Roca Labs' Lawyer Accused Of Intimidation After Threatening Expert Witness With *Criminal* Charges Over Billing Rates

from the prices-so-high-they-must-be-CRIMINAL! dept

The United State's leading purveyor of packed-in-garages stomach cement weight loss product can't be expected to let the merits of its offerings speak for themselves. I mean, it theoretically could allow this to happen, but it has already taken steps to ensure any positive reviews of its "gastric bypass alternatives" can only be viewed with skepticism.

Roca Labs will give purchasers a cut rate if they agree to proselytize on the company's behalf. Unhappy customers who tie themselves into this agreement are forced to display a public rictus or face additional withdrawals from their credit cards/bank accounts, as well as lawsuits for defamation and breach of contract. Those who pay the higher price initially are somewhat better off, although Roca Labs still seems intent on shutting down any negative portrayal of its products.

Given this background, it comes as no surprise that its courtroom tactics are just as surly and underhanded. A new motion for "case-terminating sanctions" has been filed in one of Roca's many, many lawsuits.

For the third time, Plaintiff and its attorney have engaged in unlawful witness intimidation. The prior times, this Court just told them not to do it again. They did not respect that warning. This time, Roca’s attorney is attempting to intimidate an expert witness from testifying by threatening criminal sanctions, and that threat has placed this witness in fear, requiring a rebuke from this Court sufficient to assuage his fears. A simple “don’t do it again” did not work last time. (Doc. # 17.) Defendants request a harsher rebuke from this Court, lest this continue.

This lawsuit, brought in Florida's middle district, features Roca suing PissedConsumer for negative reviews. Roca is suing everyone involved, from the reviewers themselves to the company owning the company owning the PissedConsumer brand. In its voluminous discovery demands, Roca is seeking pretty much every detail about every involved entity, including innocuous business dealings and, weirdly, the account holder info behind some negative tweets.

Several months and 100+ documents later, there's been some fighting over depositions and witnesses. That's where this gets uglier. Marc Randazza's filing notes that this isn't even the first time in this particular case that Roca's attempted to intimidate witnesses into withdrawing.

This action began with a request from Roca for this Court to impose an unconstitutional prior restraint on Defendants, in the form of their Motion for Entry of a Temporary Injunction. In Defendants’ Opposition to this Motion, filed September 18, 2014, Defendants contacted Roca’s former customers and attached declarations from them detailing their experience with Roca’s products. Very shortly after Defendants filed their Opposition, Plaintiff contacted these witnesses with threats of litigation for breach of an unenforceable contract. This timing was anything but coincidental, and so Defendants then brought a motion for a temporary restraining order against Plaintiff to cease this witness intimidation. While the Court denied Defendants’ motion on September 23, 2014, it “remind[ed] the parties that it will not hesitate to impose sanctions on any party that engages in witness tampering, in violation of 18 U.S.C. § 1512.”

This stern talking to didn't work. Roca sued the witness, as well as Randazza himself. Now, it's attempting to do the same thing to another potential witness, only going further by claiming (baselessly) that the witness could be subject to criminal charges.

Fast forward to May 2015. The parties have been in the process of attempting to schedule depositions prior to the discovery cutoff, including the deposition of Defendants’ expert witness Thomas Parisi, MD. Defendants’ counsel retained Dr. Parisi as an expert witness, and the two worked together to determine a fair expert billing rate for all parties to this action. (See Declaration of Marc J. Randazza [“Randazza Decl.”], attached as Exhibit 3, ¶¶ 2-7.)

On May 22, 2015, Mr. Berger contacted Dr. Parisi by phone. (Declaration of Thomas Parisi [“Parisi Decl.”], attached as Exhibit 4, ¶ 8.) During this conversation, Mr. Berger asked Dr. Parisi about his expert witness billing rates, and Dr. Parisi informed him of them. (Parisi Decl. ¶ 9.) After being told of Dr. Parisi’s rates, Mr. Berger threatened him with criminal prosecution, stating that charging different rates for written testimony and trial testimony was “illegal” and that he would need to retain legal representation. (Parisi Decl. ¶ 10.) Berger went so far as to threaten Dr. Parisi with criminal prosecution. (Parisi Decl. ¶ 10.) Dr. Parisi felt intimidated and frightened by Mr. Berger’s threats, especially in light of Roca’s prior behavior. (Parisi Decl. ¶¶ 11-12, 15.) Dr. Parisi is hesitant to testify on Defendants’ behalf, specifically due to Mr. Berger’s threats. (Parisi Decl. ¶ XX.)

In defense of its actions, Roca Lab's lawyer, Paul Berger, claims Randazza somehow "fixed" the prices to make it, I don't know, prohibitively expensive? (Randazza has to pay the same amount for Parisi's testimony.) Berger's email is included in the exhibits, and it's filled with allegations that Parisi could do the work cheaper, and that Randazza drove the price up. Cited in support are the fact that Parisi closes his office at noon every Friday (Parisi's higher in-person rate cites having to close his office as justification for the increase), as well as the fact that the average Las Vegas vein surgeon makes $375,000 a year -- both of which seem mostly irrelevant to the issue at hand -- that issue being that expert witnesses are free to charge whatever they'd like for court appearances.

From Florida's laws on expert witness fees:

Any expert or skilled witness who shall have testified in any cause shall be allowed a witness fee including the cost of any exhibits used by such witness in an amount agreed to by the parties, and the same shall be taxed as costs. In instances where services are provided for the state, including for state-paid private court-appointed counsel, payment from state funds shall be in accordance with standards adopted by the Legislature.

Here's Parisi's statement:

As with the majority of expert witnesses, I charge a different billable rate for research and preparation of written reports than I do for in-person testimony.

Part of the reason I charge a higher rate for in-person testimony is that when I am doing research and drafting reports, I can do that in the comfort of my home, during down-time, when I would otherwise not be working or spending time with my family. Therefore, for reports, I only charge $300 per hour.

For in-person testimony, I charge a minimum of $3,000 for a half day. This is because I must take my practice offline for that much time, if I am going to report to a court or a court reporter’s office. In addition, it requires me to shut down my clinic for a large portion of a given day, as I am the only doctor working at my clinic. Further, I find in person testimony to be unpleasant and undesirable, and while I am willing to do it for the right pay, I can think of no other activity that would be as unpleasant as being deposed.

Parisi's statement also points out that it's not out of the realm of the imagination that Roca Labs would follow through with its threat to bring criminal charges against him (or, at least, attempt to, despite having no basis for doing so) considering it has already sued an opposing counsel for statements made in court.

Furthermore, Parisi offers his sworn statement that Berger's assertions in his email to Marc Randazza are wholly untrue:

It is my sworn testimony that Mr. Berger is lying in this email to Mr. Randazza, and that his statements regarding the contents of our phone conversation are not true. Mr. Berger’s statements are completely false, and seem calculated to try and create a rift between the defendants and myself.

Now, whether Roca's threats were prompted by a desire to keep Parisi from testifying or simply because its sludge slush fund for testimony reimbursement is running a little low because of its many litigations remains to be seen. But what it looks like is the standard Roca legal strategy: threaten, sue, threaten, sue, ad nauseum -- which apparently even extends to witnesses otherwise uninvolved (i.e., without "bypass alternative" currently or recently residing in their stomachs) with the lawsuits.

The allegations on either side are ugly. Roca is accused of baselessly threatening a witness with criminal charges. Randazza is accused of inflating the witness' testimony price (which would be odd, considering that's the price he also has to pay). The question before the court is: did Roca's lawyer's action rise to the level of sanctionable intimidation? A prior verbal warning by the court doesn't seem to have had any effect on Berger and Roca. If this sort of behavior continues, Roca may soon find itself being referred to as the "Prenda" of questionable weight loss products.

Filed Under: intimidation, marc randazza, paul berger, thomas parisi, witnesses
Companies: roca labs

Roca Labs Sues Blogger; Faces Legal Challenges In NY & Florida

from the slow-down-guys dept

Keeping up with the ongoing Roca Labs saga appears to require full-time effort, as there are a bunch of updates. First up, though, is that Roca Labs has decided to sue blogger Tracy Coenen for the articles she published about Roca Labs. Earlier this month, we wrote about Roca Labs' threats against Tracy Coenen, a fraud investigator, who wrote about Roca Labs on her Fraud Files blog. As in the past, it appears that Roca Labs believes statements that are clearly opinions or hyperbole are somehow defamatory if they reflect negatively on Roca Labs. Before filing the lawsuit, Roca sent a second threat letter with a very brief deadline, complaining that she "publicly mocked" them. Coenen's response was to publish a new blog post explaining why she believes "Roca Labs Must Be Mocked."

In the actual lawsuit, Roca also claims that because Coenen sent us Roca's threat letter and we published it, that she was using Roca's letter to "harass and mock" the company. Who knew that merely publishing the threat Roca Labs sent is harassment of Roca Labs? And, of course, mocking Roca Labs is not against the law, no matter how much the company might wish it were so.

In the meantime, it appears that Coenen actually did -- at least temporarily -- give in to Roca's demands and removed the blog post in question -- but Roca Labs claimed it was not enough because she "did not retract [her] Defamatory Statements or otherwise comment publically [sic] concerning the defamatory Statements' lack of fact and merit." Further, the lawsuit accuses her of trying to "conceal the truth and cover-up [her] bad acts."

So, to keep this straight: Roca Labs sent her threat letters claiming what she wrote was defamatory, and after she removed the post (temporarily), the company is using that as evidence that she's trying to conceal the truth? Really? Good luck with that one. Oh, and also, it appears that Roca's attorney in this case, John DeGirolamo, is still somewhat confused about what defamation per se means. Hopefully, the court will sort it out for him.

In the meantime, some other things have been happening in various other Roca Labs court proceedings. Up in New York, where PissedConsumer (Consumer Opinion Corp.) had originally sued Roca Labs for declaratory judgment of non-infringement, Roca Labs had been trying to get out of the case arguing that the jurisdiction is improper. But, as you may recall, Roca also recently sent a questionable DMCA takedown letter to Google, claiming that content on PissedConsumer was infringing (something we find unlikely to be true... but...). However, as PissedConsumers' lawyers in New York note, in filing that takedown, Roca Labs has effectively made itself subject to PissedConsumer's local court's jurisdiction. This is based on a ruling in another nutty case we covered for a while, the effort by Gina Crosley-Corcoran to use the DMCA to silence a critic. In that case, the court noted that, in serving a DMCA takedown notice, the sender "purposefully and voluntarily directed [its] activities toward the forum so that [it] should have expected, by virtue of the benefit [it] received, to be subject to [this] court's jurisdiction based on these contacts."

When PissedConsumer's lawyers notified Roca Labs' lawyers of this, Roca Labs stood by its argument that the court has no jurisdiction, but Roca Labs' lawyers didn't seem to understand the significance of this. In response, PissedConsumer is now seeking to go after Roca Labs for DMCA 512(f) penalties, for misrepresentations in filing a DMCA takedown.

And, finally, just to complete this trio of stories, we'll also note that, down in the Florida case, PissedConsumer has filed a humdinger of a motion for summary judgment, laying out why Roca Labs has no chance in its case, and why the case should be put to rest quickly. Given everything else going on, we won't go into a more detailed analysis of that motion, other than to suggest you read it, and note that, as we predicted, it relies heavily on Section 230. It's written by Marc Randazza, so it's got that readable style he's become known for.

Filed Under: copyright, defamation, dmca, john degirolamo, jurisdiction, lawsuits, marc randazza, paul berger, takedowns, tracy coenen
Companies: consumer opinion corp., pissedconsumer, roca labs

Roca Labs Threatens Other Sites For Writing About Its Case, Files Another Questionable Document

from the just-keep-digging dept

The saga of Roca Labs continues. If you're unfamiliar with it, I recommend reading the previous stories, rather than having me rehash it here, but the Florida company, which makes a substance that it claims will help people lose weight is suing PissedConsumer.com because Roca gets many of its customers to agree to a questionable clause barring any negative statements about the product, and Roca claims that PissedConsumer's encouragement of negative reviews is somehow tortious interference. Roca also has a history of threatening lots of people with defamation claims, including all three former customers who came forward as witnesses in the PissedConsumer case... and us at Techdirt for merely covering the case and quoting some of the filings. There was also this weird tangent involving a failed accusation that PissedConsumer's lawyer, Marc Randazza tried to "bribe" a state Senator (that got tossed out pretty quickly).

Apparently, though, Roca Labs just keeps threatening people for covering the case. We've heard from a few others who received similar threats to the one we received, and the latest is Tracy Coenen, a fraud investigator who writes the Fraud Files blog, where she covered the Roca lawsuit, the lawsuit against a former customer and the fake implied endorsement from Alfonso Ribeiro.

Apparently, Roca's "independent general counsel" Paul Berger didn't like that, and sent her a legal nastygram last week, claiming that she made "numerous false and defamatory statements." Coenen has now responded to Berger's letter, declining to retract the original, noting that the statements in question are either statements of opinion, quotes from the pleadings in the case or factual statements.

At this point, I'm just kind of curious as to why Berger thinks this particular strategy is effective. Is it just the only remaining hammer in his toolbag, and thus every bit of coverage looks like a nail he has to bang?

In the meantime, the case continues with yet another new lawyer representing Roca (I've lost track of how many there have been). The latest lawyer, James Hetz, who also lists himself as "independent general counsel" for Roca Labs (how many of those do they have?) recently filed a statement that the PissedConsumer case "IS NOT related to any pending or closed civil or criminal case filed with this Court or any other Federal or State court..."

That struck me as somewhat interesting, given a blog post from lawyer Ron Coleman last week, in which he revealed that... before Roca had sued PissedConsumer in Florida, PissedConsumer had actually sued Roca Labs for declaratory judgment in New York, after Roca had begun sending PissedConsumer threatening letters demanding it remove all those negative reviews (and apparently claiming, hilariously, it had "suffered damages in excess of $40 million" from the negative reviews). According to the docket on that case, Roca Labs is trying to get it dismissed for lack of jurisdiction, but otherwise the case is proceeding. Given that these appear to be about the very same issue, I'm not sure how the Roca Labs filing in Florida by Hetz is an accurate statement.

Filed Under: defamation, james hetz, paul berger, pissedconsumer, threats, tracy coenen
Companies: consumer opinion corporation, pissedconsumer, 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

Roca Labs Story Gets More Bizarre: Senator Threatens Bogus Defamation Lawsuit, While Nevada Quickly Rejects Bogus Bribery Charge

from the and-we-get-accused-of-working-for-roca dept

If you thought the Roca Labs story couldn't get any more bizarre, well, then you haven't been paying much attention, because no matter how bizarre the story was the last time you looked, it seems to get even more bizarre with the next step. We've already gone through the Roca gag order, lawsuit against PissedConsumer, lawsuit against unhappy customer, threats against witnesses, and weak attempts to use the fame of Alfonso Ribeiro and Tommy Chong in implied endorsements. Oh, and also the threat against us and the fact that a main "doctor" backing their product was a pediatrician who lost his license due to child porn claims.

Last week, the story got wackier, when Roca Labs' founder, Don Juravin decided to file a highly questionable "integrity complaint" about a Nevada state senator, Justin Jones, claiming that Marc Randazza -- the lawyer representing PissedConsumer -- had "bribed" Jones to pass Nevada's (very, very good) anti-SLAPP law. The bribery claims border on laughable and clearly suggest a continuation (or escalation) of Roca Labs' legal strategy of trying to attack anyone and everyone. As we'll explain below, it was also a really dumb strategy that has already failed, as the Nevada Attorney General wasted little time in totally rejecting Juravin's integrity complaint as having no basis, whatsoever.

In the meantime, though, the story got even more ridiculous. And that's because Senator Jones had his own lawyers (who didn't initially appear to recognize what a bad idea this was) threatened Juravin with a highly questionable defamation lawsuit in response. Yes, the guy who helped get one of the absolute best anti-SLAPP laws in the country in place is threatening a highly questionable SLAPP lawsuit. Even though I think Juravin's complaint is laughable, to threaten him with defamation in response? That's just as laughable, and perhaps doubly so given that the Senator supported the anti-SLAPP legislation in the first place.

Even worse, the draft complaint that Jones' lawyer Patrick Reilly sent, revealed that they planned to request "a temporary restraining order, preliminary injunction and permanent injunction preventing Defendants from continuing to publish false accusations concerning the Plaintiff." While there are some who have been trying to challenge this, historically, claims of defamation are not entitled to any sort of injunctive relief, as it's classic prior restraint and a violation of the First Amendment.

Given that, both sides here look terrible. We have a company that has a ridiculous gag order on customers, has been threatening to sue just about everyone (including us) that presents any sort of negative opinion on their business, and clearly filed a bogus claim of "bribery" to piss off a lawyer fighting against them. On the flip side, we have a state senator who got a great free speech protecting law passed... and then appears to make himself subject to that very same law by threatening a very questionable defamation lawsuit, complete with prior restraint injunctions.

Oh, and the letter Reilly sent to Juravin and the draft complaint were both sent directly to us as well. Why? Because Reilly seemed to believe that (1) we're a PR firm and (2) Juravin hired us to promote his bribery accusation. Both the letter and draft complaint claim that Juravin "engaged" us to "gain media traction." So, already, in the past few weeks, Roca Labs has not only threatened us with a lawsuit and accused us of being a "mouthpiece" for Randazza, and now Senator Jones and his lawyers are, in turn, accusing us of being a mouthpiece... for Roca.

Well, holy fuck.

We've just been trying to report on the damn story, and highlight attempts to stifle free speech. We never expected to have multiple parties flinging legal threats at each other -- and dragging us into the process with completely bogus claims of working for both sides of this ridiculous fight. Hey, leave us out of this whole thing, and maybe, just maybe, everyone should learn how not to try to stifle free and open speech.

Not surprisingly, Roca's lawyer Paul Berger (the same guy who threatened us) quickly jumped on this massive gift that Jones' lawyer handed him, and responded to Reilly's threat by rightly hinting at the fact that Jones' threatened lawsuit might open him up to the very anti-SLAPP law that Jones got passed. And that actually seems to be one of the very, very few legal arguments that Berger and I agree on. Though, really, I don't want to even bother thinking about the irony of the SLAPP-happy Roca filing an anti-SLAPP against the guy who got the best anti-SLAPP in the country into law.

Either way, however, it's all for naught. As I was working on this story, I got a phone call from Jones' lawyer, Patrick Reilly, who appeared to realize the mistakes he had made. First off, he apologized for mischaracterizing Techdirt in the letter and draft complaint and suggesting that we were somehow working for Juravin. Furthermore, he said that Senator Jones did not, in fact, intend to file the drafted lawsuit. It sounds like Jones and his lawyers perhaps made a rash decision following a bogus integrity complaint -- but they now recognize that their response was a bad idea.

And... the whole issue quickly became moot anyway, because the Nevada Attorney General has dismissed Juravin's bribery complaint (pdf) already. The Nevada's Attorney General's office (who kindly provided me with the rejection letter) tells me that there was "insufficient evidence" in the complaint to believe that there was any criminal activity at all, and that Juravin's "theory of the offense does not rise to the level of a crime." Basically, it didn't take long for the Attorney General to look at the complaint and realize that it was nothing more than someone's personal vendetta against Marc Randazza for having the gall to be involved in a lawsuit which Juravin himself had started (along with his lawyer Paul Berger). Hopefully this means this particular tangent in Roca Labs story is over and done with. But, somehow, I doubt the overall Roca Labs story is over just yet....

Filed Under: anti-slapp, bribery, dan juravin, defamation, first amendment, justin jones, marc randazza, patrick reilly, paul berger, prior restraint, slapp
Companies: roca labs

Techdirt's Response To Roca Labs' Demand For A Retraction

from the threats-and-such dept

As you know, we've been reporting on a lawsuit involving Roca Labs against Consumer Opinion Corporation, better known as PissedConsumer. We recently received a letter from Roca Labs' "independent general counsel" Paul Berger, demanding that we retract certain information related to some of those posts. Below you can find that letter as well as our response, helpfully put together by Jamie Williams at EFF.

Filed Under: paul berger
Companies: roca labs

Roca Labs Lawsuit Gets Even More Bizarre: Now With An 'Unauthorized' Guest Appearance By 'TV Celebrity' Alfonso Ribeiro

from the hey-everyone,-it's-carlton-from-the-fresh-prince dept

The Roca Labs saga continues to get more and more bizarre -- and now it's got an "unauthorized" appearance by "television celebrity" Alfonso Ribeiro, perhaps better known as Carlton Banks from The Fresh Prince of Bel Air, whose Carlton Dance has become the stuff of TV legend. On Monday, Roca Labs filed a motion in a (failed, but we'll get to that) attempt to file an affidavit from Roca's "director of marketing," Don Juravin, supposedly about how the PissedConsumer site is acting unfairly. The affidavit repeats a bunch of claims from the original questionable lawsuit against PissedConsumer's parent company, Consumer Opinion Corp., but then adds the following:

On September 22, 2014 I purchased a promoted review on pissedconsumer.com for a monthly fee of $5.99 (See Exhibit C attached).

I placed an approved statement by television celebrity Alfonso Riberio [sic] who is currently a contestant on Dancing with the Stars about Roca Labs.

On September 22, 2014 I received a notice from Pissedconsumer.com that my review was canceled.... I received no explanation of why it was canceled.

Roca Labs is using this as a (rather weak) attempt to argue that PissedConsumer is engaged in some sort of unfair practices because it (Roca claims) "will not allow positive information to come forward."

This filing was quickly rejected by the court for procedural issues, focused on the failure of Roca Labs' lawyers to first confer with opposing counsel. However, before even that happened, Roca Labs filed another motion to "shorten time" for when Roca can file a motion for sanctions against PissedConsumer's lawyer, Marc Randazza. The reasoning behind the claim of sanction is not clear (it says a draft is attached, but it does not appear in PACER right now), but it seems to suggest that it's because of Randazza filing for a temporary injunction against Roca Labs threatening or suing the witnesses that have come forward on behalf of PissedConsumer and against Roca Labs. As we mentioned in our previous post, within days of PissedConsumer's legal response to Roca Labs, the company's "general counsel" had sent legal threat letters to all three former customers who had filed statements, even though Roca Labs hadn't had any dealings with two of them for over three years.

It's difficult to see how anything Randazza did was sanctionable (Roca Labs' lawyers' actions, on the other hand...). Either way, Randazza has now filed a rather revealing response, opposing the motion to shorten time, noting that it fails for the same procedural issue (and more) as the earlier filing and because there's basically no chance that the sanctions succeed. It notes that the court has reviewed his motion for the injunction and passed it along to a magistrate judge, who has asked Roca Labs to respond -- something that would be unlikely if the court felt his filing was somehow frivolous. It also fails to actually cite any legal authority for shortening the length of time.

And then there's this:

Finding its bullying tactics unsuccessful, Roca filed an unsupportable complaint, along with it, an unsupportable motion for injunctive relief. Thereafter, Roca began trying to intimidate witnesses. Then, Roca got even more desperate – submitting an affidavit... that contained demonstrable perjury – that the actor Alfonso Ribeiro (“Carlton” from “The Fresh Prince of Bel Air” and current “Dancing with the Stars” contestant) endorsed the Roca product..... See Exhibit A, a demand letter from Ribeiro’s attorneys attesting to the perjurious nature of Roca’s claims that their client approved any such statement.

Whoops. As can be seen in this letter, Ribeiro's lawyers appear rather upset about his likeness being used in this way and make it clear that it's unauthorized:

Ribeiro unequivocally is not, has never been and has no intention of ever becoming a paid spokesperson of the Product [Roca Labs]. Furthermore, Ribeiro has never personally used the Product and in no manner whatsoever endorses the Product.

The unauthorized Review and deceitful use of Ribeiro's name, image, likeness and falsely attributed quotes violates California Civil Code Section 3344, invades Ribeiro's common law rights of privacy and publicity, amounts to unfair competition, is an unfair business practices, and constitutes copyright infringement, among other causes of action.

I'm not sure that Roca Labs' usage would actually be "unfair competition" or "copyright infringement," but that might depend on other specifics. However, they make it clear that he has not and will not endorse the product, which would make this a total slam dunk publicity rights case (this is the exact type of situation that publicity rights law was designed for, even if people keep trying to stretch it). It is worth noting that the letter in question is to PissedConsumer, concerning its hosting of the review. That review -- which was up earlier this week when I saw it, has since been removed, noting the letter from Ribeiro's attorney.

Much more tellingly, a page that used to be on Roca Labs' own website showing the very same endorsement from Ribeiro has also disappeared from the site, though (as of this posting) it's still viewable via Google cache. Here's a screenshot to show that it absolutely existed: There is a photo of what appears to be Ribeiro holding Roca Labs' product -- so there may be some questions raised about whether he did or did not endorse the product at some point, but his lawyers seem fairly definitive in saying he did not. The fact that Roca has removed the page from its own site also says a lot (and none of it good for Roca Labs).

And, we're not done yet. Roca Labs' lawyer, Paul Berger, also sent threatening emails to Randazza himself, suggesting that Randazza had been "making defamatory comments" to the media. The email exchange, which Randazza filed as an exhibit with his filing, shows Randazza responding to Berger asking what specific defamatory quote he's talking about. Berger instead quotes PissedConsumer's legal filing (about calling Roca Labs' product "snake oil"), which we (and, I believe) other news publications, quoted. Randazza pointed out to Berger that it was not a quote from him but rather in his pleadings, and then asked (one assumes, sarcastically) if Berger is truly asking Randazza to retract a statement from his motion for preliminary injunction. I would assume that Berger is aware of the concept of litigation privilege, so either he didn't fully read Randazza's earlier filings, he forgot about litigation privilege, or he's just blustering for the sake of blustering. Randazza's latest filing suggests the latter may be the case:

The desperation continued with Roca threatening personal claims against the Defendants’ attorney for statements made in the course of litigation.

Also, for whatever it's worth, Berger accuses Randazza of distributing the filings to reporters, perhaps unaware that we reporters are also allowed access to PACER and can (and do!) download documents ourselves. Shocking, I know.

Either way, the Roca Labs case is taking on the stench of Righthaven- and Prenda-like desperation. Given what's happened so far, I imagine there are still more interesting things to come.

Update: And... just like that, the court has denied the motion to shorten time on the procedural issues around the failure to confer with opposing counsel.

Filed Under: alfonso ribeiro, endorsement, marc randazza, opinions, paul berger, publicity rights, reviews, sanctions
Companies: consumer opinion corp., pissedconsumer, roca labs

Roca Labs Threatens To Sue All Three Former Customers Who Provided Evidence Against Roca In PissedConsumer Case

from the the-ultimate-in-sleazy dept

The Roca Labs story keeps getting more and more ridiculous. Each time you think the company couldn't act in a way that seems even more sleazy and questionable, it raises the bar. If you don't recall, Roca Labs sells a "dietary supplement" (they describe it as a "food additive" or a "nutraceutical") that, according to one doctor, "consists primarily of industrial food thickening agents" which the company claims is an "alternative" to gastric bypass surgery. More importantly, the company has some crazy terms of service that say if you buy the product the company will offer a "discount" in exchange for agreeing to never say anything negative about the product ever in any form (and requiring you to allow the company to showcase any positive results). One of our readers went through the ordering process and claims that the "discount" is a mirage -- as there appeared to be no way to order without the "discount" (i.e., without agreeing to the gag clause). Despite all this, there are numerous complaints about Roca Labs and its product both with the Better Business Bureau (which gives the company an F grade) and with PissedConsumer, where people have complained about both the company and the product.

In response, Roca Labs used some unique legal theories to sue PissedConsumer's parent company, Consumer Opinion Corp., claiming that it's "tortious interference" to solicit consumer reviews, given the company's gag order. PissedConsumer fought back, arguing that the gag clause was clearly unenforceable, questioning the quality of Roca's products, and highlighting the company's history of threatening lawsuits when people complained to the Better Business Bureau. On top of all that, we noted that Roca Labs decided, in the midst of all this, to sue a former customer for complaining to the Better Business Bureau. This lawsuit was filed the day after PissedConsumer responded to Roca's lawsuit, the timing of which will become more interesting as you read a little further.

If you're keeping score at home, among the questionable actions by Roca Labs (leaving aside any questions about the efficacy and safety of the product), we've got (1) a gag order that both demands silence if you're unhappy and compels endorsement if you are happy, (2) a questionable legal threat against a website that collects consumer reviews, and (3) legal threats and lawsuits against unhappy customers for merely complaining to the BBB about Roca Labs.

And now the company has taken it up to another level. As we noted, when PissedConsumer fought back, it included declarations from three former customers, all of whom had complained to the BBB. It had been a while since any of those former customers had heard from Roca Labs, but four days after PissedConsumer's response, all three of those customers received new letters from Roca Labs, threatening legal action for "breach of contract."

Marc Randazza, the lawyer for PissedConsumer, has now filed for a temporary restraining order against Roca Labs, claiming that the company is engaged in witness intimidation.

Via the attachments in the filing, you can see that Randazza had a ridiculous email conversation with Roca Labs' lawyer, Paul Berger, in which Randazza bent over backwards offering to allow the company to file such lawsuits if needed to avoid a statute of limitations, but otherwise asked the company to defer any such threats or legal action until after the court expresses an opinion on the legitimacy of Roca's gag order (which is expected next week). Berger appears unwilling to respond directly to what Randazza is clearly offering, and also makes some bizarre claims about not being able to respond as the legal representative of Roca Labs, despite his own email signature noting that he's the "independent general counsel" for the company and the fact that all the threat letters came directly from him (his reason: not being admitted to the bar in that part of Florida -- a meaningless excuse for the purpose of communications between lawyers, since that only concerns his ability to appear in court).

In the threat letters to the three customers sent on Monday morning, September 22nd, Berger directly references that one lawsuit he filed the previous Friday, September 19th, as evidence of the "seriousness" with which Roca takes these issues. So, the timeline: on Thursday, September 18th, PissedConsumer responds to Roca's lawsuit, including declarations from three former customers who complained to the Better Business Bureau, only to receive initial threats from Roca soon after, though no actual lawsuit (two of these happened in 2011, one earlier in 2014). On Friday, Roca sues a different former customer who complained to the Better Business Bureau. Then, early Monday morning, Roca sends letters to the three former customers whose declarations were part of the Thursday filing, pointing to the Friday lawsuit as evidence of how the company will sue customers who complain to the BBB. You can see all three threats embedded below.

As Randazza notes in his own filing, this appears to be a fairly clear attempt to "intimidate and harass defense witnesses." From the filing:

So far, three of Roca’s prior customers have agreed to serve as witnesses. Most others declined to respond, wishing to not get involved, out of fear that Roca would retaliate against them for testifying. Those concerns proved to be well-founded, as Roca threatened all three of the witnesses Opinion Corp. identified. The timing of its aggression against these three women makes its intentions transparent – Roca wants to intimidate them and any other potential witnesses in this case.

As for Ms. Walsh and Ms. Anderson, it has been in excess of three years since they lodged their complaints with the Better Business Bureau. Roca threatened litigation at the outset, demanding they retract their complaints. Roca then went completely silent for more than three years. However, after such a long period of dormancy Roca now seeks to threaten imminent legal action against these witnesses. Nothing could have motivated Roca to reach out to these women after such a long period other than to try and intimidate witnesses in this case.

The filing only seeks a rather brief temporary restraining order, asking the court to block Roca from any such threats or lawsuits until after the October 8th hearing in this case, when it's likely the judge will determine if the original gag order from Roca Labs is legit. As Randazza notes, the only possible "harm" to Roca is delaying a possible lawsuit by less than two weeks (which seems completely minor given that Roca Labs ignored the issue with at least two of the customers in question for over three years). Furthermore, Randazza asks for any and all communications with those and other potential witnesses in the case to make sure that there hasn't been anything else that might be deemed witness harassment or intimidation.

Filed Under: consumer reviews, evidence, intimidation, lawsuits, marc randazza, opinions, paul berger, reviews, tampering, threats, witness
Companies: consumer opinion corp., roca labs