A Dallas jury just awarded Andrea Polito, a wedding photographer, $1.08 million in damages against a couple who took their complaints about her to social media and local news. This lawsuit showcases how, after more than a decade of blogs and social networks, courts (and people) still have no idea how to deal with the social media groundswell.
When Charlene Li and I published Groundswell: Winning in a World Transformed by Social Technologies in 2008, we defined the groundswell this way:
A social trend in which people use technologies to get the things they need from each other, rather than from from traditional institutions like corporations.
The groundswell was going to be a human-focused movement, shifting power from companies and governments to customer and citizens. It worked. Would you book a hotel or hire a contractor without reading reviews? We, the people of the groundswell, have collectively taken charge of evaluating suppliers and rating their efforts.
In the groundswell, truth was supposed to emerge from the crowd. If everybody says the restaurant has slow service, it probably does. If everybody likes the new Star Wars movie, it’s probably pretty good.
But now that people know how to game the system, the truth is in danger. Robert Mueller is investigating how a network of Russia-back trolls created fake news stories and promoted them on Twitter and Facebook. The groundswell, fueled by mobile users on Facebook and Twitter, creates viral sensations based on what’s sexy, not what’s true.
The Dallas wedding photography kerfuffle and subsequent lawsuit
The case in Dallas is more complex than it appears. Here are the facts:
- Neely and Andrew Moldovan hired Andrea Polito Photography to photograph their wedding in October of 2014 for over $6,000.
- Upset by Polito’s request to spend an additional $150 for a cover for their wedding album, the Moldovans decided to take their complaints to media. Neely Moldovan is a blogger and social media expert.
- The Moldovans got Dallas NBC channel 5 to air a local news story in January 2015 critical of Andrea Polito’s photography business.
- Polito’s business received many negative reviews, including one that said she had given the reviewer AIDS. Polito alleges that Neely Moldovan clicked “like” on several of these fake and defamatory reviews.
- Polito claims that as a result of the bad reviews, her wedding photography business tanked.
- Polito sued for defamation and, almost three years after the original wedding, won the million-dollar judgment.
The groundswell was going to empower individuals who banded together to take on big institutions. But there are no big institutions here. There is a small business with limited resources and a couple who has problems with that business. The Moldovans proved more adept at social and traditional media. Andrea Polito prevailed in court. Let’s look at it from both sides.
The view from Neely and Andrew Moldovan
The local news story makes the Moldovans’ view point very clear — they were dissatisfied and wanted to get satisfaction rather than keeping paying extra charges to get their photos.
Anyone who’s ever hired a contractor can sympathize. There’s nothing worse than hiring somebody and getting nickel-and-dimed after the fact. In this case, the Moldovans claim they were “held hostage” by Polito, who wouldn’t release the high-definition photos until she got paid extra.
This is supposed to be where little guys can turn to social media. The Moldovans have a right to post a bad review if they are unsatisfied. They went further by emailing several local news outlets, and succeeded in getting NBC DFW (Dallas Channel 5) interested. If you believe in the power of social media, this looks like a great example of people using the power of the groundswell to get what they feel they are owed.
The view from Andrea Polito
Polito posted her viewpoint on her site. Here’s an excerpt:
The story you are not hearing is that it was only last week when the bride claimed to realize that, per our contract, welcome packet, and emails, she would not get her wedding images until her album was completed. This conflicts with the numerous emails in which we clearly reiterated what is stated in the contract: low-resolution watermarked proofs are sent to the couple several weeks after the wedding for them to choose their desired photos, while the non-watermarked, high-resolution images are released upon completion of the album. . . . To suggest that we would hold images “hostage” in retaliation is simply inaccurate. Our intention has never been to “hold hostage” a couple’s images. We have always been upfront and honest.
And in her petition to the court, she cites the actions by the Moldovans that she claims are defamatory:
The Moldovans proceeded to republish the story in different electronic forums, such as blogs, Google, Facebook, Instagram, Twitter, NBC, text messages, and emails, and to make disparaging and defamatory statements in those same forums with the direct intent to harm Plaintiffs. Those statements include the following: . . .
Polito “cheated,” “scammed,” and “blatantly stole money while holding pictures ransom and then adding on extra fees that weren’t in [the] original contract,” which charges Polito with the crimes of fraud and theft, and suggests Polito is dishonest both personally and professionally (Wedding Wire review from “Andrew” with October 11, 2014 wedding date). Polito did not cheat or scam the Moldovans, and never held pictures for ransom.
Neely was “pretty sure [Polito’s] business is done” (Neely’s Facebook conversation with Emily Schultz between January 15 and January 17; Neely Facebook comment to her NBC article post, January 16 . . . Andrew published statemetns to his friends, evidencing his intent and/or knowledge of the harm his and Neely’s actions would cause Plaintiffs. . . .When asked if Polito knows what Neely does for a living, Neely replied “oh she knows” . . ., posted in another forum “I’m a blogger and I’m going to be all over this once it’s resolved” . . . , and told a third party that she had and/or wanted to acquire “so much ammunition to screw [Plaintiffs] over” and that she and Andrew “are hoping that[their] story makes the news and completely ruins [Polito’s] business.”
The Moldovans also “liked” numerous other defamatory per se statements posted by third parties, thereby ratifying and republishing those libelous statements. These numerous statements endorsed by the Modovans are nasty and reprehensible, including those that refer to Polito as a “scam artist,” that imply a death threat, and that accuse Polito of “g[iving] [the reviewer] AIDS.” In several instances, Neely more than “liked” the posts, she also commented on them, acknowledging that she agreed with them and/or found them humorous.
So as Polito describes it, she conducted her business in a traditional way and communicated with her clients, and they, instead of working things out with her, released a defamatory blast all over social and local media. They destroyed her business with lies, and she eventually got restitution for that in the courts.
I worry about what this affair means for all of us
I’ve seen posts defending both sides in this event. They all worry me.
I post negative reviews all the time. Thousands of people have viewed my review of the truly disgusting Best Western Premier hotel in Qingdao, China and I cherish the idea that it has saved them from an awful experience. I don’t want people telling me what I can say online.
I’m especially troubled by the idea that if you click “like” on something, that’s evidence of defamatory intent. Do we really want to be able to sue people for what they like online? This goes too far.
That said, I support the idea that if you lie online, there are consequences. Clearly, many individuals saw the NBC 5 report, sought out Andrea Polito’s online presence or Yelp page, and created fake, negative reviews to shame her. The Moldovans crossed the line in their posts, and there are consequences for that. If you are willing to say anything to destroy another person’s business, regardless of the truth of falsity of your statements, then you run risks. In this case, the risks resulted in a million-dollar judgment against the Moldovans.
I’m truly interested in your perspectives on this case. Where are we to draw the line? How would you feel if you got sued for an online review? For clicking “like” in a news report that turned out to be false? If the business suing you was a big one — say McDonald’s suing you for saying their french fries are unhealthy — would that make any difference? Because the big companies have a lot more legal resources than Andrea Polito’s photography business.
On the other hand, what is the right way to defend yourself against a social media smear campaign? If it was your business being sued or your character under assault, what would you do to fight back? Would you consider filing suit? If so, what do you feel you’d have to prove to prevail?
14 responses to “The Andrea Polito wedding photography lawsuit raises thorny questions about the groundswell”
This is not the first time a court has ruled against someone over a Yelp review. And I am not as concerned as you are about the implications in this case. At the core, this changes nothing.
On the one hand, there is legal First Amendment protection for saying accurate things that are negative. People have tried to sue over bad Yelp reviews and have lost if there is evidence the criticisms are valid.
On the other hand, there is no legal protection and never was protection for saying incorrect negative things. Social and the groundswell does not change defamation laws or ramifications.
You seem concerned this will adversely impact “the Groundswell,” but it remains the single best defense against manipulation of information. Does it have its risks? Certainly, as you correctly pointed out, but it has also empowered political advocates, forced brands to act more transparently, given access to consumers to more trustworthy content, and changed the world. And even if we felt that social media has flaws, there is no going back, anyway. We can only move forward and do our best to improve social media and to help people understand that their actions have consequences.
The fact is that individuals and businesses can manipulate social media just the same way that people can manipulate other forms of media or organizations. We have plenty of examples from past and present of the abuse of traditional media, governments and brand/consumer relationships resulting in the dissemination of false information or causing adverse impact. Next to Enron, VW or banks’ culpability in the worst financial crisis in generations, this story hardly ranks among the worst example of manipulating information and its consequences. This couple went above and beyond to destroy a small business over a tiny conflict–a poor rating was warranted; lies and a campaign to slander the photographer crossed a line.
The thing about social media is that we are all responsible for our own words and posts. If we celebrate that an individual can be empowered to take a legitimate issue, elevate it in social media and gain power against businesses, I’d suggest we also have to celebrate when those businesses avail themselves of legal means to fight back when those actions are slanderous, incorrect and illegal. If the Groundswell is utlimately about truth rising to the top, then this court outcome could be viewed as a positive and not a negative outcome.
We’ve seen enough careers ruined, reputations damaged, and brands harmed to understand that social media has consequences. This is just another example of how it behooves us to make sure our use of social media and reaction to others is accurate, proportional, fair and objective. I’d be more worried for the future of the Groundswell if there were no punishments for false accusations combined with extravagant measures to unfairly harm others.
But are there always “punishments for false accusations combined with extravagant measures to unfairly harm others” online? With GamerGate, vicious slander, doxxing, abuse, harassment all went/continue to go unpunished. If you’re a woman writing in the games industry, the truth doesn’t rise to the top when there’s a mob of anonymous trolls that can use social media to make doing your job (and your personal life) a nightmare. I don’t know what the answer is, but along with the power to connect, social media has a huge capacity to harness mob mentality and actually destroy people’s lives.
I don’t know what the answer is, but whenever I think about responding to a Tweet about sexism in the game industry, or making a post, I think about the possibility of getting sucked into that storm of harassment, so most times I don’t post. And I’m just a regular Joe, not some high-profile blogger. Social media mobs have a chilling effect on speech, especially from women and marginalized voices, and large companies like Twitter or YouTube are so terrible at policing that abuse and targeted harassment (and even entertainment reviews skew up or down depending on the gender doing the rating: https://fivethirtyeight.com/features/men-are-sabotaging-the-online-reviews-of-tv-shows-aimed-at-women/).
I can see that the wedding participants used social media to try to get out of a contract they signed (or maybe they didn’t fully understand the contract, I don’t know). But I think about this a lot. The chilling affect on speech for marginalized folks when anonymous abusive postings go unpunished. It was heartening to see that targeted abuse on Twitter of Kurt Eichenwald actually led to an arrest (https://www.nytimes.com/2017/03/17/technology/social-media-attack-that-set-off-a-seizure-leads-to-an-arrest.html), but that seems to be the exception to most of the abuse that happens.
For me, the bottom line is that there are many motives besides wanting to leave useful feedback behind company/people reviews online or interacting with others online. How do companies and people reading those reviews know what’s truthful, what’s accurate?
I’m with the photographer. My wedding photographer had exactly the same policies. I didn’t love the fact that I had to pay extra so that I give my in-laws and both my divorced parents an album, but those were the rules and I paid up. The Moldovans clearly didn’t and shamefully use social media to get out of a legitimate contract.
I googled and didn’t see reference to your mentioning the book … so perhaps you have not read … I recommend “so you have been publicly shamed” … good book
Excellent Book 🙂
I believe it’s actually very hard to win a case that relies on slander. You need quite a lot of irrefutable evidence. I sincerely doubt that one negative post or comment (even if it is a lie) would be adequate justification for a case, let alone a jury trial. That means most people can continue to say nasty (and false) things on the Internet with impunity.
The couple in this case lied over and over, and notably, got the local NEWS MEDIA involved. Perhaps if they had only used social media, the case may have turned out differently since many people take online reviews with a grain of salt and laypeople don’t know how search results can ruin someone’s business. However, most people don’t want to feel like their news media is being manipulated by liars (politics notwithstanding). I think this is what probably influenced the jury’s decision.
Although, with slander/libel cases, the person or persons who made the allegedly slanderous or libellous statements has the onus of proof on *them*. THEY have to prove beyond reasonable standards that what they said was accurate and/or presented as mere opinion rather than fact. The party suing doesn’t have to do a thing.
When voicing a complaint/writing a bad review:
1) Avoid emotional “over the top” language that makes you seem revenge-driven. You don’t know the other’s motivations or character; avoid comments such as “He’s a scam artist”, which imply such knowledge. You feel cheated and angry; be on guard against the impulse to loudly and publicly support other detractors (This feels good, provides emotional catharsis, but will count against you.)
2) As much as possible, stick to listing the facts that led to your dissatisfaction. Be as precise as you can: Specific dates and descriptions are better than a vague “The staff was rude”; a photograph (tangible evidence) of the bed bug or stained sheet is even better than the mere statement “The sheets were dirty”. We’re guilty of libel only if facts don’t support an accusation.
3) Write/speak only of your personal experience (the “I perspective”) at a specific place and time. Avoid implying that certain kinds of action/inaction or character traits are displayed everywhere – or anywhere beyond the sphere of your personal experience. You suffered and want compensation: Avoid implying that others will suffer similarly when dealing with this person/business; avoid using your personal experience to “guess” what others’ experiences (past, present or future) will be like. A person is a scoundrel or scam artist only if they display certain traits in a number of transactions; generalizing the personal complaint “He did X to me” to “He does X to everyone, he will do X to everyone” is illogical and defamatory – unless you come armed with substantiating facts.
And I presume the poster who “got AIDS” from the photographer has no case to answer …
It all comes back to the contract. Every time. I’m a venue sales director in a major US city and have dealt with all kinds of social event bookings incl weddings, corporate events and so on. It’s simply astounding the number of clients that actually read their contract. Hardly anyone does. The time to negotiate is BEFORE you sign, the time to ask questions is BEFORE you sign, the time to making additional requests is BEFORE you sign. For many, weddings are the first time they’ve spent this kind of $ & for that reason alone adopt an El Hefe attitude. That’s fine, but they must be certain the contract contains all their wants, don’t wants, when & how much. You CAN revise, add, cross out what you want, don’t want or don’t agree with. If you’ve done your homework & have booked vendors you’re comfortable with, there’s rarely an issue with contract negotiations; where the issues arise is when the client out of nowhere decides something should be included that was in the contract as an additional fee (most likely bc they didn’t READ the contract & instead assumed it was included). Again, they’ve been spending a ton of $ overall & now want to vent and things turn ugly. It’s usually completely unnecessary as the vendor, more often than not, may be willing to bend or come to a compromise if the issue is dealt with in a non-confrontation, “indoor voice” manner. Of course in this scenario the client went way off track & the whole thing turned bully/gang up, which never results in a good outcome for anyone. I’m happy that Andrea was able to be vindicated & think it’s pretty terrible that the client has so far chosen to not use this as a “teaching moment” on her “lifestyle” blog. Apparently that lifestyle doesn’t include humility or the ability to reflect on the past with honesty.
Great article. Nice concept for a site.
Given the title of the website, you may want to rethink the wording/surrounding context of: “Do we really want to be able to sue people for what they like online?”
It implies that’s what happened, while I don’t believe it did. In this case, the “likes” were used as evidence of malicious intent, to backup the photographer’s claim. I don’t believe the likes were considered illegal or slanderous in a of themselves.
That said, I think that line highlights a very difficult problem with news media. You wrote a great, factual article. Then that well intended line adds something likely unintended. It adds the ability for the reader to say “people are losing million dollar suits because they LIKED something online.”
The NBC news reporter, given what I’ve read, intentionally misled people. Lines like the above do, as well. I’m guessing/hoping the latter is more common, but possibly just as damaging.
This is not to condemn you or imply any ill intent on your part. It’s just to point out how easy and, likely, common it is for BS to slip in between the truth.
Awesome article! We need MORE website like this!
In this case/story there are a ton of things that people don’t understand and reviewing this case, as well as dozens of website (which is how I came across this site) there are three types reporting on this. 1. News outlets who are boasting catchy headlines with bits and pieces of the story. 2 Photographers, despite there was fault on the side of Polito, the photographer, that the “brotherhood” kicks in, despite a photog maybe partially to blame, they’re a golden child. And 3, sites like this one that give both sides of the story which out of all of them have been just 3. mine, one other site and this one. It is no wonder why we see the comment and siding with this photog.
I’m a fashion designer/retailer as well as a photog. It was do actions like this that 15 yrs ago I too got bent over the barrel on a successor Claus when I took ownership of the failed swimwear business. In short, 2 photos and 2 models had a nice scheme going The first shoot I paid them almost $2000 for a 4 hr photo shoot. Some 500-700 images were taken and I had no choice deciding what images I would get, which we took front, side and back shots of the models in 25 swimsuits to be used on e-bay to sell the inventory off. A week later I got a CD for 25 images and only 5-7 out of 25 were usable. The following week I began getting phone calls and a couple letters from this group’s attorney with a cease and desist notice. I was no longer allowed to use the images due to copy right laws. In a preliminary hearing, I was schooled on copyright for photographers and because I didn’t take them I didn’t own the images. Yet I was reminded that I was required per the contract that I had to do at least 2 shoots a month..I also got a hefty bill for licensing and usage fees because I was using the images “commercially” to hopefully sell the outfits and that huge amount of inventory. That too was NOT in my contract, but applies under copyright law.
I read the contract but knew nothing about a photo shoot or the whole copyright thing and do you see the scam? How could I use the photos to sell the outfits if I could not show them publicly? So to get out from under them, I showed the business going under on paper. The same day I filed for a new business registration, wholesale and retail license as well as a new name. Meanwhile the 2 photogs had sold a bunch of the images to a stock photography company. Others were submitted to to a few magazines, some where claimed to be sold and who knows where else the images were used of sold! I got summoned to court again for breach of contract for not doing the 2 shoots a month. Only this time I was able to enlighten the court with the scam and they agreed with the $7000k, I had to pay, despite the copyright laws, I was not provided a “reasonable” amount of time to use them, (seven (7) days). Further because I showed the business went under and could not recover, the former business no longer existed. It was obvious what I done. However, I had every right to open a new business.
In the past 15 yrs., I have seen all sort of scams and deceptive practices by photographers. The reason I feel this exists is fairly simple. Digital camera bodies are rather affordable but quickly lose value. Lenses (aka “glass”) are also fairly affordable but tend to hold there value, meaning like 5 yrs later to can sell them and get almost what you paid for them and sometimes more. So there is an expense. Many who work with models, think and feel that models have little expense. So they seek “test shoots” or “Trade For” (TF) where the model is not paid, but rather gets 5-25 images, mainly the photog’s picks, edited their way, maybe get photo credits, with watermarks plastered all across them. This is somewhat similar to the story I described above that happened to me. Its nothing short of exploitation! Again this is fueled by copyright laws that basically say if you push the shutter button, you own the image for your lifetime but 50-70 years after death depending on the country. This allows the photog total control or authority over an image he/she did not create but used a “device” like a Canon or Nikon camera to create the image. Copyright laws deem this a “tool” of the industry. It is essential to understand all of this to understand this case.
Allow me to throw in another example. In 2010, I was made aware of a lawsuit against me from my auto insurance company, who was going to dramatically raise my rates from it. If we all recall the 2008 melt down of the economy, Uncle Sam gave Bank of America $65 billion in bailout money for them making a bad business choice. To clear their books of bad debt, Bank of America has apparently sold a debt collector the rights to sue consumers over credit card debt that it has internally confirmed to possibly be repaid or inaccurate. Bank of America sold off credit card receivables to a Denver, Colorado-based organization called Cach LLC throughout 2009 and 2010. Cach snatched up debt valued as high as $65 million for the bargain-bin price of 1.8 cents on the dollar. Some of the debts are said to have been legacy accounts acquired by Bank of America subsidiary MBNA.
Why did Bank of America sell the debt off for just pennies? Because it was unable to make “any representations, warranties, promises, covenants, agreements, or guaranties of any kind or character whatsoever” in regards to the records it had kept of the debt, according to a credit card sales agreement that was submitted to California state court in 2010 during a related civil suit.
An explicit warning was offered by Bank of America that it could not furnish documentation proving that the debt being claimed was actually owed at the time of the sale and that it very well might never be able to do so. American Banker quotes Bank of America as saying some of the balances might have been “approximate” amounts and that consumers could have possibly already paid in full some of the debts that were purchased. Others could have been cleared through bankruptcy, etc It’s very likely that many other Americans have equally suffered as a result of these shady dealings.
Well I was one of “those other Americans”. The scam Cach, LLC., was employing was using a “boiler plate” affidavit stating that a N.C. BoA rep reviewed the account and was accurate. Then they would instruct the court in the county where the defendant lived to send the complaint to a “last known address” that they would acquire by getting a copy of the person’s credit report. You wouldn’t show up to court to contest it because like me, you knew nothing about it and these lawyers would seek a “summary judgement”…. case closed! So this is where I learned all about law and from that ordeal which was a 2.5 yr legal battle to clear my name of a nearly $50K debt that wasn’t mine, I created a non-profit organization to help protect consumers from shady businesses, which there is NO shortage of!
Okay as for this case, no one has pointed fingers at NBC New 5 for airing and destroying Polito’s business and reputation. Further, David Wishnew, Politio’s attorney, painted a pretty dark picture of the Moldovan’s with his Original Complaint by adding a lot of fluff and leaving out a lot of key facts that Polito is a golden child, a saint and a victim when she is not. Wishnew further went to great lengths to make clear in the complaint that Andrea and Chaney went over the “contract” repeated and the the Moldovans clearly understood the terms. We know this is clearly NOT the case! Today we report on bad businesses like Polito’s to bring awareness to the general public so that the same thing does NOT happen to others consumers.
What amazes me is that even a few people here are citing that the Moldovans didn’t read their contract. I disagree! We know a few things to be fact. The “Contract” specified that the photographer would provide a “40-page 8.5×12 Storybook Album with up to 80 images” and never made any mention of a fee for the cover. The basic photography fee was $4,200 but the couple said they paid more than $6,000 total for items, including shooting the rehearsal dinner and an extra few hours of the photographer’s time for the long wedding. They said they agreed to the charges. We also have statement from Wedding Consultant, Donnie Brown who also reviewed the “Contract” as well as NBC New 5 and others, who make clear the extra “album cover” charge is NOT included in the “Contract”. We also have the evidence of the exchange of emails between Andrew Moldovan and Chaney Haralson and Andrew states “Where in the written contract does it state the album does not include a cover? Why would a company offer an album with no cover?” So we know the contract was read by the clients.
We also know for a fact that the Moldovans had paid all of the costs outlined in the “Contract” from Andrea’s letter to NBC “While they have already paid for the cost of the album, they did not pay for the cost of the cover, which is an a-la-carte item due to the variation of covers available,” What people are totally missing and I have not seen the “Contract” is what Justice Stoddart points out in the Appeal Court review “In sum, the contract did not allow the Moldovans to simply purchase “their” pictures and immediately obtain full rights to own and reproduce them, regardless of any dispute about an album.” Stoddart also states a quote from another case in his footnote #9 (“A statement that a dentist is personally bankrupt does not adversely affect the dentist’s fitness to practice dentistry—he may be a great dentist but a bad businessman.”). Polito may be a decent photographer but a bad business person. He disagreed but I disagree. because per the time line, APP and Polito had at least 6-7 days before the the Moldovans went the the media to come up with a resolve. Instead, like Polito states they hold on to the high res images to the end. Otherwise brides bail without paying and fulfilling the contract. Again, do not forget she already had $6000 +/- of the Moldovans money so what is the problem?
So the problem is a apparently Andrea’s contract not only does not allow clients to purchase images immediately and obtain full rights to the images, but apparently her contract does not include a Contingency or Change Order Claus. So what happens if between the engagement and the wedding the bride or groom breaks it off for whatever reason or in an extreme case one dies? Rather than working with a client to offer mutual options for a quick resolve, Andrea Polito and APP did bully and badger the Moldovans with a confusing contract in my view. Again if you are experienced in the photography industry or ask as photog, they will tell you this is an industry standard and back up their position with copyright laws rather than consumer or business law. Huge difference!
Now while Polito sought legal action against their client, the Moldovans for defamation, business disparagement, tortious interference with prospective contracts, and conspiracy, which I disagree with. People are failing to bear in mind that not only can the Moldovans file for bankruptcy protection, they can also contest the verdict of the jury. Moreover, there are possibly a number of consumer protection laws that Polito and APP could have violated. For example, in Ohio, we have Ohio Administrative Code 109:4-3-07 Deposits. It shall be a deceptive act or practice in connection with a consumer transaction for a supplier to accept a deposit unless the following conditions are met: A through E of this section. Ohio Revised Code 1345.02 Unfair or deceptive acts or practices, including but not limited to (A), (B)(1)(2)(4)(6)(8)(9)(10), and Ohio Revised Code 1345.03 Unconscionable consumer sales acts or practices, including but not limited to, (A)(B)(2)(5) Whether the supplier required the consumer to enter into a consumer transaction on terms the supplier knew were substantially one-sided in favor of the supplier; (6) Whether the supplier knowingly made a misleading statement of opinion on which the consumer was likely to rely to the consumer’s detriment.
In Polito’s follow up interview with NBC New 5, Polito states that over the past 2.5 yrs she didn’t use her credit cards or anything with her name on to make purchases publicly. As a child, my father used to tell my siblings and I, if your conscience is not bothering you, then you are doing the right thing. So, if she was so innocent, why was she operating in the shadows? Why was she ashamed to show her face and speak up say she was wronged standing with integrity? Polito stated to News 5 ““For two-and-a-half years I walked around my daughter’s school feeling ashamed and embarrassed,” which for me shows me she was guilty of something! As a few other posters stated, you will always have those bad customers. It is rare, but from time to time in my business, we do get returns. For appliances and products like that it is normally a manufacturer problem because I retail other businesses products. For clothing, it is typically the wrong size, color, or not what they expected. I do have competitors who do not allow for returns. On their website, you can barely find a real physical address because they do not what you to return items or products. Some years ago we made a fitness competition suit for a client and she changed her mind on the rhinestones and wanted more quality ones. we had to wait on our supplier to get them. I didn’t bully, badger or hold our client’s money and the suit hostage because she wanted something difference than she originally agreed to, but instead I personally went and hand delivered the item at my company’s own expense a day and a half before her fitness competition! Did we end up in court? Hell no! its call integrity that apparently Andrea Polito doesn’t have in her business model! We all know of businesses that will act in this manner, but again in the photography industry it’s promoted that you don’t budge until you what you want and then you hand over RAW’s or high def images and in sue licensing, usage fees and Lord forbid someone reproduce an image that you took! Further, F-Stoppers on YouTube (https://www.youtube.com/watch?v=W4chvgMNPX0&t=1759s promotes and gives examples regarding wedding photography. They claim that regardless of whatever photography budget a bride has, she is going to spend that amount on it, which is generally paid for by her father. The example given is that if a bride has a $5k budget and you charge $2k for wedding photography then you are going to lose that sale. I fully disagree! But it promotes not to list your prices but have a bride contact you, ask her what her budget is and charge them that. To me that is exploitation!
On the flip side, here in Ohio there are two sisters south of me who charge slightly less than Polito, but you get ALL of the images and they will edit all of the images and give you a CD with ALL high res and including the out take images, not 80 as in Andrea’s and so many other photogs business model. They offer a big portrait, a number of 8X10 and other sizes which are limited in their packages. In Polito’s case it was stated that APP took 4000 images and yet the Moldovans only get 80. See the difference? Which is the better deal? Are you going to go with Polito simple because she charges more as F-Stoppers and other photogs promote or do you want to pay a bit less and get ALL of the images edited in high res, including out takes and have options on sizing the ones you want in larger sizes? These two sisters and their wedding photography business is always booked 18-24 months in advance. I don’t know about anyone else, but I would go with these two sisters as they have a much better deal! When people ask me about wedding photography, I direct them to these two sisters!
Additionally, there are photogs out there like myself who give a copy of the the all the images and who do not watermark their images.We want people to share and use our images and most photogs don’t like this.
For photographers reporting on this story, again they are boasting and promoting “This sets precedence!” The truth its NOT a win for anyone other than bad businesses and con artists! Its a slap in the face to professional photographers all over to say we are stubborn, greedy, we love one sided contracts in favor for the photog, not the consumer! As a photographer, I don’t want to and will not promote that!
From a consumer standpoint, unless Polito actually had signed contracts and down payments from future clients, then there is NOT tortious interference with prospective contracts in my view. In the Appeal Court, the record reflects Polito giving rough averages of what she made for specified dates rather than exact figures. This should also tell you something! Further, as other people point out and agree, just because the Moldovan’s “Liked” posts is not conspiracy. Nor is warning other “consumers” to say hey here is what happen to me (or use) and this is what you can expect if you do business with “XYZ” business so use someone else! Making statements after the News 5 report and article went pubic you state so and so business is pretty much done, that was a fact, not conspiracy! I see it all of the time. We have 6 on Your Side, Watch Dog 10 and a few other news stations that help consumers with similar issues like the Moldovans. Like Polito, most businesses do not want to be on camera but generally it helps consumers who got a shady deal by publicly exposing the business as was the case here.
Polito and APP could have offered the Moldovans a disc of their wedding images. Andrea has boasted she was making $800k annually and I see why, but she could have paid for the cover herself, and gave the disk to the Moldovans and the album when it was completed. She could have stated here are my actual expense and here is your disc along with a partial refund in needed. She could have refunded all of their money and kept the images. These are just a few options off the top of my head that were not offered or done per court records. Knowing what really goes in in the photography industry and what I pointed out here, it is hard for me to side with Polito. Plus factor in that Wishnew went after the Moldovans for “commercial speech” under the TCPA laws in Texas, which are not the toughest in the country because Neely was making money from they increased traffic to her social media sites. Justice Stoddart did a great job of explaining this and over ruled it! That should tell you something as well… like Polito was greedy.
I see this whole ordeal that the Moldovans had paid thousands and Polito admitted the couple had abided to the Contract and they just wanted their wedding photos without have to pay more, which for a fact, Polito’s office manager was trying to “upsale” the couple on more expensive items. The Moldovans stated… ““We are stunned. We did what consumer advocates say to do: When you are wronged, you fight back. We were unhappy with a situation, so we complained like anyone would. This court decision tells consumers not to speak up for fear of fat legal bills and painful judgments. If this is the cost of standing up for what’s right, we should have given in to start with. But we hope to prevail in the end.” I have to agree and this further silences consumers to rate businesses and speak up and out about bad businesses and promotes businesses being able to employ shady and deceptive practices and threaten customers or clients with lawsuits if they do.
Just a good thing I was not a juror! I’m not saying the Moldovan were completely innocent here, but in no way, shape or form was Polito without fault here as well! I went to her website and ordered her new book “8 Steps to Your First $800,000 As A Photographer” which was to begin shipping Aug. 18, 2017. I’m interested in see just what she is promoting to photogs and how to reach that figure along with if she covers any consumer laws as I pointed out above.
Wow… you are so completely wrong here. If you have a problem with a business, you could very well be entitled to restitution or refund. You are *not* entitled to revenge.