Roca Labs Sues Witness Who Came Forward In Its Lawsuit Against PissedConsumer

from the scorched-earth-strategy dept

Fri, Nov 7th 2014 1:32pm — Mike Masnick

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.

Amended Roca v Schaive Et Al (PDF)Amended Roca v Schaive Et Al (Text)

71158f16 1a7f 4ede 9eab 0513450357b2 (PDF)71158f16 1a7f 4ede 9eab 0513450357b2 (Text)

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Filed Under: defamation, defamation per se, florida, lawsuits, slapp, tortious interference
Companies: consumer opinion corp., pissedconsumer, pissedconsumer.com, roca labs

30 Comments

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That One Guy (profile), 7 Nov 2014 @ 1:39pm

'Ridiculously narrow' indeed
For the curious, here's the expansive list of just what's covered under Florida's anti-SLAPP law, according to the link posted:

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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Matthew Cline (profile), 7 Nov 2014 @ 1:49pm

Surely there's some law, either statutory or caselaw, which prevents lawsuits and/or contracts from being used to prevent people from providing testimony for a court case?
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S. T. Stone (profile), 7 Nov 2014 @ 1:51pm

Roca Labs’ lawyers just became far more of a mockery to the legal business than the Prenda players ever did.

This isn’t just a SLAPP action, this is damn near career suicide.
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AricTheRed (profile), 7 Nov 2014 @ 1:52pm

Really?!!!!?
I'd send 'em a letter and a copy of "How to Win Friends and Influence People". In the letter I'd point out there is nothing about bringing suit against folks that say things you don't like, however, at this point, I'd be afraid of getting sued!
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Mason Wheeler (profile), 7 Nov 2014 @ 2:04pm

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.
...
...
...
Unfortunately, Florida only has a ridiculously narrow anti-SLAPP law, meaning that it won't be effective for the three women in question.

OK, color me confused here. Is this running under Florida rules or not?
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jeffreynye (profile), 7 Nov 2014 @ 2:17pm

Florida may have a narrow anti-SLAPP law, but the defendants are not Florida residents and so they'll have a good argument that their home states' law applies. One of them is even a Nevada resident, which of course has probably the best anti-SLAPP law around.
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That One Guy (profile), 7 Nov 2014 @ 2:18pm

Re:
Whether it is or not doesn't really matter, since the Florida anti-SLAPP law wouldn't help, and if it goes federal there isn't any federal anti-SLAPP law, so no help there either.
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Anonymous Coward, 7 Nov 2014 @ 2:20pm

http://www.bbb.org/west-florida/business-reviews/weight-control-services/roca-labs-nutraceutical-usa -in-sarasota-fl-90092885

Seems that these guys believe their own nonsense.
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Jack, 7 Nov 2014 @ 2:28pm

Weight Relevant?
Ignoring all of the other stupid shit in the complaint, why did Roca put the weight, the fact they were overweight, and how longer they were overweight for all three women in the lawsuit considering it is completely and totally irrelevant to the claims?

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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Squirrels Without Borders, 7 Nov 2014 @ 2:40pm

Re:
While the suit could potentially be removed to Federal Court on diversity groups (e.g., the plaintiffs and the defendants are from different states), Florida law would likely apply because the suits allege state law claims. The choice of law issues could become interesting (e.g., if the contract for sale is all or in part unenforceable because of its unconscionable terms, it the choice of law provision severable from those terms?).The jurisdiction issues could also become interesting for similar reasons.
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Anonymous Coward, 7 Nov 2014 @ 2:59pm

Re:
The substantive law of the State of Florida controls, whether the case is heard before a state court or a federal court. The reason this case may be moved to a Florida federal court is because it involves persons who are not Florida citizens, and "diversity of citizenship" is a basis for a federal court, if requested, to assume jurisdiction.
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Anonymous Coward, 7 Nov 2014 @ 4:58pm

The whole defamation per se claim in their gag order is humorous. They're pretending that contracts can change the legal definition of terms.

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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sophisticatedjanedoe (profile), 7 Nov 2014 @ 5:46pm

Defamation Perse(us)!
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Anonymous Coward, 7 Nov 2014 @ 6:23pm

Re:
The claim for defamation does seem a bit tenuous on the facts alleged in the complaint. However, because nowhere in the contract is there any definition provided for the term "defamation per se", it is not clear the basis upon which you are relying to state that the contract ascribes a meaning to the term that is at odds with Florida law.
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renosablast (profile), 7 Nov 2014 @ 6:30pm

terms of service says it all about this company
If you, as a company, feel the need to put the defamation clause in your terms of service, then you are pretty much admitting right up front that you know that your product is either going to generate significant negative feedback, and/or that you know up right up front that your product or service is an outright scam.
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Anonymous Coward, 7 Nov 2014 @ 7:54pm

Apparently, Roca Labs recognized its mistake the very next day after I wrote about it

Assumptions
1. Roca reads techdirt.com. yay for the extra clicks!
2. Can you charge them for legal advice?
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Tim A, 7 Nov 2014 @ 8:55pm

Re: terms of service says it all about this company
Exactly!

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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Constance Reader, 7 Nov 2014 @ 8:57pm

Re: Weight Relevant?
It would not be considered protected information under HIPAA because none of the patients could be identified by their weight. Now if the filings also included such things as height, gender, physician visit dates, etc., that could easily fall under HIPAA because one could extract the identities from this combination of data.
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Tim A, 7 Nov 2014 @ 9:26pm

Excerpt from their terms and conditions, courtesy of the BBB:

"..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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Jack, 7 Nov 2014 @ 9:44pm

Re: Re: Weight Relevant?
Yeah, it contains full name (obviously), height, weight, gender, and the date that they "consulted" with their "doctor" (who also happens to be a pedophile and lost his license). So yeah, all those things...
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David, 7 Nov 2014 @ 10:48pm

Re: Weight Relevant?
Why wouldn't it be relevant?

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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David, 7 Nov 2014 @ 10:54pm

I just got a brilliant idea!
your acceptance of this sales contract prohibits you from taking any action that negatively impacts RLN, its reputation, products, services, management or employees.

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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That Anonymous Coward (profile), 7 Nov 2014 @ 11:56pm

it must be something in the silica.
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Anonymous Coward, 8 Nov 2014 @ 7:43am

I would call suits of this type SLAPP suits if the company was filing them as a matter of course against any of its customers who spoke ill about the company. Thing is, these suits appear to be filed only against parties who purchased the product at a discount, which discount carried with it several contractual obligations.

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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Deniable Sources, 8 Nov 2014 @ 7:44am

HIPAA?
HIPAA doesn't sanction all disclosure of Protected Healthcare Information (PHI). It sanctions disclosure of PHI from covered entities, which include people and organizations that practice medicine or provide administrative support to those who do. If you want to make a HIPAA claim against Roca, you'd have to establish that they were indeed a covered entity, which is a challenge when you're talking about simply selling a product on the Internet, even when that product purports to have pharmaceutical effect.

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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That One Guy (profile), 8 Nov 2014 @ 10:43am

Re:
Something important to note, that was discovered by a previous poster a while ago: The 'discount' is a lie, there is only one possible price when ordering from them, as there is no choice presented of 'discounted with contractual obligation' and 'normal price without obligations' that usage of the term 'discount' would imply.
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toyotabedzrock (profile), 8 Nov 2014 @ 12:18pm

Sounds like interference with a witness to me.
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Anonymous Coward, 8 Nov 2014 @ 3:55pm

Roca Labs is a fraud company preying on the weak and gullible with products that are worse than snake oil.
COME AT ME BROS
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Anonymous Coward, 8 Nov 2014 @ 7:54pm

Re: Re:
The Roca Labs agreement states: "(3) You agree that any such negative claim will constitute defamation per se, entitling The Company to injunctive relief and damages;"

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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Dan G. Difino, 9 Nov 2014 @ 7:35am

Roca sounds like Rico Just FYI
Unhappy customers goes with the territory, dudes. Just in case you want to completey degrade your company's reputation try suing unsatisfied customers for excersizing the right to explain why they are unsatisfied with your product. Your name will become a household name, but not the one you might want. People are absolutely tired of being swizzled by anyone these days. If they feel they have been swizzled by a company promising results they did not get, well what then? It would be better to explain to people the science behind your products and what should work if recommended use is followed to a T.
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