Roca Labs Sues Witness Who Came Forward In Its Lawsuit Against PissedConsumer
from the scorched-earth-strategy dept
Roca Labs just keeps going and going. If you don't recall, the company sued PissedConsumer (a part of Consumer Opinion Corp.), claiming that the site had engaged in "tortious interference" with Roca's business by encouraging people to complain about a Roca Labs product (a kind of goop that it claims will fill your stomach making you less hungry). In its response to Roca's lawsuit, PissedConsumer also supplied declarations from a former Roca customers who were unhappy with their experience, complained about it, and got threatened with lawsuits in response from Roca Labs. Soon after, Roca Labs threatened three of those individuals with defamation lawsuits, even though it had been years since the company had communicated with two of the three.It appears that Roca Labs finally made good on that threat and recently filed a lawsuit against all three individuals in Florida State Court. The lawsuit (pdf), which includes a demand for a temporary injunction, seems destined for federal court rather than state court since none of the defendants are in Florida. Either way, the lawsuit accuses all three of "breaching" the contract by daring to complain to the Better Business Bureau, tortious interference for alerting others to the fact that they didn't like Roca Labs' product and "defamation per se" based on Roca's rather interesting interpretation of defamation law. As we've noted in the past, the gag order in Roca Labs' terms of service does say that if you complain about its product, it will automatically be considered defamation per se, but that's not how "defamation per se" works.
Roca Labs is seeking declaratory relief and a temporary injunction. Once again, the request for the temporary injunction is an interesting legal argument, seeing as the company is asking the court to prevent speech from the three individuals -- and it's generally considered improper to issue a temporary injunction for speech (the whole First Amendment/prior restraint thing becomes an issue).
Frankly, this looks like a fairly standard SLAPP suit -- a lawsuit designed to shut someone up. Unfortunately, Florida only has a ridiculously narrow anti-SLAPP law, meaning that it won't be effective for the three women in question.
On a separate note, in my last post on Roca Labs, I mentioned that the company appeared to have incorrectly told the court in Florida that its case against PissedConsumer there was unrelated to any other case, when that clearly was not the case, given the lawsuit in NY that PissedConsumer had filed against Roca Labs even earlier, seeking declaratory relief. Apparently, Roca Labs recognized its mistake the very next day after I wrote about it, and filed an amended filing, noting the case in NY. I'm sure it's a coincidence.
Updated:: I've updated this post slightly, after discovering that not all three of the new defendants were involved in the PissedConsumer case -- just one was, but all three had complained to the Better Business Bureau.
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Filed Under: defamation, defamation per se, florida, lawsuits, slapp, tortious interference
Companies: consumer opinion corp., pissedconsumer, pissedconsumer.com, roca labs
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'Ridiculously narrow' indeed
Fla. Stat. § 768.295 applies to SLAPPs brought by the government in response to the exercise of "the right to peacefully assemble, the right to instruct representatives, and the right to petition for redress of grievances before the various governmental entities" of Florida.
Fla. Stat. § 720.304 (4) applies only to homeowners in a homeowners' association. It protects a homeowner's exercise of "the right to instruct his or her representatives or the right to petition for redress of grievances before the various governmental entities" of Florida. The statute, which applies to SLAPPs brought by individuals, business associations, and government entities, further explains that it is aimed at protecting against lawsuits arising out of a homeowner's "appearance and presentation before a governmental entity on matters related to the homeowners' association."
So if you're not being sued by the government, and you're not a homeowner in an HOA being sued over something related to the HOA, you are out of luck.
Whoever threw that one together really valued protecting the speech of Florida citizens, that's for sure. /s
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This isn’t just a SLAPP action, this is damn near career suicide.
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Really?!!!!?
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OK, color me confused here. Is this running under Florida rules or not?
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Seems that these guys believe their own nonsense.
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Weight Relevant?
Sure the product is a weight loss product, but none of the claims have shit to do with that. I do wonder of weight is considered "Protected Health Information" under HIPAA?
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It's as relevant as, say, a barber sued for not cutting the client's hair including old and current photographs of the client, proving that her hair these days is shorter.
Which is not much of a surprise given the apparent intent to get the hair cut.
I am assuming that the current weight is less as including it would make even less sense otherwise.
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This is like signing a contract that says that complaining about one of the parties to the contract is agreed by both parties to be considered murder. Good luck getting an arrest warrant for murder based on the terms of a private contract.
The terms of contracts are subject to existing laws. Laws are not subject to the terms of contracts.
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Source: http://roca-labs.pissedconsumer.com/agreement-terms-20140503485660.html
The agreement states that the consumer of the product agrees that any negative comments that they make publicly about the product are defamation per se. That's the definition of defamation per se that the agreement is stating. But whether it is actually defamation per se would be up to a court to decide, not the two parties to the agreement.
As I said, you can "agree" to anything being "true" in a contract, but that doesn't make it actually true or legally binding, especially if it's not possible to agree to. A company and/or a consumer cannot agree that something is defamation per se in order to make it true in a court of law and actionable in a lawsuit.
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terms of service says it all about this company
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And I wouldn't be one bit surprised if their business plan is to make more money by suing people than from selling their garbage product.
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Assumptions
1. Roca reads techdirt.com. yay for the extra clicks!
2. Can you charge them for legal advice?
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"..your acceptance of this sales contract prohibits you from taking any action that negatively impacts RLN, its reputation, products, services, management or employees."
..and if you do, we'll one-up you to the infinite!
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I just got a brilliant idea!
Wouldn't that include eating too much?
That gives me a brilliant business idea:
"Guaranteed weight loss! If you are not fully satisfied with our product and lose 10lbs in four weeks, we'll sue your pants off."
Yes, I know, half of it is prior art.
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Now how about doing some digging and finding a suit that has been brought against a customer who did not take the discounted price and all the limitations associated with doing so. Maybe then SLAPP was be appropriate an appropriate word to use. Until that happens, however, this and the other related articles are chock full of indignation and rather lacking on SLAPP-supporting facts.
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HIPAA?
Where Roca might be in more trouble is that they claim to be providing medical consultation services, which absolutely does make them a covered entity for those services. That might be fun. The Health and Human Services Office for Civil Rights(OCR) pursues HIPAA claims, and they can be decidedly nasty at times.
The FDA is implicated also. While I suspect they're hiding behind the "nutritional supplements" exemption, Roca is pretty clearly selling a product which is by its simple description a medical device. Any device designed to create a temporary or permanent intestinal narrowing or obstruction would be affecting the structure, form, or function of the human body and is not simply a supplement. I would love to know what their regulatory status was and how long it's been since their last regulatory colonoscopy.
The FDA and OCR have the capacity to receive and act on public complaints, for what that's worth.
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COME AT ME BROS
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Roca sounds like Rico Just FYI
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