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

Police Delete Aftermath Footage Of Suspect Shot 41 Times

from the pure-violation dept

We've written several times before about the prevalence of recording devices and the protection citizens deserve in being allowed to film public servants doing their public duties. Some police departments seem to get it better than others, such as the DCPD policy for not confiscating cell phone cameras or deleting footage. Other departments, such as those in my hometown of Chicago, seem to think they can just take your property without a warrant as a way to stave off criticism of their poor behavior. But sometimes we get an example of why this debate is so important, when an officer of the law goes to the egregious lengths of killing a citizen and then his fellow officers attempt to cover up the evidence.

Tom Landry writes in about one such extreme example, featuring Texas police pumping 41 bullets at a man, having a police dog attack him, when the officer's stated and still ridiculous reasons for doing so were pure fabrication. Then, a fellow officer confiscated a witness's camera and deleted footage of the aftermath of the incident. Michael Allen Vincent, a man who allegedly had several traffic incidents with police in the past, had led policeman Patrick Tuter on a high speed chase before pulling over into a cul de sac. That's when Tuter ordered Vincent out of the car, before discharging his weapon 41 times, for reasons we'll get into later. As you might expect, all the noise attracted the attention of neighbors.

[Mitchell] Wallace and his wife were asleep when the gunshots began, but they quickly made it to the porch to see Allen's passenger being pulled from the truck and a police dog jumping into the cab. The German shepherd bit Allen in the neck and jaw area and dragged him out of the truck and onto the pavement, Wallace said. Police officers pulled the dog off, flipped Allen on his stomach and handcuffed him before checking his pulse. Autopsy results are pending on the cause of Allen's death.

Wallace took cellphone pictures and video after the shooting stopped, but he said Mesquite police confiscated the phone and deleted the video and pictures. The phone was returned four days later, he said.

First, I have a few complicated theories on what the cause of death may have been. Most of them involve an officer shooting at an unarmed suspect 41 times, having to reload at least once mind you, and/or a large dog dragging someone out of a car by the neck. Secondly, this confiscation of the camera and the deletion of footage is a blatant violation of the 1st and 4th amendments, as the article notes.

The law states that police need a court order to confiscate a camera unless it was used in a commission of a crime. The only exception is if there are exigent circumstances, such as a strong belief that the witness will destroy the photos, therefore destroying evidence. Under no circumstances do police have the right to delete footage.

Already a Texas Public Information Act request has been filed for a copy of the investigation into the seizure of the cell phone and deletion of footage.

Now, lest you think that this man somehow deserved to have 41 bullets fired at him before being attacked by a police dog, it turns out that Officer Tuter's stated reason for reacting so violently, that suspect Vincent had "backed his truck into the patrol car" (seriously?), was a complete fabrication as found out by his own dash camera. Tuter has since been suspended.

So, in the same story, we have police deleting footage from a witness illegally, while the illegal actions of an officer are only discovered because of camera footage. The juxtaposition perfectly highlights why the confiscation of cameras and deletion of potential evidence is such a horrendous violation of the public trust. I can think of no more clear way to demonstrate the need for strong protections for the public filming their civil servants.

Filed Under: 4th amendment, cameras, deleted, footage, police, witness

Student Who Witnessed Murder Trying To Use Journalism Shield Law

from the this-seems-odd dept

Romenesko points us to the news that a journalism student who witnessed a murder (and took some photos) in San Francisco is now trying to use California's journalist shield law to refuse to cooperate with police. The law is intended to protect journalists from having to reveal sources -- and we've noted a few recent lawsuits where "amateur" journalists have been trying to use such shield laws to protect their sources. In some of those discussions, some people pointed out that people might just automatically declare themselves a journalist to get covered by the law, though it seemed like that could be dealt with on a case-by-case basis -- and this case may push the borderline a bit.

The student was acting as a photo journalist, as part of his senior project, documenting the life of the guy who was shot and killed. His lawyer points out that part of the reason for such shield laws is so that reporters can observe and report without becoming a part of cases as witnesses. However, some would argue that's really meant for reporters who are investigating the details of a crime, not those who witnessed the crime in action. On top of that, there's the issue that, if the student does provide info to the police, his own life would be put in danger as well. I'm a big supporter of shield laws for journalists, and understand what the student is doing, but wonder if a judge might use this case to puncture a hole in those shield laws.

Filed Under: journalism, murder, shield laws, witness

Suggestion: Don't Text Message Your Boss While On The Witness Stand

from the that-would-be-a-mistrial dept

We recently wrote about a trial where there were concerns that a jury member was sending Twitter messages during the trial, but that's nothing compared to text messaging while on the witness stand. Yes, apparently a guy who was being questioned as a witness, used a break in the action (as the judge spoke to the lawyers in the case) to text message with his boss, who was also in the court room and at the plaintiff table. After being alerted to this by a "courtroom spectator," the judge declared a mistrial:

"Let me be really frank about this," the judge said. "I never had this happen before. This is completely outrageous, absolutely outrageous."

Toledano responded, "It was on a break."

Silverman shot back: "It doesn't matter. You are communicating about the case and the subject matter of the case with a witness who is currently under oath and before the jury,"

Toledano said, "I'm sorry, after we took the break, it's not in the middle."

The judge explained himself again.

"It's a problem on your communicating with the witness about his testimony whether it's before the break, after the break and during the break while he's testifying," he said. "This is outrageous."

These stories of technology in the courtroom seem to be coming up more and more frequently. It seems as though very few people have really thought through the implications of the many channels of communication that every individual now has with them, and how that changes common assumptions about how people can and will communicate, even in "constrained" areas.

Filed Under: text messaging, trial, witness