Roca Labs Sues Customer For Posting A Negative Review

from the that'll-win-new-customers,-i'm-sure dept

Thu, Sep 25th 2014 2:32pm — Mike Masnick

We've been covering the saga of Roca Labs for a few days now. This is the company that claims to make an "alternative" to gastric bypass surgery in the form of some "industrial food thickening agents" that (the company claims) will fill up your stomach and make you not want to eat. These claims are not FDA reviewed and an examination of the claims by a doctor found them to be questionable (to say the least). We became aware of the company because it had sued Consumer Opinion Corp., the company that owns the site PissedConsumer.com. The issue? Roca Labs has a terms of service that offers everyone a "discount" on its product if you agree to never, ever, say anything bad about the product ever (you also have to agree to share success stories with Roca and allow them to publicize those stories). In short, the terms of service are designed to only show positive results, and gag any negative results. Roca claims that it has to do this because results may vary, and negative results could be caused by other factors. Of course, doesn't that also mean that positive results could be caused by other factors as well?

Either way, Roca Labs sued PissedConsumer on the hilarious legal theory that by offering a forum for unhappy customers to post their story, it was "tortious interference" because it encouraged people to break the terms under which people bought the product. As we noted, this legal theory is fairly laughable, and PissedConsumer's legal response makes that fairly clear as well.

However, Roca Labs and its lawyers are apparently busy. They're not just suing PissedConsumer, but they're actually suing a customer who complained to the Better Business Bureau for "breach of contract" and "defamation per se." While her filing with the BBB included some statements that might reach the level of defamation, amusingly, Roca Labs does not attempt to show that her comments were false in any way. Rather, it relies on yet another ridiculously questionable term in its terms of service, saying that if you post something negative, it will automatically be considered "defamation per se." Here's the term:

You agree that any such negative claim will constitute defamation per se

I don't think that's how defamation law works. At all. Even if this woman's comments to the BBB are defamatory (and I'm not saying they are), you can't just have someone sign a contract saying that if they do something, they'll be guilty of defamation.

Either way, all of this should make you wonder just what sort of company Roca Labs is in that it seems to not just sue its own customers for negative reviews, but to work so hard to stop negative reviews and to threaten and intimidate those who make complaints about their experience with the company.

Roca Labs v Alice King (PDF)Roca Labs v Alice King (Text)

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Filed Under: contract, free speech, gastric bypass surgery, negative reviews, reviews, tortious interference
Companies: pissedconsumer, roca labs

24 Comments

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jackn, 25 Sep 2014 @ 2:59pm

Now even expecting moms can stay slim with Roca Labs

http://rocalabs.com/faq/medical/during-pregnancy
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Spartacus-Consumer, 25 Sep 2014 @ 3:47pm

It's time for a contest to see who can write the most glowing review....

"As a satisfied customer, I recommend Roca Labs heartily to anyone who has a rodent infestation problem."

"I lost 200 pounds ... when my girlfriend left me."

"Concrete retaining walls are highly alkali, and hard on many bedding plants. The finest earth-friendly substitute I've found...."
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Anonymous Coward, 25 Sep 2014 @ 5:39pm

Miles away, antidirt and Whatever jizzed in their pants.
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Anonymous Coward, 25 Sep 2014 @ 5:40pm

I just went through the gauntlet of questions to place an order. Funny thing is despite the policy stating you can order without agreeing to not post bad reviews... and thus get a discount. You cannot place an order until you agree to the the "discount policy" and at no time is an alternate price available.
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That One Guy (profile), 25 Sep 2014 @ 5:59pm

Re:
So in other words the 'deal' of 'agree to these terms, get a discount' is nothing but a lie, the 'discount' price is the only one possible, making the 'offer' completely impossible to not accept.

Also, please tell me you were just testing the order process and didn't place an actual order with them.
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Anonymous Coward, 25 Sep 2014 @ 6:17pm

It seems legit i mean... I watched the video's got the consultation based on my body and diet. Was asked two or three mental questions as in why do I eat.. fun.. bored.. etc Oh I was also asked if I actually wanted to lose weight or not. Then it said consulting... bada bing bada boom... apparently I need their product.

[img]http://mybroadband.co.za/vb/attachment.php?attachmentid=78295&d=1382427188[/img]
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Anonymous Coward, 25 Sep 2014 @ 8:33pm

Attorney fees
Hang on a second.

From the purchase agreement:

Should The Company institute legal or collection proceedings regarding returned/cancelled checks or cancelled/disputed credit cards/PayPal, the Customer will be responsible for all collection costs and attorney's fees, plus filing fees, for each returned or cancelled check or for each cancelled credit card/PayPal payment. Other than the above listed allowance for attorney's fees relating to payment/collection issues, neither the purchaser nor The Company shall be entitled to attorney fees for other disputes between the parties.

From the complaint:

WHEREFORE. Plaintiff ROCA LABS, INC. respectfully requests that this Honorable Court declare that Defendant ALICE KING breached her contractual agreement, and further grant temporary and permanent injunctive relief against the breach, and award ROCA LABS, INC. with an amount fair and just to account for its money damages, interest, reasonable attorneys' fees, and costs incurred herein

They explicitly stated in the agreement that they weren't entitled to attorney fees, and yet they're seeking them?
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Padpaw (profile), 25 Sep 2014 @ 10:01pm

It works for the government via the NSA, maybe corporations have finally taken notice and are emulating threatening people when they don't get their way.

Corruption starts at the top and trickles all the way down
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Bonkers, 26 Sep 2014 @ 6:27am

Is that really enforceable?
So basically by placing an order for this product, you automatically waive your right to free speech? Is that even legally enforceable?
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David, 26 Sep 2014 @ 6:38am

And now for something completely different
Legal questions aside: if the idea is to have food sit longer in your stomach, wouldn't it be easier to just wolf down your food without chewing properly?

Mother would likely not approve but it still sounds healthier and better controllable than swallowing some solidify-in-stomach-again substance.

At least more cost-effective.
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ACasey (profile), 26 Sep 2014 @ 7:32am

I REALLY hope the judge upholds PissedConsumer.com's first amendment rights; this case is an obvious violation of them. People writing negative reviews about something is not defamatory in the slightest.
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Steerpike (profile), 26 Sep 2014 @ 8:45am

They need to start sanctioning attorneys who bring actions that they know, or should know, are unenforceable and basically just there to spend the defendant into submission.
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Anonymous Coward, 26 Sep 2014 @ 10:29am

Re:
I REALLY hope the judge upholds PissedConsumer.com's first amendment rights; this case is an obvious violation of them.

Well, technically THIS case is about a consumer's free speech rights. Pissedconsumer was in the other lawsuit.

People writing negative reviews about something is not defamatory in the slightest.

As long as the review is true, anyway. An intentionally false negative review almost certainly WOULD be defamatory.
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Steerpike (profile), 26 Sep 2014 @ 12:31pm

Re:
Roca Labs can't violate anyone First Amendment rights because they're a private party and not the government. However, they're asking for government action here against the speech they don't like, and that has First Amendment implications.
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Steerpike (profile), 26 Sep 2014 @ 12:31pm

Re:
Roca Labs can't violate anyone First Amendment rights because they're a private party and not the government. However, they're asking for government action here against the speech they don't like, and that has First Amendment implications.
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Baron von Robber, 26 Sep 2014 @ 12:35pm

Re: Is that really enforceable?
I wonder the same.

If I drew up a contract that stated "A negative review will mean that from that point forward, the customer becomes a slave to Roca."

I think most people would find that unreasonable.

So if it's unreasonable for the 13th Amendment, why not for any Amendment, in particular the 1st?
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John Fenderson (profile), 26 Sep 2014 @ 2:21pm

Re: Re:
"An intentionally false negative review almost certainly WOULD be defamatory."

Unless it was a clear expression of opinion rather than fact. Opinion cannot be defamatory.
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That One Guy (profile), 26 Sep 2014 @ 4:57pm

Re:
And again: Cases like these are why we need a federal anti-SLAPP law. When you can sue someone to shut them up, that's a problem, and needs to be fixed, and not just left to the states on an individual level to deal with it.
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Anonymous Coward, 26 Sep 2014 @ 6:51pm

Re: Re: Re:
"'An intentionally false negative review almost certainly WOULD be defamatory.'

Unless it was a clear expression of opinion rather than fact."

Obviously it would have to be a fact; I thought that was clear from the context. I'm not exactly sure how you could even have an intentionally false opinion.
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Anonymous Coward, 26 Sep 2014 @ 7:33pm

Re: Re: Is that really enforceable?
There are a ton of implied rights that you can contract away. You have the right to spend your money how you see fit - but you can sign a contract that specifies you must pay the mortgage company every month for the next 30 years. You have the right to spend your time as you see fit - but you can sign a contract specifying that you will build someone a house in the next month. You have a right to basic information about the drugs your doctor gives you - but you can agree to participate in a double-blind study where you and your doctor do not know whether you have been given a real drug or a placebo. You have the right to not be assaulted - but you can sign a contract to participate in a boxing match.

I think it's pretty established that in some cases, nondisparagement clauses are valid. (If I ruled the world I'd make them illegal, but that's not the current situation.) A slavery clause, on the other hand, would be unquestionably unconscionable. Hopefully this clause, given the context, would also be found unconscionable and therefore unenforceable.

But there's a much clearer reason. The 13th amendment is worded differently from the 1st. It says "Neither slavery nor involuntary servitude... shall exist within the United States, or any place subject to their jurisdiction." It doesn't merely limit Congress or the states. It doesn't merely state that people have a right to not be slaves. It categorically bans the existence of slavery. You can't sign a contract to do an illegal thing.
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Daemon_ZOGG, 26 Sep 2014 @ 8:58pm

"Roca Labs Sues Customer For Posting A Negative Review"
Well, according to my 1st Amendment "opinion", it sounds to me like Roca fLabs is trying to protect a fraudulent, FDA Not-approved product. And doesn't want too many people to know about it.
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Anonymous Coward, 28 Sep 2014 @ 1:45am

What a piece of "TOS"

No contract shall be binding should it infringe upon ones basic rights
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Alice King, 3 Oct 2014 @ 9:00pm

Re: Attorney fees
Since they are suing me personally, there are a number of insane boiler plate items added on to this lawsuit just to add on to the law suit, make them look like they are working harder than they are and they've repeated themselves at least 3 times on every item. 'Casue that never gets old.

There are so many things wrong with their so called "case" against me, they seem to for get I remember what they wanted from me too. I tried to get a refund after the first month, but they would not allow it because I had not sent in a before picture at the first day and since I lost no weight it could have sent the same picture and it have been the same pix.

I need the name of the Class Actions Lawyers name and number - proto and get this shit off my heard.
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Anonymous Coward, 15 Sep 2015 @ 7:48am

Re:
And don't forget your youngins. They can ROCA too!

https://rocalabs.com/faq/medical/weight-loss-for-kids
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