Med Express Sues Marginally Dissatisfied Customer For Posting Accurate Feedback On eBay

from the talk-about-inconvenience dept

Tue, Apr 16th 2013 3:12pm — Mike Masnick

Here's yet another example of companies using lawsuits to censor speech -- a situation that would be stopped if there was a serious federal anti-SLAPP law in place. Paul Levy shares the incredible story of a company called "Med Express," an Ohio company, who appears to sell various medical equipment exclusively via eBay (there are other "Med Express" companies out there from what I can tell). One buyer, in South Carolina, purchased something, but was disappointed by the fact that the product arrived postage due. The woman noted it wasn't the fact that she had to pay, just the inconvenience of having to pay to get the delivery when it wasn't expected. In response, she left negative feedback on Med Express' eBay page.

While Med Express did express regret (while noting that some other customers had seen the same problem) and offered to reimburse the postage due, it also asked her to remove the negative review. However, as she noted, it wasn't the money issue, but the inconvenience, so she decided to leave her feedback up. At this point, Med Express and its lawyer, James Amodio, apparently decided that if she didn't like "inconvenience" it would subject her to more inconvenience and sued her for defamation in state court in Ohio and sought a temporary restraining order against eBay to block the review. While that failed, apparently the judge is allowing a hearing to happen for a preliminary injunction even though (as Levy points out) the same reason the TRO was rejected should apply to any preliminary injunction.

Amazingly, the complaint directly lays out the pretty clear fact that it's suing her for not removing a truthful review. They don't even attempt to argue that she said anything false or defamatory. Just that they feel she shouldn't have complained since they offered to reimburse.

This is where Levy, a former colleague of a relative of the customer in this case, Amy Nicholls, reached out to Amodio to point out that the lawsuit was a complete joke. Amodio's response is somewhat stunning, in that, according to Levy, he more or less admitted that he was filing a nuisance lawsuit:

I contacted James Amodio, Med Express’s lawyer, to explain to him the many ways in which his lawsuit is untenable. He readily admitted that, as the complaint admits, everything that the customer had posted in her feedback was true; he did not deny that a statement has to be false to be actionable as defamation; but he just plain didn’t care. To the contrary, he told me that I could come up to Medina, Ohio, and argue whatever I might like, but that the case was going to continue unless the feedback was taken down or changed to positive. And he explained why his client was insisting on this change — he said that it sells exclusively over eBay, where a sufficient level of negative feedback can increase the cost of such sales as well as possibly driving away customers

Yet another case of felony interference with a business model, apparently, except in this case the company and the lawyer seem to be fine with abusing defamation law to stop a truthful review from appearing online because it might hurt them. Of course, suing a customer seems like the sort of thing likely to lead to significantly more negative feedback and fewer people willing to buy from them. Yes, a negative review can suck, but suing over it, while admitting that you don't really care about all the reasons that the lawsuit is censorious crap, is taking things to another level entirely.

As Levy notes, if a "public spirited lawyer in that part of Ohio" wants to take up a case to stand up for free speech and against censorious attacks, here's an opening.

ComplaintandTROMotion (PDF)ComplaintandTROMotion (Text)

LevytoAmodio (PDF)LevytoAmodio (Text)

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Filed Under: censorship, customer reviews, defamation, free speech, james amodio, paul levy, threats, vexatious litigation
Companies: med express

50 Comments

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Atkray (profile), 16 Apr 2013 @ 1:06pm

I never was good at anagrams,
Is James Amodio an anagram for Charles Carreon?

Twins separated at birth?

I'm generally of the opinion that if congress does nothing it is a good thing. Unintended consequences being what they are and the lack of vision demonstrated by our legislators,but maybe instead of allowing their staff to perform insider trades, congress could pass an anti-SLAPP law.
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That Anonymous Coward (profile), 16 Apr 2013 @ 3:23pm

she should update the feedback, they offered to refund the postage due and sued me for leaving a factual review. consider who your doing business with.

:)
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- John Fenderson (profile), 16 Apr 2013 @ 3:53pm
  
  Re:
  This is precisely what I would do.
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Anonymous Coward, 16 Apr 2013 @ 3:26pm

Clearly this is going to go over swimmingly for them.
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sorrykb (profile), 16 Apr 2013 @ 3:26pm

Apparently this isn't the first time Med Express has done this -- This time they just chose their target especially poorly. Ken White put up the Popehat signal, and per his latest update the reviewer now has pro bono representation. http://www.popehat.com/2013/04/15/the-popehat-signal-stand-against-rank-thuggery-in-ohio/
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wallow-T, 16 Apr 2013 @ 3:41pm

At this point I think Ebay has to defend the integrity of its customers' feedback. Probably this has to be done by banning the seller.

If Ebay feedback can be compelled to be positive, then it's worthless to customers.
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- Anonymous Coward, 16 Apr 2013 @ 7:24pm
  
  Re:
  Looks like they're suing eBay, too. Considering that eBay is a huge company that owns Paypal and has many lawyers, I don't see them backing down easily.
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bUBBA, 16 Apr 2013 @ 4:04pm

Is this the Med Express that likes hitler?
There are so many Med Express companies and I was wondering if this was the one who was responsible for all those deaths?
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Ted, 16 Apr 2013 @ 4:05pm

Feeling lucky?
Its almost worth buying something from them just to leave them bad feedback.
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Rapnel (profile), 16 Apr 2013 @ 4:29pm

If I had paypal
If I had access I would buy something from these guys and leave whatever fucking feedback I wanted to in whatever twisted way I mold the reality of the transaction into piss-poor feedback.

Fuck Med Express... and fuck e-bay too, just for being a tool. A tool of a tool at that.

What the hell are we coming to? Infringement, fees and lawsuits. From babe to bosom. My oh my the teat of law nurtures us all. .. I'll take the bottle.
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- Anonymous Coward, 16 Apr 2013 @ 7:21pm
  
  Re: If I had paypal
  Er... apparently Med Express is suing eBay, too, according to the Popehat blog entry someone else posted a link to on this page:
  
  The plaintiff in question is Med Express, a company that sells refurbished medical equipment on Ebay. They have sued Ebay and a South Carolina resident named Amy Nicholls.
  
  ...it's not mentioned in the entry, but eBay is a hella big company with many lawyers, I don't see them backing down.
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Anonymous Coward, 16 Apr 2013 @ 4:32pm

The basic idea:
"The happier our customers are, the better."

A human being acting on the idea:
"We should make as many of our customers happy as possible."

Whatever eldritch horrors run Med Express acting on the idea:
"We must have 100% customer happiness. Happiness is mandatory. Any sources of unhappiness will be eliminated."
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Anonymous Coward, 16 Apr 2013 @ 4:43pm

I assume they charged the customer for shipping and handling,
sounds like highly questionable business practice.
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- Franklin G Ryzzo (profile), 16 Apr 2013 @ 4:55pm
  
  Re:
  Actually, she paid $12.00 shipping and handling and then was required to pay an additional $1.44 to receive delivery. http://arstechnica.com/tech-policy/2013/04/new-anti-speech-low-buyer-sued-over-negative-ebay-feedbac k/
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- apauld (profile), 16 Apr 2013 @ 5:31pm
  
  Re:
  They have claimed that the post office continually charges them to little, and then sends the packages postage due. Being that I use the USPS to send 50 to 60 packages each week; I call that pure BS and I concur with your assessment, this is only about Med Express's questionable practices.
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  - Scca, 17 Apr 2013 @ 4:52pm
    
    Re: Re:
    My guess is that Med Express is printing postage online, and then dropping the wrongly measured/weighed package at the Post Office for delivery. Since the box has postage, and is dropped in a bin the item gets delivered, and then the missing postage is due at delivery. So since Med Express can't figure out their mistakes, lets blame the Postal Service. This case should be dropped before it goes to court. This is a waste of tax payer money.
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twilightfog, 16 Apr 2013 @ 4:56pm

Report him to eBay
Its clear that the seller depends on eBay as its sole marketplace, it is probably a good idea to report this seller to eBay for violating its feedback policy.

Use the "Report a seller who is artificially increasing their own Feedback score" link at the bottom of this page to report the seller:

http://pages.ebay.com/help/policies/feedback-manipulation.html
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tomxp411 (profile), 16 Apr 2013 @ 5:19pm

Yay for bad defamation suits...
I've been threatened with a defamation suit, twice, for telling the truth - and it's no fun.

And a friend of mine is currently fighting a defamation lawsuit; he found someone embezzling from a non-profit, and the embezzler is getting the last laugh by taking my friend to court.

I realize we need defamation laws to keep people honest in their public speech, but I'm back to the opinion that our legal system is sorely in need of overhaul; specifically, my friend can't afford a lawyer, and so he's trying to represent himself. And that's not going well.

Our legal system really needs to better support respondents who can't afford expensive lawyers.
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- That Anonymous Coward (profile), 16 Apr 2013 @ 6:28pm
  
  Re: Yay for bad defamation suits...
  Noob, I collected 3 suits.
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- That One Guy (profile), 16 Apr 2013 @ 6:45pm
  
  Re: Yay for bad defamation suits...
  Those kinds of situations are why federal anti-SLAPP laws need to be introduced, because threatening someone with a lawsuit to shut them up starts to look a lot less attractive if the one doing the threatening can end up paying the bills for both sides.
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  - tomxp411 (profile), 17 Apr 2013 @ 12:22pm
    
    Re: Re: Yay for bad defamation suits...
    Anti-SLAPP laws are one thing, but they currently only apply to public figures. If I was criticizing Governor Brown, and he sued me, I could apply the California Anti-SLAPP statutes. But if the allegedly embezzeling former officer of a non-profit sues me, the Anti-SLAPP stuff doesn't apply.
    
    I have an idea I like better: if as a private party, you're going to sue another private party, you should have to post a bond before you can file your papers. The amount of the bond doesn't matter: $1,000 or $100,000. But That bond will get split in half, and that pays for the lawyers. At any time, the plaintiff can raise the bond amount, but he can never lower it. Likewise, the defendant can waive the bond and pay for his own lawyer - freeing both parties to spend whatever they want on legal fees.
    
    If the plaintiff wins, then the defendant pays back the legal fees. If the defendant wins, then the fees are already paid.
    
    This gives an indigent respondent a fighting chance in court. What happens right now is that he simply gets steamrolled with no chance of really defending himself - and that's not justice.
    
    Yes, this strongly biases the case in favor of the defendant - but isn't the justice system's catchphrase "Innocent until proven guilty?"
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- That Anonymous Coward (profile), 16 Apr 2013 @ 7:13pm
  
  Re: Yay for bad defamation suits...
  You might want to reach out to Ken at Popehat.
  He knows a thing or two about these types of cases and likes to help people get help.
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Anonymous Coward, 16 Apr 2013 @ 5:29pm

If ever a trademark suit is justified, I would certainly think this would be it. If I was another company with the same name I would not be wanting the fallout from this Med Express, seeings as how they just severely Streisanded themselves.
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Bubba, 16 Apr 2013 @ 5:40pm

Now on FARK
Med Express meet Streisand...
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BentFranklin (profile), 16 Apr 2013 @ 5:49pm

Instead of refunding just her a few bucks maybe they should change their policy? I think that's what she wants. Probably they won't do it because they feel bullied. It simply wouldn't do to have their customers tell them how to please their customers!
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Anonymous Coward, 16 Apr 2013 @ 6:25pm

Perjury? Sanctionable misrepresentation?
The complaint and the affidavit consistently allege that the feedback is false. In Levy's letter, he states that this attorney knows that the feedback is, in fact, true. Has this attorney opened himself (or herself) to sanctions under whatever rule Ohio has that is similar to FRCP Rule 11? How does the attorney know the feedback is true? If his client told him, has the client perjured himself?

Seems like this plaintiff and attorney are taking some risks pursuing this action. I imagine a first year law student could get it dismissed quickly...
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- That Anonymous Coward (profile), 16 Apr 2013 @ 6:29pm
  
  Re: Perjury? Sanctionable misrepresentation?
  someone at Popehat did digging and discovered she is not the first eBay feedback person they have sued.
  Until they get stopped, this is how they will operate.
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  - Anonymous Coward, 16 Apr 2013 @ 6:40pm
    
    Re: Re: Perjury? Sanctionable misrepresentation?
    I guess my point was that you don't necessarily need an anti-SLAPP statute here. Instead, you impeach the affidavit with truth and hopefully get the judge to institute criminal perjury proceedings against the plaintiff. You then seek sanctions against the attorney under Ohio rules of civil procedure and give the Ohio bar a quick call to file a complaint about a lawyer knowingly making misrepresentations in court filings. Nice and tidy, no anti-SLAPP needed because we have (allegedly) knowing misrepresentations.
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    - That Anonymous Coward (profile), 16 Apr 2013 @ 7:16pm
      
      Re: Re: Re: Perjury? Sanctionable misrepresentation?
      Except she lives hundreds if not a thousand miles away from where this case was filed.
      If not for Popehat becoming aware of her case, she would be another notch in this douche's belt.
      She now has representation in Ohio and I am sure that the lawyers idiotic response to Mr. Levy will appear in the court record and I hope she sues the pants off of the douche and the lawyer.
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racecar, 16 Apr 2013 @ 7:11pm

I think it was a little over the top to sue in this situation, being that med care did not explain their shipping policy, but I feel that customers can be harsh with their negative feedback. I have sold on eBay and have received negative feedback on items where the customer claimed it was not what they expected. I felt I described it well and opened a case with eBay, which I won, but it took forever for them to get rid of the negative feedback. I think that the sellers on eBay should be able to rate the customers. I dislike when people purchase an item and don't pay. I also dislike when I clearly state I do not ship out of the US and people outside of the US still purchase the item. Because of these customers, I have to take the time and pay to re list these items. I don't feel that this is right.
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- Anonymous Coward, 18 Apr 2013 @ 1:31pm
  
  Re:
  Sellers can leave feedback about customers, iirc.
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Anonymous Coward, 16 Apr 2013 @ 10:38pm

So it is defamation they want?
We can help them with that!
TO THE BLOGOSPHERE!
Na na na na na na na na Streisaaaand!
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Anonymous Coward, 16 Apr 2013 @ 11:34pm

Sue the bastards back until they cry.
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Anonymous Coward, 17 Apr 2013 @ 1:56am

I hope any lawyer involved acts Pro Bono- about the only thing you need to do is introduce the e-mail where the plaintiff admits they knew the feedback was accurate. That would almost certainly be enough for summary judgement for the defendant. (aka, judge slings the lawsuit into the garbage bin)
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dinhhao, 17 Apr 2013 @ 2:46am

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Wally (profile), 17 Apr 2013 @ 5:51am

Why the hell would anyone order Meds off of eBay?
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Smack_Adams, 17 Apr 2013 @ 8:44am

removing to federal courts
Does anyone know if the terms of sale include an agreement to submit to the law and jurisdiction of the State of Ohio? If not, couldn't this be removed to federal Cory to take advantage of federal anti-SLAPP regs?
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art guerrilla (profile), 17 Apr 2013 @ 9:32am

what i find curious...
...is that when you google 'med express', there are a fuckton of companies that come up with that name, that *APPEAR* to be similar/same type of services...
i know there are regional distinctions and all, but it sure seems confusing to me to have so many similar companies all named the same and serving customers nationwide...

art guerrilla
aka ann archy
eof
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Anonymous Coward, 17 Apr 2013 @ 10:07am

False
According to the affidavit, she "falsely posted false and slanderous statements". There's the problem. She didn't just post false statements, she FALSELY posted false statements! ... Wait, does that mean she told the truth?
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justadude, 17 Apr 2013 @ 11:00am

I lol'd
this is why i only shop amazon. ebay has become a cesspool.
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Guy DeWhitney, 17 Apr 2013 @ 11:12am

East vs. West
This is an East vs. West thing. I bet that the people who control the company are from Islamic/Arabic cultures where slander is considered "something a person does not WANT known about themselves", truth is irrelevant to them in the case of "slander" concept!
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Med Express, 17 Apr 2013 @ 2:44pm

I hope all of you will accept this as an open letter of apology from Med Express.

Please understand that our customer was never the target of this lawsuit. We had instructed our attorneys to ask for only $1.00 in damages. Her feedback was also never an issue. We fully support her right and all of our customers right to leave any feedback they desire � true or otherwise!

The issue involved �Detailed Seller Ratings� or DSR's. The low ratings caused us to lose our �Top Rated Seller Plus� standings. Based on our current volume, this was a potential fee increase of tens of thousands of dollars over the course of a year.

The only way DSR's are removed is by court order, and I was told that such court orders were not uncommon. I do deeply regret the wording of the lawsuit. I had not read it and only learned of the wording on the blogs. I too would have been outraged and for that I also sincerely apologize. It is the addendum attached ordering Ebay to remove the DSR's that was our only goal.

The only person to blame here is me. You have spoken and I have listened. A terrible wrong needs to be righted. I am instructing our attorneys to drop the lawsuit. I want to assure everyone that you may feel free to leave any feedback on our company without fear of reprisal. I have learned my lesson.

Richard Radey
President
Med Express Inc.
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- That Anonymous Coward (profile), 17 Apr 2013 @ 6:22pm
  
  Re:
  enjoy the perjury complaint.
  One does night sign affidavits and then get to say oops I was fibbing when I claimed I read this and signed here in front of the notary.
  
  For more fun read the comments over on Popehat.
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- John Fenderson (profile), 18 Apr 2013 @ 12:57pm
  
  Re:
  Please understand that our customer was never the target of this lawsuit. We had instructed our attorneys to ask for only $1.00 in damages.
  
  What does this even mean? If you've named someone in the lawsuit and are asking for damages, then you have targeted them. The amount of damages you are asking for is completely, 100% irrelevant.
  
  Your statement boils down to "We didn't sue this person, and only asked for $1 in the lawsuit." In which part of your statement are you lying?
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tea leaf.., 17 Apr 2013 @ 2:47pm

goggle has compatibility, with the word, I don�t. know, why information given, is so easy too get off her phone..if i put my name as i first tried to do bt failed.. i would never have seen your. page so thank you. love this, a hell of a lot more, than b
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- Zos (profile), 18 Apr 2013 @ 1:13pm
  
  Re: goggle has compatibility, with the word, I don�t. know, why information given, is so easy too get off her phone..if i put my name as i first tried to do bt failed.. i would never have seen your. page so thank you. love this, a hell of a lot more, th
  ...dafuq?
  [ link to this | view in chronology ]
  - Just John (profile), 18 Apr 2013 @ 9:17pm
    
    Re: Re: goggle has compatibility, with the word, I don�t. know, why information given, is so easy too get off her phone..if i put my name as i first tried to do bt failed.. i would never have seen your. page so thank you. love this, a hell of a lot more
    The spam boot is broken. It forgot to insert the links.
    [ link to this | view in chronology ]
  - Just John (profile), 18 Apr 2013 @ 9:18pm
    
    Re: Re: goggle has compatibility, with the word, I don�t. know, why information given, is so easy too get off her phone..if i put my name as i first tried to do bt failed.. i would never have seen your. page so thank you. love this, a hell of a lot more
    Stupid phone autocorrected bot to boot...
    [ link to this | view in chronology ]
- G Thompson (profile), 19 Apr 2013 @ 12:22am
  
  Re: goggle has compatibility, with the word, I don�t. know, why information given, is so easy too get off her phone..if i put my name as i first tried to do bt failed.. i would never have seen your. page so thank you. love this, a hell of a lot more, th
  goggle has compatibility, with the word,
  
  What??? Google is the word??
  
  Damn.. and here I thought it was "bird"
  [ link to this | view in chronology ]
doug, 25 Oct 2013 @ 8:01am

look up ohio law concerning
Term "vexatious litigation" law suit filed with no merit to harrass, annoy, embarass someone. Lawyers can be disbarred or put on vexatious litogator list. Could allow countersuit for vexatious litigation and get some damages awarded.

Used this in false claim for PO...person figured I wouldn't drive the 360 miles to appear in court....judge chewed their ass out and admonished them to not appear before the two family court judges without police reports or hospital records...if they did they would go to jail for filing false information as well as contempt of court! I won other had to pay court costs etc. Lesson learned do not tell lies about me or you get peepee or other P word whacked by legal system.
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