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Hoang v. Amazon.com, Inc.

Date: 

10/13/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Amazon.com, Inc., IMDb.com, Inc.

Type of Party: 

Individual

Type of Party: 

Large Organization

Court Type: 

Federal

Court Name: 

Western District of Washington at Seattle

Case Number: 

2:11-CV-01709-MJP

Legal Counsel: 

Ashley A. Locke, Breena Michelle Roos, Charles Christian Sipos, Elizabeth L. McDougall-Tural

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

Junie Hoang, the stage name of Asian actress Huong Huang, filed an anonymous "Jane Doe" complaint in the Western District of Washington against the Internet Movie Database website, IMDb.com, and its parent company, Amazon.com, on October 13, 2011.

Hoang, who lives in Texas, has been a user of IMDb.com since 2003 and a subscriber to IMDbPro since 2008. She was using the services to help her connect with casting directors and to obtain acting roles. She did not put her age in her profile, but alleges that IMDb.com included it at a later point in time. She alleges that IMDb.com "took the personal information she provided during the subscription process [from her credit card] and added it to her online profile without her authorization." She also alleges that IMDb.com "scour[ed] public records" to discover her date of birth. She asked for her birthdate to be taken down, but IMDb.com has refused.

Hoang alleges that revealing her true name and age on IMDb.com has harmed her career because "in the entertainment industry, youth is king." Hoang was 40 years old at the time of filing. In addition, she alleges a "double-whammy effect" because she cannot get "forty-year-old roles" because she looks younger than she is and cannot portray the role of a forty-year-old woman.

In her complaint, Hoang alleges four causes of action:

  1. Breach of contract (of IMDbPro's Subscriber Agreement and incorporated Privacy Policy);  
  2. Fraud;
  3. Violation of Washington Privacy Act, RCW 9.73.030; and
  4. Violation of Washington Consumer Protection Act, RCW 19.86.

She included Amazon.com in her complaint because she alleges that the company "aided and abetted IMDb's wrongful conduct," and was aware of IMDb's procedures of cross-referencing credit card information with public records to gather as much information as possible about each subscriber. She sought an injunction to remove her personal information from IMDb, as well as $75,000 in comensatory damages, $1 million in punitive damages, and an award of costs and fees.

On November 9, 2011, defendants responded with two Motions to Dismiss: one pursuant to Rule 12(b)(6), failure to state a claim; and another pursuant to Rule 10(a), arguing that "Jane Doe" should not be able to proceed anyonymously. On the Rule 12(b)(6) motion, Amazon and IMDb argued that the display of the birthdate was "an accurate fact," and that Doe's claims about IMDb's practices were "pure speculation." The defendants also noted that even if Doe's claims were true, "plaintiff consented to such use of information when she subscribed to the IMDbPro service." 

On November 28, 2011, plaintiff filed oppositions to defendant's Rule 12 (b)(6) motion and Rule 10(a) motion, and simultaneously filed a cross-motion to proceed anonymously due to the "unique circumstances" in the case. Plaintiff argued that she should be allowed to proceed anonymously because disclosure of her identity would subject her to "severe retaliation, harassment and ridicule," including retaliation by defendants, who she claims "have a reputation of striking back at consumers who complain about their unauthorized publication of personal information." 

Defendants filed replies in support of their motions on December 2, 2011. They argued in regards to the 12(b)(6) motion that the plaintiff had failed to meet her burden of specific factual allegations sufficent to state a claim, and that each of her causes of action fail independently. In their reply pursuant to the 10(a) motion, defendants argued that plaintiff's arguments did not justify anonymity in this case, while also denying that they had ever "retaliated against [p]laintiff (or anyone else) for complaining regarding its practices." Amazon also claimed that "embarrassment does not meet the strict standards for anonymity." 

On December 23, 2011, the Washington district court judge in Seattle granted the defendant's motion to dismiss on Rule 10(a) grounds.  The court said "the injury [plaintiff] fears is not severe enough to justify permitting her to proceed anonymously. " The judge granted leave to "Jane Doe" to amend her complaint by adding her real name within 14 days of the order. 

On January 6, 2012, "Jane Doe" filed an amended complaint using her real name, Huong Huang.

On March 30, 2012, a federal district court judge ruled on the Rule 12(b)(6) Motion to Dismiss. Taking plaintiff's factual allegations as true, the court granted in part and denied in part defendants' motion.

  1. Breach of Contract. The court held that Huang's breach of contract claim was sufficient to survive the motion to dismiss stage. Plaintiff alleged an existence of a contractual duty and a breach of that duty. The court said the "plain language of the contract does not permit defendants unfettered use of the personal information that Plaintiff provided for the purposes of processing payment."
  2. Fraud. In regards to the fraud claim, the court held that Huang's claim failed because it did not meet the high standard of specificity requirements of Rule 9(b). This claim was dismissed with leave to amend with "the requisite standard of particularity."
  3. Washington's Privacy Act. Plaintiff's privacy claim also failed because it misapplied the Washington statute. The information was not "private" and was not "intercepted" or "recorded" by defendants, as required by the statute.  This claim was dismissed with prejudice.
  4. Washington's Consumer Protection Act. The Consumer Protection Act claim was also allowed to survive at the motion to dismiss stage. The court found that "defendants' alleged practices" could affect millions of people if plaintiff's allegations of IMDb.com's unfair and deceptive practices are true. 

On April 25, 2012, Huang filed a Second Amended Complaint (SAC), addressing the specificity in her fraud claim. In her SAC, Huang argues that defendants were engaged in data-mining, and that they "materially misrepresent...the safety, security and purposes for which they gather and use the personal and credit card information of consumers who subscribe to IMDbPro." She claims she would not have shared her credit card information if she knew the defendants would use "such information for other purposes." (The plaintiff and defendants disagree as to which documents represent the operative agreements in this matter.) Huang also adds a new claim about Amazon.com. She alleges that she purchased products from Amazon.com prior to subscribing to IMDbPro and  that "Amazon.com misrepresented in the Privacy agreement available on its website the terms on which Amazon.com would share her user information with IMDb.com."

After Huang filed her second amended complaint, defendants filed another Motion to Dismiss pursuant to Rules 12(b)(6) and 9(b) on May 9, 2012. In it, defendants argue that plaintiff's new claim about Amazon.com's Privacy Notice is a "thinly veiled attempt to keep Amazon.com in this lawsuit." Defendants also argue that plaintiff's SAC "comingles" defendants and fails to distinguish between Amazon.com and IMDb.com, as required for a state claim for fraud. They claim that plaintiff still does not specify "which statements are false, which statements IMDB.com knew were false and intended plaintiff to rely on, and which statements she had a right to rely on."  

Huang filed an opposition to the Motion on May 21, 2012, and defendants replied to the opposition on May 25, 2012.

On June 1, 2012, Huang filed a Motion for Relief from Trial Deadlines and to Continue Trial Dealines alleging defendants did not file substantial answers to her complaint and/or raise substantial defenses. The plaintiff also claims both parties have been "embroiled" in discovery disputes because Amazon claims to be exempt from full discovery. Defendants filed an Opposition to that motion on June 13, 2012, alleging that plaintiff was delaying her own responses to discovery and had failed to respond to efforts to negotiate a "mutally acceptable protective order." On June 15, 2012, Huang filed a Reply in support of her Motion for Relief from Trial Deadlines and to Continue Trial Date.  

The plaintiff and defendants asked the Court to enter a Stipulated Protective Order regarding discovery on June 28, 2012. 

 

Content Type: 

Subject Area: 

Jurisdiction: 

Bland v. Roberts

Threat Type: 

Lawsuit

Date: 

04/24/2012

Party Receiving Legal Threat: 

Bobby Bland, Daniel Ray Carter. Jr., David W. Dixon, Robert W. McCoy, John C. Sandhofer, and Debra H. Woodward

Type of Party: 

Individual
Government

Type of Party: 

Individual
Government

Court Type: 

Federal

Court Name: 

United States District Court, E.D. Virginia, Newport News Division

Case Number: 

Civil Action No. 4:11cv45

Legal Counsel: 

James Harrell Shoemaker, Jr., Jason Eric Messersmith, William Vinton Hoyle, Jr.

Publication Medium: 

Social Network
Other

Relevant Documents: 

Status: 

Pending

Description: 

On March 3, 2011, Bobby Bland, along with five coworkers in the Sheriff's Department in Hampton, Virginia, sued their former employer, Sheriff B.J. Roberts, in the U.S. District Court for the Eastern District of Virginia alleging wrongful termination due to their support of Sheriff Robert's opposition in a 2009 re-election campaign. In their complaint, the plaintiffs claim Sheriff Roberts violated their First Amendment rights to freedom of speech and freedom of association when he fired them in December 2009 after he was re-elected. Four of the plaintiffs are sworn, uniformed deputy sheriffs. Bland and another plaintiff are unsworn, non-uniformed civilian employees within the Sheriff's Office.

The complaint alleges that Sheriff Roberts fired Bland and others because they supported the Sheriff Robert's opposition, Jim Adams, who previously worked at the Sheriff's Office for 16 years and was third in command as Lieutenant Colonel, though he had recently resigned in order to run against Roberts. The plaintiffs contend that Sheriff Roberts found out about their support of Adams, including two plaintiffs' online support of Adams' Facebook page (Carter, McCoy), one plaintiff "liking" Adams' Facebook page (Carter), other plaintiffs attending a campaign cookout allegedly for Adams (McCoy, Sandhofer, Carter), one plaintiff displaying a bumper sticker supporting Adams and making a negative statement with profanity to a poll worker about the Sheriff's election material (Dixon), and one plaintiff refusing to actively support the Sheriff Robert's reelection efforts as she had done in the past (Woodward).  

The plaintiffs further allege in their complaint that Sheriff Roberts knew of their active support of Adams, and that their terminations were "unlawful, retaliatory and improper in that the Defendant B.J. Roberts effected these terminations because the Plaintiffs exercised their rights to freedom of speech in refusing to support Roberts' re-election efforts and in actively supporting Roberts' opponent." They also allege that the Sheriff "used his authority to bolster his reelection efforts" by soliciting them to provide services in support of those efforts, including selling and buying tickets for campaign fundraisers. They demand monetary relief and reinstatement to their prior positions.

On December 9, 2011, Sheriff Roberts filed a motion for summary judgment in which he argued that there was no genuine issue of material fact because plaintiff's did not provide sufficient evidence on their First Amendment Retaliation Claim and First Amendment Assoication Claim. Roberts said he fired the plaintiffs because of poor work performance, budget constraints and  lack of harmony and efficiency" in the Sheriff's Office, not because of their support for Adams. Further, he alleged that during the 2009 election, he "had no knowledge of whether plaintiffs or any other appointee supported him or Adams."

In response to plaintiffs' First Amendment claims, Roberts argued that the claims fail because there was insufficient evidence to prove a "casual nexus between their alleged speech and Sheriff Roberts' decision not to reappoint them," citing McVey v. Stacy, 157 F.3d 271 (4th Cir. 1998). Similarly, the motion argues that plaintiffs' freedom of association claims must fail because plaintiffs could not establish any direct causation between their termination and their political support of Adams.  In addition, Sheriff Roberts offers affirmative defenses that he is entitled to qualified immunity in his individual capacity, and that he is barred by the Eleventh Amendment from being sued in his official capacity as Sheriff.

Plaintiffs filed their opposition to the motion for summary judgment on December 23, 2011, responding that there was a dispute of material fact as to whether they were terminated on the basis of (1) their political affiliation, in violation of their First Amendment rights as articulated in Elrod v. Burns, 427 U.S. 347 (1976) and (2) protected employee speech on matters of public concern under the Pickering and Connick test, balancing whether a public employee's speech is constitutionally protected. Pickering v. Board of Education of Township High School District, 391 U.S. 563 (1968); Connick v. Myers, 461 U.S. 138 (1983). The first argument was asserted by all plaintiffs; the latter claim was asserted only by Plaintiffs Carter, Dixon, McCoy and Woodward. 

In the Sheriff's reply to the plaintiffs' opposition, he argued that plaintiff's First Amendment claims fail because they were not engaging in First Amendment expression that is protected by the Constitution. Sheriff Roberts argues that Plaintiff Carter and McCoy's activities on Facebook, Plaintiff Woodward's conduct, and Dixon's statement to a poll worker were not constitutionally protected speech. Furthermore, Roberts alleges that plaintiffs could not prove that he [Sheriff Roberts] knew about their support of Adams or that he made his hiring decisions based on those facts.

On April 24, 2012, the District Court granted the defendant's Motion for Summary Judgment, holding that the plaintiffs asserting rights of freedom of speech failed to the first prong of the McVey test, i.e., speaking out on a matter of public concern, because they did not sufficiently engage in "expressive speech." While the election process was certainly a matter of public concern, the court found that the alleged speech at issue -- "liking" an opponent's Facebook page, having a car bumper sticker, allegedly using profanity at an election booth about the Sheriff's campaign literature, and refraining from supporting the Sheriff -- was not speaking out, and therefore was not speaking at all

The court further explained that Plaintiff Carter's "liking" of Adams' Facebook page was "insufficient speech to merit constitutional protection." The court held further that "[i]n cases where courts have found that consitutional speech protections extended to Facebook posts, actual statements existed within the record," and that "liking" the Facebook page was not an actual statement, but rather just "one click of a button."

The court also ruled against all plaintiffs on their claims of freedom of association, finding that there was insufficient evidence that the Sheriff knew about their "association" with the Adams campaign.  Finally the court held that "[e]ven if the Court found that Plaintiffs had adequately stated First Amendment claims, the Sheriff, in his official capacity, would still be immune from liability" under both the qualified immunity doctrine and the Eleventh Amendment.  The court based this ruling on the fact that the Sheriff in Virginia is a constitutional officer and that a suit against him in his official capacity is a suit against the State.

The plaintiffs filed a notice of appeal on May 24, 2012.

UPDATE:

July 20, 2012: Plaintiffs/appellants file their brief on appeal, arguing that they could not constitutionally be terminated based upon their political affiliations because they were not in confidential or policy-making positions as to which political loyalty was essential. They further argued that plaintiffs Carter, Dixon, McCoy and Woodward through the actions described above engaged in protected speech on a matter of public concern, that their interests outweighed the interests of the state in the Pickering balancing test, and that the defendant was not entitled to qualified immunity.

August 6, 2012: Facebook files an amicus brief in support of plaintiff/appellant Carter, arguing that a Facebook "like" is constituionally protected speech. The American Civil Liberties Union and ACLU of Virginia also file an amicus brief, arguing among other things that Carter, Dixon, McCoy and Woodward all engaged in protected speech regardless of the clarity, value or medium of the speech. 

September 14, 2012: Defendant files his appellee's brief, arguing that the district court correctly rejected all aspects of the plaintiffs' claims.

October 1, 2012: Plaintiffs file their reply brief. The reply presented additional arguments that the defendant was aware of the plaintiffs' political affiliation with and support for defendant's political opponent, and that the plaintiffs had established that their political activity was the cause of their termination.

September 18, 2013: The Fourth Circuit affirmed the district court in part, reversed in part, and remanded the case

The Court of Appeals held that Carter, Dixon, and McCoy had identified sufficient disputes of fact to allow their claims for reinstatement of their employment to continue, but affirmed as to all other claims. Specifically, the Court held that Carter, Dixon, and McCoy had engaged in speech protected by the First Amendment (including an extended discussion of the impact of a Facebook "like") and that they raised a material issue of fact as to whether they were terminated for that speech; however, plaintiffs Sandhofer, Woodward and Bland had failed to present evidence warranting an inference that they were terminated for their speech. The Court further found that: (1) there was evidence that Carter, Dixon & McCoy's employment positions were not so entwined with policy that they could be terminated for disloyalty to the Sheriff; (2) their speech was made in their private capacities and related to matters of public concern; and (3) there was no evidence of disruption to the workplace as a result of their speech. Accordingly, the Could held that the claims by Carter, Dixon and McCoy would survive summary judgment on the merits. 

However, the Court held that their claims against the Sheriff in his personal capacity were barred by the doctrine of qualified immunity, because prior case law was not clear enough for the Sheriff to know whether the plaintiffs held positions subject to dismissal for breach of loyalty. The Court also found that these three plaintiffs' claims for monetary relief against the Sheriff in his public capacity were barred by the Eleventh Amendment. Nevertheless, the Court held their claims for reinstatement to their prior positions could proceed, because the Eleventh Amendment does not bar prospective relief.  In the end, the Court remanded the case to the district court to proceed to trial on Carter, Dixon and McCoy's claims for reinstatement, but affirmed the dismissal of all other claims.

In an extended dissent, Judge Hollander of the Fourth Circuit argued that the Sheriff should not have been entitled to qualified immunity. She stated that prior case law clearly established that the Sheriff should have considered the specific duties with which Carter, Dixon, and McCoy were entrusted, and that taking those duties into account it should have been clear that they did not hold positions that could be terminated for disloyalty.

Content Type: 

Subject Area: 

Jurisdiction: 

Marshals v. ahowardmatz.com

Threat Type: 

Criminal Charge

Date: 

07/09/2010

Party Receiving Legal Threat: 

Author of the site.

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

Jusge A. Howard Matz

Legal Counsel: 

Pro Se

Publication Medium: 

Website

Relevant Documents: 

Disposition: 

Material Removed

Description: 

The nature of the threat is a secret, known only to judge A. Howard Matz and Agent Smith.The complaint was on July 9, 2010. The site was removed on or about October 7, 2010.

Content Type: 

Subject Area: 

Jurisdiction: 

Harris v. Google

Threat Type: 

Lawsuit

Date: 

02/08/2010

Party Receiving Legal Threat: 

Google, Inc. d/b/a Google Phonebook

Type of Party: 

Individual

Type of Party: 

Large Organization

Court Type: 

Federal
State

Court Name: 

Circuit Court of the 19th Judicial Court in and for Marin County, Florida; removed to United States District Court for the Southern District of Florida

Case Number: 

10-363 CA

Legal Counsel: 

Astigarraga Davis Mullins & Grossman, P.A.

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On February 8, 2010, Jonathon Harris, a rare coin dealer, filed a lawsuit against Google, Inc. in Florida state court. According to the complaint, a Google Phonebook search for rare coins returned his home address and a map to his home, rather than information for his business address for periods of time from July 2007 through January 2010.

Arguing that he "reasonably feels that crimes of theft, burglary, and home invasion are more likely if he publishes his family's home address as a place where rare coins are found," Mr. Harris sought a permanent injunction and claimed damages from invasion of privacy and intentional infliction of emotional distress. According to the complaint, Google failed to permanently correct the entry after multiple written demands, even though Google had a written policy to remove such information upon written demand within 48 hours.

After removing the complaint to federal court, Google has moved to dismiss all claims, arguing that Mr. Harris's home address is not a private fact. Additionally, Google argued that the suit is barred by Section 230 of the Communications Decency Act because the information from the search was provided by a third party who aggregates telephone directories and other public records otherwise available on the web.

Content Type: 

Subject Area: 

Jurisdiction: 

U.S. Chamber of Commerce v. Yes Men

Date: 

10/26/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Jacques Servin aka Andy Bichlbaum; Igor Vamos aka Mike Bonanno; Support and Commitment, Inc.; David Sievers; Morgan Goodwin; John and Jane Does 1-20

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Columbia

Case Number: 

1:09-cv-02014-RWR

Legal Counsel: 

Robert Corn-Revere, Lisa B. Zycherman, Bruce E. H. Johnson, Ambika Doran, Thomas R. Burke - Davis Wright Tremaine, LLP; Matthew Zimmerman, Corynne McSherry - EFF

Publication Medium: 

Verbal
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Material Removed

Description: 

In October 2009, the U.S. Chamber of Commerce sued a group of political activists including members of the Yes Men and the Action Factory for trademark infringement and other claims in federal district court in the District of Columbia.

The dispute arose when the Yes Men issued a fake press release and held a fake press conference at the National Press Club in which the Chamber of Commerce ostensibly reversed its position and promised to stop lobbying against strong climate change legislation. After the fake press conference began, a real representative of the Chamber of Commerce interrupted and revealed that the Chamber had not in fact reversed its position.  As part of the hoax, the Yes Men published a parody website designed to look like the Chamber's, which featured a fake statement by CEO Thomas J. Donahue about the supposed change of policy.

The Chamber first sent a DMCA takedown notice to the Yes Men's upstream service provider demanding that the parody website be taken down.  According to EFF, this resulted in the temporary shutdown of not only the spoof site but of hundreds of other sites hosted by May First/People Link.  The Yes Men retained EFF as counsel, and EFF responded to the Chamber on their behalf, disputing the validity of the copyright claim, requesting that the Chamber withdraw its letter, and threatening a DMCA action for knowing, material misrepresentation of a copyright claim under 17 U.S.C. § 512(f).  Despite the takedown notice, the parody site remained available for a time, but now no longer appears to be online.

The Chamber then filed its lawsuit in federal court, abandoning the copyright claim but asserting trademark infringement, trademark dilution, cybersquatting, false advertising and other claims.  On January 5, 2010, the Yes Men and Action Factory defendants filed a motion to dismiss the complaint and a motion to stay discovery. The motion to dismiss argues that the Chamber's lawsuit is designed to punish core political speech, rather than to vindicate any actual trademark harm, and should therefore be dismissed.

Content Type: 

Priority: 

1-High

Jurisdiction: 

Subject Area: 

Jones v. Above The Law

Date: 

10/27/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

David Minkin; David Lat; Dead Horse Media, Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Florida

Case Number: 

09-23256

Legal Counsel: 

Marc John Randazza

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

In October 2009, Donald Marvin Jones, a law professor at the University of Miami School of Law, sued David Lat and David Minkin, editor and publisher of the popular law gossip blog Above the Law (ATL), as well as ATL's parent company, Dead Horse Media. The complaint seeks $22 million in damages and an injunction "enjoining Abovethelaw to remove all articles and posts concerning Professor Jones."

The lawsuit revolves around a series of posts ATL published after Jones was arrested in 2007 on suspicion of trying to solicit sex from a prostitute. In these posts, ATL made fun of Jones—calling him "The Nutty Professor"—and posted a screenshot of the "incident report" for his arrest.  In one post, Lat published a photo/graphic mash-up collage forwarded to him by a reader that—according to the complaint—"depict[ed] Professor Jones as a drug dealer and a pimp or both."  The graphic featured one photograph of Jones superimposed on a $20 bill and another talking up a group of prostitutes. 

According to the National Law Journal, Jones pleaded not guilty to the solicitation charge, and the authorities later dismissed the charge and expunged it from Jones' record.

Jones' complaint alleges that ATL infringed his copyright by publishing the mash-up collage because a photo in it was "stolen from the UM website without permission." There is no allegation that Jones, as opposed to the University, owns the copyright in the photo or that the photo is registered with the copyright office. Jones also alleges that publication of the collage casts him in a false light by portraying him as a "dope dealer, pimp, and criminal."

Finally, the complaint alleges that ATL invaded his privacy and cast him in a false light by publishing the "incident report" despite dismissal and expungement of the solicitation charges.  Jones' claim that ATL made "private records public" is complicated by Fla. Stat. § 119.105, which provides that "[p]olice reports are public records except as otherwise made exempt or confidential," and says that, even in the case of exempt or confidential police reports, "[t]his section does not prohibit the publication of such information to the general public by any news media legally entitled to possess that information."

On November 4, 2009, after much criticism of the lawsuit in the legal blogosphere, Professor Jones voluntarily dismissed the action.

Content Type: 

Subject Area: 

Jurisdiction: 

Bennoti, Inc. v. Complaintsboard.com

Date: 

03/25/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

www.complaintsboard.com; Elizabeth Arden

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of New York

Case Number: 

1:08-cv-03118-JGK

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

In March 2008, Bennoti, Inc., an espresso machine marketer and merchandiser, sued consumer review site Complaints Board and its owner, Elizabeth Arden, for defamation of business reputation (trade libel) and unfair competition. In March 2009, the United States District Court for the Southern District of New York discontinued the action with prejudice, noting that "[i]t [had] been reported to this Court that the plaintiff wishes to voluntarily dismiss this action."

According to the complaint, Complaints Board published six false or inflated consumer complaints about Bennoti. One complaint featured a photograph of a Bennoti espresso machine, to which Defendant added "a comic strip style balloon" featuring the words "Don't call us! We're busy cheating customers!"

The complaint also alleged that Complaints Board diverted "hits" away from Bennoti's website, and in doing so exposed consumers to defamatory remarks and "pirate[d] the millions of dollars Plaintiff spends to develop consumer awareness of its coffee products brand, and then diverts those consumers to Plaintiff's competitors."

The complaint asserted that Section 230 of the Communications Decency Act did not shield Complaints Board because the website allegedly created fictional complaints and inserted "headings, report titles and messages for the reports."

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

-mw reviewing 10/9

Jurisdiction: 

Sedgwick Claims Management Services v. Delsman

Date: 

04/03/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Robert A. Delsman

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of California

Case Number: 

09-cv-1468

Legal Counsel: 

Pro Se (trial court); Paul Alan Levy - Public Citizen Litigation Group (appeal)

Publication Medium: 

Blog
Print
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

Sedgwick, a company that provides insurance claims management services, sued Robert Delsman, a former employee of one of Sedgwick's clients, for copyright infringement, defamation, and other torts, after he created gripe sites, blogs, videos and print materials criticizing the company. Delsman's beef with the company started after he filed a claim for disability benefits in 2006.  According to the complaint, Delsman was unhappy with the way in which Sedgwick handled his claims, and began a campaign of harassment which allegedly included:

  • Hosting pictures of Sedgwick's CEO and COO on his website and blog, which "morph[ed] . . . into images of Adolph Hitler and Heinrich Himmler," and posting a similar video to YouTube
  • Referring to Sedgwick and its employees as "Sedgthugs"
  • Unjustly accusing Sedgwick of engaging in criminal behavior on his website and in emails
  • "Operation Going Postcard," in which Delsman sent postcards to Sedgwick offices, employees, customers and outside insurance agencies in multiple states.  These postcards allegedly contained copyrighted images of Sedgwick's CEO and COO and an image of a human skull containing Sedgwick's trademark in the eye sockets, along with "defamatory, false and libelous statements against Sedgwick.

(Compl. ¶¶ 12-13.)  Sedgwick sought damages, fees, and an injunction preventing Delsman from sending offensive emails or postcards and further defaming or libeling Sedgwick, and requiring him to remove all of Sedgwick's copyrighted material from his website and blog and to destroy all Sedgwick's copyrighted material in his possession.

Delsman, who is representing himself pro se, has filed a motion for summary judgment.  The court has yet to rule on his motion.

UPDATE:

07/17/2009- The court construed Delsman's motion for summary judgment as a motion to dismiss and granted the motion.  The court held that the copyright claim failed because Delsman's use of Sedgwick photographs was fair use.  The court dismissed the remaining claims under California's anti-SLAPP statute.

12/16/2009- Sedgwick filed its opening brief on appeal.

01/29/2010 - Delsman filed its response brief.

03/01/2010 - Sedgwick filed its reply brief.

03/21/2011 - In an unpublished, two-page opinion, the Ninth Circuit Court of Appeals affirmed the district court's ruling.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Updated with Ninth Circuit ruling, sent to us by Delsman - AAB 4/1/11

 

Jurisdiction: 

Guinness World Records v. FAIL Blog

Threat Type: 

Correspondence

Date: 

07/01/2009

Party Receiving Legal Threat: 

FAIL Blog

Type of Party: 

Organization

Publication Medium: 

Blog

Status: 

Pending

Disposition: 

Material Removed
Material Reinstated

Description: 

Guinness World Records Limited (GWR) sent a cease-and-desist email to FAIL Blog after it published a posting called "Record Breaking Fail," which showed a screenshot from the Guinness World Records website for the entry "most individuals killed in a terrorist attack."  The "fail" captured by the screenshot was a link on the page -- apparently part of the site's template -- encouraging readers to "break this record." The email claimed that FAIL Blog's posting infringed GWR's trademark rights because its "star and pedestal" logo appeared in the screenshot.

FAIL Blog took down the original screenshot came down and replaced it with a slightly altered version with the GWR logo fuzzed out, a copy of GWR's C&D, and a comic yet biting response warning GWR that "douchebaggy cyber-bullying emails will only bring upon you more shame on your house." The FAIL Blog response elaborated:

Since we at FAIL Blog(TM) don’t have a legal defense department, we have complied with your request to remove the trademarked term and logo from the original image. We have used the “naughty bits filter” on the image to secure your naughty, naughty, trademark assertions. However, we have posted your email so that our audience can see why we had to remove the name of the failer from the image. I hope that this is the outcome you have expected as now NO ONE WILL EVER KNOW THAT GUINNESS WORLD RECORDS LIMITED HAS FAILED.

Techdirt reports that it has removed the original world record page from its site.

Content Type: 

Subject Area: 

Cafiero v. Custer

Threat Type: 

Lawsuit

Date: 

08/14/2008

Party Receiving Legal Threat: 

Doug Custer a/k/a Doug Evil

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Pennsylvania.

Case Number: 

3:08-CV-00202

Legal Counsel: 

Pro se

Publication Medium: 

Blog
Forum
Social Network
Website

Relevant Documents: 

Status: 

Pending

Description: 

John Cafiero, a rock musician and manager of punk bands The Ramones and The Misfits, filed suit against Doug Custer (a/k/a Doug Evil) alleging in his complaint that Custer infringed his copyright by posting an animated video featuring The Misfits on YouTube.com and other websites.  Cafiero also brought a claim of misrepresentation under the Digital Millennium Copyright Act, arguing that Custer lied on his DMCA counter-notification by claiming a copyright interest in the video.

Alongside the copyright allegations, Cafiero alleged defamation and false light arising from various Internet postings Custer allegedly made that criticized Cafiero.  Many of these arose from spoof site Osuka Papsmear, which Cafiero asserts is a Custer blog dedicated to defaming Cafiero and his band Osaka Popstar.

Early in the case, Cafiero received a default judgment against Custer after Custer did not appear or answer the complaint.  Appearing pro se, Custer successfully challenged the default judgment and filed his answer and counterclaims.  Custer's lengthy counterclaims, which discuss Cafiero's business dealings in depth, appear to bring claims of copyright infringement and defamation.  Custer's filings maintain that he himself authored most of the material appearing in the video and that Cafiero reneged on his promises regarding publication and use of the video.

On November 11, 2008, Cafiero filed a motion to dismiss Custer's counterclaims for failure to comply with rules of civil procedure, asking in the alternative for Custer to file a more definite statement.  Custer opposed the motion and filed a more definite statement.

On May 22, 2009, the parties agreed to submit the case to mediation proceedings, and the judge referred the case to mediation on June 1. The defendant consented to appointed counsel for the mediation process only.

On May 28, Cafiero moved to file an amended complaint that would add two more plaintiffs --  Jerry Caiafa (a/k/a Jerry Only), who composed music for the video; and Cyclopian Music, Inc., the owner of The Misfits trademarks. The motion also sought to add counts of copyright infringement arising from use of Caiafa's work; trademark infringement under  Section 32 of the Lanham Act; and false designation of origin and unfair competition under Section 43 of the Lanham Act. The defendant opposed the motion to amend the complaint, asserting that adding more plaintiffs would conflict with the purpose of mediation.

Content Type: 

Subject Area: 

Threat Source: 

Westlaw Alert

Priority: 

1-High

CMLP Notes: 

Source: Dozier Internet Law

CMF - 6/8/2009

Jurisdiction: 

Hammer v. Amazon.com

Date: 

08/27/2003

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Amazon.com

Type of Party: 

Individual

Type of Party: 

Large Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of New York

Case Number: 

2:03-cv-04238-JS-MLO

Legal Counsel: 

Heather J. Windt - Friedman Kaplan Seiler & Adelman LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Self-published author Jeffrey Hammer sued Amazon.com in New York state court (later removed to federal court by Amazon) alleging libel, defamation, antitrust violations, breach of contract, and copyright violations, among others things.  The dispute revolved around negative reviews of Hammer's books posted on Amazon.com by reviewer Anthony Trendl and Amazon's failure to remove Trendl as a reviewer.  Before filing suit against Amazon, Hammer sued Trendl directly, but a federal court dismissed the lawsuit.  (For details, see our database entry, Hammer v. Trendl.) 

Hammer's complaint claimed that Amazon was liable for publishing Trendl's allegedly defamatory statements, that Amazon violated his copyright by displaying a graphic depicting Plaintiff's book cover, and that Amazon breached its contract with him and otherwise violated his rights by removing his books from the site and refusing to do further business with him. 

Amazon moved to dismiss the lawsuit, arguing that Hammer's allegations failed to state a claim and that section 230 of the Communications Decency Act ("Section 230") protected it from liability for publishing Trendl's statements. Amazon also moved the court for a permanent injunction to prevent Hammer from filing future lawsuits against it.

The court granted Amazon's motion to dismiss and partially granted its motion for a permanent injunction against Hammer.  The court ruled that Trendl's comments were statements of opinion that could not support a defamation claim.  The court dismissed the copyright claim, finding that Amazon's use of the book graphic either involved no copying, or alternatively, was authorized by Hammer.  The court found that Amazon was within its contract rights terminating its relationship with Hammer.  The court did not reach Amazon's Section 230 argument.

The court granted an injunction against Hammer preventing him from commencing any action against Amazon in federal court relating to reviews of his books or Amazon's refusal to do business with him.  

Content Type: 

CMLP Notes: 

RPK

Jurisdiction: 

Subject Area: 

New York Times v. Newser

Threat Type: 

Correspondence

Date: 

02/01/2009

Party Receiving Legal Threat: 

Newser, LLC

Type of Party: 

Media Company

Type of Party: 

Organization

Publication Medium: 

Website

Status: 

Pending

Disposition: 

Material Removed

Description: 

On February 25, 2009, Michael Wolff, founder of Newser, blogged that Newser had recently received a letter from the New York Times requesting that it stop using the Times' "T" logo.  Newser is a news aggregator and curator that links to and summarizes articles from news sources around the web.  The articles are presented as a grid of photographs, each overlayed with the title of the article, the amount of time since it was uploaded, and the source of the article, usually accompanied by a small logo of that source. 

Wolff has not made the letter public, but he told the Neiman Journalism Lab that it came from the New York Times Company's General Counsel's office.  Wolff told Peter Kafka, of MediaMemo, that the letter was "legal boilerplate," warning that the Times would "pursue all available remedies, both criminal and civil" if they continued to use the logo.

Catherine Mathis, a spokeswoman for the Times, told the Neiman Journalism Lab that they asked Newser to stop using the "gothic 'T' logo," which is trademarked, and asked Newser to take down a photo that was used without permission and misattributed, presumably on the basis of copyright. She also told the Neiman Journalism Lab that Newser took down the photo. The Times' logo still appears on Newser for summaries from the New York Times.  

Content Type: 

Jurisdiction: 

CMLP Notes: 

Source: Nieman Journalism Lab

Priority: 

1-High

Subject Area: 

Harding v. Green

Threat Type: 

Lawsuit

Date: 

12/22/2008

Party Receiving Legal Threat: 

Joan L. Green

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Nevada

Case Number: 

2:08-cv-01799

Legal Counsel: 

Pro Se

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued
Material Removed
Settled (total)

Description: 

Nevada attorney Samuel A. Harding filed a defamation and cybersquatting lawsuit against Joan L. Green after Green allegedly created a website critical of Harding at www.attorneysamharding.com. Harding alleged that Green's site "falsely states that Plaintiff committed illegal and criminal acts in the representation of clients." Harding's Complaint ¶ 11. Harding also alleged that Green was using his professional name and service mark in her domain name with a bad-faith intent to profit and in a manner likely to confuse Internet users.

The complaint claims Harding tried to the resolve the dispute by asking Green to transfer the domain to him. Green allegedly responded by putting the domain up for sale on auction site Afternic.com. The complaint seems to rely on Green's attempted sale of the domain to argue that Green had a bad-faith commercial motivation for launching the site. See Harding's Complaint ¶¶ 13-14, 17-18.

In the suit, Harding filed a motion for a temporary restraining order and preliminary injunction that would (1) prevent Green from using Harding's name and service mark (2) order Green and registrar Register.com to transfer the attorneysamharding.com domain to Harding. The court granted the motion, but it ordered only that Register.com "lock" the domain so that Green could not sell it.

Harding later dropped his motion for preliminary injunction on the ground that he had "obtain[ed] some of the relief sought by his Motion for Preliminary Injunction." See Harding's Motion to Vacate Hearing on Motion for Preliminary Injunction at pg. 1.  A website favorable to Harding soon appeared at the attorneysamharding.com domain.

On February 13, 2009, Green, acting pro se, filed her answer to the complaint. Harding filed a motion to strike Green's answer on the ground that it failed to comply with various rules of civil procedure.

Update:

04/27/2009 - Greeen filed her Counterclaim and Complaint for Damages.

08/26/09 - The parties appeared before federal magistrate judge Hon. Lawrence Leavitt for oral argument, and Green agreed to dismiss her counterclaims against Harding.

10/14/2009 - After the parties settled, the court dismissed the case pursuant to a Stipulation and Order for Dismissal, With Prejudice, of All Claims and Counterclaims, and for a Permanent Injunction. In the order, the parties stipulated that the court would enter a permanent injunction against Green prohibiting her from "(1) using Harding's name or confusingly similar variations thereof, alone or in combination with any other letter, word, letter string, phrase or design, for any purpose (including, but not limited to, on web sites and in domain names); and (2) registering owning, leasing, selling, or trafficking in any domain name containing Harding's name or service mark, or confusingly similar variations thereof, alone or in combination with any other letters, words, phrases or designs."

Subject Area: 

Content Type: 

Priority: 

1-High

Jurisdiction: 

CMLP Notes: 

Source: Dozier Internet Law

Threat Source: 

Google Blogs

Nicolazzo v. Yoingco

Threat Type: 

Lawsuit

Date: 

02/26/2007

Party Receiving Legal Threat: 

Dennis Yoingco

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Court of Common Pleas of Ohio, Clermont County

Case Number: 

2007 CVC 0354

Legal Counsel: 

Dennis Yoingco (Pro Se)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Verdict (defendant)

Description: 

After a dispute arose about Flora Nicolazzo's failure to make payments to Dennis Yoingco for the sale of a bulldog, Yoingco allegedly posted "websites and other internet messages and postings defaming [Flora and Robert Nicolazzo], including a copy of her driver's license and a mock wanted poster later edited to say 'Captured.'"  The Nicolazzos filed a lawsuit in Ohio State Court, claiming defamation, false light invasion of privacy, abuse of process, telecommunications and telephone harassment, and intentional infliction of emotional distress.  

Yoingco filed a motion to dismiss, and the court denied the motion with regard to each of the Nicolazzo's claims, except the claims for telecommunications and telephone harassment, which the court dismissed.  See Nicolazzo v. Yoingco, 898 N.E.2d 94 (Ohio Ct. Cm. Pls. 2007). The case went to trial in November 2007, and the jury returned a judgment in favor of Yoingco. 

Content Type: 

Subject Area: 

Threat Source: 

Westlaw Alert

Priority: 

1-High

Jurisdiction: 

Caldwell v. Caldwell

Date: 

10/14/2005

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Roy L. Caldwell PH.D., in his official capacity as Director of the University of California Museum of Paleontology; David Lindberg in his official capacity as Chair of the Integrative Biology Department of the University of California-Berkeley; Mich

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Norther District of California

Case Number: 

3:05-cv-04166-PJH

Legal Counsel: 

Christpher Mark Patti - University of California; William John Carroll - Schiff Hardin LLP; Wilson K Park - Morgenstein & Jubelirer LLP; Owen Peter Martikan - United States Attorney (for Piburn)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In October 2005, Jeanne Caldwell filed a complaint in federal court in California against Roy Caldwell, the Director of the University of California Museum of Paleontology, David Lindberg, Chair of the Integrative Biology Department at UC Berkeley, and Michael Piburn, Program Director for the National Science Foundation.  Ms. Caldwell claims that a website published by the University of California, "Understanding Evolution," impermissibly endorses, advances and proselytizes certain religious beliefs.

Specifically, she claims that one page on the site, entitled "Misconception: 'Evolution and Religion are Incompatible,'" states that Darwin's theories and religion can co-exist.  Caldwell argues that UC Berkelely's government-funded website contradicts a religious belief that evolution and religion are incompatible and amounts to a state position on religious doctrine. This violates the establishment clause of the First Amendment barring Congress from making any law respecting the establishment or exercise of religion.

In March 2006, the district court dismissed Caldwell's claims, holding that she failed to make out taxpayer standing and her allegations constitute no more than the generalized grievances of one who observes government conduct with which she disagrees. Accordingly, the court dismissed the complaint on the ground that Caldwell had not shown injury in fact.

On October 3, 2008, the Ninth Circuit affirmed the dismissal.

Content Type: 

Subject Area: 

Jurisdiction: 

State of Colorado v. Tafoya

Threat Type: 

Criminal Charge

Date: 

10/01/2008

Party Receiving Legal Threat: 

Robert Ezekiel Tafoya

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

10th Judicial District, Pueblo County

Status: 

Pending

Description: 

In late October 2008, Colorado authorities charged Robert Ezekiel Tafoya with one count of criminal libel.  According to the Pueblo Chieftan

"The investigation showed that the defendant pasted pictures of the face of one person onto the body of other persons and published or disseminated the pictures electronically to others," Thiebaut [the District Attorney] said. "We believe it impeached the reputation (of his accuser) and those pictures were being used to ridicule her." Thiebaut would not elaborate on the relationship between Tafoya and his accuser, or what the doctored photos depicted, except to say that they cast Tafoya's accuser "in a compromising position."

Jurisdiction: 

Content Type: 

Threat Source: 

RSS

Subject Area: 

Priority: 

1-High

Union Square Partnership v. Durkee

Threat Type: 

Lawsuit

Date: 

07/30/2008

Party Receiving Legal Threat: 

Savitri Durkee

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Administrative
Federal

Court Name: 

United States District Court for the Eastern District of New York; WIPO Arbitration and Mediation Center

Case Number: 

08-3101 (federal court); D2008-1234 (WIPO)

Legal Counsel: 

Corynne McSherry, Michael Kwan (Electronic Frontier Foundation); Terry Gross, Adam C. Belsky, Monique Alonso (Gross Belsky Alonso LLP); A. John P. Mancini, Gregory A. Frantz, Tiffany H. Scott (Mayer Brown LLP)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

In July 2008, Union Square Partnership (USP), the nonprofit business improvement district for New York's Union Square neighborhood, sued Savitri Durkee for copyright infringement in New York federal court after she created a website that parodied the official USP website.  (Durkee is an activist who wants to preserve Union Square as a public gathering place and prevent it from being commercialized.)  In August 2008, USP also filed an administrative complaint with the WIPO Arbitration and Mediation Center under the Uniform Domain Name Dispute Resolution Policy (UDRP), seeking to have the parody site's domain names (www.unionsquarepartnership.com and www.unionsquarepartnership.org) transferred to it.

Durkee failed to respond to the WIPO proceeding in a timely manner, and on October 22, 2008, the WIPO arbitration panel ordered that her site's domain names be transferred to USP.  On November 18, Durkee filed an answer and counterclaims in the federal court action, seeking a declaration that her domain names did not infringe USP's trademark or constitute cybersquatting.  Durkee also claimed that fair use excused any copyright infringement and that USP's lawsuit violated New York's anti-SLAPP laws.

The parties settled in January 2009.  Durkee agreed to transfer the domain names www.unionsquarepartnership.org and www.unionsquarepartnership.com to USP and to include a disclaimer on her site stating that the site is not affiliated with USP.   The parties also set out certain domain names that Durkee could not attempt to register or use.  Durkee now operates her new website at www.unionsquarepartnershipsucks.org.

Content Type: 

Subject Area: 

Threat Source: 

Google News

Priority: 

1-High

Jurisdiction: 

Pages

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