Magistrate Judge Not Impressed By Roca Labs' Legal Arguments: Recommends Against An Injunction

Legal Issues

from the sorry-nope dept

Tue, Oct 28th 2014 9:03pm — Mike Masnick

It's fairly surprising that it actually took this long, but nearly three weeks after the court hearing concerning Roca Labs' questionable lawsuit against PissedConsumer.com (actually, parent company Consumer Opinion Corp.), the magistrate judge in the case, Elizabeth Jenkins, has recommended against granting the temporary injunction Roca is seeking against PissedConsumer -- effectively blocking the site from letting people post reviews of Roca Labs' "alternative to gastric bypass surgery." We've been documenting the wackiness in this case for a few weeks now (click the "Roca Labs" link above to go through its bizarre twists and turns), so this recommendation is hardly unexpected, but is almost disappointing in how straightforward it is.

Jenkins leaves the Section 230 question aside, pointing out that either way, Roca Labs doesn't do nearly enough to satisfy its claim that PissedConsumer is violating the Florida Deceptive and Unfair Trade Practices Act (FDUPTA). The court notes that even if people are scared away from buying Roca Labs' goopy substance, it would be because of the reviews of PissedConsumer's users, not PissedConsumer itself. Furthermore, Roca Labs' random assertions of PissedConsumer's "unethical" behaviors don't come with any actual support (in a footnote, the judge notes that the one case Roca cites to prove the "unethical behavior" actually works against Roca, since it shows that PissedConsumer is eligible for Section 230 protections):

Plaintiff asserts Defendants' alleged actions have been found “troubling and perhaps unethical” and will be injurious to Plaintiff if not enjoined. However, Plaintiff has not offered any evidence that Defendants offered to remove the postings for a price. Further, the record indicates that businesses can respond for free to any review by using the comments section beneath the review on the website and that Defendants do not sell the option to remove reviews, although Defendants do offer monthly subscription monitoring for those businesses that desire to be notified when reviews are posted about the business.

For these reasons, in addition to standing being problematic, Plaintiff has failed to prove a sufficient causal nexus between the deceptive actions alleged and any harm it has suffered, as the loss of business and reputation suffered by Plaintiff stems from the content of the reviews rather than any deceptive actions alleged by Plaintiff

How about those tortious interference claims? Yeah, Judge Jenkins isn't buying those either.

Although Plaintiff contends its customers are encouraged to post negative comments in exchange for Defendants' representation that Defendants will resolve the customers’ problems with Plaintiff, Plaintiff has not offered any evidence to show that its customers actually posted negative comments in reliance on Defendants’ representations of problem resolution. As with the FDUTPA claims, Plaintiff’s evidence shows only that any harm suffered by Plaintiff stems from the content of the reviews rather than from misrepresentations made by Defendants about their services. Without more, Plaintiff has failed to satisfy its burden of proof on the issue of causation and is not likely to succeed on the merits of its claims for tortious interference.

There's a bit more in the recommendations, but the short version is that (as we suggested from the very beginning) the magistrate judge just doesn't see how Roca's arguments are going to work in court. It's possible the judge overseeing the case will see something different and rule differently than the magistrate judge's recommendations, but that would be a surprise.

The real question is what will happen next? Roca Labs has continued to shift lawyers, as the company seems to have some significant trouble keeping any outside lawyers on the case. If you view the docket in the case, in just the past month, Roca has brought on three separate lawyers to represent them, with two of the lawyers (both from outside firms) asking to be let off the case, with at least one citing "irreconcilable differences have occurred between plaintiff and counsel." What are the chances that Roca Labs, now represented by another "independent outside counsel" will have the good sense to recognize that this case is a trainwreck in action?

Roca Labs Report And Recommendation (PDF)Roca Labs Report And Recommendation (Text)

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Filed Under: paul berger, section 230, tortious interference
Companies: consumer opinion corp., pissedconsumer.com, roca labs

17 Comments

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Anon E. Mous (profile), 28 Oct 2014 @ 9:13pm

Being that we are talking about Roca Labs here, I wouldn't be surprised to see if they filed a new lawsuit to have the Judge who ruled on this motion removed due to "extreme prejudice" against Roca Labs.

I am seriously starting to wonder if the CEO of Roca Labs and the CEO of Suburban Express bowl together and share ideas on customer service.
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That One Guy (profile), 28 Oct 2014 @ 9:18pm

Re:
If they go that route Steele from Prenda would probably break speed records sending them his resume, given that's a Prenda specialty, try and get the judge thrown out when they rule against you.
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Nigel (profile), 28 Oct 2014 @ 9:57pm

"Continues to shift lawyers" was pretty gracious of you.
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Spodula, 29 Oct 2014 @ 2:17am

Probably not much further.
This case seemed to be one that was started to try to scare PissedConsumer into backing down. As its obvious that's not going to work, they will probably drop it and continue to go after the people who posted comments, who don't have the finances to put up a defence.
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Ninja (profile), 29 Oct 2014 @ 3:05am

ACS Law might accept the role of defending Roca.

Ahem. This does fill the emptiness Prenda left.
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Anonymous Coward, 29 Oct 2014 @ 4:35am

restrictive covenants
The situation involves "restrictive covenants" which are un-enforceable, and against "public policy" in that they attempt to censor free speech. Any state action to enforce such an illegal involuntary contract would be illegal under the state's constitution where you can't make laws which violate basic civil rights.

The same with library archives. You can't make regulations requiring recipients, including minors, of public domain photo-copies to accept the condition that they will indemnify the institution against copyright infringement, even if the institution is negligent or the copies to to third parties.

Like the policy which University of Virginia has, for its "permission to use."
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Raul, 29 Oct 2014 @ 5:29am

Re:
Speaking of Prenda, MJ Jenkins also presided over the "Who's On First" Sunlust hearing in which Steele and Lutz were exposed as charlatans and buffoons setting in motion Prenda's implosion.
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sburch79, 29 Oct 2014 @ 6:29am

They're Advertising for New Counsel
They are currently advertising for new counsel on the Florida Bar.

http://l.fl.bar.associationcareernetwork.com/JobSeeker/JobDetail.aspx?abbr=L.FL.BAR&jobid=628cb1 ee-131c-40c3-9885-2c05076d4a80&stats=y
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Anonymous Coward, 29 Oct 2014 @ 6:40am

Re: They're Advertising for New Counsel
Please, Please let John Steele get the job. Maybe someone should anonymously email him the link.
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Anon E. Mous (profile), 29 Oct 2014 @ 7:23am

Re: Re: They're Advertising for New Counsel
I think we should start a letter writing campaign to get whole Prenda team as counsel for Roca Labs. It's honestly the perfect fit.

Prenda likes to use every legal tactic in the book and so Does Roca. Prenda has filed lawsuits at it's critics, Roca has files against it's critics.

Prenda has clients who don't exist, Roca has celebrity testimonials that don't exist.

Steele would be available since his legal career is non exsistant these days, it's a match I tell you.
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David, 29 Oct 2014 @ 9:20am

Re: They're Advertising for New Counsel
Note it states they are an independent contractor, and offering $100K for 50hr/wk. That's about $40/hr.

I'm sure there will be no end of lawyers jumping at that opportunity /s
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Eldakka (profile), 29 Oct 2014 @ 6:44pm

Re: Re: They're Advertising for New Counsel
100k/50 = 200/hr

Still not much for a lawyer.
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Anonymous Coward, 29 Oct 2014 @ 7:05pm

Re: Re: Re: They're Advertising for New Counsel
100k/50 hours per week/ 52 weeks = $38.46 per hour.
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Anonymous Coward, 29 Oct 2014 @ 7:10pm

Re: Re: Re: They're Advertising for New Counsel
now, if it was 100k/50 hours work it would be closer to a lawyers fees. $2000 per hour
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David, 30 Oct 2014 @ 9:27am

Re: Re: Re: Re: They're Advertising for New Counsel
I used 50 weeks, which is how I got $40/hr. 2 weeks vacation is deserved, you think?
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John Fenderson (profile), 30 Oct 2014 @ 10:21am

Re: Re: Re: Re: Re: They're Advertising for New Counsel
I misread this: "offering $100K for 50hr/wk" as meaning $100K per 50 hour work week, so was confused as to how you got to $40/hr. Thanks for clarifying.
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Eldakka (profile), 3 Nov 2014 @ 4:45pm

Re: Re: Re: Re: Re: Re: They're Advertising for New Counsel
I also misread (as I didn't follow the link) and read it more as a retainer, as in 100k for 50 hours work (total), not as a full time job with a yearly salary of 100k and expecting 50hours per week....

Damn, that's pretty shitty pay for a lawyer with 5+ years experience, even if you include the possible 30k bonus.
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