Techdirt's Response To Roca Labs' Demand For A Retraction

Techdirt

from the threats-and-such dept

Fri, Oct 10th 2014 2:50pm — Mike Masnick

As you know, we've been reporting on a lawsuit involving Roca Labs against Consumer Opinion Corporation, better known as PissedConsumer. We recently received a letter from Roca Labs' "independent general counsel" Paul Berger, demanding that we retract certain information related to some of those posts. Below you can find that letter as well as our response, helpfully put together by Jamie Williams at EFF.

Response to Roca Labs' September 30, 2014 Retraction Request (PDF)Response to Roca Labs' September 30, 2014 Retraction Request (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: paul berger
Companies: roca labs

64 Comments

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MM_Dandy (profile), 10 Oct 2014 @ 2:55pm

I looked,
But I couldn't find any TechDirt articles published on September 22, 2104.
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- sorrykb (profile), 10 Oct 2014 @ 3:01pm
  
  Re: I looked,
  Are you implying that Roca Labs does not have time travel capability?
  That's defamatory libelslander!
  [ link to this | view in chronology ]
  - T Teshima (profile), 10 Oct 2014 @ 3:07pm
    
    Re: Re: I looked,
    They obviously hold the patent on flux capacitors.
    [ link to this | view in chronology ]
    - Anonymous Coward, 10 Oct 2014 @ 3:23pm
      
      Re: Re: Re: I looked,
      So how should Mike proceed, in order to prevent a universe destroying paradox? Should he schedule an article to be posted posthumously in 90 years? Or is that exactly what they'd like him to do, in order to change the future?
      [ link to this | view in chronology ]
      - Watchit (profile), 10 Oct 2014 @ 11:41pm
        
        Re: Re: Re: Re: I looked,
        it's best just to go along with it lest we create a paradox. nasty business that. doomed timelines are not fun for anybody.
        [ link to this | view in chronology ]
  - Anonymous Coward, 10 Oct 2014 @ 6:03pm
    
    Re: Re: I looked,
    That would be prior restraint which would be of questionable legality.
    [ link to this | view in chronology ]
- Anonymous Coward, 10 Oct 2014 @ 3:18pm
  
  Re: I looked,
  Here it is:
  
  https://www.techdirt.com/articles/20140922/13125328599/pissedconsumer-fights-back-against-roca-la bs-attempt-to-silence-customer-complaints.shtml
  [ link to this | view in chronology ]
  - Ben (profile), 10 Oct 2014 @ 4:08pm
    
    Re: Re: I looked,
    Obviously that can't be the article. The fourth paragraph of the demand letter clearly begins:
    
    In your September 22, 2104 article
    
    ... and Techdirt would not have filed that in a link to https://www.techdirt.com/articles/20140922/etc.
    
    Give Mike a little credit for indexing the articles correctly.
    [ link to this | view in chronology ]
Adam Steinbaugh (profile), 10 Oct 2014 @ 3:09pm

The most remarkable thing here is that the EFF's counsel resisted the urge to file the response I would have sent:

"Dear Mr. Berger and Roca Labs, Inc.:

lol.

love,eff and techdirt and mike"

In crayon, naturally.
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- Anonymous Coward, 10 Oct 2014 @ 5:09pm
  
  Re:
  It's not like being legally right matters anymore. Look how badly the constitution has been eroded. Infinite copy protection lengths due to retroactive extensions, unwarranted seizures,etc... The law no longer matters.
  [ link to this | view in chronology ]
- That Anonymous Coward (profile), 10 Oct 2014 @ 11:36pm
  
  Re:
  STHAAAAP STEALING MY CRAYONS!
  [ link to this | view in chronology ]
SmozeFroze (profile), 10 Oct 2014 @ 3:12pm

Arkell v. Pressdram
This would have been better...

See: http://www.lettersofnote.com/2013/08/arkell-v-pressdram.html
---
Dear Sirs,

We acknowledge your letter of 29th April referring to Mr. J. Arkell. [Roca Labs]

We note that Mr Arkell's [Roca Labs'] attitude to damages will be governed by the nature of our reply and would therefore be grateful if you would inform us what his attitude to damages would be, were he [Roca Labs] to learn that the nature of our reply is as follows: fuck off.
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- djl47 (profile), 10 Oct 2014 @ 7:07pm
  
  Re: Arkell v. Pressdram
  "Please refer to the response given in Arkell vs Pressdram." is how Private Eye and others used it.
  [ link to this | view in chronology ]
- G Thompson (profile), 10 Oct 2014 @ 11:28pm
  
  Re: Arkell v. Pressdram
  Pressdram's response is always appropriate to these thuggery letters
  
  So too is Ken White's famous (or is that infamous) response of "snort my taint". ;)
  [ link to this | view in chronology ]
That One Guy (profile), 10 Oct 2014 @ 3:20pm

'Please retract the following article in full'

Yeah, they weren't demanding a retraction, it looks like they were demanding the removal of the first four articles covering the fiasco in their entirety.

Of interest, and reminding me of the Ken/Popehat phrase 'Vague threats are a mark of legal thuggery', while they mentioned that the articles and what's listed in them are 'defamatory', they don't actually point to any specific examples of such, just giving a vague 'This article and its contents are defamatory'. Given truth is a defense against defamation, it's not hard to imagine why they'd avoid going into details.

Oh and talk about a blast from the past, they end the letter with 'Please govern yourself accordingly', talk about deja vu...
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- Anonymous Coward, 10 Oct 2014 @ 3:28pm
  
  Re:
  Legal Thuggery... What a nice turn of phrase to accurately describe this ...err... I hesitate to call it a legal business and it's actions.
  [ link to this | view in chronology ]
- Anonymous Coward, 10 Oct 2014 @ 3:29pm
  
  Re:
  Bingo. "Vagueness in legal threats is the hallmark of meritless thuggery". The failure to identify so much as a single statement that is allegedly defamatory means that this appears to be nothing but an attempt at intimidating TD into silence.
  [ link to this | view in chronology ]
  - That One Guy (profile), 10 Oct 2014 @ 3:37pm
    
    Re: Re:
    Oh if that was it, they clearly did not do their research before unleashing the lawyers...
    [ link to this | view in chronology ]
- Anonymous Coward, 13 Oct 2014 @ 10:06am
  
  Re:
  Indeed...this is also used transliterated in French Canada (Quebec), last time I saw this was on a letter from my ex ISP who wasn't able to find new address in their system, to send me a final bill. Since they wouldn't send proof (very long story)that I owed them 76 dollars, things escalated to a letter from a collection agency ending with these wonderful words "Veuillez vous gouverner en conséquence". It sounds ominous even to people who does not get what it means lol.
  
  Then I just sent them my rented cable modem when I was with them and never heard from collection agencies again.
  [ link to this | view in chronology ]
Anonymous Coward, 10 Oct 2014 @ 3:22pm

"It appears that these statements were made for no other purpose than to harass and defame Roca Labs."

Hmm. Lawyer for litigious company can't see negative comments about said company as having any other purpose but to give them an opportunity to pursue billable hours and possibly monetary settlements/judgments. I am Jack's legal filing of a motion to be sarcastically surprised.
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Anonymous Coward, 10 Oct 2014 @ 3:23pm

How about this...
"I give you the finger... and you fuck off already."

Seriously - did they expect this to work and not increase their douchebaggery points?
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Michael Donnelly (profile), 10 Oct 2014 @ 3:32pm

The phrase "pick your battles" comes to mind.
Throwing down against TechDirt and the EFF over improper speech is just a really, really bad idea.

It does serve to illustrate the mental state of the person making the decisions, however. And that state is not pretty.
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Anonymous Coward, 10 Oct 2014 @ 3:42pm

Please govern yourself accordingly.

Seriously?!
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Ehud Gavron (profile), 10 Oct 2014 @ 3:44pm

Dear Mike Masnick and Techdirt staffers
My job has its interesting parts. One of the requirements is that I stay current on lots of entirely uninteresting things.

THANK YOU for giving me three or four breaks a day when I can enjoy your writing and seriously relax.

This series of articles (as well as the Scorpion writeups) have given me nothing but joy. If it weren't for you guys, and Ken White, and Marc Randazza... what a joyless world it would be.

I wish you a wonderful weekend.

Regards,

Ehud Gavron
Tucson AZ
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Quiet Lurcker, 10 Oct 2014 @ 4:01pm

Confused
I thought you had pass an intelligence test of some kind before being admitted law school. How did Roca's lawyer get away with not passing that test?
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- G Thompson (profile), 10 Oct 2014 @ 11:30pm
  
  Re: Confused
  Bwahahahahahahahahahahahahahaha
  [ link to this | view in chronology ]
- dadtaxi, 11 Oct 2014 @ 10:08am
  
  Re: Confused
  Because you don't have to be a fool to be a lawyer, just a fool of a client with billable hours.
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Tim A, 10 Oct 2014 @ 4:10pm

There's a whole lot of inferiority complex going on there.

Paul Berger, I have some advice. You should clean the scan window on your fax machine.
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tracyanne (profile), 10 Oct 2014 @ 4:13pm

What I find interesting about the 2 leatters
is the quality of them.

The second appears to have been written by a professional.
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Anonymous Coward, 10 Oct 2014 @ 4:27pm

Roca Labs is desperately trying to force a cone of silence over each and every customer that discovers that Roca Labs’ product is not only a specious remedy for their weight issues, but a potential cause of additional health problems. Plaintiff, desperate to sell as many of its tubs of goo to the public as it can before regulatory agencies come knocking does its best to bully its former customers into silence. "

Please provide us with an independent verification of this factual statement or retract the statement.

OK.

The article said that the filing said this. The filing did say this. The article was therefore accurate. Independent verification can be obtained by the copy you already have of the filings. If you want a retraction of what's in the filings, perhaps you should do what you've already apparently done and ask opposing counsel to retract it, even though that's still kind of ridiculous.

Oh, you wanted verification of the underlying claims? For that, you can refer to your OWN filings, where you admit that you do not allow your consumers to publish anything negative about you or your products in any forum. Sounds like a "cone of silence" to me. As far as the "bully its former customers into silence" claim goes, we have Roca Labs vs Alice King, where you sue a former customer for her negative comments. I don't think you dispute the general idea that you want to "to sell as many of [your] tubs of goo to the public as [you] can", although you might not like your products being called "tubs of goo". As far as the "regulatory agencies" go, certainly you have your factories inspected every once in a while, so they do occasionally "come knocking", right?

If you were interested in a retraction based on an actual mistake of fact, you would point out the actual mistake of fact. For example, if you factories were overseas and therefore not subject to any knocking regulatory agencies, you could say so. Or if you had one designated customer who you allowed to make negative comments without repercussions, you could point out that the phrase "each and every" was not quite true. Or perhaps you could point out that no company who actually wanted to stay in business long enough to sell as much of its product as possible would have terms of service like yours. Or perhaps your understanding of the Streisand Effect was such that you did not believe that your actions would actually silence anyone. Who knows? We certainly don't if you don't tell us.
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Anonymous Coward, 10 Oct 2014 @ 4:35pm

Party pooper
Oh, come on. The high road is so boring.
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Anonymous Coward, 10 Oct 2014 @ 4:37pm

So how many more stories are out there about rocaslabs , you could run a new one everyday , sooner or later they'll run out of printer ink.
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Anonymous Coward, 10 Oct 2014 @ 5:09pm

Why is part of the PDF blacked out?

Were other people at Techdirt named in the letter who wish to remain anonymous?

If this defamation troll makes good on the threat and goes ahead with a lawsuit, let's hope Techdirt's legal defense fund accepts Bitcoin.
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- Anonymous Coward, 10 Oct 2014 @ 7:29pm
  
  Re:
  Yes, why is there a redaction?
  [ link to this | view in chronology ]
  - Anonymous Coward, 10 Oct 2014 @ 7:38pm
    
    Re: Re:
    Just looked- the blacked out part is Mike Masnick's address.
    [ link to this | view in chronology ]
    - Anonymous Coward, 11 Oct 2014 @ 2:00am
      
      Re: Re: Re:
      The home address of sir Masnick is already public. Why would he censor it? Or did some of the government agencies come in and sponsor the ink?
      [ link to this | view in chronology ]
      - Anonymous Coward, 11 Oct 2014 @ 10:08am
        
        Re: Re: Re: Re:
        Google's 'transparancy report' blocks out the address of the accuser.
        
        Techdirt's 'transparancy report' blocks out the address of the accused.
        [ link to this | view in chronology ]
Anonymous Coward, 10 Oct 2014 @ 5:12pm

Sorry - what?!?!
Is he really saying what I think he's saying here?
"in publishing the articles without attempting to verify the alleged facts in the pleadings..."

I thought that verifying the facts was the job of the court? Is he claiming that Techdirt has the responsibility to decide the outcome of a pending case before a judge has ruled? Or perhaps he's trying to claim that it's improper to report on a case that hasn't been decided yet?

Just what the hell is he trying to claim here?
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KRA, 10 Oct 2014 @ 5:20pm

It is truly amazing, how these thugs dig their heels in. What did they think would happen when they sent this threat?

Maybe we've been wrong all these years...Maybe goodevil is dumb.
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KRA, 10 Oct 2014 @ 5:21pm

I've deleted myself

Make that good will always triumph because evil is dumb.
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- Anonymous Coward, 11 Oct 2014 @ 2:54am
  
  Re:
  Yes, evil is dumb. And killing is badong.
  [ link to this | view in chronology ]
Carrie (profile), 10 Oct 2014 @ 5:40pm

I would have written the letter differently.

Dear Roca,

We believe you have failed to take account of two elementary facts. One, it's almost legally impossible to defame a corporation, because courts assume that part of the privilege of doing business is the burden of being subjected to criticism. Two, America has this thing called a "Constitution" which includes something known as "the First Amendment."

Free Speakingly Yours,

Techdirt
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Another Anonymous Coward, 10 Oct 2014 @ 5:43pm

Rule of Holes
Looks like this guy's forgotten the first rule of holes.
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Anonymous Coward, 10 Oct 2014 @ 6:39pm

TD re Roca
http://yourlisten.com/xmoonbombx/bugs-he-dont-know-me-very-well-do-he

What an (ignorant collection of) ultra-maroon(s their lawyers must be).
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I am jack's raging boner berger, 10 Oct 2014 @ 6:43pm

Roca Labs' "attorney" Paul Berger seems a little too close to the pediphile doctor that works for the place. How much do you want to wager that he goes the way of Charles Carreon?
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Anonymous Coward, 10 Oct 2014 @ 7:37pm

Reading both lawyer's letters, I don't think this issue is resolved at all.
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- Anonymous Coward, 10 Oct 2014 @ 8:13pm
  
  Re:
  No, it does not look resolved. EFF is going down hill.
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Anonymous Coward, 10 Oct 2014 @ 8:56pm

Surprised to read the letter on EFF letterhead saying that it is representing this site. I had expected to read a letter where the individual associated with the EFF identified herself a representing the site as the former approach raises UPL Iissues that can divert attention away from the issue at hand.
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- serge, 10 Oct 2014 @ 9:15pm
  
  Re: UPL
  I'm not sure what you are trying to say, I assume the acronym stands for Unauthroized practice of law however I don't understand why that has anything to do with this.
  [ link to this | view in chronology ]
  - Anonymous Coward, 11 Oct 2014 @ 5:21am
    
    Re: Re: UPL
    The EFF is not a law firm, and it is not at all clear from the letter if the writer is representing the EFF or the site.
    [ link to this | view in chronology ]
    - Nate Cardozo (profile), 11 Oct 2014 @ 6:48am
      
      Re: Re: Re: UPL
      What makes you say EFF isn't a law firm? We (I'm an EFF lawyer) certainly are. We're not your average firm to be sure, and we're not ONLY a law firm, but from a legal ethics perspective we're a nonprofit law firm and represent clients as such.
      [ link to this | view in chronology ]
      - Anonymous Coward, 11 Oct 2014 @ 7:23am
        
        Re: Re: Re: Re: UPL
        I tend to associate law firms with the definition set forth in Rule 1-100, which does not seem to apply to the EFF. Importantly, I have not conducted any research of state bar opinions to explore the definition in depth.
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        Nate Cardozo (profile), 11 Oct 2014 @ 8:09am
        
        Re: Re: Re: Re: Re: UPL
        It absolutely applies to us.
        
        "(a) two or more lawyers whose activities constitute the practice of law, and who share its profits,expenses, and liabilities;"
        
        Yep. Nonprofit but yep.
        
        "(c) a division, department, office, or group within a business entity, which includes more than one lawyer who performs legal services for the business entity;"
        
        Yep. 501(c)(3)s are business entities.
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        serge, 11 Oct 2014 @ 8:30am
        
        Re: Re: Re: Re: Re: UPL
        You evidentially haven't conducted research into the EFF either, it basically saved computer cryptography in the '90s via a lawsuit and has filed lawsuits in relation to digital rights ever since, amongst other things, do you seriously think it would be able to persist in that if it were not permitted to by law? I don't mean to sound hostile but I looked up "UPL" and the second result or so (on Duckduckgo, I don't know about google) brought me to a powerpoint where UPL is defined and it was immediately clear that the EFF is allowed to practice law and should be obvious just by logical deduction.
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        Anonymous Coward, 11 Oct 2014 @ 10:43am
        
        Re: Re: Re: Re: Re: UPL
        I can see how you might make that mistake, in reading the letter. The letter is quite weak and milquetoasty. Lets face it, if the author of the letter was a paid lawyer, he would have at least put some more strength into the letter. The way it looks now is "oh, pweeze don't sue us, we are just widdwle and afwaid!"
        
        How about telling Burgher that he has no case for all the stupid reasons he has no case. What is the "defamation" here? What is the reason for his letter in the first place? Is he really that stupid?
        
        The demand deserved a Ken White style "snort my taint" letter. Something that showed that TD would fight and fight hard if he did not back off. If I got that reply, it would tell me that TD did not have the money for a real lawyer, so it got some low level do-nada at EFF to write a letter that took 30 seconds. If that letter gets followed up by a lawsuit, TD is going to fold like a cheap suit. It might not, it might fight, but that letter just screams "submissive".
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        Anonymous Coward, 11 Oct 2014 @ 10:50am
        
        Re: Re: Re: Re: Re: Re: UPL
        "TD is going to fold like a cheap suit."
        
        Unlikely. Techdirt has been around since the last century, and still going strong.
        [ link to this | view in chronology ]
        
        WysiWyg (profile), 12 Oct 2014 @ 8:03am
        
        Re: Re: Re: Re: Re: Re: UPL
        To me the letter sounded more like "your threats are so pathetic that you are not even worth the time it takes to school you properly, so I'll just point out that you obviously don't know the law and leave it at that".
        
        Basically the worst insult a Klingon lawyer could give someone. ;-)
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        Anonymous Coward, 12 Oct 2014 @ 1:55pm
        
        Re: Re: Re: Re: Re: Re: UPL
        There are times that opponents are worthy of a world-class beatdown using all of the snark and sarcasm available.
        
        This is not one of those times. This is not one of those opponents. Paul Berger is an inferior little man, and is unworthy of anything other than contemptuous dismissal.
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Peter, 10 Oct 2014 @ 9:01pm

A note on Mr. Berger's omission and confusing pontification
Mr. Berger’s letter is poorly written because it contains a certain omission and one confusing aspect. A key paragraph:

For example, on September 29, 2014 you published an article Roca Labs Threatens To Sue All Three Former Customers Who Provided Evidence Against Roca in PissedConsumer Case from the the-ultimate-in-sleazy dept. This article contains numerous false, defamatory and malicious statements about Roca Labs. It appears that these statements were made for no other purpose than to harass and defame Roca Labs. Perhaps the true indication of you[] yellow journalism is that you fail to indicate that Mr. Randazza made a similar motion to the Court on September 22, 2104 [sic], which was denied by the Court on September 23, 2014.

The omission bit

If there really were “numerous false, defamatory and malicious statements about Roca Labs” in the cited article, then Mr. Berger should have enumerated these statements and shown how they satisfy the conditions of defamation and malice. It is a glaring omission that no such enumeration or showing has been provided by Mr. Berger.

The confusing bit

With the last sentence of the quote above, Mr. Berger makes a comparative claim that something in TechDirt’s article is supposed to be similar to Mr. Randazza’s motion filed on September 22. But Mr. Berger does not specify what that something in TechDirt’s article is. It is just downright confusing; it is not clear what Mr. Berger is suggesting by referencing that the Court promptly denied Mr. Randazza’s motion.
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- Anonymous Coward, 11 Oct 2014 @ 3:12am
  
  Re: A note on Mr. Berger's omission and confusing pontification
  Glad you said this. Thought it was just me...
  [ link to this | view in chronology ]
That Anonymous Coward (profile), 10 Oct 2014 @ 11:41pm

something something of holes, STOP DIGGING.

It is sad they couldn't be bothered to Google Mike and come across this little thing called the 'Streisand Effect'.

Here lemme help your ignorance be enlightened...
https://en.wikipedia.org/wiki/Streisand_effect
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Anonymous Coward, 12 Oct 2014 @ 8:07am

Queuing up the legal defense fund beg-a-thon in 4...3...2...1...
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Mark Wing, 13 Oct 2014 @ 9:53am

Go EFF
Thank you EFF for being awesome. It's a very small list of people who actually give a shit about the Internet, and the EFF, PopeHat and Techdirt are at the top of that list. Being the good guys must be a mostly thankless task, so thank you!
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John Pettitt (profile), 13 Oct 2014 @ 4:41pm

Private Eye had the right answer to this sort of thing
"We refer you to the reply given in the case of Arkell v. Pressdram"
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