Court Dismisses Ripoff Report's Malicious Prosecution Lawsuit Against People Who Sued It Five Years Ago

from the no-winners;-just-multiple-losers dept

Wed, Aug 26th 2015 12:44pm — Tim Cushing

There aren't too many user-generated-content-reliant sites that defend their Section 230 turf more viciously than Ripoff Report. This has earned it a thuggish reputation, something its pay-for-play quasi-reputation management offerings do little to dispel. For better or worse (and it's definitely some of each), Section 230 is the Ripoff Report's load-bearing center.

Because of its entrenched defense, those hoping to skirt the site's Section 230 protections have tried a number of questionable legal gambits. One person got a court to assign him the copyright on a particularly nasty review, which he then used to pursue a copyright infringement lawsuit against the site. In this case, the Asian Economic Institute attempted to quash critical reviews by claiming Ripoff Reports was engaged in extortion (with its for-pay "Corporate Advocacy Program," which advocates on behalf of aggrieved companies).

This Section 230-dodging tactic didn't work. The court found little that backed up AEI's racketeering claims -- claims that shifted mid-trial when Ripoff Report revealed it had secretly recorded all of its phone conversations with the plaintiffs.

Rather than enjoy its victory, Ripoff Reports (as Xcentric) filed its own lawsuit against the AEI principals, alleging malicious prosecution. Proving once again that two wrongs don't make a right, the Ninth Circuit Court of Appeals has found… well, not exactly for the defendants (the former AEI plaintiffs), but rather that Xcentric (the company behind Ripoff Report) was capable of filing equally-baseless lawsuits. From the opinion:

Xcentric Ventures appeals the district court’s grant of summary judgment and judgment on the pleadings in favor of defendants Mobrez and Llaneras and Rule 12(b)(6) dismissal of defendant Borodkin in Xcentric’s malicious prosecution action. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo. We agree with the district court that Xcentric cannot prove an element of its malicious prosecution claims, that the underlying claims were brought or continued without factual or legal probable cause. We also deny Borodkin’s motion for sanctions.

As the court points out, the very low bar of "legal probable cause" was met by the defendants' prior extortion claims. That the claims ultimately were determined to be without merit does not raise the original lawsuit to the level of "malicious prosecution." The appeals court affirms the lower court's decision.

The former plaintiffs (now defendants) are also graceless winners. Rather than walk away from the twice-dismissed lawsuit, Mobrez and Llanernas approached the Ninth Circuit Appeals Court and asked it to publish the decision it had rendered more than two months earlier. Why? Well, apparently so they could show the world that they too were capable of having a questionable lawsuit against them dismissed -- much like theirs against Xcentric was five years earlier. Um... touché?

xcentric9th (PDF)xcentric9th (Text)

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Filed Under: lawsuits, malicious procecution, ninth circuit, section 230
Companies: asian economic institute, ripoff report, xcentric

16 Comments

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Anonymous Coward, 26 Aug 2015 @ 2:26pm

District court opinions
Xcentric Ventures appeals the district court’s . . . Rule 12(b)(6) dismissal of defendant Borodkin in Xcentric’s malicious prosecution action.
Xcentric Ventures v Borodkin (D.Ariz Nov 8, 2012)
Pending before the Court is Defendant Lisa Borodkin's Motion to Dismiss (Doc. 102) Xcentric's Verified First Amended Complaint (Doc. 55). For the reasons stated below, the Motion is granted. . .

Xcentric Ventures appeals the district court’s grant of . . . judgment on the pleadings in favor of defendants Mobrez and Llaneras
Xcentric Ventures v Borodkin (D.Ariz Mar 20, 2013)
Pending before the Court are several Motions. Defendants pro se Raymond Mobrez and Iliana Llaneras ("the AEI Plaintiffs") . . . . have also filed a Motion . . . and a Motion for Judgment on the Pleadings (Doc. 156). Those Motions are granted in part and denied in part.

Xcentric Ventures appeals the district court’s grant of summary judgment . . . in favor of defendants Mobrez and Llaneras
Xcentric Ventures v Borodkin (D.Ariz Jun 17, 2013)
Pending before the Court are two Motions. Defendants Raymond Mobrez and Iliana Llaneras (the "AEI Plaintiffs") have filed a Motion for Summary Judgment. (Doc. 184.) That Motion is granted.
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- Anonymous Coward, 26 Aug 2015 @ 4:49pm
  
  Re: District court opinions
  We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo.
  Fwiw, some basic concepts:
  
  • 28 U.S.C § 1291
  The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . .
  • De Novo
  . . . When a court hears a case de novo, it is deciding the issues without reference to the legal conclusions or assumptions made by the previous court to hear the case. An appeals court hearing a case de novo may refer to the trial court’s record to determine the facts, but will but rule on the evidence and matters of law without giving deference to that court’s findings. . . .
  (I often forget that not everyone here is on the same page with stuff like this.)
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Get off my cyber-lawn! (profile), 26 Aug 2015 @ 2:36pm

Touche?
or Douche?
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Anonymous Coward, 26 Aug 2015 @ 7:12pm

Question why the author here says it is graceless to request publication of the 9th Circuit order. If the order is unpublished, there are restrictions on when it can be cited in other cases.

A published order is useful to other parties who choose to litigate the untested issues.

Xcentric sues everybody that criticizes it in any way, and then cites to other cases in what it claims is a unanimous winning streak.

Its business model is very aggressive, and seeks to silence any dissenters through litigation. The cost of that is making bad law as well as good law.

Legally, it is an incorrect statement to say Section 230 of the Communications Decency Act applied to the racketeering extortion claims that were litigated here. That claim was dismissed for lack of evidence, not Section 230.
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- Anonymous Coward, 26 Aug 2015 @ 10:02pm
  
  Re:
  … the racketeering extortion claims that were litigated here. That claim was dismissed for lack of evidence, not Section 230.
  Indeed, Mr Masnick's 2010 Techdirt article links to Eric Goldman's blog post, which states as much. And the July 19, 2010 decision from the Central District of California confirms Mr Goldman's read:
  D. Plaintiffs’ RICO Claims
  . . . .
  In their motion for summary judgment, Defendants assert that Plaintiffs have not presented sufficient evidence to establish a triable issue of fact that Defendants engaged in the predicate act of extortion or attempted extortion. For the reasons stated below, the Court agrees.
  Note that Mr Cushing's article above talks about a “Section 230-dodging tactic”.
  
  Parenthetically, I do see, though, that Judge Snow's March 20, 2013 order refers to Judge Wilson's May 4, 2011 order, which states:
  Whether Defendants are shielded from liability by the CDA is at the heart of this case.
  But then Judge Snow's March 20, 2013 order states:
  The specific factual allegations contained in Xcentric's FAC focus on the litigation of the extortion claims by the AEI Plaintiffs. Xcentric's allegations regarding the other claims are limited to general assertions that those claims were "groundless."
  
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  - Anonymous Coward, 26 Aug 2015 @ 10:40pm
    
    Re: Re:
    This is correct.
    
    The author calling it a "Section 230-dodging tactic" really misses the point of the claim.
    
    It's like saying "Police officers have qualified immunity for actions taken in good faith as their lawful police work; therefore if police engage in a scheme to shake down and extort civilians, any civil rights claim is a 'qualified immunity-dodging tactic.'"
    
    There are plenty of robust businesses that have been built on the protections of Section 230 of the CDA, and do not go to extreme, cult-like measures to silence and persecute dissenters.
    
    It would be nice if the author of this post read the court orders reported on as closely as you did.
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    - Anonymous Coward, 27 Aug 2015 @ 11:10am
      
      Re: Re: Re:
      … read the court orders reported on…
      Incidentally, I'll mention that I'm also considering the original complaint in the underlying action. Unfortunately, that publicly-available copy, attached as an exhibit to Xcentric's notice of removal from the California courts to the federal courts, does seem to be missing a page.
      
      Perhaps you have a url for a better copy of the original complaint? (The complaint considered in the July 19, 2010 order, before the July 27, 2010 first amended complaint.)
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Anonymous Coward, 27 Aug 2015 @ 2:28pm

Original complaint in the underlying action here.
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Anonymous Coward, 28 Aug 2015 @ 12:06pm

The defendant in this case, Lisa Borodkin, was previously sued for fraud by her employer.

Complaint: https://www.scribd.com/doc/276717534/Borodkin-v-Zuber-Lawler-Counterclaim

In one of the pleadings, an attorney at her firm alleged that Borodkin asked her to lie about charging Borodkin legal fees in the Xcentric lawsuit:
https://www.scribd.com/doc/276717685/Lisa-Lawrence-Borodkin-Asked-Her-to-Lie

The co-worker's affidavit states: "I was shocked at Ms. Borodkin's proposal because I viewed it as a serious breach of my ethical duties and a criminal act."

Sounds like a real winner.
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- Anonymous Coward, 28 Aug 2015 @ 1:59pm
  
  Re:
  … legal fees in the Xcentric lawsuit…
  Did Ms Borodkin receive any award of legal fees in Xcentric's malicious prosecution suit against her?
  
  I note that the Ninth Circuit denied Ms Borodkin's motion for sanctions. Further, I am presuming the “American rule” for fee awards. At any rate, if there was such an award, was it appealed?
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  - Anonymous Coward, 28 Aug 2015 @ 6:03pm
    
    Re: Re:
    No. The Ninth Circuit awarded costs on appeal to the defendants but no fees.
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    - Anonymous Coward, 28 Aug 2015 @ 7:55pm
      
      Re: Re: Re:
      No. The Ninth Circuit awarded costs on appeal to the defendants but no fees.
      Thank you. That does make a difference, I think, at least in how I myself am viewing what the Ninth Circuit has done here. It goes directly to whether the public should have confidence in the Ninth Circuit's immediate result.
      
      Well, then… that doesn't necessarily end things either, though…
      
      So, I'm seeing that the document which appears to be a June 6, 2013 declaration of Lisa M. Lawrence was posted to scribd purportedly by “David S. Gingras on Aug 28, 2015”.
      
      I'm also noting that documents I've seen in this case indicate that a Mr David S. Gringras is an attorney representing Xcentric Ventures.
      
      While it might or might not be reasonable to presume some sort of relation between David S. Gringras the attorney, and David S. Gringras the scribd poster, my sense of caution here has been honed by experiences with our network-mediated environment. I do not have personal knowledge that any of these documents I've seen are truly authentic.
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      - Anonymous Coward, 29 Aug 2015 @ 12:15am
        
        Re: Re: Re: Re:
        So, I'm seeing that the document which appears to be a June 6, 2013 declaration of Lisa M. Lawrence was posted to scribd purportedly by “David S. Gingras on Aug 28, 2015”
        
        LOL
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Anonymous Coward, 29 Aug 2015 @ 5:00pm

Expert witness against Ripoff Report?
http://www.slideshare.net/darrenmeade1/ed-magedson-hires-darren-meade-to-co-create-content-on-ripoff -report
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- Stick Bogart, 26 Sep 2015 @ 1:37am
  
  Re: Expert witness against Ripoff Report?
  Darren M. Meade is trying to extort Ed Magedson founder of the Ripoff Report. He put this letter online to try and get Ed to pay him. Ed Magedson will not pay Meade a cent, not a cent.
  
  Darren M. Meade is a lame brained, lame footed criminal and cannot be trusted. He is a bogus nut-job. Why would anyone pay him as an expert witness? Meade is trying to extort money out of the Ripoff Report after Ed Magedson took pity on him and gave him charity out of the kindness of his heart. Ed only stopped when he realised that Meade was extorting the American people by crying poor and accepting Ed's charity when he was on SSDI.
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darren chaker (profile), 6 Dec 2015 @ 8:03pm

RipoffReport Attorney David Gingras - Molestation Arrest
Interesting about the company RipoffReport keeps, where its attorney on this case was arrested child molestation, http://jaburgwilk.blogspot.com/2013/08/david-gingras-molester.html
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