Bogus Defamation Lawsuit With Fake Defendant Results In Negative Reviews Of Dentist Being Taken Down

from the yet-another-abuse-of-the-legal-system dept

Earlier this year, complaint site Pissed Consumer noticed a disturbing new trend in the dark art of reputation management: unnamed rep management firms were using a couple of lawyers to run bogus defamation lawsuits through a local court to obtain court orders demanding the removal of "defamatory" reviews.

What was unusual wasn't the tactic itself. Plenty of bogus defamation lawsuits have been filed over negative reviews. It's that these lawsuits were resolved so quickly. Within a few weeks of the initial filing, the lawsuit would be over. Each lawsuit improbably skipped the discovery process necessary to uncover anonymous reviewers and proceeded straight to judgment with a (bogus) confessional statement from each "reviewer" handed in by the "defamed" entity's lawyer for the judge's approval. Once these were rubber stamped by inattentive judges, the lawyers served Google with court orders to delist the URLs.

To date, no one has uncovered the reputation management firm behind the bogus lawsuits. In each case, the companies purporting to be represented by these lawyers were shells -- some registered as businesses on the same day their lawsuits were filed.

It's one thing to do this sort of thing from behind the veil of quasi-anonymity afforded by the use of shell companies. It's quite another to file a bogus lawsuit with an apparently forged signature (of the supposed defamer) under your own name. But that's exactly what appears to have happened, as detailed in this post by Public Citizen's Paul Alan Levy.

In addition to posting his reviews of Mitul Patel on Yelp, [Matthew] Chan posted on RateMDs, kudzu.com and Healthgrades.com about his unsatisfactory experiences with Dr. Patel.   Chan’s is but one of a number of negative reviews directed at Patel on these various sites, but Patel apparently took particular umbrage at this one: he filed a pro se libel action claiming, in highly conclusory terms, that the reviews were false and defamatory.

It doesn't get much more conclusory than this filing [PDF], which runs only three pages -- with one page containing nothing more than a date and a signature. The complaint lists the URLs of Chan's reviews, says they're defamatory... and that's basically it. No part of the reviews are quoted as evidence of defamation. The filing simply declares every review defamatory and demands an injunction. But that's the kind of detail you can omit when you know you're never going to have to confront the accused in court.

[I]nstead of suing Chan in Georgia, Patel filed in the circuit court for the city of Baltimore, Maryland, a court that would ordinarily have no personal jurisdiction over a Georgia consumer sued for criticizing a Georgia dentist. Patel justified suing there by identifying “Mathew Chan” as the defendant – note that the spelling of the given name is slightly different – and alleging that this Mathew Chan “maintains a primary residence located in Baltimore, Maryland.”

There's a problem with both the defendant named and the primary address. The name is misspelled, perhaps deliberately so. The address listed in the complaint is completely bogus.

The fact that the both the online docket for the case, and the “consent motion for injunction and final judgment” bearing a signature for “Mathew Chan,” list his address as 400 East Pratt St. in Baltimore implies to me that this is a case of deliberate fraud, because so far as I have been able to determine, 400 East Pratt Street is a downtown building that contains only offices, retail establishments and restaurants, but no residences.   

Despite these deficiencies, the lawsuit made it past a judge because it contained a supposed mea culpa from "Mathew Chan" of "400 East Pratt Street" admitting to the defamatory postings. This motion with the bogus signature and admission was approved by judge Philip S. Jackson, who also instructed "Mathew Chan" to issue notices to search engines to delist the URLs if removing the original reviews proved impossible.

The real Matthew Chan -- who posted the reviews -- had never heard of the lawsuit until after the injunction had already been approved and served. Yelp notified him of the court order it had received. Chan, who still lives in Georgia as far as he can tell, informed Yelp of the situation and the review site decided to reinstate his review. Other sites, however, took the order at face value and removed the reviews. It appears Yelp was the only site to reach out to Chan when presented with the court order -- something that doesn't exactly bode well for users of other review sites. If sites protected by Section 230 are in this much of a hurry to remove content, they're really not the best venues for consumers' complaints.

Somewhat surprisingly, Levy received a response (of sorts) from Mitul Patel's lawyer. They claim this is the first they've heard of the lawsuit filed in Patel's name targeting negative reviews of Patel's dentistry. This wasn't delivered in a comment or statement, but rather in the form of a retraction demand [PDF]. The opening paragraphs are inadvertently hilarious.

This letter is to advise you that I have been retained to represent Mitul Patel, DDS, regarding the contents of your blog, dated Friday, August 19, 2016, entitled "Georgia Dentist Mitul Patel Takes Phony Litigation Scheme to New Extremes Trying to Suppress Criticism".

Based upon a review of your blog, which has unfortunately gone viral, please be advised that the contents of your blog are grossly inaccurate, factually incorrect, and were obviously written for no other purpose but to gain publicity for your blog, and to willfully damage the name and reputation of Dr. Patel.

First, there's the pain of being Streisanded, embodied in the phrase "has unfortunately gone viral." That's the sort of thing that happens when negative reviews are mysteriously injunctioned into the cornfield. Then there's the stupid accusation the Streisanded hurl at those who expose questionable -- and possibly fraudulent -- behavior: that it was motivated by a thirst for internet points. The first statement is merely sad. The second is mostly just tiresome.

The retraction demand goes on to claim that this is the first Mitul Patel has heard of the lawsuit (filed in his name) as well. While this would seem unlikely, Levy points out that a reputation management company could have created plausible deniability by filing a pro se lawsuit under Patel's name (its own kind of fraud) but without notifiying him that this is how it poorly and illegally handles its reputation-scrubbing duties. Unfortunately for Patel, whoever was hired to do this has done further damage to the dentist's reputation while presumably charging him for making things better.

Levy, of course, will not be retracting the post. His response to the demand letter points out that it's rather curious no disavowal was made until after the blog post "unfortunately went viral."

I was not persuaded, however, by your suggestion that I should "retract" the blog post or apologize for it. After all, you acknowledge that much of what I had to say on the blog was true. But I also have qualms about your assertion that, before my blog post was published, Patel had no knowledge of the lawsuit in Baltimore, for two reasons. First, in the course of investigating before I published my article, I obtained from Yelp copies of emails from Mitul Patel to Yelp, attaching the Baltimore court order and asking that Chan's Yelp comments be deleted. I attach the copies of these emails. Yelp has told me that Patel used [email address retracted], the same email address that [rest of sentence retracted]. Unless the email addresses were spoofed, those emails suggest that your client knew about the court order and was trying to take advantage of it.

Moreover, before I posted my article on the blog, I placed two telephone calls to Patel's dental clinic to try to speak with him about the lawsuit; I told his receptionist why I was calling. In addition, on Wednesday, August 17, I sent your client an email message mentioning his lawsuit against Chan and spelling out my concerns. Although he did not call me back and did not reply to the email, I trust he saw the messages before I published my article on Friday.

Levy goes on to point out that it seems strange someone or some company would pay a $165 filing fee to file a bogus defamation lawsuit for Patel without ever informing him it was doing so. The only motivation possible would be a shady reputation management company engaging in shadier tactics because Patel's paying it more than it's shelling out in filing fees. Levy has requested Patel provide him the name of anyone he's hired to do reputation cleanup work or perform SEO optimization on his behalf.

So, it's not just DMCA notices being abused to "protect" dishonest entities' reputations. It's also the legal system, where there's very little compelling lower level judges to spend a few minutes scrutinizing bare bones complaints (and injunction motions) handed to them by shady plaintiffs.

Filed Under: bogus lawsuits, court orders, dentist, georgia, matthew chan, mitul patel, philip s. jackson, reputation management, reviews
Companies: yelp

Disgraced Georgia Dentist Files Bogus Defamation Lawsuit To Go After Person Who Posted News Report To YouTube

from the dr.-streisand? dept

Years back, Georgia dentist Gordon Austin was indicted on 12 counts "with multiple counts of simple battery, aggravated assault, and cruelty to children." The details of the case were pretty horrifying, involving claims of Medicare fraud, along with multiple claims that Austin hit his patients when they would complain loudly (apparently after the anesthesia did not work properly). When he was indicted, the local news covered the story as you can see below: That video was uploaded by a user named "gordonaustinsacoward," and it was uploaded on March 1, 2009, while the case was still ongoing. Eventually, Austin appeared to have worked out a plea deal, in which he pled guilty to Medicare fraud, while the assault and cruelty to children charges were dropped. His dental license was pulled and he got five years probation, along with $15,000 in fines.

For reasons unknown, apparently Austin is not happy about that news video being online. According to Paul Levy, Austin hired some lawyers to file a highly questionable defamation claim over the video, and (of course) to issue a subpoena to YouTube to try to uncover who uploaded the video.

Everything about this is ridiculous. The statute of limitations (1 year for defamation) is long past. From everything that's been reported, it's not clear that anything in the video is even defamatory anyway. And, of course, in just reposting someone else's video, there are Section 230 protections as well. This seems like Austin deciding he wants to find out who uploaded the video and this is the way he wants to do so. Paul Levy from Public Citizen has filed a motion to quash the subpoena.

It is settled law that, when a subpoena seeks to identify an anonymous Internet speaker so that the speaker can be served as a defendant in a lawsuit, the plaintiff has the burden of showing both that he has filed a valid complaint and that he has admissible evidence establishing the elements of his claims.... No such evidence has been provided here. Moreover, settled law also establishes that the complaint cannot possibly succeed for several reasons, including that the suit was filed six years after the allegedly defamatory statements were made, long after the statute of limitations expired, and that, because Doe only posted a video that somebody else had created, section 230 of the Communications Decency Act immunizes him from being sued.

The motion notes that the defamation complaint has all the hallmarks of someone just trying to censor -- mainly a total lack of calling out any actually defamatory claims:

The complaint repeatedly refers to “false” statements but never specifies what the alleged falsities are and how they are false. And although the complaint alleges actual malice in very conclusory terms, it never explains why an ordinary citizen would not be justified in accepting the word of the prosecution as well as Fox News in repeating the gist of the indictment and republishing the TV story.

Of course, in the end, all this can serve to do is bring Gordon Austin's previous guilty plea and indictment back into the public's attention. And it may end up costing him -- both in bringing the case back into the public's view, but also because California recently made attorneys' fees mandatory on subpoenas that are quashed, something that Paul Levy will now be testing -- including seeking fees from the lawyers who filed the bogus lawsuit and subpoena in the first place:

Several years ago, the California Court of Appeal ruled, in a case we handled involving a subpoena from the so-called “randy rabbi,” Mordecai Tendler, that California’s anti-SLAPP statute cannot be used to strike subpoenas sought in support of litigation in a different state. The California legislature responded by amending its Code of Civil Procedure to provide that, when the target of such a subpoena successfully moves to have the subpoena quashed, the court "shall" award attorney fees. This statutory provision can help encourage lawyers to take subpoena cases as, for example, the inclusion of a “special motion to quash” in DC’s anti-SLAPP law has encouraged lawyers to take on such motions pro bono. And equally important, it can create a disincentive for the issuance of groundless subpoenas to the California ISP’s that can only be subpoenaed in California. But, so far as I have been able to determine, that statute has not yet been applied. In order to fortify the disincentive, we intend to argue that, like any other attorney fee award under the discovery rules, that the lawyer can be held responsible along with the client.

As Levy notes, it appears that Austin's lawyer, John Autry, refused to withdraw the subpoena when asked, and appeared to know that he was filing a lawsuit well after the statute of limitations had run out:

I personally urged the lawyer who signed the subpoena, John Autry (whose name does not appear on his firm’s web site), to withdraw the subpoena. I am willing to assume that, given the nature of the legal practice described on the Coles Barton web site, their research might never have brought section 230 immunity to their attention, but Mr. Autry certainly knew that the defamation action was time-barred; he was defensive about that aspect of the case when I first spoke to him. Moreover, however much Mr. Autry might be willing to let his client proclaim his innocence when not speaking under oath, he cannot possibly doubt that the anonymous poster had at least some reason to believe that Austin was guilty of the charges for which he was indicted, and which were described in detail during the television broadcast. I don't see how he can possibly expect to make out a prima facie case in support of his client’s causes of action, and he can fairly be held responsible for not having noticed that California requires the plaintiff to present sufficient evidence to make out a prima facie case before an online poster can be outed. Thus Austin’s lawsuit has no realistic chance of success, and Mr. Autry can be faulted for lending his position as an officer of the court to obtain issuance of a subpoena that represents pure bullying, perhaps undertaken in the hope that the anonymous user might be unable to find and afford counsel to have it quashed in California.

It is a shame that Austin’s lawyer was neither able to persuade his client to drop the subpoena, nor willing to withdraw his own participation in this travesty. At this point, however, it seems likely that the lawyer will have to join his client in paying a financial price for that bullying.

Filed Under: anonymity, defamation, dentist, free speech, gordon austin, intimidation
Companies: youtube

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

(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.

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

DailyDirt: Modern Dentistry

from the urls-we-dig-up dept

Not too many people enjoy going to the dentist -- which probably feeds into the urban legend that dentists have the highest suicide rates. But there may be a few dental developments that'll make going to the dentist a bit less scary. Being fastidious about flossing is a virtue, but for the rest of us who aren't so diligent, technology might help us out. Here are a few stories that might lead to better dental health.

Disrupting the enzyme responsible for plaque sticking to teeth could help eliminate cavities. So far, though, various inhibitors for glucansucrase have also blocked amylase in saliva -- which helps to digest starch. But maybe some folks might like not being able to digest starch? [url]

Stem cells from wisdom teeth could be useful to grow replacement teeth. So maybe kids in the future will be preserving their teeth instead of dealing with the tooth fairy. [url]

With some nifty freezing equipment, you could preserve your wisdom teeth for a couple decades. It's sorta like Futurama -- but only one organ at a time. [url]

Filed Under: cavities, dentist, glucansucrase, stem cells, teeth