practices

Count one of the complaint alleges “deceptive business practice” under N.Y. Gen. Oblig. Law § 349. This is a mistake in the original complaint; the claim is actually under N.Y. Gen. Bus. Law § 349 (there is no § 349 in N.Y. Gen. Oblig. Law). The appropriate subsection reads:

Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.

N.Y. Gen. Bus. Law § 349(a) (McKinney). The complaint says that the Huffington Post engaged in deceptive acts when it “marketed [itself] as a forum for news and ideas to get Plaintiff and the Classes to provide valuable content to it for free,” Compl. at ¶ 101, and by promising bloggers exposure, but not notifying the bloggers of how much exposure they were receiving.

The complaint doesn’t allege when or where Huffington Post promised bloggers exposure. It just keeps stating that exposure was promised. I'm not impressed.

II. Unjust enrichment

The common law cause of action of unjust enrichment has three elements:

1. a benefit conferred on the defendant by the plaintiff;
2. an appreciation or knowledge by the defendant of the benefit; and
3. the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value.

26 Williston on Contracts § 68:5 (4th ed.) Notice that knowledge is not an element. Unjust enrichment could apply whether or not the plaintiff knows that his work wasn't being compensated. A reader might declare, “They knew they weren’t getting paid! How could they come back later and demand payment!”

Even though the case is being litigated in federal court, New York state law applies. Erie R. Co. v. Tompkins, 304 U.S. 64. In New York, “a claim alleging unjust enrichment may not be maintained where there is a valid and express agreement between the parties which explicitly covers the same specific subject matter for which the implied agreement is sought.” MT Prop., Inc. v. Ira Weinstein & Larry Weinstein, LLC, 50 A.D.3d 751, 752 (N.Y. App. Div. 2008). This means that you can't claim unjust enrichment if, say, the contract said you wouldn't get paid.

Here, the suit may have merit. Huffington Post’s Terms and Conditions don’t contain any provision for payment. They don’t say that bloggers won’t be paid; but neither do they say that bloggers will be paid, either. Unless Tasini agreed to something else, these terms and conditions don't foreclose unjust enrichment as a possibility.

So is Huffington Post’s enrichment “unjust”? That's the issue here. There seems to be no doubt that the cause of action satisfies elements (1) and (2) of unjust enrichment. But is it “inequitable” for Huffington Post to retain the value of plaintiffs’ services?

The exchange apparently worked like this: bloggers provided content; Huffington Post provided “exposure” for bloggers’ content that drives traffic to those bloggers’ own websites. If the bloggers’ content is good enough, people visit Huffington Post’s website, increasing page views and justifying higher ad rates, increasing Huffington Post’s revenue, and ultimately its worth in the AOL buyout.

One way of articulating inequity would be: were bloggers’ benefits – exposure – extremely disproportionate compared with Huffington Post’s benefits? The complaint alleges that AOL pursued Huffington Post for, among other reasons, “TheHuffingtonPost.com’s ability to obtain high quality content from Plaintiff and the Classes at no cost,” Compl. at ¶ 67, implying that bloggers working for free is indeed a benefit beyond no labor costs, since AOL (ostensibly) valued Huffington Post higher than it would without the free labor.

A search of the case law in New York has not returned any cases on point. There was no breach, there was no termination and subsequent performance, there was no contract. This second count could easily be dismissed for failure to state a cause of action.

III. Class Action

A class action is a very powerful tool, and as such, it is reserved for only when conditions necessitate. In order to be certified as a class, the class representative must show, among other things, that

questions of law or fact common to the class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

Fed. R. Civ. P. 23(b)(3). This is the biggest hurdle to the use of the class action tool: do the class members all have the same case, arising from a similar set of facts? With 9,000 potential class members, that seems attenuated. Were all bloggers treated the same? Some undoubtedly generated  more traffic than others, meaning that any injury they suffered was greater (unless they also received more exposure for their personal websites, which would tend to mitigate their injuries).

The question of injury to any individual blogger is a pretty individualized question. Not all bloggers benefitted the same. Not all bloggers put the same amount of work into Huffington Post. If their work were given a value, probably a very small number of bloggers – much less than 9,000 – could say they deserved a significant amount of money.

I expect the class will not be certified because the “questions of law or fact” are pretty individualized, at least based on this definition of the class. That any person who has ever blogged for Huffington Post suffered injury, and how much injury they suffered, is in question.

Conclusion

At the end of the day, though, this suit isn’t really about justice. It’s about publicity and sour grapes. There’s a really good reason Tasini waited until after the AOL buyout to file this suit: money. Huffington Post, by itself, may not have had terribly deep pockets. AOL, however, is a really, really big corporation with deep pockets.

It’s one thing for Tasini to file suit against The New York Times on behalf of freelancers whose work was used without their permission online. This case is not about copyrights; indeed, the Huffington Post Terms and Conditions are clear: anything you post on Huffington Post belongs to Huffington Post. Period. End. The Times suit may have had merit; this one doesn’t look like it does.

Tasini is quite clear that he’s out to get Huffington Post, reports Forbes:

“We are going to make Arianna Huffington a pariah in the progressive community,” Tasini vowed. “No one will blog for her. She’ll never [be invited to] speak. We will picket her home. We’re going to make it clear that, until you do justice here, your life is going to be a living hell.

These don’t sound like the words of a man who doesn’t have a personal vendetta. No doubt he feels that, after contributing 216 pieces to Huffington Post for the last five years, he deserves some reward. Unfortunately for him, that reward can’t be disbursed through the court system. Maybe he should have written some books, instead.