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.

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

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

from the sorry-nope dept

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?

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