'Dietary Supplement' Company Tries Suing PissedConsumer, Citing Buyer's Agreement To Never Say Anything Negative

from the good-thing-we-never-bought-anything-from-roca-labs dept

Mon, Sep 8th 2014 1:32pm — Mike Masnick

Roca Labs is a company that describes itself as a manufacturer of "dietary supplements" some of which they label with highly questionable claims that I imagine would not be supported by anything the FDA would consider to be credible evidence. In particular, they have something called "Gastric Bypass Alternative" which claims to help people lose weight -- though I would treat such claims skeptically without further proof. Indeed, it appears that many of Roca Labs' buyers are not happy about it. The Better Business Bureau gives Roca Labs an F grade due to the large number of complaints, many of which remain unresolved. Meanwhile the site PissedConsumer also has a bunch of complaints about Roca Labs and its products -- and it appears that the PissedConsumer page ranks rather highly on Google for searches on Roca Labs. Roca Labs is -- apparently -- not happy with that.

So it has now sued the parent company of PissedConsumer, Consumer Opinion Corp, trying to get the reviews taken down. The lawsuit is worth reading. It claims that PissedConsumer is engaged in "deceptive and unfair trade practices" and that part of this is... because customers of Roca Labs agree to never say anything negative about the company.

Roca sells its products directly to the public and in exchange a discounted price, Roca's customers agree under the terms and conditions of said purchase that regardless of their outcome, they will not speak, publish, print, biog or write negatively about Roca or its products in any forum.

Of course, any such agreement is of questionable legality. However, we've certainly been seeing a lot of these questionable "no negative reviews or you pay" agreements showing up lately.

But, you say, PissedConsumer isn't the issue here, right? After all, the company never agreed to those conditions, even if the buyers did agree to them (whether or not they're legally sound). Roca is trying to get around that by arguing that because it has this clause and because PissedConsumer urges angry consumers to complain, the company is "tortiously interfering" with Roca's business because it's encouraging people to break the agreement. I'm not joking.

Defendants deliberately and tortiously interfere with Roca Lab's customers by encouraging them to breach their customer agreement with Roca as Defendants author or co-author false, malicious and negative posts about Roca that are published on their subject website and Twecred to Twitter's 271 million users.

Where to start? First of all, no. Almost everything there is ridiculous. Presenting a platform for people to express their own opinions is not encouraging them to break any contract (which, again, is of dubious legality in the first place). Second, the site is not authoring or co-authoring the posts. Third, there's no evidence that anything being posted is "false." Fourth, what does Twitter's total user base have to do with anything? It appears that @PissedConsumer's account has a few thousand followers.

None of this matters anyway, because even if any of the other arguments made sense (and none of them seem to make much, if any, sense) PissedConsumer is clearly well protected by Section 230 of the CDA, which protects websites from the actions of their users. And, of course, PissedConsumer and its legal team are well aware of all this having hit back at previous bogus legal threats in the past. I don't expect Roca Labs will get very far with this complaint. However, if you'd like to see which complaints Roca Labs especially wants deleted, check page four of the complaint below, where the company conveniently lists out the statements it doesn't like. And, because they're so wrong on just about every other legal claim, it seems worth noting that many of them are clearly statements of opinion, rather than anything that would be clearly defamatory anyway (and if they were defamatory the company would need to go after those individuals who made them in the first place, rather than the company hosting the content).

005 Plaintiff's Verified Motion for Entry of a Temporary Injunction and Supporting Memorandum of Law (PDF)005 Plaintiff's Verified Motion for Entry of a Temporary Injunction and Supporting Memorandum of Law (Text)

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Filed Under: dietary supplements, gastric bypass alternative, opinion, pissed consumer, reviews, secondary liability, section 230
Companies: consumer opinion corp., pissedconsumer, roca labs

31 Comments

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Baron von Robber, 8 Sep 2014 @ 2:02pm

I foresee a Popehat signal in the near future.
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Roger Strong (profile), 8 Sep 2014 @ 2:06pm

Paging Ken...
PopeHat's summary of On Press case applies to Roca Labs and it's crack legal team:

The hardest game on the internet is one I call "C/S/T", which is short for "Crazy, Stupid, Or Troll?"
Whoever is running the internet-threat operation under the name "On Press, Inc." has certain defining characteristics — truculence, functional illiteracy, and a grasp of law cobbled together by listening to 13-year-olds swearing at each other on Xbox Live.
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observer, 8 Sep 2014 @ 2:06pm

Re:
He's already tweeting about it.
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Anonymous Coward, 8 Sep 2014 @ 2:15pm

They give ALL of their customers a "discount"?

That's not called a discount. That's called a price.
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ACasey (profile), 8 Sep 2014 @ 2:17pm

Talk about the Streisand Effect!
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Vidiot (profile), 8 Sep 2014 @ 2:22pm

Their own brand of dyspepsea
Number 2 search result via Google for "Roca Labs":

Better Business Bureau, West Florida - "This business is not accredited," followed by:

Additional Complaint Information

It has come to BBB's attention that the company will demand the removal of any complaint, web post or other publication that constitutes a breach of the terms and conditions agreed to by the consumer at the time of purchase, regardless of whether or not the consumer complaint is resolved.
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kenichi tanaka (profile), 8 Sep 2014 @ 2:25pm

That's crazy because it's like saying "I robbed a bank because lyrics in a rap song told me too". Does Roca Labs make any sense and are they serious?

First of all, just because Roca Labs has it written that you cannot post negative comments about its products after you purchase them, doesn't mean that Roca Labs has a leg to stand on. Any court in this country, on this planet, would laugh Roca Labs out of their court for being so restrictive on consumers in the first place. Why? Because that violates an individual's first amendment right to free speech. Roca cannot claim that your purchase of their product prevents you from speaking negatively about their company. After all, if that were true, then why aren't they suing the Better Business Bureau?

I don't even see this passing the laugh test with any competent court because any judge in this country would dismiss any such lawsuit before it could even get put on the docket.
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ACasey (profile), 8 Sep 2014 @ 2:29pm

Re:
Freedom of speech and internet businesses rarely go together. Just see all those "defamation" cases.
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Anonymous Coward, 8 Sep 2014 @ 2:46pm

I must say, Roca's got guts referencing the Florida Deceptive and Unfair Trade Practices Act, when you consider THEIR practice of not allowing consumers to say anything negative about them.

Of course, if the allegations about PissedConsumer are correct in that they sell "reputation management" where they ask companies for money to take down complaints, then PissedConsumer is hardly an innocent victim here. It's possible that this case is two bad actors going against each other.
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Gracey (profile), 8 Sep 2014 @ 3:02pm

[quote]PissedConsumer urges angry consumers to complain that the company is "tortiously interfering" with Roca's business[/quote]

No. Roca's unfounded claims and poor products are interfering with their business.

Maybe they should just sue themselves.
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connermac725 (profile), 8 Sep 2014 @ 3:04pm

Just an Idea
Maybe if they answered the complaints from their customers they would not have to vent in other places.
Instead of the we suck so we're going to ignore you business model they have now
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Anonymous Coward, 8 Sep 2014 @ 3:21pm

All they need to do is get Congress to pass a law making "Printing or saying mean things about me/us" illegal. Then they have to figure out how to enforce it.
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Mark Noo, 8 Sep 2014 @ 3:23pm

Puffery or Buggery
Now that people pay such large amounts for advertising. Now that they consult psychologist and professional marketers can anything be said to be "puffery" any more.

With 50 percent of our GDP (I think that is the number) dependent on consumer spending should we change the the word "puffery" to "buggery" so that people will better understand what unfettered marketing really is?

I think we should.
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DannyB (profile), 8 Sep 2014 @ 3:26pm

EULAs
By opening this bottle of high quality dietary supplement, and in consideration of the discount price you were offered, you agree to the 80 page EULA (provided on microfilm, inside the bottle).
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kenichi tanaka (profile), 8 Sep 2014 @ 3:48pm

Roca Labs needs to understand that you cannot sue somebody for exercising their first amendment rights. But, I gotta give them credit for having big balls for trying to do exactly that. It will be the first time that someone has been sued for practicing their right to free speech.
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Anonymous Coward, 8 Sep 2014 @ 3:58pm

Even sadder than the lawsuit is the sheer number of lawyers willing to make these kinds of bullshit claims on their clients' behalf. You'd think they'd rather be defending thieves, murderers and pedophiles -- at least then they'd have a chance of being on the right side of justice (after all, not everyone who is accused of these things is guilty).
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Anonymous Coward, 8 Sep 2014 @ 4:02pm

s/Twecred/tweeted/g

The PDF has more readable and less twecred text.
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That Anonymous Coward (profile), 8 Sep 2014 @ 4:05pm

And the sense of entitlement grows.
Because we business, we have a right nto perfect glowing reviews, even when we fail our customers.
If you dare tell anyone how we failed you, you owe us money because we lost potential sales.
Our dropping sales figures are because people said mean things online and not because we are a company so shitty we have to attempt to gag you into silence with the threat of lawsuits.
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ACasey (profile), 8 Sep 2014 @ 4:37pm

Re:
Pretty pathetic, eh? Somebody actually did this sort of thing to me 7 years ago on Amazon - I gave a negative review of a (self-published, mind you) book I didn't like, and the author sent me a extortion letter demanding a 260 fine. I didn't pay it, of course, because I had a lawyer, but what about the people who didn't?
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Anonymous Coward, 8 Sep 2014 @ 7:18pm

Who wants to bet that copyright law has foisted all these unreasonable expectations to some degree?

Until recently it was the copyright industries whining about "lost sales" in arguments that would never fly in the analog world. And now suddenly everyone is arguing that consumers should never be allowed to say anything bad about any product, because "contract law" and "lost sales".
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That One Guy (profile), 8 Sep 2014 @ 8:29pm

Re: Re:
On Amazon? Oh did they get off lightly if that's all you did, from what I've heard, Amazon is extremely touchy about that sort of thing, and simply forwarding the email to them would likely have gotten the author kicked clean off their service. They do not look kindly on people/companies who try and bully buyers, and for good reason.
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Anonymous Coward, 9 Sep 2014 @ 7:36am

Re:
Yeah that is for sure. Having that policy in the first place makes them look worse than anything that a customer could say about them. It shows not only did they know that they would have problems but their response is to cover it up instead of trying to fix the issue.
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John Fenderson (profile), 9 Sep 2014 @ 8:02am

Re:
"you cannot sue somebody for exercising their first amendment rights"

This is not true as a blanket statement. You can absolutely contractually agree to restrict your first amendment rights and be sued if you break that agreement. Pretty much every job I've had has included a non-disclosure agreement, for instance. That restricts my first amendment rights, but should I break it I can expect a lawsuit.
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Just Another Anonymous Troll, 9 Sep 2014 @ 9:30am

Re:
[cough] Kleargear [cough]
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Ian, 9 Sep 2014 @ 5:16pm

Re:
Actually, you *can* sue someone for exercising their first amendment rights. The first amendment insulates you - to a degree - from *government* abridging your free speech rights. While it's a very difficult hurdle to overcome, private persons and entities can and do successfully sue folks for shooting off their mouths. Defamation and libel cases work out for plaintiffs all the time. The real underlying issues will - in general terms, since I haven't researched the law - revolve around (a) whether the restriction on discussing the product or Roca is lawful; (b) if it is, whether Roca can prove pissedcustomer.com and its parent was aware of and sought to interfere with existing contractual relationships between Roca and its suckers, er, customers; (c) if so, whether Roca was damaged by that knowing interference. In my view (a) is a dead bang loser for Roca, but assuming the gag requirement is valid, they have big problems with (b) and (c). Looking forward to Ken White's more penetrating analysis, to be sure.
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Regretfulness (profile), 10 Sep 2014 @ 3:26pm

The world has a way of dealing with scumbags. The practice of including nondisparagement clauses in consumer contracts will soon be illegal in California. http://bit.ly/1umy6O5
Other progressive states will follow.
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Sheogorath (profile), 13 Sep 2014 @ 9:19am

The Better Business Bureau gives Roca Labs an F grade due to the large number of complaints, many of which remain unresolved.
Really? Or is the actual case that Roca are simply too cheap to buy a better rating from the BBB?
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Carl, 14 Sep 2014 @ 9:40am

$800?
From p.5 of the complaint: "Discounts average $800". Really? That's an extraordinary figure. How much does this product cost that they can discount it by that much? Does this cost as much as a car?

How can such a thing be unregulated?
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Robert, 14 Sep 2014 @ 12:29pm

Roca Labs, should be shut down for fraud and deceptive trade.
I imagine that if this comes to the notice of the Attorney General of the US; that Roca Labs should soon loose its license to market in the US and this highlights the reasons corporate officers should be charged criminally, imprisoned, and forbidden from selling any products in the market place ever again (even a garage sale). It is my hope that the judge will see this for what it is a nuisance suit, with no legitmate merit ... based on a contract with no legitimacy; and it will bring to light this company's neglectful and dangerous impact on the any community. In full transparency, I am not, not have I ever been a customer of Roca Labs ... however the allowance of the persistance of charloton con artistry groups like this are a blight on any market and cause harm to me through making products less viable for all of us. The market is served and the consumer is served by not allowing con men to con. End Roca Labs; they will not be missed ... more over indict its officers for racketeering, fraud, wire fraud, and deceptive practises ... up to and including ... proliferating illegitimate contracts.
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Anonymous Coward, 22 Sep 2014 @ 11:50pm

Re: Roca Labs, should be shut down for fraud and deceptive trade.
They're small potatoes and probably will be. If they were one of the big multinationals, no way. Look at the crap the Pharma industry is pulling, daily! And getting away with it, daily!
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Kevin, 19 Oct 2014 @ 10:00pm

Suits/Freedom of Speech
I agree freedom of speech should be protected. When a person goes to far and their comments become defaming and or slanderous then they can be held libel for sure. People get sued and lose all the time for not wording their "freedom of speech" correctly. Pissedconsumer.com relies on a loophole to try and squeeze between the legal cracks. You can say and do whatever you feel big enough to do, but don't whine if you get sued or in trouble for it. There's a fine line and we should be able to say what we want it seems we just can't offend anyone by it or if it is worded in the wrong manner there will be consequences.
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