Rant: Yelp & Extortion

Does Yelp penalize businesses that refuse to advertise with them? Though a number of businesses claim this is the case, Yelp has vehemently denied these allegations. A recent ruling by the 9th U.S. Circuit Court of Appeals has brought this issue to the forefront once again, and their written decision provides fascinating food for thought.

Yelp is a crowd-sourced business review site, where consumers rate everything from restaurants to nail salons. It has been the center of controversy for years, for a variety of reasons. In the case at hand, several businesses filed a class-action lawsuit against Yelp for civil extortion, as well as violations of California’s Unfair Competition Law (“UCL”) and the California Business & Professions Code. There were four primary plaintiffs, from a dentist to an animal hospital.

The U.S. District Court for the Northern District of California dismissed their lawsuit, and that dismissal was appealed to the U.S. Circuit Court of Appeals for the Ninth Circuit. A three-judge panel affirmed the district court's dismissal, and the opinion was written by Judge Marsha S. Berzon. With any such court opinion, we need to understand that their decision is based only on the evidence before them, and that their decision may be narrowly applicable in a number of aspects. Reading the actual decision will help you better understand what occurred.

Contrary to some headlines, the Circuit Court did not state that Yelp has never engaged in extortion. Its ruling was far narrower, concluding only that extortion did not occur in the case of the four primary plaintiffs. However, based on the court ruling, it would be extremely difficult for any other business to successfully bring a suit for civil extortion against Yelp.

The court stated that the legal requirements to prove extortion were stringent, and that the plaintiffs failed to meet that burden. The plaintiffs didn't possess a pre-existing right to have positive reviews appear on Yelp, and this would likely apply to almost any business on Yelp. In addition, Yelp possesses the right to post, or not post, any review it chooses, whether positive or negative, and also can post them in any order it desires. This too would apply to almost any business, and not just the four primary plaintiffs.

In essence, this gives Yelp great power to manipulate user reviews, if they so desire. For example, Yelp could post only the negative reviews of a business, and choose not to publish any of the positive ones. This would not be unique to Yelp but would be applicable to any similar review site. If you check out the user reviews for a business, there is no guarantee that you are seeing all of its reviews. That is a disturbing thought, raising the issue of trust.

Based on these rulings, it would be extremely difficult for any business to bring a suit for extortion against Yelp though the court added it was still possible, "if adequately pled."  However, there might be other causes of action to cover these allegations and they might possess a greater chance of success. If a business has a contract with Yelp, then there is the potential that such allegations might constitute a breach of Yelp's contractual duties. That would be dependent on the specific terms of the contract, and would vary from business to business.

Another issue raised by this suit was that two plaintiffs alleged that Yelp penned negative reviews of their businesses but the court didn't find sufficient evidence to prove these allegations. And even if Yelp had authored reviews on their own site before, that would be insufficient to prove that Yelp did so with these specific plaintiffs. Mere speculation is insufficient. Hard evidence is necessary and neither plaintiff was able to provide such.

The District Court addressed a significant issue, immunity under Section 230 of the Communications Decency Act of 1996 (“CDA”), that the Court of Appeals chose not to address, finding it unnecessary to do so. The District Court felt that even if Yelp manipulated user reviews, they were immune under the CDA from any lawsuit. Section 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Such immunity may be even more important that the stringent requirements to bring an extortion suit. This immunity is not absolute, but it is powerful. As an aside, it also can provide immunity to bloggers from being sued because of comments from other people made on that blog.

It seems that plaintiffs have not yet decided to appeal this decision. Based on what I have read in the decision, it doesn't seem it would be worthwhile for the plaintiffs to appeal. They seem to possess a lack of necessary evidence to prove some of the key points of their suit, and the legal requirements appear stringent enough that they are unlikely to prevail. Proving your allegations is an important aspect of any lawsuit.

Yelp may or may not manipulate reviews based on whether a business advertises with them or not. They deny doing so while others claim that they do. In the case at hand, none of the four plaintiffs proved such manipulation. However, the courts ruled Yelp could engage in such manipulation and it would not constitute extortion. Such manipulation may be legally protected, but it raises the issue of the trustworthiness of such reviews. However, more proof, beyond anecdotal assertions, is needed to indicate that such manipulation occurs. And all crowd-sourced user review sites are susceptible to this potential problem.

Thursday Sips &Nibbles

I am back again with a new edition of Thursday Sips & Nibbles, my regular column where I highlight some interesting wine and food items that are upcoming. **********************************************************
1) Boston, more than most other cities of its size, is chock full of talented home and professional cooks who have had cookbooks published in the past year or two. Fruit Center Marketplace reached out to five notable cookbook authors who live and work within an hour of their two stores. The result is a full month of in-store cookbook sales and on-the-spot autographing by the authors.

Locations, dates and times vary, as shown below, and cookbook quantities are limited. There is no charge to meet and speak to these authors. Book sales will be available by cash or major credit card. Look for these culinary experts at the front of each store.

Amy Traverso
The Apple Lover’s Cookbook
Thursday, September 11
4-5 PM in the Milton store
Cost: $30 per autographed copy

Winner of IACP’s "Best Cookbook" award in 2012. Apple Lover's Cookbook celebrates the beauty of apples in all their delicious variety, taking you from the orchard to the kitchen with recipes both sweet (like Apple-Stuffed Biscuit Buns and Blue Ribbon Deep-Dish Apple Pie) and savory (like Cider-Brined Turkey and Apple Squash Gratin). It offers a full-color guide to fifty-nine apple varieties, with descriptions of their flavor, history, and, most important, how to use them in the kitchen. Amy is an editor at Yankee magazine.

Beatrice Peltre’
La Tartine Gourmand
Saturday, September 13
1-2 PM in the Milton store
Cost: $20 per autographed copy

What could be sweeter than life with friendship and food at its center? For Béatrice Peltre, author of the award-winning blog LaTartineGourmande.com, to cook is to delight in the best of what life has to offer. Welcome to a world where flavors are collected as souvenirs and shared as heirlooms, and where the dishes we create are expressions of our joie de vivre. With nearly 100 recipes and charming anecdotes, La Tartine Gourmande takes you on a journey, not only through the meals of the day but around the world, as Béa revisits her inspiration for each dish.

Leigh Belanger
The Boston Homegrown Cookbook
Wednesday, September 17
4-5 PM in the Hingham store
Cost: $30 per autographed copy

This cookbook features mouth-watering recipes from almost 30 top-name chefs and restaurants in the Boston area who subscribe to the philosophy that locally grown, sustainable foods taste best. Yes, you can recreate dishes from Ana Sortun, Kevin Long, Nuno Alves and Jody Adams ! Recipes are lavishly illustrated with colorful photos of the dishes, chefs, and local farmers from around the region who are dedicated to growing the best local foods.

Catherine Walthers
Kale, Glorious Kale
Book Signing Tuesday, September 23
1-2 PM in the Hingham store
Cost: $17 per autographed copy

Cooking Class Wednesday, September 24
5:30-7:00 PM in the 2nd floor café’ at the Milton store
$25 for 90-minute cooking class; cost includes an autographed cookbook

Now, with the guidance of cookbook author Cathy Walthers – whose other top sellers include Raising the Salad Bar and Soups & Sides – every home cook can explore the multitude of ways this most healthy of foods can be made into delectable and satisfying meals. From Baked Eggs over Kale in the morning to main courses like Chicken Braised with Kale and Cider, Kale, Glorious Kale, which hit bookstores on September 15, will be your complete guide to the greatest of green vegetables.

Paula Marcoux
Cooking with Fire
Saturday, September 27
12-1 PM in the Milton store
Also from 3-4 PM in the Hingham store the same day
Cost: $20 per autographed copy

Cooking with live fire goes way beyond the barbecue grill, says Marcoux, who is food editor of Edible South Shore. Rediscover the pleasures of a variety of unconventional techniques, from roasting pork on a spit to baking bread in ashes, searing fish on a griddle, roasting vegetables in a fireplace, making soup in a cast-iron pot, baking pizza in a wood-fired oven, cooking bacon on a stick, and much, much more. Includes 100 recipes for everything from roasted rabbit and fish chowder to baguettes and burnt cream.

2) Tryst Restaurant, in Arlington, will commemorate 10 years serving the Greater Boston community with a month-long celebratory menu featuring $10 signature dishes from Executive chef/owner Paul Turano. The big 10 anniversary specials will debut on September 1 and last through the end of the month.

In true Tryst fashion, contemporary American menu items will get a Turano twist—transforming them into the unique, yet approachable dishes that chef Turano has come to be known for. Diners can enjoy $10 items such as kale & Brussels sprout salad with toasted hazelnuts, parmesan, verjus vinaigrette, wild mushroom flatbread, braised pork belly buns with spicy cucumbers & root beer hoisin and shrimp tacos with avocado, red onion and aji crema, to name a few. The menu will evolve throughout the month so that guests can try something new every visit.

Tryst’s special anniversary menu will be available during dinner service from September 1-September 30.

For more information or to make reservations, please call Tryst at 781-641-2227

3) The Wine Connextion, in North Andover, will be hosting a luxury wine tasting of Michael David Winery wines with special guest Dave Phillips, Wine Owner of Michael David Winery. Guests can gather on Thursday, September 25, from 7pm-9pm to meet and have their wines signed by Phillips. This special tasting showcases Michael David Winery’s Luxury Lines Series including crowd favorites like their Rapture Cabernet, Lust Zinfandel, and their 2012 newly released Rage Zinfandel and Ink Blot wine series.

Michael and David Phillips, two brothers whose family has farmed in the Lodi region since the 1850’s, have cultivated wine grapes for nearly a century. Today the family continues to emphasize the importance of quality wines with unique and eye catching labels. Farming with future generations in mind, Michael David Winery has adopted some of the most progressive sustainable farming practices in the state. All 750 acres of the family’s vineyards are third party certified, with their 2011 vintage being certified sustainable.

This tasting is free to the public and, as always, walk-ins are welcome. Please note: Must be 21 or older.

4) Taberna de Haro is hosting a special tasting of Classic Spain on October 8, at 7pm. There will be a guest speaker, Colin Gent, Master of Wine with Europvin, importers of fine, traditional expressions of Spanish wine. Dan Hirschkop, Wine Director of Gordon's Fine Wines, will also be in attendance to take orders for purchases.

Menu
Manzanilla Papirusa Emilio Lustau
Manzanilla en Rama Emilio Lustau
Pinchos de Pescado - preserved mackerel, smoked bluefish, fresh crab - on olive oil toast, with voluptuous garnishes

Ullacia Txakolina 2013
Granbazán Ambar Albariño 2013
Fresh Cod with Basquaise sauce and clams

C.V.N.E. Reserva 2009
Contino Reserva 2005
Alubias de Tolosa - rich & fancy red beans

Alion 2009
Valbuena 5º Año 2008
Piquillo Peppers stuffed with braised lamb, sauced

Cost: $80 per person (plus tax & gratuity)
Reservations & pre-payment required. Call 617-277-8272 during evenings.

5) Chopps American Bar and Grill and Chefs Daniel Bruce and David Verdo are pleased to announce a delicious collaboration with Busa Wine & Spirits. On Thursday, September 18, at 6:30pm, guests will sample wines from the from the Pacific Northwest that have been paired with delicious small bites selected by Chef de Cuisine David Verdo and Chef Daniel Bruce, and everyone will leave with a $50 gift certificate to Long’s Jewelers.

Cost: $49 per person. To purchase tickets, please visit https://www.eventbrite.com/e/chopps-american-bar-and-grill-autumn-wine-tasting-tickets-12550792759.

Kibo Sake: A Drink Of Hope

"Hope is being able to see that there is light despite all of the darkness."
--Desmond Tutu

As September begins, I recommend that you drink a glass of Hope.

You'll find that glass of Hope coming from Japan via Oregon. SakeOne, a Sake kura ("brewery") located in Forest Grove, Oregon, also imports Sake, from Japanese breweries including Hakutsuru and Yoshinogawa. Their newest import, released just this week, was produced by the Suisen Shuzo and is named Kibo, which means "hope."

The Suisen brewery, which is over 200 years old, was located in Rikuzentakata, a coastal city in the Iwate Prefecture. On March 11, 2011, the brewery was preparing to ship their most recent Sake production when the terrible Tōhoku earthquake struck. The resulting tsunami completely destroyed the brewery, as well as killing seven brewery workers. Yasuhiko Konno, the brewery owner, was fortunate enough to escape the catastrophe with his life.

With steely determination, Konno made plans to rebuild, to not let this tragedy destroy his dreams. Initially, another brewery, Iwate Meijo, came to Konno's aid, allowing him to brew Sake at their facility in Ichinoseki while he rebuilt. Eventually, Konno opened a new brewery in the city of Ofunato, which is located close to Rikuzentakata.  Their production level is not yet back to normal, and they eventually plan to move back to Rikuzentakata. At least though, they have returned to Sake production, continuing their 200+ year old legacy.

One of their newest products is Kibo, a Sake in a 180ml can ($5.99), commonly referred to as a one-cup Sake. A number of producers make 180ml cans or jars, and this sized container has ancient roots. The masu (pictured at the top) is a traditional wooden drinking cup made of sugi, Japanese cedar. It was shaped like a small box and holds about 180ml. This became the standard size for a single serving of Sake, and became known as an ichigo or just go. The standard Sake bottle became known as a yongobin, holding four ichigo, or 720ml. In comparison, the standard wine bottle holds 750ml. An ishoobin or just shou holds 1.8 liters, or 10 ichigo.

When you pop the lid of a Kibo, you'll find a small paper with a picture of a pine tree and a message: “The Miracle Pine Tree is the symbol of Rikuzentakata City, home of KIBO Saké. Of 70,000 pine trees in the coastal region, it is the only tree that survived the tsunami of March 2011. Support the ongoing efforts to rebuild the lives of the people here by donating to Mercy Corps at mercycorps.org/Japan.” Mercy Corps is a global aid agency which helps various peoples affected by disaster, and one of their projects is helping Japanese adversely affected by the March 2011 earthquake and tsunami. By purchasing this Sake, you help those in the Tōhoku region.

The Sake is produced using local Hitomebore (which means "love at first sight") rice, which has been polished down to 70%. As it is a Junmai, it is made with only four ingredients, including rice, water, yeast and koji-kin. It has a Sake Meter Value of +2, which tends to mean it is balanced between sweet and dry, and an alcohol content of 15.5%. It has a dominant aroma of steamed rice with hints of melon, both which also come out on the palate, along with a bit of green apple. It is dry, smooth, and full bodied with some pleasant umami. It is easy drinking and you could pair it with pizza or a cheese burger.

Raise a glass of Hope, support those adversely affected in Tōhoku, and enjoy some tasty Sake.

Lucky Peach: The Seashore Issue

My favorite food magazine is Lucky Peach, always a fascinating collection of well-written and intriguing articles about all things food. Each issue generally has a special theme, and if you love seafood, then you need to check out their latest issue, which is all about the Seashore. They state that the issue is "all about food from littoral realms—the spaces where land meets sea" and you'll find over 24 articles about seafood-related topics. This is a must read.

The diversity of the subject matter in this issue is compelling, and generally beyond what you'll find in most other food magazines. You'll find an article about swimming with River Otters as well as another about the smells of the seashore, including the smell of seaweed sex. You'll find humor and education, recipes and restaurant reviews, anecdotes and memories. And all supplemented with excellent photography and drawings.

Check out "Of Prawns & Men on the Bali Strait" by Melati Kaye, which is about shrimp farming in Bali. The article discusses the sustainability of such farming, noting some of the negative costs of imported shrimp from mangrove destruction to the overfishing of sardines for fish food. As for other crustaceans, "That Fish Cray" by Adam Gollner provides plenty of info about the crayfish, from history to cooking advice. Did you know that Bavarian monks were some of the first people to support eating crayfish? In ancient times, crayfish were thought to be insects and few wanted to eat them.

Sea vegetables, a topic that isn't discussed enough, also get coverage in a couple articles. In "This Is Not A Cucumber," Chris Ying discusses the Sea Cucumber, noting how it is becoming more common on some Bay area restaurant menus such as Benu and Saison. He mentions how seas cucumbers are prepared and served, and maybe you'll start seeing them soon on the menu all across the country. In another article, "A Little Kelp From My Friends," by Rachel Khong, there is a discussion on commercial seaweed operations in California, as well as seaweed harvesting in Japan. Kelp may become more and more important in the future, and there is even a commercial kelp operation in Maine. Did you also know that seaweed has unique gelling and thickening properties?

There are several shellfish articles, discussing such topics as Australian Middens; 8 types of edible bivalves, Clam dishes at East Coast restaurants, the Battle Over Drakes Bay Oyster Company, Cockles, and Abalone. Ever heard of Blood Ark Clams, which actually bleed red? Want to know more about jellied eels? Did you know that when humans first traveled into North America, abalone became a significant food source for coastal dwellers?

For more informational articles, you can enjoy "Under the Sea" by Nina Bai which discusses various sea creatures that were named after land ones, comparing them to each other. You can learn more about such strange creatures as the Sea Cow, Sea Hare, Sea Pig, and Sea Robin. In "Something Fishy," by Brette Warshaw, you'll find stories behind four sushi items including wasabi and sushi gras. The fake grass you get with much sushi used to be real , and its purpose was help to preserve the food, as well as separate it. And one of my favorite articles is "Bringing It All Back Home" by Genevieve Ko, which is about seafood in Portugal, a country I very much want to visit.

Within the magazine, you will also find a number of recipes, including:
--Linguine With Mussels & Pecorino
--Clams with Lap Cheong & Fermented Black Bean
--Barnacles in the Basket
--Pork Tonkatsu Sandwiches with Smoked Oyster Mayo
--Razor Clam Crudo with Sea Beans & Fresh Wasabi
--Gaper Clam Sashimi
--Clams & Beach Peas with Crema
--Clams Casino on Toast
--Strawberry Shake with Aperol & Saba
--Thanh Tra Salad
--Ms. Vo Thi Huong's Garlic Shrimp
--Crayfish Au Gratin
--Manhattan Clam Chowder
--Ameijoas A Bulhao Pato
--Polvo Assado
--Arroz de Mariscos

I strongly recommend you regularly read Lucky Peach, but for seafood lovers, the latest Seashore issue is of special interest, and well worth reading. I'm sure you'll learn something, and you'll have fun reading the wide diversity of articles.

Food & Family: In Memory of Frenchie

Last Monday, Camille "Frenchie" Babine, my father-in-law, passed away. and would have turned 96 years old in October. However, no matter how old you are when you pass, life is still too short.

For the last twelve years, Frenchie and Marjorie, his wife, have lived in my home and I've never once regretted opening my doors to them. Born in Nova Scotia, Frenchie was always quick with a smile, a man who enjoyed simple pleasures, from old time country music to puttering outside in the yard. He placed dozens (though it seemed like over 100) of bird houses in the back yard, and enjoyed sitting outside, with a beer or glass of wine, watching the birds settle in. And he was a true family man, with six children and numerous grand children and great-grand children.

Frenchie was well known in the family for making bread and rappie pie, both items which he had been making for much of his life. When making his homemade bread, he didn't use a recipe and never measured the ingredients. He hand-kneaded the dough, a strenuous process, and his bread was as good as found in any bakery. In recent years, he'd had some difficulty in the kneading, but had been teaching other family members how to make the bread, so that the tradition continued in the family. Even on his final day, he talked about making bread.  

Another family tradition, cherished by Frenchie, is rappie pie, a traditional Acadian dish. Though its origins are murky, it may have made its first appearance in Nova Scotia around 1755 when the Acadians were deported. There are a few legends though that it's creation may actually extend back to the 1500s. Frenchie ate and made rappie pie for most of his life, bringing the tradition from Nova Scotia to Massachusetts, sharing it with family and friends.

Rappie pie is a made from grated potatoes or in French, "patates râpées." The French word râper means "to grate." Thus, that became transformed into "rappie" pie. Once the potatoes are grated, most of the water is removed. This used to be done by squeezing the potatoes in a cheese cloth, a laborious process, so that it took two to three days to make rappie pie. Then, broth would be added along with meat, onions and pork fat to make a casserole type dish. There are a number of variations on this basic recipe, some people using different types of meats or even seafood like clams.

People may top their rappie pie with butter or molasses, and there is an old adage that the English use butter and the French molasses. Some people may top their rappie pie with other items, such as even ketchup, but that is much less common. It used to take Frenchie, and usually a couple family members, a couple days to make rappie pie, and the making was a festive occasion, often involving much drinking. Nowadays, it is easier and quicker to prepare as you can buy frozen packets of potatoes where the water has already been removed.

Frenchie's rappie pie was absolutely delicious, a special treat for all. Seven years ago, after I posted online a photo of his rappie pie, I was contacted by the Nova Scotia Department of Agriculture--Food Safety. They wanted to use my photo to assist in teaching their provincial food and meat inspectors in a food processing training course on regionally significant products produced in facilities they inspected. They told me that they hadn't seen such an appealing rappie pie in a very long time, a nice honor for Frenchie's hard work. Looking at the photo of the rappie pie above, would you be able to resist it?

As making rappie pie was a special occasion, it was decided to transform it into an annual family event, a time for everyone to gather together outside of the usual marriages, christenings and other formal family functions. In fact, we ended up holding these gatherings two to three times a year, inviting all of the family, from great-grand children to cousins, and many friends as well. They were informal occasions, with plenty of delicious food and drink (including plenty of wine). I have many great memories of these gatherings which were held in my backyard.

We were able to catch up with each other, to chat about what was new in our lives. We laughed and joked, smiled and sang, ate and drank. At times, Frenchie and other family members would break out their musical instruments, especially guitars, and play. They were joyous occasions, centered on rappie pie, and brought our family closer. We'v expanded these family gatherings and now even hold an annual Soup Day, where various family members make a soup to bring to the event, so that we can end up with maybe a dozen of more soups, stews, and chowders. And there is always homemade bread too.

During the last several years, Frenchie shared the secrets to creating rappie pie with other family members, ensuring that this family tradition would not fade away. No one may yet make a rappie pie as good as Frenchie, but that is a matter of time and experience. What is most important is that it is the locus of our family, an excuse for us to gather together. Though we may meet during more formal occasions, it isn't the same as an informal gathering for rappie pie. More people need to establish similar traditions, to strengthen familial bonds, allowing food to become a centerpiece that brings everyone together.

We will all miss Frenchie, though his memory and the traditions he began will live on. Our family gatherings will continue, with both rappie pie and homemade bread, and we'll always raise a glass in Frenchie's memory.