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HuffPo Blogger Files Class action Suit Against Huffington and AOL

New York Labor activist and Huffington Post volunteer blogger Jonathan Tasini has filed a huge, class action lawsuit against Arianna Huffington, Huffington Post, AOL and Kenneth Lehrer.

You can read the complaint here.

The theory is unjust enrichment, which is neither a statutory nor contract claim but an equitable doctrine based in common law. Since HuffPo bloggers agreed to submit their writing to HuffPo without being paid, the suit is based on the theory, under ommon law, that HuffPo (and now AOL) are being unjustly enriched by the bloggers' contributions.

In other words, the fact that the vast majority of Huffington Post’s 9,000 bloggers signed on without any expectation of direct monetary gain is irrelevant to this claim. “Rather, it’s the value contributed to the Huffington Post, which is very much amenable to class treatment...”

[More...]

The lawsuit is an interesting read. I can somewhat see Tasini's point. But as someone who also blogged for HuffPo, I think the fact I agreed to post my articles there (including original content, not just cross-posts), knowing there would be no payment, would make it unfair for me to sue, when I had no expectation of being paid for my articles at the time of submission. That Arianna struck a great deal with AOL, may have as much to do with her business acumen and personality as with the unique contributions of the individual writers.

As the suit points out, HuffPo bloggers aren't volunteers in the true sense, they are "selected" ( a nice word for recruited) and often by Arianna herself who makes a personal pitch to convince them. Tasini blogged willingly for no pay for 5 years, writing 216 articles. Like the majority of HuffPo contributors, writing is not his principal profession (although he's been paid by others to write.) Only after the AOL-Huffpo merger did he decide he should have been paid all those years. Now he wants a piece of the whole pie.

Some people, like Arianna, are destined to succeed in business. Whether it's skill, luck, being in the right place at the right time, or taking a seed of an idea from somewhere and making it one's own through constant nurturing and financial investment, who knows. It's probably a combination.

What I do know is I could never have developed Huffington Post, or made a deal to sell it for $315 million. I'd bet less than a handful of HuffPo contributing bloggers could have pulled off either feat. Why should we be rewarded for her accomplishment?

Tasini is also unhappy that the promised exposure Huffpo offers its writers is amorphous, undefined and not able to be quantified. And, that as HuffPo has taken on more contributors, the opportunity for any individual writer to receive exposure is diminished. On the other hand, he's also unhappy that bloggers' writings stay on HuffPo in perpetuity. And that HuffPo uses search engine opt. to drive readers to its bloggers' posts. Since the last two increase and prolong exposure to Tasini's writings, his complaints seem to cancel each other out.

That being said, I'm not writing for anyone for free these days, except TalkLeft. I haven't written for HuffPo in a long time. One reason might be that other places were willing to pay me for my articles, but I think it was more that HuffPo isn't "just a blog" since the blog posts get picked up by major news outlets. That means my grammar and sentence structure have to be correct. Blogging here at TalkLeft is just writing out my thoughts as I think them, in my own voice. It takes nowhere near the amount of time required to write the same piece for a major media publication. Blogging for others, whether it was HuffPo, or media companies which paid me, became like "work" instead of a hobby. Unless I was fanatically interested in the topic, I just didn't have the energy and time to spend polishing the grammar and tone.

Unlike Tasini, no one at HuffPo ever asked me to tout my articles on FB or Twitter or e-mail them to my contacts. (Nor would I ever do that.) So from an individual standpoint, I doubt I ever drove much traffic to HuffPo. Tasini says he did those things, and assumes others did too, thereby driving a lot of traffic to HuffPo. There are so many individual bloggers on the site, I'm not convinced any individual one has particular value from a traffic-driving perspective. Rather, or at least it seems to me, that the site's overall concept of being a place where readers can go to read a multitude of interesting writers, including some household names, is what drives the traffic.

In life, it's often the "other guy" who capitalizes on an idea to make the big bucks. Entrepreneurship takes a lot of effort and it's risky. It's never been my goal and is probably beyond my skill set. Arianna has those skills and the drive to use them successfully. On a daily basis, I'd bet she puts the same passion and energy into HuffPo that I put into my day job. Asking her for a slice of the Huffpo pie, after the fact, because of the size of the deal she was able to make with AOL, just seems wrong. The time to ask a publisher for money is before you write the piece.

Huffpo writers are not, as Tasini says, slaves on a master's plantation. They are willing participants in a publishing model that makes no sense for professional writers. If writing is your livelihood, why would you write for free, or for the promise of nebulous "exposure?"

It will be interesting to see how many HuffPo bloggers join Tasini's class action, whether any "opt out" of the class, and whether its legal basis, "unjust enrichment" has any legs once the summary judgment motions start flying.

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  • Display: Sort:
    When you sell TalkLeft for 315 million (5.00 / 5) (#1)
    by Big Tent Democrat on Tue Apr 12, 2011 at 09:14:56 PM EST
    I'm suing . . .

    I'm expecting a cut for my comments! (5.00 / 3) (#3)
    by andgarden on Tue Apr 12, 2011 at 09:18:59 PM EST
    I just rated your comment a "5" (5.00 / 4) (#4)
    by Peter G on Tue Apr 12, 2011 at 09:22:14 PM EST
    That should entitle me to 10% of your cut, Andy.

    Parent
    Negligent misrepresentation: (5.00 / 3) (#5)
    by andgarden on Tue Apr 12, 2011 at 09:25:53 PM EST
    I don't see the rating!

    Parent
    You expect me to earn my 10% (5.00 / 2) (#44)
    by Peter G on Wed Apr 13, 2011 at 12:28:48 PM EST
    through actual competence at something?  Not likely.

    Parent
    I just (5.00 / 3) (#6)
    by Jeralyn on Tue Apr 12, 2011 at 09:31:39 PM EST
    laughed out loud reading your comment. Here's a promise: Anything over $300 million, BTD gets 60% of the whole pie.

    Parent
    Deal! (none / 0) (#8)
    by Big Tent Democrat on Tue Apr 12, 2011 at 09:55:26 PM EST
    I think there's a good contracts hypo here. . . (none / 0) (#9)
    by andgarden on Tue Apr 12, 2011 at 09:58:30 PM EST
    Hypo? (none / 0) (#11)
    by Big Tent Democrat on Tue Apr 12, 2011 at 10:07:08 PM EST
    I got my 60% of the amount over 300 million.

    I'm in the money . . .!

    Parent

    Actually... (5.00 / 1) (#15)
    by ks on Tue Apr 12, 2011 at 10:50:01 PM EST
    I think you got 60% of the "whole pie" if Talkleft is sold for over $300 Million?  Meaning if Talkleft is sold for $350 million, you get $210 million.

    You understanding would mean you only get 60% of the amount over $300 million which, in my scenario would be 60% of $50 million or $30 million.

    I wouldn't want you to lose out. : )

    Parent

    Let's see. . . (none / 0) (#14)
    by andgarden on Tue Apr 12, 2011 at 10:19:45 PM EST
    • Jeralyn makes a conditional promise (that neither you nor she have much if any control over);

    • You are not bound in any particular way.

    I'm sure there's more, but I'm rusty. . .

    Parent
    This is extremely unfair of Andgarden (5.00 / 1) (#45)
    by Peter G on Wed Apr 13, 2011 at 12:32:30 PM EST
    He's still in law school, I think (and about to graduate?).  So he actually knows some "real" law, like contracts.  At least that's my interpretation (i.e., guess):  that Andy is referring to some legal principles or something. Those of us who have been practicing criminal defense, constitutional law, tax, etc. for the last 20-35 years don't know anything like that anymore.

    Parent
    Now there's the rub (none / 0) (#28)
    by Lora on Wed Apr 13, 2011 at 10:25:55 AM EST
    Cute scenario indeed!  But let me run with it a bit...

    Legal or not, I don't know.  But if Jeralyn made out huge on her TL site, sounds like she wouldn't stiff someone who had blogged for free for years.  It's not a huge leap to suppose that, in this totally hypothetical situation, BTD's contributions at least in part would have helped the three hundred million dollar deal go through.  (I'm quite sure that if the buyer didn't care for BTD's posts, he wouldn't offer to buy the site, or perhaps only if BTD wasn't going to blog there anymore.)  And while maybe Jeralyn wouldn't have to, I think probably she'd offer a considerable sum to BTD as a thank-you at least. (My apologies to Jeralyn if I am wrong.)

    And if she didn't offer him a penny, while he might not actually sue, I'm guessing he might not feel too happy about her enormous success if he didn't even get a dime.  (My apologies to BTD if I am wrong here.)  I know if it were me who contributed greatly to a site as a blogger (not as a commenter!), I would feel badly used if a deal that big went down and I wasn't acknowledged at all.

    Especially if I blogged for free in part because there wasn't enough money coming in to get paid for it.  (I don't know if that was the case at Huffpo before the big deal went down, but I'm speculating that this was "understood.")

    So I don't know what's legal here.  But what's legal isn't always what's right.  I'm for the bloggers.

    Parent

    Funny (5.00 / 1) (#27)
    by Militarytracy on Wed Apr 13, 2011 at 10:05:37 AM EST
    Things haven't been very funny for days.  I needed that

    Parent
    I'm guessing Arianna will settle (none / 0) (#16)
    by NealB on Tue Apr 12, 2011 at 11:26:45 PM EST
    Not like she needs the headache of fighting this and not like it's much of a claim.

    Parent
    IMO, there's no legally cognizable claim here (none / 0) (#17)
    by andgarden on Tue Apr 12, 2011 at 11:36:26 PM EST
    Seems like a good place for 12(b)(6).

    Parent
    legally or not (none / 0) (#18)
    by nycstray on Wed Apr 13, 2011 at 01:11:55 AM EST
    I do have a prob with the "for exposure" aspect of the "write for me for free". She's got to have been taking in enough to at least toss a token to the 'writing for exposure' 'articles'. In this area of writing, sure, many may have had other jobs. BUT, it's a common tactic used in many areas beyond writing, in the arts/creative fields especially.

    Not sure it's a court case, but it sure sends a message about her . . .

    Parent

    Hey, I just need to wet my beak, J... (5.00 / 4) (#7)
    by jeffinalabama on Tue Apr 12, 2011 at 09:49:21 PM EST
    since I serve as BTD's SEC foil.

    The people who should be suing (5.00 / 4) (#21)
    by jimakaPPJ on Wed Apr 13, 2011 at 06:42:31 AM EST
    are AOL stockholders.

    I'll join BTD (5.00 / 2) (#33)
    by Dadler on Wed Apr 13, 2011 at 11:03:36 AM EST
    And also give Jim a 5 for this one.  This should be recorded as a landmark day in TL history.  

    Parent
    heh (none / 0) (#23)
    by andgarden on Wed Apr 13, 2011 at 08:06:08 AM EST
    So Each Post We Make is Like a Share of TL Stock ? (5.00 / 1) (#26)
    by ScottW714 on Wed Apr 13, 2011 at 09:57:16 AM EST
    Just lettin' all the TL Homies & Management know, I don't work for free and I am all about unjust enrichment, especially when that enrichment is me, the more unjust the better.  

    Consider all past, present, and future posts, even the truly stooopid ones like this one, copyrighted material.  

    Disclaimer:
    This post is copyrighted by me for the private use of my audience. Any other use of this post or of any pictures, descriptions, or accounts of the post without my consent, is strictly prohibited.    
    - NFL Disclaimer changed for laughs.

    Speaking of unjust enrichment... (5.00 / 1) (#49)
    by kdog on Wed Apr 13, 2011 at 01:58:47 PM EST
    do we, the taxpayers of the USA, have a viable class action unjust enrichment suit against every grifter receiving fat bonuses the last three years that employed by the financial firms that received TARP money?  or how 'bout the ones making mad use of the discount window at the Fed?

    ianal, but it looks like a solid case to this layman, enrichment doesn't get more unjust than that.

    Let's Toss In (none / 0) (#50)
    by ScottW714 on Wed Apr 13, 2011 at 04:17:10 PM EST
    BigOil, BigInsura, and BigPharma.

    IMO any company making over a billion in a year is unjustly enriched.  It means they overcharged us, or exploited their workers to the tune of, in Exxon's case, $6B.

    That would be something wouldn't it, pulling back CorpAmerica with a class action lawsuit from the 'people', because the government doesn't seem real interested.

    Parent

    Sure would.... (none / 0) (#51)
    by kdog on Wed Apr 13, 2011 at 04:47:49 PM EST
    be something.

    I had no idea civil law even touched on unjust enrichment...all this time I've assumed "just enrichment" a rarity, "unjust enrichment" the norm.  

    "Behind every great fortune is a crime", as the saying goes...who knew we had a case Scott! lol

    Parent

    I just read the first few pages (none / 0) (#2)
    by andgarden on Tue Apr 12, 2011 at 09:16:57 PM EST
    of the complaint.

    ROFL.

    Truly an embarrassing document imo (5.00 / 1) (#10)
    by Big Tent Democrat on Tue Apr 12, 2011 at 10:06:06 PM EST
    both for Tasini and the attorneys signing the complaint.

    If Judge Griesa does not sanction them, they should consider themselves lucky.

    Imo of course.

    Parent

    Doesn't end with the judge (none / 0) (#12)
    by andgarden on Tue Apr 12, 2011 at 10:14:48 PM EST
    NY RPC 3.1:

    (a)    A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous. A lawyer for the defendant in a criminal proceeding or for the respondent in a proceeding that could result in incarceration may nevertheless so defend the proceeding as to require that every element of the case be established.
    (b)    A lawyer's conduct is "frivolous" for purposes of this Rule if:
    (1)    the lawyer knowingly advances a claim or defense that is unwarranted under existing law, except that the lawyer may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law;
    (2)    the conduct has no reasonable purpose other than to delay or prolong the resolution of litigation, in violation of Rule 3.2, or serves merely to harass or maliciously injure another; or
    (3)    the lawyer knowingly asserts material factual statements that are
    false.

    Comment 2:

    The filing of a claim or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. Lawyers are required, however, to inform themselves about the facts of their clients' cases and the applicable law, and determine that they can make good-faith arguments in support of their clients' positions. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however, if the action has no reasonable purpose other than to harass or maliciously injure a person, or if the lawyer is unable either to make a good-faith argument on the merits of the action taken or to support the action taken by a good-faith argument for an extension, modification or reversal of existing law (which includes the establishment of new judge-made law). The term "knowingly," which is used in Rule 3.1(b)(1) and (b)(3), is defined in Rule 1.0(k) ["Knowingly," "known," "know," or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.].


    Parent
    Of course, also all IMO (none / 0) (#13)
    by andgarden on Tue Apr 12, 2011 at 10:16:00 PM EST
    I a not (yet) a lawyer, this is not legal advice, and nobody should rely on it, etc.

    Parent
    Or pay for it ... (5.00 / 2) (#46)
    by Peter G on Wed Apr 13, 2011 at 12:36:12 PM EST
    or expect to be paid for it.

    Parent
    heh, well (none / 0) (#47)
    by andgarden on Wed Apr 13, 2011 at 01:35:44 PM EST
    If someone cares to send me an offer. . . ;-)

    Parent
    Makes sense (none / 0) (#22)
    by Lacy on Wed Apr 13, 2011 at 07:17:06 AM EST
    I see the concept. Suppose I help build my friend a home on the expectation and reassurance that she will live in it and be my neighbor...but instead, she sells it for a massive profit and blows me just a farewell kiss.

    It's not hard to see how issues could emerge under common law.

    my question: (none / 0) (#24)
    by cpinva on Wed Apr 13, 2011 at 09:26:01 AM EST
    would huffpost have had the FMV without the free contributions of the various posters there? in fact, didn't the poster's free contributions create the value attributed to the site by AOL?

    yes, ms. huffington's "business acumen" (if, by business acumen, you mean getting people to contribute their work for free) helped expand the range of the site, but absent those free contributions, one could easily argue that AOL would have had no interest in it. the true test will be if all the free contributors decide to no longer do so, for free.

    Personally, I think that were this case (none / 0) (#25)
    by inclusiveheart on Wed Apr 13, 2011 at 09:55:52 AM EST
    to come out in Tasisni's favor, it would really upend the entire publicity industry.  The fact that people were invited and agreed to participate without pay was basically a joint venture between the news outlet and the person seeking the spotlight for their work.  There is a value to publicity and celebrity and it is traded on heavily in our culture.  Talk shows get the big interview - generally don't pay the person for their appearance - and turn around and sell oodles of advertising on that big interview.  HuffPo has always been a business with advertising as far as I know.  Ariana was maybe not profiting the entire time, but HuffPo wasn't some sort of not-for-profit enterprise and as far as I know it never claimed to be.  So, it would sort of be like agreeing to go on Oprah's show without pay - which is standard practice on her show and most other interview format shows - and then turning around and suing for a fee.  That's my 2 cents.

    Imagine suing a newspaper (5.00 / 1) (#29)
    by andgarden on Wed Apr 13, 2011 at 10:37:44 AM EST
    for printing your letter to the editor without paying you.

    Parent
    What if you were a columnist? (none / 0) (#32)
    by Lora on Wed Apr 13, 2011 at 10:53:15 AM EST
    And wrote a popular editorial column for years for free?  And then the paper got sold for an enormous profit and you didn't get a dime.  I don't know that I would sue, but I would not be happy.

    Parent
    Was there some sort of coercement? (5.00 / 1) (#34)
    by andgarden on Wed Apr 13, 2011 at 11:25:03 AM EST
    If not, too bad.

    Parent
    Mayhill Fowler (none / 0) (#35)
    by dandelion on Wed Apr 13, 2011 at 11:25:37 AM EST
    What if you were a reporter like Mayhill Fowler who broke the story about Obama's statements to the wealthy SF Dems regarding the way rural voters "cling to" religion and guns?  What if you invested your own time and money to report and write that story, which brought a great deal of reportorial cred to the site?

    Why should writers write for free?  Do attorneys get paid for their work?  Do bus drivers?  

    No writer should write for free, and to the extent an internet site demands that, writers should boycott it.  

    Parent

    You're writing for free right now. (none / 0) (#38)
    by inclusiveheart on Wed Apr 13, 2011 at 11:39:23 AM EST
    Writers write for free under a lot of circumstance and they do it for the exposure - to build a reputation.  

    And if you were a reporter like Mayhill Fowler you always would have had the option to shop the story around rather than posting it for free online.  Mayhill Fowler had the right to ask for a fee and for expenses for the story, but from what you've written did not.  That was a choice.

    Writing is part of my trade.  Sometimes I do it for cash and sometimes I do it on spec depending on what I think is valuable to me at the time and on what I think a consumer can afford.

    I have no idea what the agreements were that Ariana made with her bevy of invited bloggers, but I would be very surprised if she was dumb enough to offer anything more than the prestige of being a part of an elite select group of voices that she thought would contribute to the site's success.  If the people who agreed to her offer didn't think that she was in the game to make some money, that was their failure, not hers.  The enterprise was never a not-for-profit entity - that should have been their first clue that it wasn't some sort of online commune they were joining.

    Parent

    If she invited them she owes them (none / 0) (#57)
    by jimakaPPJ on Thu Apr 14, 2011 at 11:53:02 AM EST
    as far as I am concerned.

    But I doubt I will be on the jury.

    Parent

    The better question would be (none / 0) (#40)
    by inclusiveheart on Wed Apr 13, 2011 at 11:56:32 AM EST
    what if the paper published a book with your collective writing over the years as another use and revenue stream for them alone.

    In your scenario with respect to the paper, your columnist has given content for free to the paper and given the material away for free for years.  The idea that the columnist could retroactively change a deal that he or she has honored for years is rather a stretch.

    But even the question of the published columns being compiled into a book to be controlled by the paper may still be a matter of prerogative for the paper if there was no understanding that the rights that the writer was extending to the paper for use of the column were limited to the newspaper's daily format with no other rights to republish in any other format - which pretty much never happens with any media outlet - especially in this day and age when they use so many different types of content delivery i.e. the internet.

    All you can do without any protections of your work, is to go forward and try to turn the interest in your old work into interest in work you might do in the future for pay, imo.

    Parent

    I'm going to be AWG if I don't (none / 0) (#30)
    by observed on Wed Apr 13, 2011 at 10:47:35 AM EST
    get a cut from the TL sale!

    I see some merit... (none / 0) (#31)
    by kdog on Wed Apr 13, 2011 at 10:49:41 AM EST
    Huffington sure comes of as a cyber robber baron, running a sweatshop blog exploiting her writers.  

    Only problem is her contributors signed off on that deal...and they did get an audience that otherwise might not have discovered their work.  So they did get something out of the partnership...exposure.  

    Obviously the common sense thing for Arianna to do is spread a little of that massive windfall down to the little people who helped make it possible...never mind it being the right thing to do, its a good pr investment.

    Wouldn't the proper libertarian view be: (none / 0) (#36)
    by oculus on Wed Apr 13, 2011 at 11:31:32 AM EST
    you (the Huff Post contributors) made your bed; now lie in it?  

    Parent
    Yeah... (none / 0) (#37)
    by kdog on Wed Apr 13, 2011 at 11:38:50 AM EST
    I guess so, hence the "they knew the deal".

    But I'm no staunch ideologue...the right thing to do is hand out some windfall bonuses and thank you cards.  Whether she is legally obligated is another question, morally it's a no brainer imo.  

    If I netted 100 million with help from my unpaid friends, I couldn't look in the mirror if I didn't share.

    Parent

    If you write the film script for (none / 0) (#39)
    by oculus on Wed Apr 13, 2011 at 11:45:57 AM EST
    "Shantaram," don't forget about me!

    Parent
    Don't be silly... (5.00 / 1) (#42)
    by kdog on Wed Apr 13, 2011 at 12:00:22 PM EST
    if I hit the lottery I wouldn't forget you...we'd have that Talkleft Convention we dream about...with ice statues p*ssin' champagne!

    Parent
    Thought of you as I rode past Dead Poet (none / 0) (#43)
    by oculus on Wed Apr 13, 2011 at 12:20:53 PM EST
    Monday morning.

    Parent
    Once a Republican, (none / 0) (#41)
    by scribe on Wed Apr 13, 2011 at 11:57:33 AM EST
    she's always a Republican.

    More to the point, the case is clearly within the bounds of unjust enrichment claims and Arianna does have something to worry about from it.  It's not sanctionable.

    Moreover, this whole "work for no pay and some exposure" model is a lot more widespread than just HuffPo.  I recently read an article about prosecutors in California who have unpaid "intern" prosecutors - lawyers the government is not paying for their work - doing the prosecuting.  The article noted that without the unpaid prosecutors, the system would collapse because the government couldn't pay wages to prosecutors for all the prosecutions it was bringing.  The "interns" are told they might be considered for a paid job in the future if they do a good job, but none of them ever are hired.

    Not paying people for their work is the modern American business model.

    I hope they hammer Arianna, but good.

    I could conceive of a labor law (none / 0) (#48)
    by andgarden on Wed Apr 13, 2011 at 01:37:21 PM EST
    prohibiting this, but the common law claim makes me deeply uncomfortable.

    Parent
    values (none / 0) (#52)
    by dandelion on Wed Apr 13, 2011 at 06:49:25 PM EST
    Still -- the idea of getting rich of the use of someone else's free labor -- doesn't exactly sit well with the values of progressivism.  Legal or not.  

    The idea that the writers knew what they were getting and agreed to it -- well, I've heard exactly that argument made in all sorts of circumstances we'd call exploitative.  And it's often people of the creative community who are exploited in just this way -- musicians, writers, artists who are told they should be pleased just to be granted a platform and exposure, while others profit off their work.  

    I won't be at all surprised if the law is on Arianna's side on this.  Law, though, isn't at all the same as justice.  And its very definitely not the same as ethics.