Plaintiff Awarded Damages In Default Judgment Against Censorious Dentist Who Billed Him $110,000 For His Negative Review

from the Streisanded-into-apparent-nonexistence dept

Wed, Mar 4th 2015 9:47am — Tim Cushing

(Former?) dentist Stacy Makhnevich utilized a shady firm's (Medical Justice) legal documents to force a patient to sign over his copyright to any future reviews of her service. When he posted negative comments about her services, she followed this up by billing him $100/day for the Yelp review he supposedly no longer controlled.

This censorious behavior resulted in two things: a class action lawsuit being brought against the dentist by Public Citizen and a severe Streisanding that saw Makhnevich's personal and professional reputation torn to shreds by internet denizens, most notably at the same site she attempted to silence.

Shortly thereafter, Makhnevich simply… disappeared. She filed a motion to dismiss the class action suit, but received only sharp criticism from the judge for her "ridiculous" arguments. That was pretty much the last anyone saw of the disgraced dentist, something that makes plaintiff Robert Allen Lee's win somewhat bittersweet.

According to the default judgement [PDF] by a U.S. District Court in NYC last week, the judge concurs, saying that the prohibition against negative criticism, along with the use of copyright claims to prevent these reviews from being seen “constitute breaches of fiduciary duty and violations of dental ethics and are subject to the equitable defenses of unclean hands, and, as to such assignment and assertion, constitute copyright misuse.”

The very short decision points out that Makhnevich was wrong about pretty much everything before awarding presumably uncollectable damages to Lee.

The Court declares as follows:

A. Notwithstanding the claim of defendants Stacy Makhnevich, Aster Dental, Chrysler Building Dental Association, North East PC, South East Dental Suite, Lincoln Square Dental Arts, Lincoln Square Dental Arts of Manhattan, and Chrysler Dental (collectively, "defendants") to ownership of the copyright in writings by plaintiff Robert Allen Lee about them, Robert Allen Lee's posting of public comments about defendants' services ("Lee 's Commentary") is a non-infringing fair use pursuant to Section 107 of the Copyright Act;

B. Obtaining the promise by plaintiff Robert Allen Lee in the Mutual Agreement to Maintain Privacy (the "Agreement') not to publish criticism of defendants, the Agreement's purported assignment of copyrights, and the assertion of copyright claims by defendants for the express purpose of preventing the dissemination of Lee's Commentary, constitute breaches of fiduciary duty and violations of dental ethics and are subject to the equitable defenses of unclean hands, and, as to such assignment and assertion, constitute copyright misuse;

C. Robert Allen Lee's assignment and promise in the Agreement not to publish criticisms of defendants are null and void for lack of consideration;

D. Robert Allen Lee's assignment and promise in the Agreement not to publish criticisms of defendants are null and void for unconscionability;

E. The Agreement is a deceptive act or practice in violation of Section 349(a) of the New York General Business Law; and

F. Lee' s Commentary is not actionable defamation under New York common law.

Plaintiff Lee is awarded $4,766 in damages against defendants, jointly and severally, for their breach of contract, together with his costs of suit.

The other upshot of the lawsuit is that Medical Justice has ceased offering the legally-dubious forms deployed by Makhnevich, albeit in a rather begruding fashion.

"While we believe these agreements are honest, ethical, and legal, we are going to use this situation as an opportunity to retire these written agreements used since 2007," MJ CEO Jeffrey Segal told Ars on Wednesday. He claims that MJ will recommend to doctors that they stop using the agreements, and that patients will not be asked to sign any such agreements in the future.

The worst thing you can do about bad reviews is pretty much everything Makhnevich did: misuse copyright law, fire off cease-and-desist orders and bogus DMCA takedown requests, and bill unhappy customers to the tune of $110,000. Disappearing was probably a wise choice, but it does tend to result in default judgments. Lee may find it hard to collect what he's owed from the missing dentist, but the court's short but thorough dismantling of her every move should serve as a warning to future business owners who think it's wise to deploy the nuclear option when criticized.

dentist yelp judgment (PDF)dentist yelp judgment (Text)

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Filed Under: copyright, dentist, free speech, gag clause, reviews, robert allen lee, stacy makhnevich
Companies: medical justice

17 Comments

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Anonymous Coward, 4 Mar 2015 @ 9:56am

So can he simply show up at her place of business with a moving truck and start collecting furniture?
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Chris ODonnell (profile), 4 Mar 2015 @ 10:01am

Is there any kind of "interest" charge on an award like this? It would be kind of sweet to show up in 10 years when the dentist thinks he is clear and have that $4700 now be $47,000.
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pegr, 4 Mar 2015 @ 10:08am

France?
http://www.stacymakhnevich.com/Contact.html

From the site:
"Immeuble le Leeds, -253
Boulevard du Leeds
59777, Lille, France"
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Nilt, 4 Mar 2015 @ 10:32am

Re: France?
Well, the site says "For Concierge Dental Services in the USA and Europe", so my guess is she's here now and again. She's clearly trying to keep her whereabouts unknown but I am sure she could be tracked down. It'd truly be justice served if someone spent the money to "hire" her in order to serve these papers on her and seize anything she has on her at the time, etc. :D
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Nilt, 4 Mar 2015 @ 10:35am

Re: Interest
Crud, my editing of the other part of my post screwed up my reply on Interest, so here's a separate post. Judgements are at statutory interest rates, typically. Without looking into it, I don't recall where the plaintiff is from but I do recall it wasn't NY. Just as an example, however, when I got a judgement against a client for non-payment (bounced check and he got pissy about paying the extra fee) I was awarded 12% on top of the actual damages plus attorney's fees. I'm in Seattle, so who knows how applicable that is ...
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Roger Strong (profile), 4 Mar 2015 @ 10:38am

Re: France?
So a business pulls the "bill customers for negative reviews" scam, leading to the Streisand Effect. And eventually to a default judgement against the scammer. They disappear before the victim can collect, reappearing - at least for hypothetical legal purposes - in France.

I'm talking of course, about Kleargear.
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yankinwaoz (profile), 4 Mar 2015 @ 10:53am

This is too easy.
Now that he has a judgement, he can ask the court for a debtor hearing. In the hearing, the dentist has to list all of her assets to the plaintiff.

If she fails to appear to this hearing, he can ask the court to issue a bench warrant.

Then the next time she shows up in the US, the will be arrested with an outstanding warrant before she can leave the airport.
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Nilt, 4 Mar 2015 @ 11:35am

Re:
It all depends where his judgement is to be enforced. Not all states have such practices. WHile the lack may be unfortunate in this case, it is a process subject to much abuse and has been made unconstitutional in some states.
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Anonymous Coward, 4 Mar 2015 @ 11:42am

The real nuclear option
One day the nuclear option to negative criticism for a service will be an offer of some kind of repair or apology, and a commitment to do a better job next time for everyone.
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Anonymous Coward, 4 Mar 2015 @ 12:46pm

Dr. Rene Piedra
Stacy Makhnevich will probably do the same as another dentist, Rene Piedra, who closed up shop and walked away from all debts, only to open another practice on the far side of town, well out of range of potantial protesters who were scammed into pre-paying for services they never received -- money that financed Piedra's opulent lifestyle, as well as paying for a series of expensive "get rich quick" courses taught by Scientology front-groups.

http://www.tampabay.com/specials/2009/reports/project/part8.shtml
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Anonymous Coward, 4 Mar 2015 @ 2:23pm

Re: France?
"Dentist, artist and opera singer"

Hilarious.
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Anonymous Coward, 4 Mar 2015 @ 2:30pm

Re: (interest charge)
I've never agreed with non-actual damage awards, let alone those that are excessively high. But this is one case that I think the award is excessively low.
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Lurker Keith, 4 Mar 2015 @ 3:21pm

Surprised noone noticed!
Plaintiff Lee is awarded $4,766 in damages against defendants, jointly and severally, for their breach of contract, together with his costs of suit.
Jointly & severally, with the following:
1) Stacy Makhnevich
2) Aster Dental
3) Chrysler Building Dental Association
4) North East PC
5) South East Dental Suite
6) Lincoln Square Dental Arts
7) Lincoln Square Dental Arts of Manhattan
8) Chrysler Dental

#1 has disappeared, so I'd go after #3, since they're not going anywhere & are easily locatable. Their address is in their name!

I'm surprised this was overlooked by EVERYONE here at TechDirt. Defendants 2-8 will likely be actively looking for Defendant #1, so they won't be held liable; unless it will be cheaper to just pay the Plaintiff than fund a manhunt.
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Anonymous Coward, 4 Mar 2015 @ 4:27pm

Re: Re: France?
It's not over until the fat dentist sings.
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Anonymous Coward, 4 Mar 2015 @ 7:55pm

Re: Surprised noone noticed!
Am I correct that does translate to $4,766 for all the defendants and not $4,766 for each defendant. Divided 7 ways it is only $681 per the remaining defendants.

Seems like it would be a waste of energy to put too much effort in hunting the first guy down if he really has flown the coop.
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Lurker Keith, 4 Mar 2015 @ 10:13pm

Joint & Several Liability
IANAL, but from what I've read here, on Popehat & other sites (& what I knew of Law prior) that cover it, Joint & Several Liability means you can sue any one individually or the group as a whole for all of it. Wiki says that when you sue one, it is up to them to go after the others for their share.
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Jack, 5 Mar 2015 @ 8:17am

Re: Re: Surprised noone noticed!
Joint and Severally liable is essentially the same as all of them co-signing on a loan. They are all equally responsible for the balance until it is paid in full.

While $4,766 is not a lot of money, he was also awarded the cost of the case. Not sure if the case was taken pro-bono, but he was also awarded costs and fees which can be tens or hundreds of thousands of dollars.
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