Judge Finds Winemakers’ Defamation Suit Against Blogger Hollow

(CN) — An attempt by one of the country’s largest winemakers to squash a prominent industry critic who cast the winery as “fakers not makers” has soured in federal court. 

Unswayed by the bouquet of Penrose Hill’s defamation argument, U.S. District Judge Donna Ryu found the winery missed out on its window to sue Paul Mabray over the inflammatory 2017 blog post. In a ruling issued late Tuesday, the judge signaled she was doubtful of plaintiffs’ ability to turn one of Mabray’s tweets made over a year later into a robust defamation claim and dismissed the case with leave to amend.

The fight stems from Mabray’s since-removed blog titled “Fakers Not Makers and the Return of Philip James,” in which he blasts online wine subscription services for misleading customers with “inauthentic models.” While Mabray does not specifically accuse Penrose Hill of being one of the companies deploying the online model, he refers to its CEO James’ previous history in the wine industry more directly and harshly.

Mabray accuses James of “scraping data” from the review website Cellartracker.com, massive employee layoffs and of “transforming into the Hot Topic of wine retailers.” He further writes that James was once involved in a charity scam that promised to “turn water into wine.” 

“Fool me once, shame on you. Fool me twice, shame on me,” the blog states.

Founded in 2015, Penrose Hill sells millions of bottles of wine per year through its “unique portfolio of wines” and has won over 1,000 industry awards. Through its website Firstleaf.com, it offers a subscription service that uses a self-developed algorithm to match customers to their individual preferences.

Irked by Mabray’s harsh blog, Penrose Hill and CEO James responded with a defamation lawsuit this past February in the Northern District of California.

The plaintiffs cast Mabray as an industry disruptor paid by “traditional wine businesses seeking to maintain the status quo.” They claim Mabray lied about Penrose Hill’s marketing tactics, unfairly described James’ previous business ventures and asked the court to order a retraction and $1 million in damages.

In court briefs, Mabray is described as being involved in the wine industry for decades as well as a “thought leader.” He offers first-person wine reviews and opinions through his blog and on Twitter, where he has a verified account.

Six months later, Judge Ryu agreed with Mabray that the lawsuit was filed after the expiration of California’s one-year statute of limitations. She added that Mabray’s 2019 tweet linking to the blog didn’t amount to a republication of the original article.

As for the tweet — which doesn’t name Penrose Hill — Ryu says it’s more of a loose opinion than verifiable fact.

“The tweet itself, insofar as it has any connection to either plaintiff, at most implies that they may be ‘fakers,’” Ryu wrote in a ruling issued late Tuesday. “Even that much is unclear: the text snippet acknowledges that some private label wine companies are good, so the reference to James in the tweet preview does not clearly imply that he is a ‘faker’ rather than a ‘maker’.”

Mabray’s lawyers at Bryan Cave Leighton Paisner of San Francisco, which have also represented Courthouse News in unrelated matters, called the decision an important free speech triumph in the age of social media.

“This is an important victory not just for Paul Mabray, but for all people who engage in critical commentary over the internet,” said Rachel Matteo-Boehm in an email. “This is the latest in a string of decisions to find that linking back to previously published content does not republish that content for statute of limitations purposes. In addition, under the First Amendment, there is broad protection for statements of opinion, and the court found that the tweet at issue in this case was non-actionable, protected opinion.” 

The plaintiffs’ attorneys did not immediately respond to a request for comment on the ruling.

While Ryu did grant Penrose Hill the chance to amend the case, she didn’t leave much room for optimism.

“Here, although it seems doubtful that the issues identified in this order can be addressed through amendment, the court cannot say as a matter of law that amendment would be futile,” Ryu concluded.

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