By now, you probably know the Streisand Effect storyline. Obscure person X says something famous person Y either doesn't want known or doesn't like, famous person Y sues or threatens to sue, thereby vaulting the entire episode into a media spotlight it wouldn't have enjoyed otherwise. Whether that disliked information is true or not, the entire point is that what amounts to a massive overreaction doesn't achieve the ultimately desired effect. True, it can take a thick skin to ignore some of the nonsense that occurs on the internet, but it's for the best.
You know who I would have thought would really have thick skin? A guy who had played hockey and had, up to recently, served as an executive in the NHL. Turns out I was wrong, since former Maple Leafs general manager Brian Burke is pissed about rumors of why he was fired spreading online, so much so that he's going to court.
The former general manager of the Toronto Maple Leafs filed a court action Friday alleging defamation against several unidentified Internet commenters believed to have authored and spread rumours about his dismissal.
“Brian has decided that it is time to stop people who post comments on the Internet from thinking they can fabricate wild stories with impunity,” read a letter penned by Burke’s lawyer Peter A. Gall of Heenan Blaikie LLP. “Brian is determined to find the authors of the lie about him and those who have circulated the lie. He is pursuing them in court and will obtain orders compelling them to pay damages for their illegal actions.”
The rumors in question suggested that Burke had been fired over an affair with a reporter covering the team and had had a child with said reporter. As it turns out, this wasn't at all true. If ever there was going to be something on the internet to piss you off, that one might be it. The problem, of course, is that the bloggers in question appear to be obscure netizens with no following at all. Almost nobody knew of the rumors -- and for the few who did, it was really no different than some random fans at the bar or in the stands tossing around silly rumors. Until the lawsuit, that is. Hell, most of the bloggers haven't even been identified beyond screen names to date, since they aren't important or followed enough for anyone to know anything about them.
The defendants, whose identities are currently unknown to Burke, are listed only by their online usernames: “NoFixedAddress”, “CamBarkerFan”, “Lavy16”, “mbskidmore”, “Tulowd”, “Loob”, “Naggah”, “mowerman”, “Aaronp18”, “Steve”, “KaBoomin8”, “THEzbrad”, “Slobberface”, “Poonerman”, “isolatedcircuit”, “Kanada Kev”, and “sir psycho sexy”.
Now, I know what you're thinking: surely, Tim, you are "sir psycho sexy." Well, I'm not. My other handle is "jock itch mcglitch" thank you very much. But at least THEzbrad's website has been identified, now that he's written a response to the lawsuit. I give you one person that Burke's lawyers claim acted with "actual and expressed malice and had the intention of damaging the Plaintiff’s reputation.”
Up until three weeks ago very few people had visited this blog. If you are one of my new readers you are probably aware of my current situation. Recently I have been involved in a lawsuit regarding a post I made on this blog earlier in the year. That blog post was merely speculation; just a rumour I heard and had read on hockey forums... It needs to be noted that the blog post I made specifically stated that what I was writing was based on speculations and that it was just rumours...Hopefully, Brian Burke and Hazel Mae will read this and understand how I feel, and what my intentions were. I want to sincerely apologize to them for any personal or professional damages my actions may have caused them.
That's the kind of malice you can really sink your teeth into, amirite? But, the bigger point is that this guy also made it quite clear that what he was posting was a rumor in the original posting, rather than a statement of fact. Could it still be defamatory? Possibly -- especially with Canada's stricter defamation laws. But consider the context, and think about how this was really little different than some fans at a bar tossing around some rumors which no one actually paid any attention to. If it's defamatory, it's fleeting and meaningless. But, when we see a public person bring a spotlight to themselves over obscure information, even if it's not true, what we end up with is him reminding everyone that he is willing to sue over rumors. Of course, the end result might just be that people also reconfirm that he was fired for just being a really crappy GM. Nicely done.
Prenda: the gift that keeps on giving. Late last week there was some movement in the ongoing fight directly involving Alan Cooper and Prenda. If you don't recall, Alan Cooper -- who was a caretaker for one of John Steele's homes -- claimed that Steele put Alan Cooper's name and signature on various documents, such as those suggesting that he was the person behind shell companies AF Holdings and Ingenuity 13 (two of the shell companies that Judge Otis Wright found were actually controlled by Prenda's principles, including John Steele, Paul Hansmeier and Paul Duffy). Prenda tried to handwave this issue away, but also refused to answer any basic questions about it. In response, Cooper sued both Steele and Prenda (remember this, it'll come up again).
In response, Prenda as a company, and Paul Duffy and John Steele as individuals, all sued Cooper (and his lawyer and anonymous internet commenters) for defamation in state courts in Illinois and Florida. Steele dropped the Florida suit (we believe due to a pretty big procedurial screwup), and the two cases in Illinois were removed to federal court. About this time, Steele called Cooper and left voicemails that are clearly bullying/intimidation attempts. It is, of course, a big legal no-no to directly contact someone (rather than their lawyer) who is suing you while litigation is ongoing, but Steele tried to get around this in the voicemail by claiming the call was not about Cooper's lawsuit against Steele (where Cooper was represented), but Steele's lawsuit against Cooper. Since he was also suing Cooper's lawyer, he knew that the same lawyer was unlikely to be able to defend Cooper in the same case, and in fact some filings in the case suggest that this point was made to his lawyer. Among the voicemails was this one:
Alan, this is John Steele again.
You have not responded or contacted me regarding litigation you're involved in. I know you've been served with a third lawsuit. And there are more coming. Don't worry about that.
Well, obviously, if I don't hear from you, I'm going to start filing for certain default motions and start getting relief that way.
I can assure you that just ignoring legal matters, it's not going to go away. I can guarantee you, I'm not going away.
So I highly recommend you at least, you know, follow the rules.... otherwise your life is going to get really complicated.
Cooper and his lawyer, Paul Godfread, then filed counterclaims in the two remaining defamation cases (one from Prenda and one from Paul Duffy who supposedly runs Prenda). Then Paul Hansmeier (named as one of the Prenda principles by Judge Wright), now representing Paul Duffy and Prenda, argued that the defamation case should never have been removed to federal court from state court, because his own law firm in Minnesota was added as a plaintiff in an amended complaint and you can't get "diversity" needed to remove from state to federal court if two opposing parties are in the same state. As we noted at the time, it seemed like adding Hansmeier's Alpha Law firm was a complete sham, because nothing in the amended complaint involved any defamatory statements towards Alpha Law firm.
Phew. So that catches you up to last week. A few interesting things then took place last week. First, on Monday, in the original case that Cooper had filed against Prenda and John Steele in Minnesota, Godfread asked the court for a default judgmentbecause Prenda/John Steele had never replied. Note that Steels has been insisting that Cooper's claims are bogus and that this would all come out in court. If that were true, you'd think that he would have bothered to respond to the damn lawsuit. Also ironic: note above how Steele claimed he would go after Cooper for default. Godfread also points out that Steele and Prenda clearly knew about the case because of the lawsuits they had filed in response. So, they ask the court for a default ruling... and ask for the $4,641,000 that they estimate Steele and Prenda made via lawsuits using Alan Cooper's name.
That very same day, Prenda and Steele finally filed a response (as found by John Henry). The response is basically "we deny everything possible." Of course, as pointed out by Z.Y.U., Minnesota Law (MN R. Civ. P. 12.01) requires an answer within 20 days after service, and we're way, way outside of that.
Leaving that particular case aside for the moment, and jumping back to the Defamation case that Duffy and Prenda had filed back against Cooper and Godfread (where they amusingly and ridiculously claim that lawsuit over identity fraud was "completely unrelated"), Cooper and Godfread have hit back at Prenda's weak attempt to move it back to state court. They're both represented by Erin Russell and Jason Sweet -- two lawyers who have been fighting the good fight against Prenda for a while now. When Hansmeier first filed that attempt, we noted that Prenda's history of being less than forthcoming in its filing made me wonder if it was being somewhat misleading with that filing -- and I would reserve judgment until the inevitable reply was filed. And, yes, it suggests less than full honesty from Hansmeier.
First, it makes a strong case (as I had suggested) that Hansmeier's firm, Alpha Law Firm, was added for no other reason than to try to keep the case in state court and out of federal court. But, even more importantly, it points out that Prenda apparently mislead the court in getting the amended complaint filed. That's because to amend the complaint, Prenda would first need to ask the court for leave to amend, which it did not. Even worse, the lawyer representing Prenda, Kevin Hoerner, apparently convinced the court clerk that there was no need to take that important step because (he claimed) the defendants (Cooper and Godfread) had not yet been served. Except (1) they had and (2) Prenda knew they had because John Steele called Godfread hours after they had been served (and days before this "amended" complaint was filed) and left the following voicemail:
“Mr. Godfrey. This is John Steele calling. I understand that you just got
served. So, I do need to know if you are going to be representing Mr.
Cooper in this suit as well. Obviously there is a conflict of interest that I
can see but obviously I’m going to have to defer that decision about
whether you are going to represent your co-defendant to you. Uhm and I
leave the question as to the other suits that are coming your way in the
next few days, I’ll just wait until you actually get served before I bringing
those up, but at least on this issue, this suit, I do need to know if I may
contact Mr. Cooper directly or if I will be working through you. All right.
Thank you.”
That's the call I mentioned earlier in which Steele was making sure that Godfread wouldn't represent Cooper in this particular case, which Steele seems to think made it okay for him to reach out directly to Cooper. So, Prenda knew that the defendants had been served, and told the court they had not in order to file an amended complaint, where the amendment appears to be solely to add a sham plaintiff in the same state as Cooper and Godfread to block them from removing it to federal court. Oh, and did we mention that Hansmeier's filing to move the case back to state court was filed well past the deadline to make such a filing?
As I said, Prenda is the gift that just keeps giving.
In another filing, Russell and Sweet, representing Cooper and Godfread, also hit back at Prenda's attempt to dismiss their counterclaims. Here, the most interesting part is more evidence being filed that Steele pretended to be Cooper. In particular, they file a document from GoDaddy, showing what is clearly John Steele (it's using his email) registering various domains while claiming to be Alan Cooper. Just last week Steele demanded to see evidence that he faked Cooper's name. Well, there it is. That same document also shows that the domain was originally filed with Prenda's address in Chicago, but then was moved to what appears to be John Steele's sister's house in Phoenix. Oh, and also customer service records that show that John controlled the account.
And, just for good measure, there are a couple more filings showing that John Steele (and sometimes Paul Hansmeier) bought the various domain names used by Prenda Law (despite claiming that they had nothing to do with the firm) and that Steele continued to control that account (he called for customer service a few times) for quite some time, again contrary to Steele's public statements.
I fully expect to see Steele continue to tapdance around this, and maybe give a few more interviews to the press where he doesn't really answer the questions, but it would seem that reality has an unfortunate habit of eventually coming out. Given all of this, it would look like Cooper has a pretty strong change of winning his initial lawsuit against Prenda and Steele (though I doubt the $4 million is going to show up) and Prenda and Paul Duffy's nuisance defamation lawsuit in response is probably in trouble as well.
Oh, one more fun tidbit in the filings. I'd mentioned above the absolutely ridiculous statement in the lawsuits against Cooper and Godfread, that Cooper's lawsuit against Prenda was a totally "unrelated matter." Yet, the filing notes that not all of Prenda's lawyers were told not to admit the connection. They point out that in the infamous case in Georgia, where Prenda's local counsel Jacque Nazaire has tried to get the court to ignore Judge Wright's finding of fact because California recognizes gay marriage, Nazaire also flat out admits that the cases are connected. Sweet and Russell suggest: "Apparently, Atty. Nazaire did not receive Plaintiff’s memo to lie to the Court on this issue." Ouch. Oh, and there's a lot here, but extra credit goes to whoever finds where Russell and Sweet did a slightly subtle homage to Judge Wright's famous ruling.
Two years ago, we wrote about the case dubbed Rakofsky v. the Internet. The details are too numerous to go into, so I suggest reading that post, but the very short summary is that Joseph Rakofsky, a recent graduate of Touro law school, somehow got himself onto a case defending someone accused of murder. The case was not going well, with the judge asking the defendant a few times if he was happy with Rakofsky's representation. After a supposed "communications breakdown" the defendant let the judge know he was no longer comfortable with Rakofsky -- and the judge declared a mistrial. As part of that, the judge also clearly expressed his belief that Rakofsky was not qualified to be in the position he was in:
I was astonished that someone would purport to represent someone in a felony
murder case who had never tried a case before and that local counsel, Mr. Grigsby,
was complicit in this.
It appeared to the Court that there were. . . defense theories out there, but [Rakofsky
had] the inability to execute those theories. It was apparent to the Court that there
was ... not a good grasp of legal principles and legal procedure of what was
admissible and what was not admissible that inured, I think, to the detriment of Mr.
Deaner."
Also of concern was that an investigator hired by Rakofsky in the case had revealed to the court an email from Rakofsky in which Rakofsky told him:
I) Please trick Leigh (old lady) into admitting:
a) she told the 2 lawyers that she did not see the shooting and
b) she told 2 lawyers she did not provide the Government any
information about [the] shooting.
Rakofsky later refused to approve a voucher for that investigator's payment, leading the investigator to claim to the court that he was "terminated and uncompensated... based on his refusal to follow an e-mail request from Mr. Rakofsky ...instructing him to
try to 'trick' a witness into changing her testimony."
After all of this, Rakofsky, oddly, appeared to celebrate the ruling in a post on his Facebook account, suggesting he was happy with the results. That posting resulted in more mockery in online circles.
Again, all of this was reported widely, including here at Techdirt. However, what we mainly reported on was the fact that after lots of people talked about this and mocked Rakofsky (with some questioning the claims on his website), Rakofsky appeared to sue nearly everyone who wrote about him and the case -- including a whole bunch of bloggers, but also the Washington Post (who did the initial report) and the American Bar Association (no joke) whose blog wrote about the story as well.
At the time, we said the story would be an interesting one to follow. That was two years ago. Six months after that, Rakofsky filed an insanely long amended complaint which, among many other things, attempted to add us to the lawsuit with a bunch of claims (including some that were factually untrue). Of course, once again hinting at Rakofsky's experience level and proficiency with the court systems, the motion to file that amended complaint later had to be withdrawn, because he filed it while a stay was in place barring him from such a filing. It took a while, but the case finally progressed -- and we have yet to be officially added to the lawsuit, something I certainly hope remains the case because suing us for reporting factually on what happened, while also providing some statements of opinion, is generally not going to end well. And indeed, so far, Rakofsky's case is not going well.
In a ruling on Friday, the Supreme Court of the State of NY basically shot down every single one of Rakofsky's claims, and granted the motions to dismiss of various defendants. The court very carefully details the factual background and then explains why the motions to dismiss are being granted. The court rejects Rakofsky's motion to file a second amended complaint based on a failure to state a claim:
granting plaintiffs' motion to amend would be futile since the allegations set forth in the proposed Second Amended Complaint are not sufficient to state a cause of action; as will be discussed below in defendants' motions to dismiss.
dismiss.
First, the court rejects the jurisdictional argument. Not surprisingly, the non-NY bloggers pointed out that a NY state court did not have jurisdiction over them, and the court was not convinced by various arguments by Rakofsky to the contrary:
It is quite clear that defendants" herein who operated legal blogs or posted comments'
on those blogs residing out of the country in Canada, or even in the United States ranging from
Washington, D.C. and Florida in the east, to Texas and California in the west, had virtually no
purposeful activity or minimum contacts with this state. There was certainly no purposeful activities
in this state which were substantially related to the alleged defamatory statements as defendants
neither wrote the alleged defamatory statements in this state nor did they direct them to our state
alone. The statements were posted on the internet with potential world-wide accessibility.
This Court rejects plaintiffs' primary argument in opposition that defendants received
"commercial benefits" from the hyper-links contained in their websites to invoke long-arm
jurisdiction. This connection to New York, if any, is too attenuated to exercise personal jurisdiction
over the out-of state defendants. Plainly stated, there are insufficient contacts with this state to "hale"
into court multiple defendants living thousands of miles away in other states which would "chill" their
right to free speech.
Good, clean ruling on that one. Moving on to the defamation claims. Again, Rakofsky runs into trouble. The court rules that the reporting on both the "trick" email and the mistrial may not have been exactly worded, but was close enough. On the email:
While the precise words are not exactly identical, they are similar enough to convey a fair report of the Rakofsky e-mail and the Bean motion that were inextricably intertwined with the judicial proceedings before Judge Jackson in the Deaner case. Even though the "trick" e-mail, the Bean motion and Judge Jackson's comments do not portray Rakofsky in a positive light, and
Rakofsky may wish to disavow or interpret them in a different way, the defendants were permitted
to publicly disseminate them as a report of a judicial proceeding.
On the mistrial question:
You can not look at Judge Jackson's comments
in isolation, but in context considering all of his comments and Rakofsky's trial performance. The
clear import of Judge Jackson's rulings was to excuse Rakofsky due to his lack of competence and
inexperience to defend Deaner in a murder trial. It is acknowledged that the Deaner murder trial was Rakofsky's first trial in a foreign jurisdiction and with which he was totally unfamiliar, and Judge
Jackson was vigilant in protecting Deaner's right to effective assistance of counsel.
Significantly, the reported fact that Judge Jackson declared a mistrial in the Deaner
case was not defamatory because even Rakofsky initially celebrated the mistrial as a positive
development in his career. In other words, defendants' report that a mistrial occurred does not
constitute defamation. Instead, the reported statements that Rakofsky was allegedly not competent,
inexperienced and unethical are the operative words which may give rise to defamation, except that
said content was privileged under the Civil Right Law § 74,
That last bit, Civil Rights Law § 74, says that you can't sue someone for libel "for the publication
of a fair and true report of any judicial proceeding." Basically, the defamation claims fail because what people reported was more or less accurate.
The court goes on to give more reasons why Rakofsky's claims fail, including the fact that some defendants are protected by a "republication" exception to defamation law and that they were expressing opinions rather than statements of fact in many cases. It also rejects the idea that there was "intentional infliction of emotional distress" as Rakofsky claimed, or intentional interference with a contract. Rakofsky also, quite amazingly, tried to use NY's publicity rights (sometimes called privacy rights) law, basically arguing that people weren't allowed to use his name/likeness without his permission. That failed pretty spectacularly too:
This statute has been narrow construed to meet its limited objective to prohibit commercial appropriation of a
person's name and likeness.... These sections also do not apply to reports of "newsworthy events or matters of public interest" otherwise known as the newsworthy exception.... To foster freedom of expression, the meaning of "newsworthiness" has been broadly construed to permit a wide and liberal interpretation....
In this case, it is abundantly clear that coverage of a murder trial in the Deaner case comes within the broadly construed newsworthy exception as a report of a newsworthy event or a matter of public concern. Thus, plaintiffs' fourth cause of action fails to state a claim for a violation...
The court also rejected Rakofsky request for sanctions on Marc Randazza, a lawyer who many of you are familiar with given his frequent appearance in stories on this blog. Randazza was representing many of the bloggers that Rakofsky sued, and Rakofsky apparently didn't like the way Randazza treated him, leading to a request for sanctions. The court rejected that too, noting that "Randazza's conduct was acceptable to practice law in this state, and impliedly not sanctionable."
On the flip side, the court did refuse to sanction Rakofsky, basically arguing that, viewed generously, some of the people reporting on the original case "did not fairly report Judge Jackson's comments." The court also notes that, since Rakofsky withdrew a claim of negligence against defendants he "partially acted in good faith."
We shall see what happens next, though Randazza certainly expects Rakofsky to appeal, and given Rakofsky's two-plus year aggressive pursuit of this case, I think it's likely that, indeed, there will be an appeal, though I find it unlikely that the results of any appeal will turn out any better for Rakofsky.
We've seen plenty of lawsuits involving people upset about Yelp reviews, but here's a fairly extreme case. Apparently, a DC-area carpet cleaning service named Hadeed Carpet Cleaning, which is somewhat infamous in the area for its "pervasive advertising" and direct mail coupons promising a $99 cleaning special, does not have the greatest reputation on Yelp. The key issue: apparently that $99 deal is often not honored. Also, there are multiple reviews of people getting a quote, dropping off a carpet, and then being told later if they want the carpet back they have to pay much more -- with various excuses being offered as to why they're charging more than the quote.
Hadeed then decided to sue seven anonymous reviewers for defamation. Here's the oddity: Hadeed does not appear to be suing them over the contents of the bad review. In fact, the company doesn't seem to dispute the various complaints about its pricing practices. Rather, it argues that it could not match these seven reviewers to actual customers within its database, and therefore, the reviewers are defaming them by misrepresenting that they were ever Hadeed customers. Hadeed appears to suggest that they reviews were really written by a competitor.
As we've discussed, many courts have adopted the so-called Dendrite rules for identifying anonymous speakers. The rules require giving the anonymous users a chance to respond and (more importantly) require the plaintiff to present enough evidence to prove there's an actual case. However, the court in Virginia chose to not apply any such rules, but rather allowed a subpoena to Yelp ordering it to identify the posters. Yelp has refused, and the court ordered compliance, which Yelp again refused, leading to the court saying Yelp was in contempt.
Public Citizen has now filed a brief on behalf of Yelp with the appeals court, arguing both that the Virginia court had no jurisdiction over Yelp, a California company, and that Yelp was correct to ignore the order since the First Amendment (which protects anonymous speech) requires much more proof before an anonymous speaker can be revealed.
When pervasive advertisements from a local merchant feature prices that seem to be just too
good to be true, they may, in fact, not be the price that the average consumer will pay. Dozens of
consumers who have used pseudonyms to post about their experiences with appellee Hadeed Carpet
Cleaning, Inc. (“Hadeed”) on the popular website www.yelp.com, maintained by appellant Yelp Inc.
(“Yelp”), report that Hadeed routinely fails to honor the advertised discount prices. Hadeed’s
responses to several consumers on Yelp suggest that it recognizes the problem; yet its complaint for
defamation singles out the authors of seven reviews posted on Yelp that say the same thing as the
other online detractors of Hadeed and its sister business, Hadeed Oriental Rug Cleaning. Based on
that allegation, Hadeed invoked the court’s subpoena power to strip its pseudonymous critics of their
First Amendment right to speak anonymously.
The main question on this appeal—an issue of first impression at the appellate level in
Virginia—is whether the trial court applied the proper legal standard in overriding the anonymous
speakers’ First Amendment rights. Courts elsewhere have recognized that, given the valuable role
played by the First Amendment right to speak anonymously in encouraging ordinary people to
express themselves fully, it is necessary to balance that right against a plaintiff’s right to seek redress
for wrongful speech by adopting a standard requiring a plaintiff to do more than articulate a good
faith belief that the speech “maybe tortious.” Before stripping the defendant of a First Amendment
right, these courts take an early look at the merits of the plaintiff’s claim to determine whether a
valid claim has been alleged and whether there is a prima facie evidentiary basis for that claim. In
this appeal, Yelp urges Virginia to adopt the same approach, and to remand this case to give Hadeed
an opportunity to pursue its subpoena by meeting the proper standard.
In the meantime, though, we have yet another case of a company suing over Yelp reviews -- which just makes me wonder how they ever expect to get more customers. Any company that sues over online reviews someone makes is clearly a company not worth doing business with, since they might, potentially, sue you over any bad review you write online about them.
Earlier this week, we posted about eBay seller "Med Express" suing a customer for leaving accurate, but negative, feedback on eBay. We found the story from Paul Levy's original post on the Public Citizen website, and a bunch of other sites picked up on the story, including our friends at Popehat and Ars Technica.
Yesterday, Richard Radey, the President of Med Express made the rounds on all of those sites, including ours, issuing what may appear to be a heartfelt apology, saying that he never intended the customer to be a target, that the company fully supports any and all feedback, and that he had not read the actual lawsuit until the issue got attention. He also claims that he was trying to deal with a separate, but related issue in getting eBay to remove a "Detailed Seller Rating" which impacts how much Med Express has to pay. He claims that the "low ratings caused us to lose our Top Rated Seller Plus" standings, which could lead to "a potential fee increase of tends of thousands of dollars over the course of the year." And, he claims, the only way to remove those "is by court order" and he "was told that such court orders were not uncommon." He concludes:
The only person to blame here is me. You have spoken and I have listened. A terrible wrong needs to be righted. I am instructing our attorneys to drop the lawsuit. I want to assure everyone that you may feel free to leave any feedback on our company without fear of reprisal. I have learned my lesson.
That certainly sounds sincere. But is it? The first thing that struck me was that he said low ratings, plural -- not the single low rating we had heard about. And, indeed, Paul Levy has presented a compelling argument that Radey's apology raises more questions than it answers. First off, he discovered that Med Express has been filing similar lawsuits for years, all against customers who leave ratings that Med Express does not like. In one, quite incredible, case, they even sued a guy who left an accurate neutral review. Yes, it wasn't even negative. And the company still sued.
Of the current crop of lawsuits, the suit against Nicholls isn’t even the worst. I haven’t yet been able to see the original documents from the transaction on which Med Express’ lawsuit against Guam resident Tan Jan Chen is based, but the lawsuit against Scranton-area resident Dennis Rogan is over a two-word “neutral” buyer feedback stating “Order retracted.” Apparently, Rogan bought a piece of equipment on eBay but Med Express had to refund his money because, as it explained in a message accompanying the PayPal refund, “This should not have been still listed—we removed this item a few weeks back-it broke.” As in Nicholls’ case, the statement over which Med Express sued for libel was true, but even worse than in Nicholls’ case, Rogan had not even left “negative” feedback.
Rogan could have suggested that the advertising and sale of an item that the seller knew it could not deliver violated FTC rules for mail-order merchants, but he gave the company the benefit of the doubt while concluding, at the same time, that other customers ought to learn that Med Express cannot always be trusted to have the goods that it is advertising. His generosity did not prevent Radey from signing an affidavit averring that the neutral feedback and negative statement were “false,” attempting to get an injunction requiring that the feedback be taken down, and demanding an award of compensatory and punitive damages as well as attorney fees—not the $1.00 in nominal damages that Radey claims are all that he wanted his lawyer to seek against Nicholls.
Yeah, also, that signing an affidavit thing is a problem. Radey suggests in his apology that he didn't know what was going on, and seems to imply that this was a one off thing. But based on Levy's research, we see a long list of similar lawsuits -- and they include affidavits signed by Radey. So for him to claim he was unaware of what was going on seems quite questionable.
In the meantime, it appears that the customer who was at the center of the original lawsuit, Amy Nicholls, has found highly qualified pro bono help in the form of Tom Haren and Jeffrey Nye, and they've already filed a response and counterclaims. That also means that, even if Radey wants to dismiss this lawsuit, he can no longer do so unilaterally. If Nicholls, represented by Haren and Nye decide to pursue this, Radey may really regret trying to silence customers.
A whole series of events have happened in various Prenda cases around the country, and Ken at Popehat, once again, has the best summary around. I'll do this bullet-style, and suggest you go read his full post for the details.
Paul Duffy is trying to dismiss the counterclaims filed against him in his defamation lawsuit against Alan Cooper, arguing that the counterclaims make no reference to him personally, but rather John Steele and Paul Hansmeier. Of course, if they were all working together, as an awful lot of evidence seems to suggest, that may be a problem for Duffy. The more hilarious issue is that Duffy claims that Cooper's lawsuit against Prenda (for allegedly falsifying his name on documents) is an "unrelated matter," rather than the whole freaking reason that Duffy is suing. Ken breaks down how incredibly stupid this statement is:
Yeah, sure, Cooper's suit is "completely unrelated" — except that (1) it involves the same parties, (2) it concerns Prenda's operations, (3) it accuses Prenda of stealing Cooper's identity, which Prenda's and Duffy's complaints suggest is a defamatory statement, (4) John Steele used all three suits to threaten and intimidate Cooper as soon as Cooper filed his complaint, and (5) Prenda's and Duffy's complaints specifically identify the Cooper complaint as one of the forms of defamation they are suing over. This is not just a lie to a federal court. It's not even a plausible lie. It's a stupid, ineffectual, desperate lie.
Ken explains the reasons why Cooper and Godfread decided to file using Minnesota's anti-SLAPP law, rather than Illinois's. As we had mentioned earlier, the case is in Illinois, so it took many of us by surprise that they were relying on Minnesota's anti-SLAPP law. However, Ken notes that since the key issue in an anti-SLAPP situation is that it forces the plaintiff to present their evidence early, this means that Duffy will be caught in a tough spot: responding with evidence would eviscerate the 5th Amendment protection he took in California.
But here's the beauty of this situation for Cooper and Godfread — the anti-SLAPP statute forces Duffy and Prenda to come forward with actual evidence establishing that they might win. To do that, they have to come forward with evidence that the statements that they are complaining about are false. But those statements are about exactly the things that Steele and Hansmeier and Duffy took the Fifth rather than address. Duffy and Prenda can't carry their burden unless they reverse the decision to take the Fifth. Ultimately, Cooper's and Godfread's narrower argument is elegant and well-suited to the circumstances. It's not always the right strategy to make every possible argument.
That "narrower" argument he's talking about is the (slightly surprising) decision by Cooper and Godfread not to point out that many of the statements that Duffy and Prenda are claiming defamatory are either insults or statements of opinion, rather than fact, and thus not subject to defamation. Instead of going down that road, they're focused on forcing Duffy's hand. We noted earlier that Cooper and Godfread had called Prenda's bluff. That may have been premature. Now they're really calling the bluff, and Duffy's going to have to show his cards.
Back in the main showdown case in California, we had already pointed out that (over the objections of Team Prenda), Judge Otis Wright had allowed lawyer Morgan Pietz (representing some of those sued by Prenda) to file more evidence. And he's done so. White summarizes the situation nicely.
Pietz can be excused for sounding a bit triumphant after the attorneys opposing him took the Fifth rather than address the questions he raised. He leads by pointing out that although John Steele claims there is no evidence that he has any ownership interest in Prenda Law's clients, Steele's own attorneys previously told the Florida State Bar the opposite — and a Prenda law local counsel also said that Steele had an interest in AF Holdings. Pietz attacks the credibility of Brent Berry, the real estate agent who claimed that Alan Cooper was in on the scheme and is violent and mentally ill. Pietz points out that Berry is Steele's agent and just sold a house for him in February. Pietz also points out that Berry signed the declaration in February, but Prenda law oddly withheld it until after the hearings before Judge Wright. Finally, Pietz echoes what everyone has been saying — Berry's testimony might suggest that Cooper knew his name was being used, but if accepted it proves that Cooper was a mere shill for the Prenda Law attorneys who actually controlled the plaintiff entities. Pietz also offers rebuttals to the Prenda lawyers' other arguments — he argues that Judge Wright's powers allow him to award attorney fees as sanctions based on the record before him, and he offers the declaration of a technical expert to rebut Prenda's arguments that its investigation of downloaders was reasonable and sufficient.
Given Judge Wright's clear questions about Prenda's actions, I would imagine that this extra fodder isn't going to be particularly helpful to John Steele, Paul Duffy and Paul Hansmeier.
And that's not all. Ken also has updates on a few other Prenda cases around the nation where people are hitting back at all things Prenda. Go check out his post for all the details.
Ken also points out that Judge Wright's response to all of this could come "any day," so stay tuned.
Here's yet another example of companies using lawsuits to censor speech -- a situation that would be stopped if there was a serious federal anti-SLAPP law in place. Paul Levy shares the incredible story of a company called "Med Express," an Ohio company, who appears to sell various medical equipment exclusively via eBay (there are other "Med Express" companies out there from what I can tell). One buyer, in South Carolina, purchased something, but was disappointed by the fact that the product arrived postage due. The woman noted it wasn't the fact that she had to pay, just the inconvenience of having to pay to get the delivery when it wasn't expected. In response, she left negative feedback on Med Express' eBay page.
While Med Express did express regret (while noting that some other customers had seen the same problem) and offered to reimburse the postage due, it also asked her to remove the negative review. However, as she noted, it wasn't the money issue, but the inconvenience, so she decided to leave her feedback up. At this point, Med Express and its lawyer, James Amodio, apparently decided that if she didn't like "inconvenience" it would subject her to more inconvenience and sued her for defamation in state court in Ohio and sought a temporary restraining order against eBay to block the review. While that failed, apparently the judge is allowing a hearing to happen for a preliminary injunction even though (as Levy points out) the same reason the TRO was rejected should apply to any preliminary injunction.
Amazingly, the complaint directly lays out the pretty clear fact that it's suing her for not removing a truthful review. They don't even attempt to argue that she said anything false or defamatory. Just that they feel she shouldn't have complained since they offered to reimburse.
This is where Levy, a former colleague of a relative of the customer in this case, Amy Nicholls, reached out to Amodio to point out that the lawsuit was a complete joke. Amodio's response is somewhat stunning, in that, according to Levy, he more or less admitted that he was filing a nuisance lawsuit:
I contacted James Amodio, Med Express’s lawyer, to explain to him the many ways in which his lawsuit is untenable. He readily admitted that, as the complaint admits, everything that the customer had posted in her feedback was true; he did not deny that a statement has to be false to be actionable as defamation; but he just plain didn’t care. To the contrary, he told me that I could come up to Medina, Ohio, and argue whatever I might like, but that the case was going to continue unless the feedback was taken down or changed to positive. And he explained why his client was insisting on this change — he said that it sells exclusively over eBay, where a sufficient level of negative feedback can increase the cost of such sales as well as possibly driving away customers
Yet another case of felony interference with a business model, apparently, except in this case the company and the lawyer seem to be fine with abusing defamation law to stop a truthful review from appearing online because it might hurt them. Of course, suing a customer seems like the sort of thing likely to lead to significantly more negative feedback and fewer people willing to buy from them. Yes, a negative review can suck, but suing over it, while admitting that you don't really care about all the reasons that the lawsuit is censorious crap, is taking things to another level entirely.
As Levy notes, if a "public spirited lawyer in that part of Ohio" wants to take up a case to stand up for free speech and against censorious attacks, here's an opening.
Ah, the twists and turns of Prenda Law cases. While much of the focus has been on the big showdown in California, there are also the infamous defamation cases. As you may recall, three separate lawsuits were filed in state courts against Alan Cooper (John Steele's caretaker, who has accused Steele of identity fraud in signing his name to documents for various shell companies involved in Steele's copyright trolling operation), Paul Godfread, who is Cooper's lawyer, and a variety of anonymous internet bloggers and commenters. Two of the original lawsuits were filed in Illinois state court -- one with Prenda Law (the firm) as the plaintiff and another with Prenda's sole principal (or so they claim), Paul Duffy. Another was filed in Florida with John Steele as the plaintiff, though that one was quickly dropped by Steele himself (the rumor we've heard was that this was dropped after someone informed Steele of a fairly big procedural snafu concerning how defamation cases need to be filed in Florida).
As we noted, Cooper and Godfread quickly had the cases removed to federal court, which is a fairly common move. Defendants will often remove a case to federal court if they can, because generally speaking, federal courts have a lot more clear caselaw and precedent that the judges will follow, and (subjective statement here, but many agree with it) federal judges tend to just be better informed about the law and are somewhat less prone to wacky rulings. One common way to remove a case from state to federal court is by claiming "diversity," which is when the plaintiffs and defendants are in different states. That seemed like a no-brainer in this case, seeing as Cooper and Godfread are based in Minnesota, while Duffy and Prenda are in Illinois.
However, the latest filing in the case (as noticed by Raul, filed by Paul Duffy (yes, representing his own firm) claims that the case should be sent back to the state court. Here's where it gets tricky. The original complaint in the Prenda Law case, was filed on February 12th. However, on February 21st, Hansmeier notes that an amended complaint was filed, which also named Paul Hansmeier's own firm, Alpha Law Firm, as a plaintiff. While that complaint incorrectly claimed that Alpha Law Firm was organized under the laws of the State of Illinois it seems likely that was a sloppy copy-and-paste error in filing the amended complaint. Either way, the amended complaint correctly notes that Alpha Law Firm's principal place of business was in Minnesota.
This, Duffy argues, kills the diversity claim and means that the federal court has no jurisdiction. I am, of course, not a lawyer, and my expertise in the nuances of federal court jurisdiction is limited, but from my understanding of these things, this is a case where Duffy may be legally correct, though there's all sorts of sleaziness associated with this. The general rules for removing to federal court under diversity includes that no plaintiffs live/work in the same state as any defendants. If Alpha Law is in the same state as Cooper and Godfread (as they are), they can argue that there is no diversity, and a federal court very likely could agree. Of course, it's not difficult to speculate that some of the Team Prenda folks realized this after the initial filing, which is what inspired the decision to suddenly add Alpha as a plaintiff, solely for the point of killing the diversity claim. There are situations in which courts will claim that some parties have been added to a lawsuit as "nominally" or "fraudulently joined" defendants, solely for the purpose of avoiding a diversity claim. Perhaps Cooper and Godfread's lawyer can make that claim, but it's a crapshoot whether or not the court will buy it.
Of course, aiding the claim that this is a bogus addition solely to block a diversity claim is the fact that it is not explained anywhere in the amended filing, why Alpha Law was added as a plaintiff to the lawsuit. None of the statements quoted in the filing which the plaintiffs claim to be defamatory actually refer to Alpha Law. Hell, none of them even refer to Paul Hansmeier. The only Hansmeier mentioned is Peter, Paul's brother. Nearly all of the statements mention Prenda, not Alpha. Reading the amended complaint, it's not at all clear what Alpha Law is even complaining about, since the comments do not reference it.
There are other oddities here as well. The lawyer representing Cooper and Godfread, Erin Russell, never acknowledges Alpha as a plaintiff in any of her filings. Duffy's filing argues that this is a purposeful omission to hide this fact for the sake of getting diversity, and also claims that he emailed Russell the day her original Notice of Removal was filed to point her to the amended complaint. If this is true, then that could be seen to reflect poorly on Russell. Even if there are questionable motives behind adding Alpha, if the firm were legitimately added, Russell should have acknowledged that. That said, given how many times we've seen the crew of folks around Prenda make statements that were less than totally forthcoming about litigation they were involved in, I'll reserve judgment until we see more details and the inevitable reply from Russell.
Duffy even seeks legal fees in response to this, though that seems like a huge long shot.
It will be interesting to see what happens here, but there is a very real possibility that the judge might send this back to the state court for lack of diversity. Of course, while that's not ideal, it's hardly the end of the world. The case itself seems so weak, and there is so much other information now available concerning Prenda's actions, that I can't see the original case getting very far, even if it is stuck in a state court in Southern Illinois. On that note, Russell has already been trying to move the federal case from Southern Illinois to Northern Illinois arguing (quite reasonably) that no one involved in the case is from Southern Illinois at all, but Prenda/Duffy are based in Northern Illinois). It does make you wonder why the case was filed in st. Clair County in the first place -- other than that was also the state court that Prenda has used for some of its lawsuits. Still, this move reeks of playing legal games, for which Prenda is quite famous. It sometimes seems like there isn't a loophole they're unfamiliar with. In the long run, all this gamemanship isn't going to help them in the bigger cases concerning their conduct.
We recently wrote about how academic publisher, Edwin Mellen, was both suing an online critic as well as having its lawyers send highly questionable threat letters to blogs and commenters who were criticizing the company. As part of that, we were disappointed to see the website Scholarly Kitchen, a blog of the Society of Scholarly Publishing, cave in the face of legal threats and pull down the blog post when it was clear that the post broke no laws (the threat letter even admitted as much). The board of SSP has since talked about it and agreed to reinstate the blog post.
For many reasons I won't go into the ingredients of the sausage by explaining why the posts came down and why they went back up. I will say that the Board and the Scholarly Kitchen volunteers stand behind Rick's posts. The Board also stands behind the business and editorial decisions to take them down last week, until we could gather our busy volunteer leaders to fully evaluate the situation.
I can understand why a blog might pull such a post after getting such a letter. It's no fun to be the target of a legal nastygram, no matter how sure you may be that you're right. Even if you know with 100% certainty that you would win any such lawsuit, just the very threat of one could be attention, time and money draining. This is why such legal nastygrams can often be so effective in creating chilling effects around speech.
That said, I also think it's important for people to recognize the value of standing up for their rights in the face of such threats. Otherwise those rights get eaten away. On that note, I think that SSP could have and should have also reposted the "comment" which they say they took down. As we discussed in our initial article, Kristine Hunt's comments (which were actually mostly supportive of Edwin Mellen) seemed unlikely to reach the level of defamation -- but, much more importantly, this has no bearing on SSP's liability. Section 230 of the CDA is pretty clear that, as the service provider, they are not liable for such comments, even if they are aware of them and leave them up. It is, of course, SSP's decision as to whether or not to remove any comments (or posts) on its site, but I'm a bit surprised they'd remove that comment when the caselaw on Section 230 is pretty clear. Some courts have even ruled that sites have no obligation to remove such content even after the statements have been judged to be defamatory (though that's not agreed upon across the board). But, at this stage, merely on accusation, SSP is clearly protected by Section 230, so it's unfortunate that they still chose to remove that comment.
Well here's a story that might fit in with what our friend Ken White at Popehat generously refers to as the activity of censorious asshats. There's so much bad activity in this one story, it's almost difficult to know where to start -- so let's actually work backwards and reveal each new layer of censorious activity one step at a time. It begins with this: the blog, Scholarly Kitchen, from the Society of Scholarly Publishing, published a blog post this morning, saying that it had removed some posts from its site due to threatening letters from a lawyer representing Edwin Mellen Press, an academic publishing house. While I disagree (strongly) with Scholarly Kitchen's decision to remove those posts, they did at least publish the letters from the lawyer, Amanda R. Amendola, which we will republish here:
There is all sorts of wrongness here, but that only starts us down the rabbit hole. First of all, it's pretty weak that Scholarly Kitchen folded after receiving a mere legal letter, which doesn't even allege any actual law breaking. As the letter clearly states, they're just upset about what was written, but even they don't think that the original blog post reached the level of defamation. Instead, they just don't like it, and are promising that "we are putting you on notice that the moment Mr. Anderson publishes or provokes any statement about our company or authors that is the slightest bit defamatory, we will pursue legal action not only against him, but your organization as well." And Scholarly Kitchen folded and took down the posts. Nice job, Edwin Mellen Press for creating chilling effects on free speech. Also, claiming that if he publishes something that then provokes a defamatory statement that they can sue... well, that's a stretch.
Next up, this line is pure crap:
We are bringing this information to your attention because you are the publishers of both Ms. Hunt's statement and Mr. Anderson's blog. As such, you have a legal obligation to monitor these types of comments. In order to limit any damage from such events, we request the immediate removal of Ms. Hunt's comments from your blog.
With regards to Hunt's comments, in particular, Amendola is simply incorrect. Either she does not know about or simply chooses to ignore section 230 of the CDA and the piles upon piles upon piles of case law that make it clear that a blogger is not the publisher of user comments and has no legal obligation to monitor them. But, in either case, she's wrong. As for whether or not that applies to Mr. Anderson's blog post, that's at least a little fuzzy. It is possible that the blog post itself could lead to liability for the owner of the blog, but there are also numerous cases that involve people forwarding defamatory emails, in which the courts have found that doing so is protected by Section 230. Is publishing a guest blog post the same as forwarding an email? Seems like there would be a pretty strong argument for that, but either way, the argument does not matter here since Amendola has already admitted that they can't find anything defamatory in the original blog post by Anderson.
Of course, this made me curious. What was in that original blog post. While a cowardly Scholarly Kitchen had caved and taken down the post, Google cache still has it, at least for now. Since the text of it and the comments beneath it are critical to understanding all of this, I've saved the text as a PDF and embedded it here:
It quickly becomes clear that the threat letters are even more dubious than initially suggested. Anderson's post is directly about an interaction he had with Dr. Herbert Richardson, the owner of Edwin Mellen Press, in which Richardson was asking why Anderson -- the interim dean of the library at the University of Utah -- was purchasing fewer Edwin Mellen books. Anderson pointed out his reasons: that he wasn't impressed with the quality of the books and felt the prices were too high. He also turned down a proposed "gift" of books. The conversation moved on to a discussion about a librarian who had worked there before Anderson was there, named Dale Askey. And that's where it comes out that Richardson was upset about a blog post Askey had written years earlier about Edwin Mellen Press, which has since been removed but is available as a part of the lawsuit. Lawsuit? Yes, hold on, we're getting there.
Anyway, there's nothing in the post that I can see that's even close to defamatory. Anderson is telling his recollection of a conversation from a few months earlier, including a few statements of opinion about the quality and price of EMP's offerings (he's not impressed by either). And then he discusses the lawsuit -- which we'll get to (I promise). But first, there's the comments. Remember, according to Amendola, representing EMP, comments from Kristine Hunt were libelous. Here's the amazing thing about that comment though: it appears to actually be one of only two commenters in the whole thread that is at least mildly supportive of EMP! While she does make a few claims that could be seen as statements of fact, the point of her comment was actually to defend EMP in noting that there is room for publishers like EMP in the market. The thanks she get is to be threatened with a defamation lawsuit?
Also, there is one other "positive" comment in the thread, from a "Thomas Anthony Kelly." However, as other commenters have noted, nearly the identical comment from the same "Thomas Anthony Kelly" can be found on on a bunch of articles and blog posts about the Askey lawsuit (yes, we're still getting there), raising at least some suspicion about who is diligently posting an identical comment, supportive of EMP, on many stories about a defamation lawsuit filed by EMP.
Finally, on to that other lawsuit, which Richardson filed against Dale Askey and his current employer, McMaster University. You can see the details embedded below, but it includes Askey's original blog post that explains his own opinions of EMP (and which was written before he was employed by McMaster, even though EMP argues that McMaster is vicariously liable for Askey's statements). EMP is seeking $3 million -- which is an impressive sum in response to an experienced librarian basically stating publicly his opinion that they publish crappy books. While defamation law is definitely messier up in Canada, where the bar is much lower than it is in the US, it still seems pretty ridiculous to argue that the blog post was defamatory (and even that the post is "defamatory in its tone" -- a tone can be defamatory?).
Within the blog post in question, as attached to the lawsuit, EMP's lawyers "underline" the allegedly defamatory sentences, many of which appear to be clear statements of opinion. For example: "I find myself amazed at the durability of Mellen" or statements that are about his own actions and can't be defamatory at all. Example: "I made a snarky comment about Mellen on a mailing list." How is that defamatory? Furthermore, reading through the blog post and Askey's further comments, it also looks like many of the claimed "defamatory" statements about Mellen in the lawsuit are taken out of context.
For example, it says the claim that EMP is a "vanity press" is a defamatory statement. But, in the blog post, he actually writes: "No, they are not technically a vanity publisher..." And, even if he claimed they were, it's difficult to see how that would rise to the level of defamation. Also, pretty much all statements about quality are clearly statements of opinion.
Either way, as noted in the now deleted Anderson blog post, this particular lawsuit has generated quite a storm of publicity against Edwin Mellen Press. Inside Higher Ed wrote about the case, highlighting significant criticism for EMP's decision to sue, including from James Turk, the executive direction of the Canadian Association of University Teachers, who found the move to be "deeply concerning" and noted his concerns that it was an attempt to "silence Askey's exercise of academic freedom by legal action."
It should be noted, by the way, that it's not just "academic freedom" that's at stake here, but pure free speech. McMaster University has noted that it stands behind Askey and that it believes strongly in both academic freedom and individual freedom of speech. Meanwhile, the Association of Research Libraries and the Canadian Association of Research Libraries have both also put out a statement in support of Askey and against Edwin Mellen Press. Martha Reineke, a professor at the University of Northern Iowa, even put together a petition asking EMP to drop the lawsuit.
Oh, and there's one other interesting tidbit in all of this: It's come out that Richardson did something similar 20 years ago, to disastrous results. As Anderson noted in his original blog post:
In 1993, Dr. Richardson brought a similar suit against Lingua Franca magazine in response to an article (not available online) by Warren St. John, titled "Vanity's Fare: How One Tiny Press Made $2.5 Million Selling Opuscules to Your University Library." Dr. Richardson lost that suit. In 1994, he was found guilty of gross misconduct by an academic tribunal and fired from his tenured position at the University of Toronto; his press subsequently published a book about the affair titled Envy of Excellence: Administrative Mobbing of High-Achieving Professors.
So a similar effort two decades ago didn't work out that well. Though if you click through that link, the article from the Times Higher Education lists out a variety of other claimed misdeeds by Richardson -- whom they claim was the first tenured professor fired from the University of Toronto in 25 years. It says he was fired for "conflict of interest and the abuse of a four-month paid medical leave in 1993' when investigators found that he was engaged in outside activities.
Of course, he was able to continue building the publishing house. This time, however, with the internet broadcasting this story far and wide when the lawsuit was originally filed, along with this latest censorious move to shut down another critical blog post, it makes you wonder if any university library will ever want to buy EMP books again. His own actions are leading to much greater publicity over these questionable lawsuits and what clearly appear to be attempts to use the law and legal threats to silence criticism (even mild criticism).
In the end, there are so many wrong moves in this story, it's impossible to highlight the worst one. However, it's really disappointing to see a site like Scholarly Kitchen immediately cave on such a questionable threat. Furthermore, Amanda Amendola should know better than to send out threat letters on such a flimsy basis. But, at the core of this, it appears that Richardson has a history of reacting poorly to criticism. But, as we've pointed out over and over again, just because you don't like what someone says about you, it doesn't mean you get to sue.
