Bad Idea: Threatening Public Citizen's Paul Levy For Asking You About Your Bogus Defamation Lawsuit

from the just-saying dept

Fri, May 16th 2014 5:41am — Mike Masnick

Paul Levy (disclaimer: has represented us in the past) over at Public Citizen has a blog post up concerning yet another questionable lawsuit from a company, in this case, ToyoMotors, against some people who wrote negative reviews on Yelp. These kinds of questionable lawsuits are all too common. As Levy notes, the main target of the lawsuit, Jennifer Choi, made statements that didn't appear all that different from complaints from other consumer about ToyoMotors, and some of the statements that ToyoMotors claims are defamatory clearly would fall into protected statements of hyperbole. But all of that is kind of meaningless because of the major flaw in the lawsuit: the comments were made in 2009. The lawsuit was filed in 2013. The statute of limitations on defamation in Arizona is one year from publication. Do the math.

Even more ridiculous, is that when Paul Levy called up ToyoMotors' lawyer, Robert Lewis, Lewis responded to Levy in a manner I would suggest is unwise.

I tried to ask ToyoMotors’ counsel, Robert Lewis, about the apparent flaws in his complaint, but when I got him on the telephone he started exclaiming loudly about how he might sue me for defamation (assuming that I might make false statements) or extortion (if my statements were accurate), and threatening to file a bar complaint against me (apparently, for unauthorized practice of law in Arizona). When I followed up with specific emailed questions, he was unwilling to explain why he has any sound basis for proceeding against Choi.

In general, this is probably not the best way to respond to a lawyer calling you up to ask some basic questions about a lawsuit you've filed. More specifically, it seems exceptionally preposterous to do that to Paul Levy, recently described in a glowing profile as "the web bully's worst enemy." Either way, Levy is looking for some lawyers in Arizona who might be interested in helping to defend Choi against ToyoMotors' questionable lawsuit.

GeeseyComplaint (PDF)GeeseyComplaint (Text)

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Filed Under: jennifer choi, paul levy, robert lewis
Companies: toyomotors, yelp

34 Comments

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Anonymous Coward, 16 May 2014 @ 6:03am

Lewis looks like a good candidate to join team Prenda.
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Anonymous Coward, 16 May 2014 @ 6:12am

And Streisand sings again. I never heard of Toyo Motors, but with this kind of lawyer overreaction I will never buy any of their products anyway...
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AjStechd (profile), 16 May 2014 @ 6:51am

"Better call Saul" comes to mind whenever I read articles about sleazy lawyers.
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Anonymous Coward, 16 May 2014 @ 6:59am

The flaw in the SOL defense is that they will claim every time someone visits the page, the comment has been "republished" thereby resetting the SOL date.
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Michael, 16 May 2014 @ 7:12am

the comments were made in 2009. The lawsuit was filed in 2013. The statute of limitations on defamation in Arizona is one year from publication. Do the math.

The first year does not actually count toward the "net years" of publication because those years are actually paying back the "production overhead".

The next two years are part of the "distribution overhead".

Then, we do not start the clock on these years because there are five additional years for the "marketing overhead".

Oh, wait, that's Hollywood math.
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That Anonymous Coward (profile), 16 May 2014 @ 7:20am

Do these people not know how to work Google?
They could have figured out who Mr. Levy was and a sane person would have merely answered no comment rather than the childish display they decided on... which motivates getting more attention to their idiocy.

Streisand Powers Activate
Form of a failing business
Shape of a countersuit
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David, 16 May 2014 @ 7:22am

Let's get Popehat involved, too.
Be funny to have him piss other one of the other web bully's worst enemies at the same time. You know, just for the ponies.
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Anonymous Coward, 16 May 2014 @ 7:36am

Re:
Makes as much sense as saying every time someone buys a copy of a book that it has been republished.
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Michael, 16 May 2014 @ 7:37am

Defendent
After reading the entire complaint, I do have to ask a question about the defendent.

Assuming the complain it correct that all of the specified posts were, in fact, made by the same person - how much time must you have on your hands to post on multiple sites with a different alias on each one of them? Really people - if you have a complaint, post the complaint, but let's not get carried away and be obsessive about it.

I am grateful that they pointed out that the owner of this auto shop spends every night in strip clubs.

By the way, why hasn't Toyota sued Toyo Motors yet? Japanese auto makers haven't been Americanized enough yet?
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Mike Masnick (profile), 16 May 2014 @ 7:45am

Re:
The flaw in the SOL defense is that they will claim every time someone visits the page, the comment has been "republished" thereby resetting the SOL date.

Nope. That doesn't work under Arizona law. They have a single publication law: http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/12/00651.htm&Title=12&DocType=ARS That makes it clear that it's the date of *original* publication that matters and that's it.
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Anonymous Coward, 16 May 2014 @ 7:46am

If the statute of limitations blocks this suit, why did the court even accept the filing? It's ridiculous that Ms Choi should have to deal with all the costs of defending herself against something that isn't even valid by statute.
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Anonymous Coward, 16 May 2014 @ 8:24am

It's interesting Paul Levy first called up Robert Lewis, at which point Lewis threatened Levy over the phone. Of course, verbal threats over the phone are inadmissible in court due to wiretapping laws.

So Levy follows up with an email exchange, and emails probably are admissible as evidence in court. At which point Lewis refuses to say a word in the email.

I find it interesting the way lawyers operate. If you're going to submit evidence of verbal threats to a court. Get the evidence in the form of an email, not a phone call.
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WDS (profile), 16 May 2014 @ 8:28am

Re: Re:
While Arizona does have a single publication law, it is apparent reading the complaint that the republishing argument is what they are going for.

Mr. Levy's article on Public Citizen point out while every time a single publication law has been addressed with regards to the internet it has been upheld, the Arizona law has yet to be addressed.
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WDS (profile), 16 May 2014 @ 8:31am

Re:
Since Levy was calling from a different state, the federal law would apply, which I believe is single person consent. Therefore Levy could record the conversation if he wanted to.
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Ken, 16 May 2014 @ 8:35am

Re:
"Of course, verbal threats over the phone are inadmissible in court due to wiretapping laws."

Wut
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Michael, 16 May 2014 @ 8:37am

Re:
In the complaint, they are arguing that every day the offending posts where re-posted.

This is the basic argument that a website "publishes" information every time it is requested. This specific argument has been tried before (apparently not in Arizona as noted above) and failed.

However, from the perspective of the court, the complaint is about posts published within the past year - and the defendent will have to challenge that reasoning.

To add to that, it is not the responsibility of the court to check the validity of a complant that was filed before the defendent receives it. It is an adversarial system - you need the adversary to challenge something even if it is totally rediculous.
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John Fenderson (profile), 16 May 2014 @ 8:39am

Re: Re:
Many (but by no means all) states require both all parties of a conversation to consent to recording the conversation. In those states, the recording would be illegal and therefore not admissible. Also, you could be prosecuted for making it.
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Ken, 16 May 2014 @ 8:44am

Re: Re: Re:
Which would make a RECORDING of the threat potentially inadmissible. You can still testify about the threat. The threat itself is not inadmissible.
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WDS (profile), 16 May 2014 @ 8:56am

Both DC where Levy is normally at, and Arizona are one party consent.
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Anonymous Coward, 16 May 2014 @ 9:00am

Re:
Law trolls smear feces
Understanding is too hard
Legal minds chunder
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madasahatter (profile), 16 May 2014 @ 9:08am

Bar threat
As I understand the case, Mr. Levy is doing some initial leg work on behalf of the defendant. This is something anyone can do though it helps to be an attorney. As long as a local lawyer handles the official duties of a lawyer threats against Mr. Levy are idiotic. Also, Mr. Levy may be able to apply for a one-off permission to act on behalf of the dependant in this case; you would need to check the rules in Arizona.
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John Fenderson (profile), 16 May 2014 @ 9:11am

Re: Re: Re: Re:
True. I had assumed that the threats were recorded because of the invocation of wiretap laws. Perhaps I assumed too much.
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Dagar99, 16 May 2014 @ 9:32am

Re:
Of course, verbal threats over the phone are inadmissible in court due to wiretapping laws.

I dunno what state Paul Levy is in, but in 38 (probably 39) states (including Arizona) either party can record a call without telling the other. There are 11 states where both parties must know.
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Paul Alan Levy (profile), 16 May 2014 @ 9:40am

Recording phone calls
I did not record the call. Indeed, although there was perhaps some ambiguity about the context of my call to Lewis, there are legal ethics opinions in some jurisdictions that frown on lawyers recording each other. Consequently, it is simply not my practice to record phone calls in which I talk to other lawyers
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Anonymous Coward, 16 May 2014 @ 9:47am

Re: Re:
One party consent means one of the parties has to announce that the conversation is being recorded. Which is why when people call up customer support numbers, they hear the announcement, "This call may be recorded for quality control and training purposes".

Without one of the parties stating beforehand, the telephone conversation is about to be recorded. The recorded conversation would fail to meet the one party consent requirement.

Addressing one of the above remarks about a phone threat still being admissible in court, despite no recorded voice evidence to backup that claim. Personal testimony (hearsay) about what supposedly took place, carries no weight without hard evidence to back it up. Hearsay is inadmissible in a court of law.
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Anonymous Coward, 16 May 2014 @ 10:01am

Re: Re: Re:
Um, you're just wrong.

One-party consent does not require the other party to be notified; that's the definition of two-party consent. (If you don't consent you're expected to hang up.)

And if the question is "did lawyer A make verbal threats" then the lawyer who heard those threats can absolutely testify that he did. It would be hearsay if, for example, YOU were to testify that the second lawyer claimed to have been threatened. Because you never actually heard the threats. But he did.
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Anonymous Coward, 16 May 2014 @ 10:55am

Re:
I recently listened to an interview with Saul -- he stated that HE would never respond to his ads, but that they're targeted at a market that does respond to such things. He actually came off as a fairly intelligent person who turned to used car salesman style ads so that the people who respond to such ads could actually find decent representation. His argument was that these are the people who don't have friends who can recommend a good lawyer, don't have a family lawyer, etc. -- so you have to bring the message to where they're paying attention.

Still sleaze, but at least the intentions behind it seem to be legit. Better to act that way on TV than to act that way in court (such as appears to be the case here).
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Anonymous Coward, 16 May 2014 @ 11:21am

Re: Defendent
Toyota hasn't sued Toyo Motors for the same reason they haven't sued Toyo Tires, Toyo Engineering, Toyo Sushi, Toyo * -- "Toyota" is actually "To yo Da" ().

It'd be kind of like Fairchild Automotive suing Fair Motors. Just because the surname of your founder has a certain root in it doesn't mean that said root is now banned from use in your industry.

Of course, what makes Toyo somewhat humorous as the name for anything to do with used car sales is the fact that Toyo is the Japanese name for a kind of rice paper used to make brimmed hats, or the name for a person who makes the hats. Equivalent to "Straw for hats" or "straw hat maker" in the US.
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Anonymous Coward, 16 May 2014 @ 2:12pm

Mr. Levy:
It is standard practice in many law offices to record ALL phone calls, without notice. They may never get used in court, but the attorneys want a recording for reference, and probably for a little coercion if needed. I do not disagree with this practice. Too often people will say "I NEVER said that!". It's handy to present them with the recorded evidence to the contrary.
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Trails (profile), 16 May 2014 @ 2:20pm

Re: Re: Re:
This call may be recorded for quality control and training purposes

I think this is more about surreptitiously recording customers being considered a Bad Thing�.

I know up here in Canuckistan it's one-party consent (your interpretation of this is wrong as pointed out by AC), and we don't do the wacky american criminal code per state/region/neighbourhood, and most customer service lines still have this.
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G Thompson (profile), 17 May 2014 @ 12:13am

Re:
>>>>> and a sane person would have

Ah there's your problem! You are accepting the proposition that this attorney is sane...

ha ha ha silly person!
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G Thompson (profile), 17 May 2014 @ 12:23am

Re: Re: Re: Re:
They do that here in Aust too.. though they always get annoyed when I state..

Yep I'm recording too though for Legal and/or transparency purposes

It's amazing how many governmental bodies, call centres, or whatever get all annoyed, peeved, threaten legal action, etc etc when its done to them!

Also in the State I am in our Surveillance Devices Act ads a caveat that though one party can record for 'legal purposes' (which begs the question what isn't legal since no definitive acts are defined as such) that party needs the permission of the other party to publish it other than to an appropriate authority. Oh and a phone call cannot be 'intercepted' it has to be recorded by an external device (no tapping into the line) - that's the Federal legislation.
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W. Hossfeld III, 1 Jul 2014 @ 10:43am

Re:
"The statute of limitations for defamation claims in Arizona, as in most states, is one year... Arizona, like most states, has adopted the single publication rule," under which tort claims about publications cannot be brought over repeated publications of the same words by a single defendant; instead only one suit can be brought, and the time to sue begins at the original time of publication. The complaint also alleges defamation claims over several additional negative reviews, posted by Tom Bradford, Julie Skingly, and others, making complaints similar to Chois; one such complaint was posted in 2010, but most were in 2013, hence within the limitations period.

Without having all of the information in this case, we officially cannot judge whether or not the alias reviews were posted by Jennifer Choi or not. Perhaps plaintiff counsel has proof connecting the dots, I do not know. After careful review I was unable to find all of the aliases listed, possibly because the sites or the user has removed them. However with the ones I did find, I would say the nearly verbatim story coupled with similar grammatical errors are very suspicious at the very least. I also found it interested that the alias review listed on Yelp was not placed in the removed file as is customary, but was completely deleted, I have never seen this before, suspicious again.

With this article Mr. Levy is painted as the Great White Night with a "glowing profile" and with the title of "the Web Bully's Worst Enemy." It appears as though he is in fact actually helping plaintiff counsel by completely nullifying the alleged deficiency and REPUBLISHING Jennifer Choi's story in this article!
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Richard B., 1 Jul 2014 @ 11:34am

Re:
Excerpt from original article- Demand Force,” a digital marketing operation that elicits positive feedback from customers to spray around the Internet. A look at ToyoMotors' page on DemandForce reveals a feel-good version of Yelp, featuring a slew of positive reviews, the sort of web page we would see more often if the recent European Court of Justice decision, allowing people to purge the web of unfavorable information they would like to be forgotten, were to take hold in the United States.

Shame on you Paul Levy for making statements about a company without proper knowledge and research. Demandforce does not elicit positive feedback, it simply provides an easy to use platform for reviews no matter the nature. Demandforce adheres strictly to guidelines for reviews as set forth by Google. They actually verify that the client exists and they verify service date with company. They will not delete a negative review unless it breaks google terms of use.

Yelp on the other hand tends to promote negative reviews. Look at the name, Yelp is a what a dog does when it wants attention, or it is has been kicked, maybe its tail is stepped on etc. Even their original logo was that of a dog with it's tail laying across the ground. Yelp will remove a positive reviews of a company where the reviewer has many friends and tons of reviews, while at the same time a person with a single negative review, no "yelp" friends or profile picture will stick like glue.
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