Suing Your SEO: Can An Agency Be Held Liable For Poor Results?

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It was only a matter of time before a lawsuit was filed against a search engine optimization agency for failing to deliver.

Last week, the legal marketing industry was aTwitter (and aFacebook and even aPlus) with news that law firm Seikaly & Stewart had filed a lawsuit against The Rainmaker Institute seeking a return of their $49,000 in SEO fees and punitive damages under civil RICO (read: mobsters and racketeering — more on that later).

To the best of my knowledge, this is the largest and most public legal imbroglio involving aggressive performance claims, angry clients, SEO agencies and black hat tactics.

To date, clients caught up in agency black hat shenanigans (JC Penney, anyone?) have expeditiously swept the news under the rug as soon as possible.

Internal marketing departments, and their close cousins in PR, are only too eager to avoid public discussion from a lawsuit that would paint them as at best entirely ignorant and at worst entirely complicit with short term black hat search practices.

Full disclosure: I know Stephen Fairly at the Rainmaker Institute and have spoken about SEO at many of his events in the past (gulp). Everyone outside of legal must understand that the industry has gone to great (and excessively overreaching) lengths in attempts to legislate away the ambulance-chasing lawyer stereotype.

Are SEOs Responsible For Outcomes?

When it comes to marketing, attorneys generally have their hands extremely tied due to restrictive regulations on legal advertising, though restrictions do vary from state to state. The introduction of online marketing into the mix has further complicated things — existing regulations do not always have clear applications for online marketing, and regulators are still in the process of putting together advertising guidelines for this new frontier.

The Rainmaker Institute has gone to great lengths to not only educate, but to encourage marketing of legal services. I stand behind the notion that marketing is good for the industry as it brings attorneys closer to people who really need help.

I commend Fairley for being instrumental in making this happen. But, did he go too far? And is this a precedent where SEO agencies are on the hook for tactics and performance in search? And, what about this racketeering thing?

RICO Racketeering?

While I don’t want to go too deeply into the legality of things, RICO (short for Racketeer Influenced and Corrupt Organizations Act) was created in 1970 to help close loopholes protecting the leaders of organized crime for the actions of their group — like a mob boss ordering a hit, for example.

Seems a far cry from link building, so I asked some lawyers: Dan Kalish from the employment firm HKM explained that Rainmaker’s actions would need to be seen as a “broad, interstate scheme, involving several victims and spanning several years.” Seth Price described the racketeering claim as “a creative attempt to get a simple contract dispute from state arbitration into federal court.” (For a full legal counterpoint, try this piece by Clay Hasbrook.)

Let’s dig into the complaint itself:

The Rainmaker Institute disclaimed all liability for lack of success of its efforts . . . The action is based on the fact that, at the time that the defendants were promoting this marketing scheme to the Victim Firms, they knew that the techniques they proposed to use were in violation of the guidelines already well-established and published by Google.

This begs the question for all agencies: does knowingly violating Google guidelines open agencies up to lawsuits? Let’s be honest, if that were the case, more than a few of my search friends would have found themselves in court already. Even really bad tactics work (for some period of time). And of course, Google’s guidelines change, and tactics become outdated.

Marketing Is A Crapshoot

Remember when boldfaced text was a genuine indicator of what a page was about? Or when (genuine) blog comments were a good authority signal? Or, more recently, over-optimized anchor text links? Marketing is still a crapshoot — TV, billboards, super bowl ads, skywriting and SEO. Holding any advertising agency responsible for what does and doesn’t work is sour grapes from a bitter client.

Everyone involved in marketing channels on the client side knows that their primary function is to assess not only the marketing channel in question, but also the projected outcomes of that channel.

My two experiments in TV advertising have been utter failures, but suing Comcast would be an asinine response. Yet, that is what S&S is doing. This is the heart of the problem for the law firm in this case — essentially, they are saying, “We bought something that was widely recognized by everyone (but us) to be ineffective.” And like the JC Penney marketing department, S&S was either extraordinarily ignorant or has some serious (but informed) buyer’s remorse.

The scorn among the legal blogosphere has been evenly meted out between plaintiff and defendant. (From my experience, the only thing blogging lawyers hold in higher contempt than meritless lawsuits are SEO consultants.) From the acrid eloquence of Scott Greenfield:

… And were Seikaly & Stewart victimized by Fairley’s unkept promises? It’s beyond ironic that a firm seeking to buy its way to prominence from a marketeer complains that it was out-deceived. It’s not that they have no cause of action, having paid a pretty sweet sum to the Rainmaker Institute and gotten bupkis in return, but that when someone seeks to game the system and got played in return, it’s just awfully hard to feel badly about the whole thing . . . Plus, it’s always fun to see the imaginative uses to which civil RICO is put.

The final obvious result, of course, is that no search agency in their right mind will ever want Seikaly and Stewart on their client roster. However, the SEO cynic in me hopes there is another angle: this could be nothing more than an extremely clever, sophisticated, premeditated (and genuine) link building exercise orchestrated by a genius law firm marketing intern.

Opinions expressed in the article are those of the guest author and not necessarily Search Engine Land.

Related Topics: All Things SEO Column | Channel: Strategy | Legal | Legal: General

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About The Author: is the founder of Atticus Marketing - a search agency dedicated exclusively to the legal profession. Prior to Atticus, Conrad ran marketing for Urbanspoon and the legal directory Avvo, which rose from concept to market leader under his watch.

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  • http://www.seo-theory.com/ Michael Martinez

    “To the best of my knowledge, this is the largest and most public legal imbroglio involving aggressive performance claims, angry clients, SEO agencies and black hat tactics.”

    Oh no. People have gone to jail over bogus SEO tactics. And the State of Washington’s Attorney General levied fines running into the hundreds of thousands of dollars against one firm several years ago.

  • Conrad Saam

    Michael – here’s the Washington State AG release about Internet Advancement lawsuit: http://www.atg.wa.gov/pressrelease.aspx?id=18382#.UfvGYGRgbKk

  • http://www.seo-theory.com/ Michael Martinez

    I’m not in a position to quibble over details. I recall a $400,000 figure being mentioned in some article several years ago. I was certain it was Internet Advancement but it could have been another firm. I don’t believe Traffic Power was fined that much, although its founder went to jail for some other business. I just don’t have time to research it and clear up the details. Sorry.

  • Conrad Saam

    you are right – it was $450K for Internet Advancement – ironically I’m in Washington State and don’t recall this at all.

  • http://www.LeadDiscovery.com/ Jerry Nordstrom

    Your conclusions are well stated Conrad.

    Marketing is intended to give a business the best opportunity to win over new clients, not guarantee them.

    When does risk become the marketer’s liability?

    As Conrad has noted one could create and execute an ad campaign that the client signs off on, and they both may feel that they have a reasonable expectation of a good return. There is inherent risk in this equation. If it flounders Is the marketing agency liable? I think not. Instead if the trend is failing campaigns the agency is fired, not sued. (and the client should be self critical as well).

    Marketing agencies and businesses alike only run afoul when they start to Guarantee definitive results. Often however this is rarely the case, instead it is the sales person that pitches with absolutes, while the contract shouts out with syntactic ambiguity. Companies that intentionally play this game should be held accountable.

    An honest and ethical agency will map out all potential outcomes of a campaign.
    A smart client will listen, and perform their due diligence by reading the contract and except the inherent risk that comes with the game of marketing.

  • http://www.kyleeggleston.com/ Kyle Eggleston

    If there was malicious intent when performing your SEO duties, then yes, we should be held responsible for our actions.

    However, Google is reponsible for their actions too. If something is brought to their attention that is unethical, they should be obligated to respond.

    Best example: RipoffReport.com and Ed Magedson. There seems to be complicity between Google and Ed. Yet Google knows that Ed’s domain has an unfair (and undeserved) domain authority, which he uses to exploit individuals and businesses.

  • Justin PM

    Google’s optimization trends are highly dynamic and beyond anyone’s judgement and control. Suing a SEO firm doesn’t hold true in this scenario..Interestingly $49,000 as SEO fees must have been spent over couple of years at least…The company requesting return of their SEO fees must have received benefits from the SEO firm for couple of years and that is the only probability to continue with oen SEO firm and spend as much as $49K on SEO marketing; but Now, as the drastic Google algorithm updates are taking and may be their website got penalized for one of those SEO activities those benefited in past and they filing lawsuit against SEO firm….how foolish…

    You can’t hold your SEO firm responsible for something that is not benefiting NOW due to change in Google Algorithm and guidelines.

    The only worst thing a client can do is that he/she can terminate the contract with SEO firm if their performance is up to client’s expectation…he has full authority to leave bad feedback if he is not happy but filing a lawsuit for poor performance doesn’t make sense :)

  • Josh King

    Like you, Conrad, I have spoken (in my case, on legal ethics) at a number of Stephen’s events. I don’t know about the SEO services he provided, but his core service – guidance around practice management and business development – is really solid and gets excellent reviews from his clients.

    This just sounds like a run-of-the-mill business dispute that for whatever reason couldn’t be resolved. And I suspect that the $49K being claimed involves a lot more than just SEO.

  • http://www.attorneysync.com/ Gyi Tsakalakis

    Has anyone checked out what was (and what was not) done on Seikaly & Stewart’s behalf?

  • http://www.20milesnorth.com/ Rob Jenkins

    The key here as I see it is twofold. #1 results being promised that are not attained and #2 black hat tactics that end up harming the brand after the fact. I think if you are engaged in internet marketing and your contract states that you are not guaranteeing results and you are doing things on the level, you cannot be responsible if for some reason it goes bad. You should be fired, not sued.

  • http://www.20milesnorth.com/ Rob Jenkins

    also noticed the ‘unauthorized charges’ on the lawsuit.

  • Ronnie’s Mustache

    I’ve never wanted to work for any law firm that needs SEO or internet marketing services.

  • Peter Roberts

    it’s one way to get more links :D

  • http://samglover.net/ Sam Glover

    My two experiments in TV advertising have been utter failures, but suing Comcast would be an asinine response. Yet, that is what S&S is doing.

    Not quite. You’ve left out the marketing consultant in your example. S&S didn’t sue the media outlet. It sued the marketing consultant that gave assurances that it knew how to get S&S a good result from the media outlet.

    In any case, this lawsuit is not putting SEO on trial. The question in this lawsuit is whether TRI promised more than it could deliver.

  • http://samglover.net/ Sam Glover

    I looked, but I couldn’t find SEO services advertised on TRI’s website. I suspect it’s something they only advertise to their mailing lists, or at their seminars.

  • http://www.attorneysync.com/ Gyi Tsakalakis

    I’m curious if anyone has done the backlink analysis…

  • StevenLockey

    Its not really a case about SEO, its a case about Fraud that happened to be Fraud using SEO as the leverage. They didn’t do what they promised to do and knew what they were doing wouldn’t work, but it was the cheap way to do it.

    Its no different to a builder quoting for a wooden decking, then when you go to walk on it, you find its actually polystyrene…. *crunch*

  • Don Halbert

    “…this could be nothing more than an extremely clever, sophisticated, premeditated (and genuine) link building exercise orchestrated by a genius law firm marketing intern.”

    Im leaning in this direction to be honest. And if this is true, this shows all of us to what lengths we may have to go in order to get good, authority links that help our overall SEO efforts. Especially in light of the recent PR fiasco by Google waking up one morning and now saying PRs links (anchored or not) could be in violation of their guidelines.

    Interesting to say the least and can’t wait to see how this unfolds.

  • http://www.linkedin.com/in/josephmaresca Joseph Maresca

    I actually head up the Search Engine Marketing efforts of a major nationwide law firm so I kind of see the point of both sides. While S&S is upset for dropping $49k on a campaign that has failed I think they need to realize that search engine marketing in the legal world is some of the most competitive marketing any marketing expert would need to face. For example, some of my main keywords are mesothelioma related. There are only 3000 diagnosis of mesothelioma per year so trying to get clients is tough. Do I still I get them? Yes, of course. But I think Rainmaker should have done a little bit more research into the legal market and realize that what S&S was hiring them to do wasn’t anything easy and I think Rainmaker didn’t know that thus the reason for that cost (well it all depends on how many months of SEO that $49k was for). There are agencies out there that charge $100k to work on rankings for some of these legal mesothelioma keywords because they know what it takes. I think S&S made the mistake of not hiring an agency who has legal marketing experience and I think Rainmaker low balled their fee and weren’t aware that what they could provide for those fees still wouldn’t be enough to get S&S to where they wanted to be organically.

  • http://www.adamdince.com/ Adam Dince

    This is why it’s extremely important for agencies to include language in their SOWs that protect them from this type of thing. When I lived on the agency side, I always included text similar to “[Agency Name] is not responsible for rankings or performance from the organic search channel.” I never once had a client come back and question me on it (though we typically had good results and only practiced white hat / clean SEO). If you’re still violating Google’s guidelines and end up hurting your client through a Google penalty, you deserve to get sued. Sorry, just saying. NEVER put your clients at risk.

  • http://www.elite-strategies.com/blog Patrick Coombe

    wow, kind of scary. thats why no matter what we stick to the GWG and make THAT our selling point to new customers before any promises of performance.

    i cant see this happening in Florida, wow craziness.

    also how on earth can it be proven that an SEO firm sent black hat links to a website (other than maybe the SEO firm actually giving a report)

    can’t the blackhat SEO firm in question just claim they came from a competitor or from negative SEO?

  • http://www.brickmarketing.com/ Nick Stamoulis

    If an SEO provider knowingly engages in tactics that can get a website burned and doesn’t warn their clients about it, or tries to hide the tactics, then I could see them being held responsible for the outcome. But if a client just isn’t happy with their results I don’t think they have the right to sue—we can’t control what happens in Google.

  • anteela

    It’s not really as bad as you may think, so long as you manage expectations from the very beginning, keep them up to date, break down what you do in an easy to understand manner, and never exaggerate/over promise. My company does online marketing exclusive for small and mid-sized law firms across the U.S. in nearly every major and obscure area of law. While we can’t please every single one of our clients, that’s true for all areas of online marketing (I previously worked for another SEO company that was actually sued repeatedly by businesses in other industries).

    We work really hard to stay aboveboard in all of our dealings with them, same as any reputable SEO company should be doing. Though it does help that we have 1 full time in house attorney and another that provides additional oversight when necessary. Rainmaker Institute should have this and then some.

  • Robert

    I took a look at their backlink profile. Seems they setup a few satellite sites and built a bunch of crappy links to those. Not a ton of work there for 49k.

  • Maurice

    The issue here does not seem to be one of whether or not The Rainmaker Institute was successful in their work for Seikaly & Stewart but what techniques Rainmaker uses in their backlink strategy. The suit clearly states that Seikaly & Stewart believes that Rainmaker did not strictly adhere to Google Webmaster Guidelines in their work. This, as we all know, is a massive problem that Google has finally (through Panda and Penguin) and thankfully caught up with.

    Anyone can sue anyone under our system. If an SEO firm makes guarantees and does not satisfy them then they are certainly subject to being sued. But as we all know too, no legitimate SEO firm would ever make guarantees (emphasis on “legitimate”). But this does not seem to be the case here. The suit focuses on what techniques were used.

    I personally welcome what others have termed “the death of SEO”. Black hat (or even gray hat) techniques make it more difficult for all of us. SEO firms promising instant gratification, and clients that demand it, are a scourge.

    We practice, and teach, a method of distributing quality content that other sites want to legitimately link to because it adds quality to their own sites. There simply is no substitute for quality and we welcome the demise of those who cut corners.
    Maurice Bretzfield
    http://www.mauricebretzfield.com

  • Maurice

    And your’s is a silly comment based on the fact that you’ve either not read the suit or don’t understand it.

  • Maurice

    That is exactly what seems to have happened here. http://www.seikalystewart.com/ has a PR of 1.

  • Maurice

    With regard to backlinks there has been no change to Google’s Webmaster Guidelines, the algorithm has caught up with the guidelines. Had Rainmaker been adhering to the guidelines they probably wouldn’t be getting sued now.

  • Liam Parker

    Please send some examples of this content distribution.
    I see you pretty high up on that horse…but your site nor “inbound tactics” seem practice what you speak on your site.

    Seems more like self promotion for something I doubt you even know how to do. I know you are not obliged to show…but doing nothing is not following the guidelines of your clients.

    What people seem to be forgetting is that there can easily be neg SEO done on whomever and whenever…quite easily as well. This is why G00gle in it’s current form will not survive unless they deal with it. Eventually people will get desperate and start spamming all their competitors and we will only be left with the big brands…then users will look elsewhere. I personally like the Yandex.com results more myself.

  • Gary Andrew Lacanilao

    IMHO, the best thing to do to get your potential clients on board is through sharing your knowledge, being ethical, and talk to them as if you are part of their company.

    SEO agency can never be an SEO agency if they are practicing the wrong stuff.

  • Maurice

    “Please send some examples of this content distribution.”

    I get paid for that. My clients’ content appears in PR 7 and 8 sites all over the web.

    “Seems more like self promotion for something I doubt you even know how to do. I know you are not obliged to show…but doing nothing is not following the guidelines of your clients.”

    In what position are you to determine what I know or don’t know?

    Sorry if what I teach threatens your business model (probably pretty spammy) but it’s spammy techniques that won’t survive. What will survive is earning quality backlinks through the creation of quality content. Google, and those who practice quality content creation will do just fine. Those that don’t won’t. And certainly SEO service providers who promise 2,000 backlinks a month won’t survive either.

    Google will not survive? You’re kidding right?

  • John

    The service was for link building and blog writing content. The content was duplicated throughout multiple blogs but sold to the client as “unique, fresh and relevant content” that was supposed to be keyword loaded. The link building was through the use of link farms, that we all know are penalized by google. Here is the actual court doc for the case

    http://www.scribd.com/doc/157741107/Rainmaker-Lawsuit

  • KickStart Search

    Cool story bro…

  • Maurice

    Thank you

  • Jacob Maslow

    Issue is that the firm paid thousands of dollars and RMI did very little to earn the fees.
    It can be an issue for firms that advertise blog comments and other seo services that cost little to nothing to provide and have little value to the client. You are taking advantage of less sophisticated clients.

 

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