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Ascend Health Corp. v. Wells

Date: 

05/03/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Brenda Wells

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of North Carolina: Eastern Division

Case Number: 

4:12-CV-00083-BR

Legal Counsel: 

John Bussian (The Bussian Law Firm, PLLC); Mark Prak, Charles Coble, Eric David (Brooks, Pierce, McLendon, Humphrey & Leonard LLP)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

University Behavioral Health of Denton ("UBH") is a private psychiatric hospital in Texas owned by Ascend Health Corporation, where Brenda Wells, a North Carolina resident, was once treated. Dr. Khan is UBH's medical director, while Dr. Kresch is the President and CEO of Ascend. Wells operates the blog page "Worst Hospitals in America: UBH/Mayhill" at http://ubhdenton.wordpress.com/ (she also owns ubhdentonsucks.com, which redirects to this blog page). Wells promotes this blog, criticizing UBH and its doctors, on social media sites like Facebook and Twitter and encourages readers to submit their own stories. 

On May 3, 2012, Ascend Health Corporation, UBH, and Drs. Khan and Kresch filed a complaint against Brenda Wells in the U.S. District Court for the Eastern District of North Carolina. In the complaint, the plaintiffs alleged five claims for relief: defamation under North Carolina law, violation of the North Carolina Deceptive Trade Practices Act, libel under Texas law, business disparagement under Texas law, copyright infringement, and civil conspiracy. With respect to the North Carolina defamation and Texas libel claims, the plaintiffs referred to statements on the blog in which Wells implied she was held against her will, the doctors were unqualified, the facilities were unsanitary, and more. With respect to the two business-related claims, the plaintiffs argued they suffered reputational harm as a result of the false and defamatory commentary posted on Wells's blog. The plaintiffs also argued that Wells reproduced UBH and Ascend's copyright by taking images of facilities and doctors from their websites and copying the images on her blog. 

In response, Wells filed motions to dismiss on June 15, 2012. First, Wells argued that under North Carolina's choice of law, Texas substantive law rather than North Carolina law should govern this dipute. Wells also argued that the plaintiffs' copyright infringement claim should be dismissed under Rule 12(b)(6) as the plaintiffs failed to prove that they had valid copyrights in the images. Most notably, Wells moved to dismiss the Texas libel and business disparagement claims under the Citizen Participation Act, Texas's anti-SLAPP statute. To support the dismissal of the libel claim, Wells argued that: the allegations in the complaint were not set out with sufficient particularity to satisfy the statute; statements on the blog were non-actionable expressions of opinion and/or were non-defamatory; the blog statements were substantially true; plaintiffs could not prove that Wells acted with the requisite level of fault; the statements are commentary on an issue of public concern; Section 230 immunizes Wells from liability for third-party content on her blog; and the statute of limitations bars claims arising from many of the statements.

The plaintiffs filed an opposition to Wells's motion to dismiss on July 6, 2012. The plaintiffs relied primarily on a choice of law argument, arguing that federal procedural law and North Carolina substantive law govern, which, along with public policy, preclude application of the Texas anti-SLAPP statute. The plaintiffs also argued that Wells is an editor, not an "information service, system, or access software provider," and therefore is not eligible for Section 230 immunity. Further, the plaintiffs argued that the "matter of public concern" privilege does not apply because Wells's blog is not a "publication by a newspaper or other periodical." After arguing that the defamation claims not barred by statute of limitations in Texas or North Carolina, the plaintiffs argued that the complaint's allegations are sufficient to support a case for defamation per se. The plaintiffs also noted the completion of copyright registration to sustain the copyright infringement claims.

On July 23, 2012, Wells replied, reaffirming her argument that Texas's law and anti-SLAPP statute are applicable to this case. Wells also reasserted that plaintiffs failed to meet the burden of proof under the anti-SLAPP statute, and therefore their claims should be dismissed under Rule 12(b)(6) for failure to state a claim.

The court granted in part and denied in part the motions to dismiss in an order on March 14, 2013. The court dismissed both North Carolina claims after finding that Texas substantive law governs under North Carolina's choice of law doctrine. The court also dismissed the civil conspiracy claim and copyright infringement claim, finding that Wells's use of the images for criticism was transformative, noncommercial and constituted fair use. The court denied the motion to dismiss the plaintiff's claims for Texas libel and business disparagement, rejecting the applicability of Section 230. As Wells herself posted to the blog and significantly altered some content that originated with third parties, the court held that Section 230 immunity did not cover her content. Wells's fair reporting privilege argument was also rejected; the court held that as a blogger Wells would not be entitled to the privilege, distinguishing blogs from newspapers and other traditional news sources. In Judge Britt's words, "Postings on the blog are not published at regular intervals. They are not composed of articles, news items, or the like."  

On April 22, 2013, the plaintiffs filed a notice of voluntary dismissal with prejudice, thereby dismissing all remaining claims against Wells. As of July 2013, Wells's blog and critical commentary remained available.

Jurisdiction: 

Content Type: 

Subject Area: 

Distinguishing Fact from Opinion: The Second Circuit Rules on Scientific Articles

In a recent case before the Second Circuit, the Court of Appeals held that conclusions in scientific articles are akin to statements of opinion for defamation purposes and cannot give rise to actionable claims of false advertising under the Lanham Act or state statutory equivalents. In the Court's words, "the line between fact and opinion is not always a clear one" - and this recent decision has muddled that divide even more.

Jurisdiction: 

Content Type: 

Subject Area: 

Ellis v. Chan

Date: 

02/13/2013

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Matthew Chan

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Georgia Superior Court for the County of Muscogee

Case Number: 

5413dm409 (Superior Court); A14A0014 (Court of Appeals)

Legal Counsel: 

Oscar Michelen (Cuomo LLC); William J. McKenney (McKenney & Froelich)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued

Description: 

Linda Ellis is the author the motivational poem "the Dash" and actively enforces her copyright to this poem. Matthew Chan runs the Extortion Letter Info website (ELI), featuring a message board often used for exposing alleged copyright trolls and "extortion letter schemes." An individual who claimed to have received a copyright infringement notice and settlement offer from Ellis contributed to a discussion on ELI in 2012. This discussion developed into insults, accusations of copyright trolling and extortion, and other comments that Ellis interpreted as threats to her safety.

On February 13, 2013, Ellis filed a petition for a "stalking temporary protective order" with the Georgia Superior Court, asserting that she was "in reasonable fear of her safety." Ellis alleged that Chan posted threats of death such as "we are coming after you," along with personal information such as her home address. In this petition, Ellis requested that Chan be restrained from any acts that harass or intimidate her or her family and approaching within 1000 yards of her.

Chan presented a memo in opposition to Ellis's petition for an order of protection at the hearing on February 27. In it, he argued that the charges brought by Ellis were inappropriate under the OCGA §§ 16-5-90(a) and 94(d) and the elements of this charge of stalking could not be satisfied. Chan argued that a protective order for stalking was inappropriate as Ellis failed to prove by a preponderance of the evidence "that [Chan's] actions ... placed [Ellis] in reasonable fear for [her] safety by establishing a pattern of harassing and intimidating behavior." Chan also argued that Ellis failed to satisfy every element of the statute, such as contact and the purpose of harassment and intimidation. Chan did not contact Ellis directly, and did not follow or place her under surveillance. Further, Chan argued that his online speech, including the posting of Ellis's home address, was protected by the First Amendment. Lastly, as penalty for allegedly abusing the court system, Chan moved for sanctions against Ellis for filing a petition without substantial justification pursuant to OCGA § 9-15-14.

After the hearing, the Superior Court of Muscogee County issued a broad permanent protective order on March 4, 2013, with a cover sheet entitled "Domestic Relations Case Final Disposition Information Form." In the order, Judge Frank Jordan held that Chan "placed [Ellis] in reasonable fear for [Ellis's] safety" by contacting Ellis and posting her personal information in order to harass and intimidate her. Judge Jordan also emphasized Chan's ability to remove posts as the moderator and his decision not to remove those directed at Ellis. Judge Jordan permanently ordered Chan to remove all posts related to Ellis and to stay 1,000 feet away from her. Chan was also ordered to refrain from "contact of any type, direct, indirect, or through another person, . . . including but not limited to: telephone, fax, email, voicemail, mail, texting, spoofing, Facebook and other forms of social media."

On March 27, Chan filed a notice for appeal to the Court of Appeals of Georgia. Due to delays in production of the transcript from the case, Chan requested multiple extensions of time to file the transcript; his third application for an extension of time to file the transcript was granted on June 28, 2013.

UPDATES:

October 1, 2013: Chan filed his appellant's brief with the Court of Appeals, alleging that the trial court made four reversible errors.

First, Chan argued that the facts alleged cannot meet the elements of the charge of stalking, because publicly posting comments about Ellis online was not contacting her within the meaning of the statute, and that even if posting comments could constitute contact, he did not post his comments "for the purpose of harassing or intimidating" her. Second, Chan argued that he was deprived of due process because the court found him guilty of violating a statute (OCGA §§ 16-5-90(a)(2), relating to stalking in violation of a court order) that he had not been charged with violating. Third, Chan argued that the court improperly admitted an ex-parte affidavit containing "inflammatory, unsupported allegations." Finally, Chan claimed that his speech was protected under the First Amendment, the Georgia Constitution, and the Communications Decency Act.

Specifically, he contended that his speech could not constitute incitement to lawless action. Instead, he claimed, it was political speech, "a call to ‘rally the troops' to use public information about Appellee to show her hypocrisy vis-a-vis the theme of her poem." Chan further argued that the trial court's order violated the Georgia Constitution, because "Georgia courts have held that the State Constitution provides even broader protection of speech than the First Amendment to the United States Constitution." Chan also asserted that many of the allegedly threating posts were posted by other parties, and, as a provider of an interactive computer service, he cannot be treated as the publisher or speaker of those posts under Section 230 of the Communications Decency Act.

Chan further argued that the court's order was overbroad, unduly burdensome, and exceeded the relief demanded by Appellee, because it "did not just require the Appellant to remove the few offending posts that Appellee placed in the record; it forced Appellant to remove all 1,900 posts . . . related to Appellee and her business practices and it forced him to do so forever."

October 21, 2013: Ellis filed her appellee's brief, arguing that the elements of Georgia's stalking law were met, that Chan received proper notice of the charges he faced, and that, with respect to the alledegly inadmissible affidavit, Chan failed to object to the on hearsay grounds, much the affidavit was admissible, and any error was harmless.

Additionally, Ellis argued that the First Amendment provides Chan no protection, because his speech was a true threat-speech that was "intend[ed]" to put her "in fear of bodily harm or death." Even if Chan's speech was protected, Ellis contended that the trial court's order was narrowly tailored "because it is reasonably limited and allows other forms of communication." Ellis claimed that the permanent injunction is a content neutral time, place, and manner restriction subject to intermediate scrutiny because it merely "limits the place for speech, namely the Internet," leaving "open other channels of communication."

Finally, Ellis argued that the CDA does not protect Chan from responsibility for content posted by other users on his website. Relying on Jones v. Dirty World Entertainment Recordings, LLC, 840 F. Supp. 2d 1008 (E.D. Ky. 2012), Ellis urged the court to find that Chan does not qualify for CDA protection because he "posts offensive content, comments, and encourages others to do so by responding to pending forum posts." This conduct, Ellis contended, makes Chan "more than a mere spectator on the ELI website, he is the ringleader."

 

October 30, 2013: Timothy B. McCormack of McCormack Intellectual Property Law Business Law P.S. submitted an amicus curiae brief in support of Ellis. McCormack argued that the First Amendment does not protect Chan because his speech was a true threat, and that the CDA's safe harbor protection does not apply because he participated in and encouraged harassing speech. He further argued "for a bright line rule" that Internet harassment is illegal, regardless of physical proximity," and highlights the negative consequences of Internet bullying.

November 1, 2013: Chan filed a motion requesting leave to file a supplemental reply brief in response to McCormack's brief.

As of November 5, 2013, the case has not been scheduled for argument.

Jurisdiction: 

Content Type: 

Subject Area: 

Zhang v. China Free Press, Inc.

Date: 

06/14/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Weican Null Meng; China Free Press, Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

Central District of California

Case Number: 

CV12-5216-DMG (PLAX)

Legal Counsel: 

Weican Null Meng: Marc J Randazza, Jason A Fischer (Randazza Legal Group); China Free Press, Inc.: Howard Loring Rose, James Rosenfeld, John Rory Eastburg, Kelli L Sager (Davis Wright Tremaine LLP)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

Zhang Ziyi is an international motion picture actress who has appeared in films such as Crouching Tiger, Hidden Dragon and Memoirs of a Geisha. On June 14, 2012, Zhang filed a complaint in the Central District of California against the corporation China Free Press, Inc., alleged to be doing business as Boxun News, and Boxun News's owner, Weican Null Meng. The complaint alleged five claims: (1) libel per se, (2) false light invasion of privacy, (3) intentional interference with prospective economic advantage, (4) negligent interference with prospective economic advantage, and (5) unlawful and unfair business practices under California's Business and Professional Code.

The complaint asserted that Boxun News published three articles on its website that included statements that Zhang was a prostitute who had sexual relations with Chinese government officials, among others, and that she received "outlandish payments" for doing so. One article, it stated, claimed that Zhang was under investigation by Chinese authorities and had been banned from leaving China. According to the complaint, these reports had been republished by other media outlets around the world. The plaintiff claimed that the defendants "willfully, knowingly, oppressively, and maliciously conspired" to publish false and defamatory statements about Zhang in order to "damage her, harm her, expose her to hatred, contempt, ridicule and obloquy, damage her business, and wrongfully promote their own business interests" at her expense. In filing suit, Zhang sought: general, special, and punitive damages; attorney's fees; and injunctive relief.

On August 15, 2012, defendant Meng filed a motion to dismiss the complaint for lack of personal jurisdiction. Meng, a resident of North Carolina, said he administered the Boxun News website from North Carolina and that the site's servers are leased from a Texas company. He claimed that the site generates no revenue and has limited user interaction. Thus, Meng asserted that his contacts with California did not satisfy due process. He argued that the claims did not arise from his California activities, and that there was no foreseeable harm from the allegedly tortious material. Meng also disputed Zhang's assertion that China Free Press was doing business as Boxun, stating that they were separate and distinct entities.

On August 17, 2012, while his motion to dismiss for lack of personal jurisdiction was pending, Meng filed a special motion to strike the complaint under California Code of Civil Procedure § 425.16 -- California's anti-SLAPP statute. Meng asserted that he fulfilled the requirements under § 4.25.16 because (1) his expressive conduct was made in furtherance of his right of petition or free speech, and (2) his speech was connected to a public issue. He claimed that Boxun News' status as a news reporting agency, and publishing a story dealing with "corruption at high levels of the Chinese government, are archetypical examples of conduct made in furtherance of protected speech." Because the allegedly defamatory statements included allegations of Zhang having allegedly unlawful affairs with Bo Xilai, a prominent politician in the Chinese Central Communist Party, the motion stated, the allegations were incidental to "a major political scandal." Thus, Meng argued that because Bo Xilai's fitness for an office of public trust was involved, reporting on the alleged affair was a matter of public interest. The motion stated, "While some elements of the scandal may seem trite, our own country's experience shows us that from seemingly small sexual acts, great political consequences may flow."

The motion to strike claimed that because Zhang was a public figure, due to her international fame, she needed to prove that Meng published the statements with actual malice. He claimed that she could not satisfy this, as Meng had relied on information from trusted sources, verified the information with an independent source, and adhered to proper journalistic standards practiced by mainstream newspapers. Meng also claimed that his sources were entitled to anonymity for this matter and that "outing them for prosecution in China [was] the sole purpose of this litigation." He argued that the underlying information was "too politically sensitive" for distribution without anonymity protections, stating, "This is no mere conjecture: Boxun reporters have been imprisoned for their contributions to the site." In his motion, Meng sought dismissal of the case, as well as costs and attorney's fees.

On January 4, 2013, Zhang filed oppositions to both of Meng's motions. In her opposition to Meng's motion to dismiss for lack of personal jurisdiction, Zhang claimed that the court could exercise jurisdiction because Meng purposefully directed his conduct in California, Zhang's harm was likely to be felt in California, and Meng did not satisfy his burden to present a compelling case that the exercise of jurisdiction would be unreasonable.

Zhang's opposition to Meng's motion to strike argued that Meng failed to meet his burden under the anti-SLAPP statute. Zhang asserted that as a news outlet, Boxun News was not considered a public forum protected under the statute. She argued that the defamatory statements did not concern a matter of public interest -- giving examples of statements saying Zhang had several boyfriends -- as they had "nothing to do with Mr. Bo's fitness for office." Therefore, the opposition claimed, the defamatory statements were not related to any major political scandal, a public issue, or any public interest. Further, the opposition argued that even if a person is a public figure, not all discussion of her is a matter of public interest.

Zhang's opposition further argued that there was a probability that the plaintiff would prevail on her claims because she could satisfy the required elements and the allegedly defamatory statements caused her to lose at least two potential jobs. Furthermore, the opposition claimed that there was clear and convincing evidence that the defamatory statements were made with actual malice because (1) Meng's sources provided unsubstantiated information that was not first-hand knowledge, (2) Meng was skeptical of about reports he received and altered an article to try to make the story more believable, (3) Meng did not attempt to contact Zhang to get her side of the story before publishing, and (4) the articles "suggest a malicious campaign [and] increasingly take on a threatening tone," going beyond the ordinary practice of journalism. Alternatively, the opposition argued that if the court needed more evidence to prove actual malice, it should deny the motion so Zhang can obtain the names of the confidential sources and complete necessary discovery.

On January 11, 2013, Meng filed responses to both of Zhang’s oppositions. In his reply in support of his motion to dismiss, Meng claimed there was no personal jurisdiction because his conduct was not directed toward California and that the court’s jurisdiction over him would be unreasonable. In Meng’s reply in support of his motion to strike, he claimed his website was a public forum under the statute because “public access, rather than the public’s ability to comment, is the hallmark of a public forum.” Meng asserted that Zhang’s “role in the Bo Xilai affair is inherently of public interest.” He argued that the public’s interest in Zhang is heightened both by her celebrity and her involvement in the scandal, nothing that “the legal and political ramifications of her reported relations with Bo Xilai are of particular public interest.”

In his reply, Meng also argued that Zhang was not likely to prevail on the merits of the case, stating that even if the allegedly defamatory statements were false, the relevant question was whether Meng knew of their falsity. Meng argued that Zhang’s evidence failed to demonstrate that she could prove this and that she had not even contacted Meng regarding this matter. He claimed that the identities of his confidential sources were unnecessary to prove actual malice, and that more discovery would “not cure what ails the Plaintiff’s case” but would prejudice Meng. Meng argued that Zhang's request for disclosure of the sources did not pass the three-part test that federal courts rely on for determining when a journalist’s sources must be disclosed, citing the 2nd Circuit case Garland v. Torre, because (1) the information sought did not go to the heart of Zhang’s claim, (2) Zhang had not presented evidence showing she had attempted to get the information from alternative sources, and (3) the sole purpose of the lawsuit was in “an effort to silence Boxun News.”

As of July 15, 2013, no hearing has been scheduled regarding the motion to dismiss or the motion to strike. 


Jurisdiction: 

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Subject Area: 

Monsarrat v. Filcman

Date: 

04/30/2013

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Deb Filcman, Ron Newman, Does 1-100

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Middlesex Superior Court Department of the Trial Court of Massachusetts

Case Number: 

MICV2013-00399-C

Legal Counsel: 

Dan Booth (Booth Sweet LLP), Zachary C. Kleinsasser, Michael J. Grygiel (Greenberg Traurig, LLP)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

On February 4, 2013, Jonathan Graves Monsarrat filed a complaint in the Superior Court Department of Middlesex County, Massachusetts against defendants Deb Filcman, Ron Newman, and John and Jane Does 1-100. The complaint alleges that the defendants posted defamatory comments about the plaintiff on the website www.LiveJournal.com beginning on February 4, 2010, which related a linked-to blog post by defendant Filcman on the Somerville Journal's "Wicked Local" webpage. Defendant Newman administers the "davis square" forum on the site on which Monsarrat alleges many of the defamatory responses were posted. As LiveJournal is an online forum, many users are known only by aliases; Monsarrat asserted claims against these commentators by naming them as "John and Jane Does 1 through 100" until their identities could be ascertained through the discovery process.

The defendants' posts concerned Monsarrat's arrest on January 29, 2010, in connection with charged of keeping a noisy and disorderly home and serving alcohol to persons under 21. While these charges were ultimately dismissed against Monsarrat, the plaintiff alleges that the defendants' comments ruined his "reputation, regard, esteem and goodwill." The complaint cites to many of the comments posters made to the "davis square" forum, alleging that these posts are particularly defamatory as they affect him and his businesses locally.

Monsarrat's complaint included claims for: defamation; a violation of Massachusetts' Unfair and Deceptive Trade Practices Act, Mass. Gen. L. ch. 93A; business disparagement; common law copyright infringement (based on photographs taken from Monsarrat's website); intentional infliction of emotional distress; and civil conspiracy.

The complaint alleges that the defendants "intentionally planned and orchestrated this cybersmear attach" [sic] and that defendants "conspired together" to commit the acts which injured Monsarrat. Monsarrat's complaint claims damages amounting to over $500,000 from medical expenses, lost wages (documented and anticipated), and reputational damages.

On April 30, 2013, Monsarrat filed an amended complaint. The amended complaint included all of the initial allegations, and added that under Monsarrat's fourth claim for relief - common law copyright infringement - the defendants' misappropriation was not "for fair use or satire purposes" but instead "in furtherance of their collective willful, wanton and tortious conduct." The amended complaint also included additional damage demands in the form of "costs and disbursements plus interest from the date of commencement" of the action.

On May 14, 2013, defendant Newman's attorney sent a letter in response to Monsarrat's complaint. The answer described Newman's discussion on the LiveJournal forum as "promoting respectful, lively conversation without imposing ham-fisted restraint on the free speech of the community." The letter addressed each of the complaint's assertions in turn, including asserting that:

  • no statements attributed to Newman could sustain a defamation claim;
  • the complaint did not state a Chapter 93A claim against any defendant, and Monsarrat had failed to send a pre-suit demand letter to Newman as required under Chapter 93A;
  • on the business disparagement claim, Monsarrat's complaint did not point to any "actionably false statements" by the defendants, and did not identify any of the plaintiff's products that were disparaged;
  •  "there is no such thing" as common-law copyright infringement;
  • Monsarrat's infliction of emotional distress claim would fail as the complaint does not show that the defendant acted without privilege;
  • on the conspiracy claim, the complaint does not "identify any statement or action by which Mr. Newman could be inferred to have agreed to injure the plaintiff"; and
  • punitive damages for defamation have not been permitted in Massachusetts since 1974.

The May 14th letter claims that Monsarrat's claims are wholly without merit and were brought in bad faith, and demands that Monsarrat's attorney file a notice voluntarily dismissing the complaint with prejudice or else face sanctions.

On May 28, 2013, defendant Filcman's attorney sent a letter in response to Monsarrat's complaint. The letter contends that Filcman's article on Monsarrat's January 2010 arrest is protected under the First Amendment and adds that the plaintiff's allegation of a "wide-spread cyber-smear campaign" is without basis "in fact or law" and "frivolous, abusive, and harassing." In addressing the defamation claims, the letter points to Massachusetts' fair report privilege that provides a safe harbor on fair and accurate reports. The letter also asserts that there is "no such thing" as a common law copyright claim, and under the federal Copyright Act, the plaintiff's photograph was not federally registered and his claim would therefore fail.

On June 7, 2013, Monsarrat's attorney filed a voluntary dismissal with prejudice (a copy of the official text is posted on LiveJournal). No settlement was reported on the docket of the court and no payments were made.

Jurisdiction: 

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Subject Area: 

As State Shield Laws Play Tug-of-War, the Dream of a Federal Shield Law Resurfaces

Shield LawA recent challenge to a subpoena for a New York reporter's confidential source highlights the risks journalists face when different state shield laws clash. Although uniform state shield laws would reduce uncertainty for reporters on the state court level, a solution to varying federal court tests may appear in the form of a federal shield law.

Jurisdiction: 

Content Type: 

Subject Area: 

Reputation vs. National Security: The Supreme Court Takes on an Airline Defamation Case

The Supreme Court has granted certiorari to the first defamation case it's heard since 1990, and in it, the Court will be balancing injury to reputation against -- what else? -- national security.

Jurisdiction: 

Content Type: 

Subject Area: 

DMLP files brief seeking First Amendment scrutiny in United States v. Auernheimer

Yesterday the Digital Media Law Project, with help from the Cyberlaw Clinic, filed an amicus brief in the United States Court of Appeals for the Third Circuit in United States v.

Jurisdiction: 

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Subject Area: 

Baker v. Haiti-Observateur Group

Date: 

09/10/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Leo Joseph, Haiti-Observateur Group

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

Southern District of Florida

Case Number: 

12-cv-23300-UU

Legal Counsel: 

Sanford Lewis Bohrer, Scott Daniel Ponce, Amanda Jean Hill, Eric Benjamin Funt, Jonathan Douglas Stratton, Pedro Gassant (Holland & Knight LLP)

Publication Medium: 

Print
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Denied

Description: 

On Sept. 10, 2012, Haitian Prime Minister Laurent Lamothe and "prominent businessman" Patrice Baker filed suit in federal court against Haiti-Observateur Group, an online and printed news publication, and Leo Joseph, a Haitian-American journalist who owns and edits Haiti-Observateur. The plaintiffs claimed that the defendants published defamatory statements in two articles, titled "La Haitel en vente pour 25 million $?" and "Global Voice et SOWCI ensemble pour ruiner la TELECO." The articles reported on the roles Lamothe and Baker played in the sale of the Haitian telecommunications company Haitel, claiming that the plaintiffs orchestrated or already profited from the sale.

The complaint alleged that 10 specific statements published were false and defamatory, calling the statements "outrageous, scandalous and reminiscent of a tabloid publication." The plaintiffs argued that the statements were defamatory both (1) facially, saying the statements attributed conduct including illegal business practices, racketeering, corruption and conspiracy to the plaintiffs; and (2) per quod, implying degrading conduct when taken in context and thereby exposing the plaintiffs to "distrust, hatred, contempt and obloquy." The complaint alleged that the defendants' statements were "false and conjured to destroy reputations" and had injured the plaintiffs' good names, "stellar" reputations, and standing in their communities, noting the large Haitian population that resides in the Southern District of Florida, where the suit was filed. In filing suit, the plaintiffs sought damages, interests, costs, and attorney's fees.

On Jan. 16, 2013, the clerk entered a default against defendant Joseph because he failed to respond to the complaint. Haiti-Observateur Group had already been dismissed as a defendant in the plaintiff's amended complaint.

On Feb. 5, 2013, the plaintiffs filed a motion for entry of default judgment, attaching a proposed order for the court to use. The court formally issued the same order on Feb. 6. The order stated that the plaintiffs had succeeded on the merits of their defamation claim, that the defendant's statements were made with actual malice, and that the damage to the plaintiffs' reputation constituted irreparable harm. Further, the order permanently enjoined Joseph from publishing any future communications about Lamothe or Baker "in either their professional, personal or political lives."

On March 4, 2013, Joseph filed a motion with the court to set aside its entry of default and default judgment. Joseph claimed that the court's order constituted an unconstitutional prior restraint and that the court was not allowed to permanently enjoin defendants in defamation cases. Joseph also argued that the order contained an error of law because there were no well-pleaded allegations of actual malice, and therefore the plaintiffs failed to state a claim. He argued that the complaint had not alleged clear and convincing evidence of actual malice, but merely presented a legal conclusion not entitled to the assumption of truth, especially in the case of default. Joseph further argued that the plaintiffs were not entitled to a presumption of injury, and that he had not been properly served.

In an opposition filed on March 21, 2013, the plaintiffs claimed that they properly pleaded actual malice because the complaint listed the defamatory statements and alleged that they were made with knowledge of their falsity or reckless disregard for the truth. Lamothe and Baker claimed there was a presumption of injury because "the defamatory statements made malign their position and professional competence and their fitness to engage in their profession." The opposition also stated that the damages suffered by the plaintiffs fell under a business interference exception to the general rule against injunctive relief and prior restraints on speech, because there was an inference of adverse effects on the plaintiffs'
relationships and difficulty quantifying the actual damages. The plaintiffs also claimed that the defendant was properly served.

On April 9, 2013, the judge issued an order on the motion to set aside the default judgment. The court found that the complaint's assertion that "[d]efendants' statements were made with actual malice" was a legal conclusion and thus did not fulfill the requirements for a well-pleaded allegation. Therefore, the court ordered the plaintiffs to file a second amended complaint setting forth the facts that support their allegation of actual malice. Regarding whether the order was an unconstitutional prior restraint, the court found that because the plaintiffs had not asked for an injunction in their complaint, injunctive relief should not have been entered. The order stated, "[T]he Court cautions Plaintiffs that prior restraints on speech are disfavored." The court noted that the plaintiffs sought to enjoin more than just defamatory speech, and "[j]udgments that enjoin the publication of non-defamatory statements are invalid." Because there is a well-settled rule prohibiting injunctions in defamation cases, the court noted, the plaintiffs were required to include specific facts in their second amended complaint that would warrant such "extraordinary relief." The court also found that there was no proof of the plaintiff's assertions that the defendant had been properly served.

The plaintiffs filed a second amended complaint on April 19, 2013, which asserted that defendant Joseph knew that the allegedly defamatory statements were false, in part because of his business relationship with a shareholder of Haitel, and also because it was common knowledge that Haitel was never sold. Additionally, the second amended complaint included a new claim of tortious interference with advantageous relationships. The plaintiffs claimed that the alleged defamatory statements caused the plaintiffs' business relationships and political counterparts to question whether Baker was being investigated by the FBI and whether Lamothe acted consistently with Joseph's allegations, causing damage to the plaintiffs. The second amended complaint also asked the court to enjoin Joseph from publishing false and defamatory statements concerning the plaintiffs.

On April 25, 2013, Joseph filed a motion to dismiss the second amended complaint for failure to state a claim. Joseph claimed that the second amended complaint did not satisfy the pleading requirements because it did not directly quote the specific statements alleged to be defamatory and the plaintiffs did not attach copies of the relevant articles. Joseph also asserted that the second amended complaint did not allege that Joseph published the statements with actual malice because it did not allege Joseph's subjective knowledge of falsity. Joseph also argued that the plaintiffs failed to state a claim for tortious interference, because (1) that claim was based on the same statements as the defamation claim and would fail with it and (2)  the second amended complaint did not properly allege all of the elements of the claim.

The court issued its order on the motion on May 30, 2013. It agreed with Joseph that the second amended complaint was defective because the court could not determine whether the statements were defamatory without the plaintiffs submitting the relevant articles and because the plaintiffs merely summarized the allegedly defamatory statements. The court granted the plaintiffs an opportunity to cure this in a third amended complaint. The court also advised the plaintiffs that some of the summarized statements were not clearly defamatory. Regarding actual malice, the order stated that the second amended complaint's allegation that Joseph had knowledge of the falsity of his statements, while "not a model of clarity," could arguably be sufficient to support the plaintiffs' claim of actual malice. The court thus ordered the plaintiffs to file a more definite statement of the allegation. The court further stated that "a determination on whether the single publication rule bars [the tortious interference claim] is premature at present." The order also stated that the plaintiffs could only amend their complaint "to cure the defects identified in this order," and that the order was the final opportunity for the plaintiffs to cure the defects.

On June 14, 2013, the plaintiffs filed a third amended complaint. The third amended complaint asserted, among other things, that Joseph had acknowledged the falsity of his statements in a teleconference and that he acted with actual malice "by utilizing his publication to publish statements which benefit him and his business partners/creditors while having knowledge as to their falsity." The third amended complaint gave exhibit citations for each statement allegedly written by the defendant. It contained no claim for tortious interference.

On June 25, 2013, Joseph filed a motion to dismiss the third amended complaint for failure to state a claim. The motion argued, among other things, that:

(1) the plaintiffs exceeded the scope of leave to amend they were granted, because the third amended complaint "was premised almost entirely upon statements that are different than the ones summarized in the [second amended complaint]";

(2) as to three of the articles identified in the new allegations, the plaintiffs did not satisfy the statutory requirement in Florida that requires a plaintiff to issue a retraction demand before filing a defamation suit;

(3) the alleged statements were not actionable as defamation, because some of the plaintiffs' summaries of alleged statements did not reflect actual statements in the articles, the plaintiffs did not allege what parts of some of the statements were false, and some of the statements did not identify the plaintiffs, were opinion or rhetorical hyperbole, or fair and accurate reports of government information; and

(4) the plaintiffs did not sufficiently plead actual malice, because rather than alleging facts to indicate Joseph's state of mind at the time of publication, they relied upon alleged facts occurring only after the statements were published.

Jurisdiction: 

Content Type: 

Subject Area: 

Aghast at Ag-Gag Legislation: Silencing Speech for What it Reveals

Ag-gag cowWith the ubiquity of smart phones and digital communication, most of us whisk our phones out to record anything we find significant without giving it a second thought. But when one Utah woman did this in early February, she was charged as a criminal -- solely because the activities she recorded took place on agricultural land.

Jurisdiction: 

Content Type: 

Subject Area: 

The Podcast Patent: Ripping Through, and Ripping Up, the Airwaves

PodcastA Texas company is causing a stir with a claim that it has a patent

Jurisdiction: 

Content Type: 

Subject Area: 

Craigslist v. 3taps

Date: 

07/20/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

3taps, PadMapper

Type of Party: 

Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of California: San Francisco Division

Case Number: 

3:12-cv-03816-CRB

Legal Counsel: 

3taps: Allen Ruby (Skadden, Arps, Slate, Meagher & Flom LLP), Christopher J. Bakes (Locke Lord LLP); PadMapper: Venkat Balasubramani (Focal PLLC)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)
Lawsuit Filed

Description: 

Craigslist is a classified advertisements website with one section of its site dedicated to housing. With a simple design that has not been significantly updated since its creation, craiglist allows users to post (among other things) apartment rental listings. In order to make the material on craigslist more user-friendly, PadMapper takes the information from craigslist's apartment listings and plots these on an easily searchable map, adding search filters. 3taps is a startup committed to collecting and distributing public data, which partnered with PadMapper to assist with its access to the apartment information on craigslist.

In response to their use of craigslist's listings, craigslist sent PadMapper a cease and desist letter. After PadMapper refused to comply, craigslist filed a complaint in the U.S. District Court for the Northern District of California on July 20, 2012, against PadMapper and 3Taps. In its complaint, craigslist asserted ten claims for relief, including contract (asserting breaches of craigslist's terms of use), copyright, and trademark/unfair competition claims.

3taps answered the complaint on September 24 and filed a counterclaim, asserting claims of antitrust violations, unfair competition, and interference with economic advantage. Overall, 3taps' defense and counterclaims focused on the premise that the facts drawn from craigslist's website are not craigslist's property, but in public domain, and that craigslist has maintained an unlawful monopoly through sham lawsuits, copyright misuse, improperly restrictive terms of use, and "ghosting." In its answer on October 30, PadMapper raised similar counterclaims alleging anticompetitive conduct by craigslist.

Craigslist filed a first amended complaint on November 20, 2012. In this amended complaint, craigslist added seven additional claims, for a total of 17. The claims were as follows (with new claims in italics)

  1. Trespass: Defendants have gained unlawful access to and interfered with craigslist's computer system, servers, and network.
  2. Breach of Contract: Defendants affirmatively accepted and agreed to be bound by the Terms of Use, which they willfully, repeatedly and systematically breached by accessing the craiglist website to copy and distribute the content posted therein.
  3. Misappropriation: As competitors with craigslist, Defendants wrongfully accessed craigslist's website and computer systems to make craigslist's content available to their customers, constituting free-riding on craigslist's substantial investment of time, effort, and expense.
  4. Copyright Infringement: Defendants reproduced and distributed the copyrighted material on the craigslist website without authorization from the copyright holder, craigslist.
  5. Contributory Copyright Infringement (against 3taps): 3taps provides its users with copies and derivative works of craigslist's copyrighted works without craigslist's consent, and knowingly permits its users to copy, reproduce, and prepare derivative works from the copyrighted works.
  6. Federal Trademark Infringement: Defendants' unauthorized use of the CRAIGSLIST mark in interstate commerce in connection with the sale or advertising of goods is likely to cause consumer confusion.
  7. Federal False Designation of Origin: Defendants' unauthorized use of the CRAIGSLIST mark is likely to create the false and misleading impression that Defendants' products or services are provided or sponsored by craigslist.
  8. Federal Dilution of a Famous Mark (against 3taps): CRAIGSLIST is a famous and distinctive mark, and 3taps' use of the mark is likely to cause dilution by blurring, particularly depleting the strength of the mark by impairing its distinctiveness.
  9. Federal Cyberpiracy Prevention (against 3taps): 3taps' use of CRAIGGERS in the craiggers.com domain is confusingly similar to and dilutive of the famous, registered CRAIGSLIST mark.
  10. California Trademark Infringement: Defendants' unauthorized use of the CRAIGSLIST mark in connection with the sale or advertising of goods/services in California is likely to cause confusion as to the source and/or sponsorship of the goods/services.
  11. Common Law Trademark Infringement: Defendants' unauthorized use of the CRAIGSLIST mark is likely to cause confusion as to the source and/or sponsorship of the goods/services.
  12. California Unfair Competition: Defendants have engaged in unfair business practices, injuring craigslist's business, reputation, and trademarks.
  13. Violations of the Computer Fraud and Abuse Act: Defendants accessed craigslist's computers and servers without authorization or in excess of authorization and obtained valuable information in transactions involving interstate or foreign communications.
  14. California Comprehensive Computer Data Access and Fraud Act: Defendants accessed and copied data from craigslist's computer systems and servers without authorization.
  15. Aiding and Abetting Trespass (against 3taps): 3taps has encouraged and facilitated access to craigslist's computers by supporting the collection, transfer, and storage of craigslist's content.
  16. Aiding and Abetting Misappropriation (against 3taps): 3taps has knowledge that the time-sensitive "scraped" craigslist content they provide PadMapper is to compete with craigslist, therefore aiding PadMapper's misappropriation.
  17. Accounting: As Defendants have benefited financially as a result of their misconduct at craigslist's expense, craigslist is entitled to a full accounting to determine the amount of money due to craigslist.

In response, PadMapper and 3taps amended their counterclaims on December 21. PadMapper updated its counterclaims to include (attempted) illegal maintenance of a monopoly in violation of the Sherman Act and California unfair business practices, and to seek declaratory relief for noninfringement of craigslist's copyrights. 3taps alleged similar counterclaims, including multiple monopoly and contract claims under the Sherman Act, California unfair competition, and interference with economic advantage.

PadMapper and 3taps also filed motions to dismiss on December 21, 2012. PadMapper, which first filed a motion to dismiss on October 30, 2012, amended this motion to dismiss craigslist's claims for trespass (claim 1), breach of contract (2), federal trademark infringement (6), federal false designation of origin (7), California trademark infringement (10), and common law trademark infringement (11). PadMapper argued that the Copyright Act preempts the breach of contract claim and that craigslist failed to state a trespass claim against PadMapper. PadMapper also argued that the four trademark claims are precluded under the U.S. Supreme Court's decision in Dastar v. Twentieth Century Fox Film, which narrowed the scope of the Lanham Act so not to cover claims where the core issue is a copyright claim, primarily the improper reproduction of copyrighted material.

3taps moved to dismiss craigslist's claims of copyright infringement (claim 4), contributory copyright infringement (5), violations of the Computer Fraud and Abuse Act (13), and California Comprehensive Computer Data Access and Fraud Act (14). With respect to the copyright claims, 3taps argued that craigslist has no standing to assert copyright infringement of user-generated content and its asserted copyright registrations are invalid. 3taps also argued that the statutory elements of the CFAA and California statute could not be satisfied, as establishing unauthorized access requires proof of hacking which craigslist judicially admitted did not occur.

In an opposition filed on January 31, 2013, craigslist reasserted the sufficiency of its pleadings and the validity of its copyrights. PadMapper and 3taps replied in support of their respective motions to dismiss on February 13.

On February 8, 2013, noting the complexity of the lawsuit, craigslist filed a motion to bifurcate and stay Defendants' amended counterclaims pending resolution of craigslist's claims. Craigslist argued that the counterclaims would be made moot or significantly narrowed if craigslist prevailed on its claims, and consideration of the antitrust counterclaims in conjunction with craigslist's claims would increase the legal and factual complexity of the case, delaying the proceedings. PadMapper and 3taps both opposed this motion on March 1. The defendants argued that the claims at issue are intertwined and would not be rendered moot if craigslist prevails, such that bifurcation would be inappropriate. The defendants further argued that a decision on bifurcation would be premature, and a stay of discovery would result in prejudice. In a reply on March 15, craigslist maintained that resolving craigslist's claims would at least streamline the antitrust claims, while the balance of potential prejudice weighs heavily towards bifurcation. Craigslist also argued that the motion was not premature and the bifurcation should occur before the start of discovery.  

On April 29, 2013, Judge Charles Breyer issued an order granting in part and denying in part the defendants' motions to dismiss, and granting craigslist's motion to bifurcate.  The district court denied 3taps' motion to dismiss the Computer Fraud and Abuse Act and California Comprehensive Computer Data Access and Fraud Act claims, noting that the defendant's continued access after clear statements regarding authorization in the cease and desist letters and terms of use sufficiently constitutes unauthorized access under these statutory provisions. The Court also denied PadMapper's motion to dismiss the trespass claim and the breach of contract claim, which it it ruled was not preempted by the Copyright Act. PadMapper's motion to dismiss the trademark claims was also denied, as the Court held that they were not precluded by Dastar. With respect to the copyright claims, the Court held that craigslist sufficiently established the originality of the compilation of the posts to warrant copyright protection, even in the individual posts themselves, and sufficiently registered copyright for this content.

However, the Court ruled that craigslist was the exclusive licensee of this content only from July 16, 2012 through August 8, 2012, during which period users were presented with a notice to click confirming craigslist's position as the exclusive licensee of the post. Outside of those weeks when the exclusive license confirmation statement was in use, the court found that craigslist could not sue for copyright infringement. Accordingly, the Court granted the motions to dismiss the copyright claims with respect to user-created posts submitted before July 16 or after August 8, 2012. Lastly, the Court concluded that "the likelihood of streamlining discovery for and adjudication of the antitrust counterclaims based on the outcome of Craigslist's claims-even if those counterclaims must ultimately proceed-warrants bifurcation," and therefore granted craigslist's motion to bifurcate and stay discovery on the antitrust counterclaims.

Jurisdiction: 

Content Type: 

Subject Area: 

British Ruling Sets Standards for Twitter Libel

A British judge's decision that a tweet by Sally Bercow (wife of the Speaker of the House of Commons, John Bercow) libeled Lord Robert Alistair McAlpine (former Deputy Chairman and Party Treasurer of the Co

Jurisdiction: 

Content Type: 

Subject Area: 

Duffy v. Godfread

Date: 

02/19/2013

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Paul Godfread, Alan Cooper, and Does 1-10

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal
State

Court Name: 

Illinois Circuit Court, Cook County; United States District Court for the Northern District of Illinois

Case Number: 

No. 13-L-1656 (Cook County); No. 1:13-cv-1569 (N.D. Ill.)

Legal Counsel: 

Erin Kathryn Russell, The Russell Firm; Jason E. Sweet, Booth Sweet LLP

Publication Medium: 

Blog
Email
Forum

Relevant Documents: 

Status: 

Pending

Description: 

This action is closely linked to two other threats in the database: Prenda Law v. Godfread and Steele v. Godfread. Several of the related filings can be found in the database entry for Prenda Law v. Godfread.

Plaintiff Paul Duffy is an attorney affiliated with a law firm (Prenda Law, Inc.) that has been representing clients in numerous plaintiff-side copyright cases concerning the sharing of movies over the BitTorrent protocol. These cases have been brought on behalf of several different asserted rightsholders, including the entities AF Holdings LLC and Ingenuity 13 LLC. According to a statement made by attorney Brett Gibbs, who identified himself as Of Counsel to the firm, both AF Holdings and Ingenuity 13 are incorporated in the Federation of Saint Kitts and Nevis. The defendant in one proceeding initiated by the firm has alleged that these entities are shell companies, and that the attorneys bringing the lawsuits own some or all of the these companies.

Multiple filings in these copyright proceedings have included the signature of an "Alan Cooper," who has been identified as a principal of both AF Holdings and Ingenuity 13. On November 29, 2012, an Alan Cooper, through his attorney Paul Godfread, filed a letter with two federal judges in the United States District Court for the District of Minnesota, stating that he had reason to believe that John Steele and Prenda Law were using his name on filings related to these lawsuits without his permission, and that he is not in any way affiliated with AF Holdings or Ingenuity 13. On January 23, 2013, Cooper (through Godfread) sued John Steele, Prenda Law, AF Holdings, and Ingenuity 13 for invasion of privacy and violation of Minnesota's deceptive trade practices statute in the Minnesota District Court for the Fourth Judicial District.

On February 15, 2013, Duffy sued Cooper, his attorney, and 10 unnamed defendants for defamation, false light, tortious interference, and civil conspiracy in the Illinois Circuit Court for Cook County. This follows a nearly-identical lawsuit filed by Prenda Law against the same defendants for the same claims in the Illinois Circuit Court for St. Clair County, and was shortly followed by a high similar lawsuit by John Steele in Florida Circuit Court for the Eleventh Judicial Circuit. All three complaints alleges that Cooper and Godfread have falsely accused the respective plaintiffs of committing crimes and frauds, in both statements online and filings before the Minnesota courts. The complaints identify dozens of statements that are alleged to have been made on different online fora about Prenda Law and its members. 

All three of these cases were removed to federal courts: the United States District Courts for the Northern District of Illinois, Southern District of Illinois, and the Southern District of Florida, respectively. On March 6, 2013, John Steele voluntarily dismissed the complaint in the Florida action.

Update:

On March 7, 2013, the website dietrolldie.com reported that a subpoena had been issued on February 25, 2013 by the plaintiff in the closely related case Prenda Law v. Godfread to Automattic, Inc., the owner of Wordpress.com, seeking all IP addresses that accessed that website and fightcopyrighttrolls.com. Both websites extensively criticize Prenda Law and its litigation methods, and appear to be the host of many of the comments alleged to be defamatory in Prenda Law's complaint. The subpoena seeks the IP addresses of all machines that accessed the two websites from January 1, 2011 through present. The subpoena had a return date of March 4, 2013. 

On March 21, 2013, Godfread and Cooper filed an answer and counterclaims. In addition to denying the claims asserted by Duffy, defendants claimed a series of affirmative defenses, including truth, litigation privilege, a bar on the claim based on Minnesota's anti-SLAPP statute, and the doctrine of unclean hands, based on Duffy's use of defendant Cooper's name in litigation. The defendants also asserted counterclaims, seeking a declaratory judgment of immunity from suit based on Minnesota's anti-SLAPP law, noting the threats of suit made both in communications to the defendants and in the two other defamation filings. The pleading also asserts claims of civil conspiracy and breach of privacy, and seeks to pierce the corporate veil of AF Holdings LLC, Ingenuity 13 LLC, and Prenda Law, Inc.

On April 11, 2013, Duffy filed a motion to strike the affirmative defenses and dismiss the counterclaims. The motion alleges that the counterclaims do not assert facts related to Paul Duffy personally, but instead are based on actions of non-parties John Steele and Prenda Law, Inc. The motion also alleges that the affirmative defenses lack any factual allegations.

On April  16, 2013, Godfread and Cooper filed a motion to dismiss pursuant to Minnesota's anti-SLAPP act. The motion argues that under Illinois conflict-of-laws analysis the Minnesota anti-SLAPP is appropriately applied against the Illinois defamation claim, as Minnesota's interest in the anti-SLAPP is to protect Minnesota speakers.

On April 23, 2013, the court issued a scheduling order staying discovery pending resolution of the anti-SLAPP motion. According to the order, responsive pleadings to the pending motions are due May 15, 2013, with replies due May 29th and argument scheduled for August 14, 2013.

On May 14, 2013, Cooper and Godfread filed an opposition to Duffy's motion to dismiss the counterclaims and motion to strike the affirmative defenses. Defendants argue that Duffy is precluded from further litigating the merits of the defendant's counterclaims following a widely-reported case in the United States District Court for the Central District of California, where a judge made a judicial finding that AF Holdings and Ingenuity 13 were created "for the sole purpose of litigating copyright-infringement lawsuits," and that Prenda Law's principals "stole the identity of Alan Cooper," and "fraudulently signed the copyright assignment . . . using Alan Cooper's signature." The court in that case sanctioned Prenda Law and its principals, including Duffy, following their invocation of the Fifth Amendment to questions concerning their business practices. The defendants further argued that the counterclaims satisfy the pleading standard under Bell Atlantic v. Twombly by giving the plaintiff fair notice of the claims against it, and that striking the affirmative defenses under FRCP 12(f) is inappropriate as the pleading standards of Twombly have not been applied to affirmative defenses. 

On May 15, 2013, plaintiff Prenda Law filed a motion in opposition of the motion to dismiss under Minnesota's anti-SLAPP statute. Plaintiff argues that the Minnesota statute does not apply to the action because there is no evidence that the statements were made in Minnesota. Prenda Law also argues that Illinois choice-of-law provisions should prevent application of the Minnesota statute, that application of the anti-SLAPP statute fails on the merits, and that federal courts should not be applying this statute, as it is largely procedural under the Erie doctrine. The defendants replied to this motion on May 28, 2013.

Following the transfer of venue in Prenda Law v. Godfread to the United States District Court for the Northern District of Illinois, the defendants filed a motion to reassign and consolidate these two cases on June 13, 2013. In a minute order on June 28th, the court noted that the plaintiff did not object to the motion to consolidate, and the court consolidated the two actions accordingly.

On August 14, 2013, the court filed an order denying Godfread and Cooper's motion to dismiss under the Minnesota anti-SLAPP, denying Duffy's motion to strike the affirmative defenses, and granting Duffy's motion to dismiss Godfread and Cooper's counterclaims (but allowing those claims to be refiled). Although the court found that Illinois's choice of law provisions dictated that application of Minnesota's anti-SLAPP law was proper in this case, the statute did not apply because the statements at issue were not shown to be directed toward public participation. The court also rejected Godfread and Cooper's counterclaims due to being largely directed toward Prenda Law's actions, instead of those personally done by Duffy, but allowed the defendants to refile amended counterclaims.

Jurisdiction: 

Content Type: 

Subject Area: 

Steele v. Godfread

Date: 

02/24/2013

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Paul Godfread, Alan Cooper, and Does 1-10

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal
State

Court Name: 

Florida Circuit Court, 11th Judicial Circuit (Miami-Dade County); United States District Court for the Southern District of Florida

Case Number: 

No. 13-6608CA (Miami-Dade County); No. 1:13-cv-20744 (S.D. Fla.)

Legal Counsel: 

Bradford A. Patrick

Publication Medium: 

Blog
Email
Forum

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

This action is closely linked to two other threats in the database: Prenda Law v. Godfread and Duffy v. Godfread. All related filings can be found in the database entry for Prenda Law v. Godfread.

Plaintiff John Steele is an attorney affiliated with a law firm (Prenda Law, Inc.) that has been representing clients in numerous plaintiff-side copyright cases concerning the sharing of movies over the BitTorrent protocol. These cases have been brought on behalf of several different asserted rightsholders, including the entities AF Holdings LLC and Ingenuity 13 LLC. According to a statement made by attorney Brett Gibbs, who identified himself as Of Counsel to Prenda Law, both AF Holdings and Ingenuity 13 are incorporated in the Federation of Saint Kitts and Nevis. The defendant in one proceeding initiated by Prenda Law has alleged that these entities are shell companies, and that the attorneys bringing the lawsuits own some or all of the these companies.

Multiple filings in these proceedings have included the signature of an "Alan Cooper," who has been identified as a principal of both AF Holdings and Ingenuity 13. On November 29, 2012, an Alan Cooper, through his attorney Paul Godfread, filed a letter with two federal judges in the United States District Court for the District of Minnesota, stating that he had reason to believe that John Steele and Prenda Law were using his name on filings related to these lawsuits without his permission, and that he is not in any way affiliated with AF Holdings or Ingenuity 13. On January 23, 2013, Cooper (through Godfread) sued John Steele, Prenda Law, AF Holdings, and Ingenuity 13 for invasion of privacy and violation of Minnesota's deceptive trade practices statute in the Minnesota District Court for the Fourth Judicial District.

On February 24, 2013, Steele sued Cooper, his attorney, and 10 unnamed defendants for defamation, false light, tortious interference, and civil conspiracy in the Florida Circuit Court for the 11th judicial circuit. Nearly identical complaints were filed by Prenda Law attorney Paul Duffy in the Illinois Circuit Court for Cook County and by Prenda Law in the Illinois Circuit Court for St. Clair county. All three complaints allege that Cooper and Godfread have falsely accused the respective plaintiffs of committing crimes and frauds, in both statements online and filings before the Minnesota courts. The complaints identify dozens of statements that are alleged to have been made on different online fora about Prenda Law and its members. 

All three of these cases were removed to federal courts: the United States District Courts for the the Southern District of Florida, the Southern District of Illinois, and the Northern District of Illinois, respectively. On March 6, 2013, John Steele voluntarily dismissed the complaint in the Florida action. The two Illinois actions are still pending. Further updates on those cases can be found at Prenda Law v. Godfread and Duffy v. Godfread.

Jurisdiction: 

Content Type: 

Subject Area: 

Prenda Law v. Godfread

Date: 

02/12/2013

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Paul Godfread, Alan Cooper, DieTrollDie.com, FightCopyrightTrolls.com, and John Does

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal
State

Court Name: 

Illinois Circuit Court, St. Clair County; United States District Court for the Southern District of Illinois; United States District Court for the Northern District of Illinois

Case Number: 

No. 13-L-75 (St. Clair County Ill.); No. 3:13-cv-207 (S.D. Ill.); 2-13-mc-30 (miscellaneous related action in United States District Court for the District of Arizona); 1:13-cv-04341 (N.D. Ill)

Legal Counsel: 

Erin Kathryn Russell, The Russell Firm (for defendants Godfread and Cooper); Jason E. Sweet, Booth Sweet LLP (for defendants Godfread and Cooper); Charles Lee Mudd Jr. (for defendants DieTrollDie.com and FightCopyrightTrolls.com); Kurt Opshal, Mitche

Publication Medium: 

Blog
Email
Forum

Relevant Documents: 

Status: 

Pending

Description: 

This action is closely linked to two other threats in the database: Steele v. Godfread and Duffy v. Godfread.

Plaintiff Prenda Law is a law firm that has brought numerous plaintiff-side copyright cases concerning the sharing of movies over the BitTorrent protocol. These cases have been brought on behalf of several different asserted rightsholders, including the entities AF Holdings LLC and Ingenuity 13 LLC. According to a statement made by attorney Brett Gibbs, who identified himself as Of Counsel to Prenda Law, both AF Holdings and Ingenuity 13 are incorporated in the Federation of Saint Kitts and Nevis. The defendant in one proceeding initiated by Prenda Law has alleged that these entities are shell companies, and that the attorneys bringing the lawsuits own some or all of the these companies.

Multiple filings in these proceedings have included the signature of an "Alan Cooper," who has been identified as a principal of both AF Holdings and Ingenuity 13. On November 29, 2012, an Alan Cooper, through his attorney Paul Godfread, filed a letter with two federal judges in the United States District Court for the District of Minnesota, stating that he had reason to believe that John Steele and Prenda Law were using his name on filings related to these lawsuits without his permission, and that he is not in any way affiliated with AF Holdings or Ingenuity 13. On January 23, 2013, Cooper (through Godfread) sued John Steele, Prenda Law, AF Holdings, and Ingenuity 13 for invasion of privacy and violation of Minnesota's deceptive trade practices statute in the Minnesota District Court for the Fourth Judicial District.

On February 12, 2013 Prenda Law Firm, Inc. sued Cooper, his attorney, and 10 unnamed defendants for defamation, false light, tortious interference, and civil conspiracy in the Illinois Circuit Court for St. Clair County. Nearly identical complaints were filed by Prenda Law attorney Paul Duffy in the Illinois Circuit Court for Cook County and by John Steele in Florida Circuit Court for the Eleventh Judicial Circuit. All three complaints allege that Cooper and Godfread have falsely accused the respective plaintiffs of committing crimes and frauds, in both statements online and filings before the Minnesota courts. The complaints identify dozens of statements that are alleged to have been made on different online fora about Prenda Law and its members. 

All three of these cases were removed to federal courts: the United States District Courts for the Southern District of Illinois, Northern District of Illinois, and the Southern District of Florida, respectively. On March 6, 2013, John Steele voluntarily dismissed the complaint in the Florida action. The two Illinois actions are still pending.

Update:

On March 7, 2013, the website dietrolldie.com reported that a subpoena had been issued on February 25, 2013 by the plaintiff to Automattic, Inc., the owner of Wordpress.com, seeking all IP addresses that accessed that website and fightcopyrighttrolls.com. Both websites extensively criticize Prenda Law and its litigation methods, and appear to be the host of many of the comments alleged to be defamatory in Prenda Law's complaint. The subpoena seeks the IP addresses of all machines that accessed the two websites from January 1, 2011 through present. The subpoena had a return date of March 4, 2013.

On March 21, 2013, Godfread and Cooper filed an answer and counterclaims. In the pleading the defendants claimed a series of affirmative defenses, including truth, litigation privilege, a bar on the claim based on Minnesota's anti-SLAPP statute, and the doctrine of unclean hands, based on Prenda Law's use of defendant Cooper's name in litigation. The defendants also asserted counterclaims, seeking a declaratory judgment of immunity from suit based on Minnesota's anti-SLAPP law, noting the threats of suit made both in communications to the defendants and in the two other defamation filings. The pleading also asserts claims of civil conspiracy and breach of privacy, and seeks to pierce the corporate veil of AF Holdings LLC, Ingenuity 13 LLC, and plaintiff Prenda Law.

On March 26, 2013, defendants filed a motion to dismiss or transfer venue to the United States District Court for the Northern District of Illinois, noting in their accompanying motion that no activity of the defendants occurred in the Southern District and the plaintiff is located in Chicago, in the Northern District.

On April 10, 2013,  plaintiff Prenda Law, Inc, now joined by a second plaintiff, Alpha Law Firm LLC, filed a motion to remand the case back to state court for lack of subject matter jurisdiction. The inclusion of Alpha Law Firm is apparently justified through an amended complaint that was filed in state court shortly before the remand, but for which the state docket includes no mention of a grant of leave to file an amended complaint pursuant to 735 ILCS 5/2-616. The motion argues a lack of diversity between the parties, due to Alpha Law being a Minnesota entity.

On April 11, 2013, Prenda Law filed a motion to strike the affirmative defenses and dismiss the counterclaims. The motion alleges that the counterclaims largely surround non-party John Steele. The motion also alleges that the affirmative defenses lack any factual allegations.

On April 16, 2013, Charles Lee Mudd Jr. appeared as an attorney for two of the yet-unidentified John Doe defendants, the websites DieTrollDie.com and FightCopyrightTrolls.com. Also on April 16th, Godfread and Cooper filed a motion to dismiss pursuant to Minnesota's anti-SLAPP act. The motion argues that under Illinois conflict-of-laws analysis the Minnesota anti-SLAPP is appropriately applied against the Illinois defamation claim, as Minnesota's interest in the anti-SLAPP is to protect Minnesota speakers.

On April 17, 2013,  attorneys for DieTrollDie.com filed a motion to quash in a miscellaneous case filed in the United States District Court for the District of Arizona. The motion to quash concerns a second subpoena issued on Feburary 27, 2013, to non-party WildWest Domains. The subpoena sought the contact information for the owner of DieTrollDie.com. The motion argues that the improper court issued the subpoena under Illinois law, and that the comments are protected anonymous speech and the identities of the commenters should be protected from disclosure under the Dendrite/Cahill lines of cases, as the District of Arizona had done previously in Best Western Int'l v. Doe. (A proposed memorandum in support of the motion was denied as redundant of the motion itself, while the original oversized motion was allowed.) On April 18, 2013, and again on May 7, 2013, the court ordered plaintiff Prenda Law to file a corporate disclosure statement. The docket reflects no record of response by Prenda Law. On  May 15, 2013, DieTrollDie.com filed a notice of non-opposition to the motion to quash, noting that Prenda Law had not served an answering memorandum. On May 16, the court issued an order quashing the subpoena.

On May 10, 2013, Cooper and Godfread filed an opposition to Prenda Law's motion to dismiss the counterclaim and motion to strike the affirmative defenses. Defendants argue that plaintiffs are precluded from further litigating the merits of the defendant's counterclaims following a widely-reported case in the United States District Court for the Central District of California, where a judge made a judicial finding that AF Holdings and Ingenuity 13 were created "for the sole purpose of litigating copyright-infringement lawsuits," and that Prenda Law's principals "stole the identity of Alan Cooper," and "fraudulently signed the copyright assignment . . . using Alan Cooper's signature." The court in that case sanctioned Prenda Law and its principals following their invocation of the Fifth Amendment to questions concerning their business practices. The defendants further argued that the counterclaims satisfy the pleading standard under Bell Atlantic v. Twombly by giving the plaintiff fair notice of the claims against it, and that striking the affirmative defenses under FRCP 12(f) is inappropriate as the pleading standards of Twombly have not been applied to affirmative defenses.

Also on May 10, 2013, defendants Cooper and Godfread filed a motion opposing plaintiff's motion to remand the case back to state court. The motion argues that plaintiff made a material misrepresentation in its motion to remand by claiming the original complaint was amended to add Minnesota plaintiff Alpha Law Firm, thus breaking the court's diversity jurisdiction. The defendants argue that the amended complaint was invalid because it was filed in violation of Illinois rules, which require leave of the court to amend a complaint after service of the complaint on defendants. In support of this, the defendants attach an affidavit of the St. Clair County Clerk that accepted the amended complaint, noting that the attorney for Prenda Law filing the amended complaint claimed that the defendants had not been served with the original complaint, and that was the reason the court accepted the complaint with motion for leave. The defendants claim that this was a knowing misrepresentation, as service had been made in fact and that a principal of Prenda Law called Godfread shortly after service, but before the amended complaint was filed. Defendants further argue that the motion to remand was filed too late, under 28 U.S.C. § 1447.

On May 20, 2013, plaintiff Prenda Law filed a motion in opposition of the motion to dismiss under Minnesota's anti-SLAPP statute. Plaintiff argues that the Minnesota statute does not apply to the action because there is no evidence that the statements were made in Minnesota. Prenda Law also argues that Illinois choice-of-law provisions should prevent application of the Minnesota statute, that application of the anti-SLAPP statute fails on the merits, and that federal courts should not be applying this statute, as it is largely procedural under the Erie doctrine. The defendants replied to this motion on May 28th.

On June 6, 2013, the court granted the defendants' March 26th motion to transfer venue and denied the motion to remand to state court, transferring the case to the United States District Court for the Northern District of Illinois. The court found that the motion to dismiss for improper venue under rule 12(b)(3) of the Federal Rules of Civil Procedure was waived due to prior responsive pleading, but treated Prenda's failure to respond to the motion for transfer of venue as admission that a different venue was proper. The court also noted the "virtually identical" action Duffy v. Godfread, already in the Northern District. 

In Duffy v. Godfread, the defendants filed a motion to reassign and consolidate these two cases pursuant to the Northern District of Illinois's Local Rule 40.4, which allows for reassignment of a case to a Judge dealing with a case concerning the same transaction or occurrence. In a minute order on June 28, 2013, the court noted that the plaintiff did not object to the motion to consolidate, and the court consolidated the two actions accordingly.

On August 12, 2013, Prenda Law filed a renewed motion to remand, again alleging that Alpha Law Firm was properly joined in the case, and thus broke diversity.

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DMLP UPDATE: The DMLP Asks the Sixth Circuit to Safeguard Crowdsourced Research and Data-based Journalism

The Digital Media Law Project (formerly the Citizen Media Law Project), assisted by Harvard Law School’s Cyberlaw Clinic, has asked the Sixth Circuit to make clear that website operators that aggregate citizen reports and rely on that data to draw conclusions cannot be liable for defamation based on those conclusions.

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Florida Bill Targets “Mugshot Websites,” Hits Crime Reporting

A new bill proposed by Florida legislator Carl Zimmermann seeks to end “mugshot websites,” a relatively new industry that exploits the marriage of the internet and open records laws in order to make a profit.

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Haywood v. St. Michael’s College

Date: 

07/24/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

St. Michael's College, Christopher Hardy, Logan Spillane

Type of Party: 

Individual

Type of Party: 

Individual
School

Court Type: 

Federal

Court Name: 

United States District Court for the District of Vermont

Case Number: 

2:12-cv-00164

Verdict or Settlement Amount: 

$0.00

Legal Counsel: 

Jeffrey J. Nolan and W. Scott Fewell (Dinse, Knapp & McAndrew) (for Saint Michael’s College), William B. Towle (Ward & Babb) (for defendants Spillane and Hardy)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

In January 2012, a professor at St. Michael's College posted a profile of John D. Haywood, a candidate for President of the United States in the New Hampshire Democratic primary, to a college-owned website. His students, Logan R. Spillane and Christopher Hardy, had written the profile of Haywood to fulfill a requirement for a journalism class. In preparing to write the article, the students had spoken to Haywood on the phone, interviewed several of his associates in his home state of North Carolina, and read his campaign website.

On July 24, 2012, Haywood filed a pro se lawsuit for libel against St. Michael's College, Spillane, and Hardy, alleging that the profile of his candidacy contained false statements about his policy positions, and that this profile injured his reputation and reduced his chances of winning the election. He identified sixteen allegedly false statements, including that Haywood had offered "a solution to global warming which is to spray particles into the atmosphere as a way to reflect the sun's heat back into space, which, in his opinion, would cool the earth." Haywood denied that he ever claimed to have the solution to global warming. Instead, he identified particle insertion as "one of the most promising areas for research" into how to cool the planet.

Haywood also claimed that the students' efforts to contact his associates in North Carolina for comment were evidence of malice, because Haywood was trying to keep his candidacy a secret from his associates. The students' actions harmed him, he asserted, because they informed his friends and family, many of whom are Republicans, that he was running for president in a Democratic primary.

Haywood sought $120,202.15 to fully reimburse his advertising costs, an additional $1,000,000 in damages for the reputational injury he suffered in his community, and $50,000,000 in punitive damages.

The students and the college filed special motions to strike under Vermont's state anti-SLAPP statute, 12 V.S.A. § 1041. Both the students and the college argued that the lawsuit fell within the statute's scope, as "a suit arising from the defendant's exercise, in connection with a public issue, of the right to freedom of speech." 12 V.S.A. § 1041(a). The students' brief argued that that the fact that Haywood was running as a Democrat in New Hampshire is both undisputed and public, and therefore should not form the basis of a libel claim, and that the other claims of falsity were "quibbles and nitpicks." Both briefs argued that the suit was an improper attempt by the plaintiff to prevent the description of his policy stances in a manner he did not approve and asked the court to dismiss the libel claims and award costs and reasonable attorney's fees for all work associated with litigating the claims.

Haywood filed a response opposing the special motions to strike, arguing that it was the defendants who had had violated his First Amendment rights. Specifically, he claimed that the defendants infringed his right to expression by publishing a profile which may have led to "untold multitudes" not to read his webpage. Haywood further stated that the defendants had "no right to appeal an interlocutory order dismissing the motion under 12 V.S.A. section 1041 (g) as the federal courts of appeal are governed by the Interlocutory Appeals Act."

The college replied to Haywood's response, noting that the motion to strike "is not an appeal and § 1041(g) is not relevant at this time." However, the college argued that, "to the extent Plaintiff is arguing that 12 V.S.A. § 1041 is a state statute that incorporates aspects of state procedure, the District Court for the District of Vermont has already ruled that this is no bar to bringing an anti-SLAPP motion to strike in federal court," citing to Bible & Gospel Trust. 1:07-CV-17, 2008 WL 5245644 (D. Vt. Dec. 12, 2008).

On Sept. 26, 2012, St. Michael's college filed a motion to dismiss. The motion argued for the application of North Carolina defamation law, because the alleged defamation constituted an "aggregate communication," as it was published online, and Haywood was domiciled in North Carolina at the time of publication. The college further argued that, as a matter of law, the profile was not libel per se under North Carolina law, because all of the disputed statements, when considered on their face, and without reference to the context surrounding the publication, were simple descriptions of policy positions which did not subject Haywood to ridicule or disgrace.

The college also argued that, even if Vermont or New Hampshire law applied, the defendants' statements would not be defamatory, because they would not tend to lower the plaintiff in the esteem of a respectable group of people.

Finally, the college argued that Haywood is a public figure and therefore must show that the defendants acted with actual malice, knowing the statement was false or acting with reckless disregard for the truth. Haywood could not show actual malice, it argued, because the complaint contained nothing more than "naked assertions " that did not constitute even a "bare factual showing that the Defendant purposefully acted without concern for the truth."

The students also filed a motion to dismiss, which the college joined. The students' motion noted that the only evidence of actual malice cited in Haywood's brief was an allegation that the students interviewed his associates in North Carolina "for one purpose only: pressuring the Plaintiff from continuing his campaign." The students argued that these interviews were not evidence of malice, but were part of standard journalistic practice. The students also argued that the complaint did not allege injury for which damages could be awarded, arguing that "[i]t is not a reasonable inference nor reasonably foreseeable nor a proximate cause that a St. Mike's freshman journalism class assignment actually derailed a fringe candidate's campaign to unseat an incumbent President."

Following Haywood's filing of an amended complaint, which further addressed the embarrassment allegedly caused by the statements at issue, both the students and the college renewed their motions to dismiss and their motions to strike.

Haywood responded to the renewed motions, reiterating his prior arguments and alleging that the special motions to strike were frivolous and intended to delay and that costs should be awarded if he was required to travel to a hearing on the Motion to Strike.

On December 14, 2012, after supplemental briefing on the anti-SLAPP provision, the court issued an opinion and order granting the defendants' renewed motions to dismiss the amended complaint for failure to state a claim and defendants' special motions to strike under Vermont's anti-SLAPP statute. The Court awarded the defendants costs and reasonable attorney's fees.

In evaluating the 12(b)(6) motions to dismiss, the court ruled that Vermont law indicated that the law of the state where the plaintiff was domiciled controlled. However, it noted that special damages can occur in more than one jurisdiction. It therefore ruled that Haywood could seek damages for the loss of the election under New Hampshire law, and for his reputational injury under North Carolina law. However, the court determined that Haywood's claim must be dismissed under either North Carolina or New Hampshire law.

The court held that Haywood failed to state a libel claim because: (1) his claim did not satisfy the elements of libel under North Carolina law; (2) his claim did not establish the state of mind or injury elements of a libel claim under New Hampshire law; and (3) his claim did not establish that the profile was written or published with actual malice.

The court held that the profile was not libel under North Carolina law because it did not impugn the plaintiff's character, finding that the policy positions described in the profile were, in many cases, "simply a hair's breadth away from Plaintiff's true position," and not "so outlandish" that they would expose him to public hatred, contempt, or ridicule. The court also found that Haywood had not identified any contextual elements that would alter a reader's understanding of the profile and provided "no factual underpinnings to his conclusory allegation that the student Defendants intended to defame Plaintiff." Rather, the court found that the "students had a contrary motive, as they submitted the Profile in fulfillment of an assignment in journalism, a profession that relies on factually accurate reporting. They had nothing to gain, and a grade to lose, by writing falsehoods." Finally, the court concluded that "[d]amages are particularly "speculative and uncertain" in this case, given that Plaintiff lost the election by a significant vote ratio (more than 116 to 1)." Aycock v. Padgett, 516 S.E.2d 907, 910 (N.C. Ct. App. 1999) ("[t]he notion that the loss of an election constitutes special damages for which a court may grant relief is far too speculative and uncertain to entertain.").

The court also held that the profile was not libel under New Hampshire law, because New Hampshire law requires the plaintiff to demonstrate an injury to his reputation, and the only reputational injury Haywood alleged was that his friends and family discovered that he was running as a Democrat.

The court also found that Haywood failed to satisfy his burden to prove the students' state of mind. A New Hampshire plaintiff can only recover compensatory damages if he shows the defendants were negligent, and Haywood did not allege negligence. The court likewise found that Haywood could not meet the heightened standard for defamation that applies to public figures under the First Amendment. The court noted that, as a person running for the highest public office in the country, Haywood was a public figure for purposes of defamation law and needed to establish by clear and convincing evidence that a defamatory falsehood was made with actual malice. His allegations that the students contacted his associates to pressure him into ceasing his campaign did not rise above a speculative level, as there was "no immediately apparent reason why the student Defendants would have such a motivation." The court concluded that Haywood was conflating the actual malice standard with malice in the colloquial sense and overlooking the fact that the reckless disregard standard is subjective and requires an assessment of the defendant's actual state of mind.

The court then turned to the motions to strike under Vermont's anti-SLAPP law. The court noted that some federal courts have decided that state anti-SLAPP provisions conflict with the Federal Rules of Civil Procedure and have therefore declined to apply them in federal court. However, the District Court followed the District of Vermont's earlier holding in Bible & Gospel Trust that there is no direct conflict between the Vermont anti-SLAPP statute and the Federal Rules, and that "the state interest outweighs any federal interest."

In evaluating the merits of the anti-SLAPP motions, the court looked primarily to California precedent interpreting an analogous anti-SLAPP provision, because the Vermont Supreme Court had not interpreted the Vermont anti-SLAPP statute.

The court concluded that the defendants met their threshold burden of proving that their conduct is protected by the anti-SLAPP statute because (1) the profile was published in a public forum, and (2) the publication was in furtherance of the students' right to free speech and involved speech concerning a public issue. Citing CA law, the court found that "[a]n Internet website that is accessible to the general public ...is a public forum." Cole v. Patricia A. Meyer & Associates, APC, 206 Cal. App. 4th 1095, 1121 (Cal. App. 2d 2012).

The court also found that "it is clear that the writing of the profile was an exercise of the students' freedom of speech." It noted that California courts have identified three categories of speech concerning a public issue: (1) the subject of the statement precipitating the claim was a person or entity in the public eye; (2) the statement precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; and (3) whether the statement or activity precipitating the claim involved a topic of widespread public interest." Wilbanks, 121 Cal. App. 4th at 898.22. The students' speech concerned a public issue under all three definitions: (1) as a candidate for President, Haywood was in the public eye; (2) Haywood's candidacy had the potential to affect large numbers of people; and (3) the election (and each issue addressed in the profile) was a topic of widespread public interest.

Finding the Plaintiff's burden satisfied, the court then considered whether the plaintiff could prove that: (1) the defendant's exercise of his or her right to freedom of speech was devoid of any reasonable factual support and any arguable basis in law; and (2) the defendant's acts caused actual injury to the plaintiff. The court found that Haywood failed to make that showing.

The statements in the profile had reasonable factual support, according to the court, because they were quite similar to the statements on Haywood's campaign website. The court further found that defendants' speech had a "decidedly firm basis in law" because, as it ruled in granting the defendants' motions to dismiss, Haywood's claim was not legally sufficient. Finally, court found that the actual injury Haywood alleged was "highly speculative, considering that he lost the primary by an overwhelming margin; the Profile was published only on the St. Michael's College website; and Plaintiff's alleged reputational injury derived primarily from a true statement contained in the Profile."

Finally, the court held that the defendants were entitled to the entirety of their attorney's fees and costs, not just those relating to the litigation of the anti-SLAPP motions. The court's analysis of Vermont law governing other fee shifting provisions led him to conclude that the Vermont courts would interpret the fee-shifting clause broadly. The court held that the legal work on the various motions was "inextricably linked," and "severance of the work ... is untenable." Finally, the court held that this interpretation of the fee shifting provision advanced "the policy of the anti-SLAPP statute, as it guarantees that costly litigation will not chill protected expression."

Haywood filed a notice of appeal pro se on Jan. 2, 2013.

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Subject Area: 

Saltsman v. Goddard

Date: 

10/25/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Alexandria Goddard aka "Prinnie" and anonymous Doe defendants

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

The Court of Common Pleas, Jefferson County, Ohio

Case Number: 

12-CV-00544

Verdict or Settlement Amount: 

$0.00

Legal Counsel: 

Thomas G. Haren, Jeffrey M. Nye, Marc J. Randazza (Goddard), Scott T. Greenwood (Anonymous commenters), Francesca T. Carinci (Marian Waguespack)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In August 2012, two football players from Steubenville High School were arrested and charged with the rape of a 16-year-old girl. Classmates circulated Twitter posts, videos, and photographs indicating that the players may have carried the girl, unconscious, from party to party and sexually assaulted her while others watched. A police investigation uncovered pictures of the girl, naked and apparently unconscious, from partygoers' phones.

Cody Saltsman, a football player who was not indicted, tweeted a picture of the girl looking unresponsive as two boys carry her by her wrists and ankles. He also tweeted comments about the girl, including the phrases "whore status," "sloppy," and "I have no sympathy for whores."

Alexandria Goddard, a blogger who writes under the pseudonym "Prinnie" at prinniefied.com, wrote a series of blog posts on the case. She posted screen shots of related Twitter posts and photos. She also suggested that a number of unindicted individuals had participated in the rape, including Cody Saltsman. In response to a comment on her blog reading "students by day ... gang rape participants by night," Goddard wrote, "Cody Saltsman [is] playing tonight. Reno, SHAME ON YOU." She also wrote that his fellow football players should "roll on their pal Cody Manson" and "[p]erhaps when scumbag is finally arrested I will post a picture of him for his mother that says ‘How do you like your scumbag son now?' ... Tell Cody not to feel too bad, he is not the lone asshole in all this."

A number of commenters on the blog also posted about Saltsman, including statements that he was there when the rape was occurring, that he was the "mastermind" behind the crime, that he had previously stated he would "ruin that bitch," and that he had sent the victim's father the picture of her being carried by her wrists and ankles with text reading "look at your whore daughter now." Other commenters made comments including: "[g]et CS and his posy [sic] off the field and problem solved"; "Cody needs to suffr some consequences too!"; and, in response to the question "[w]hat is [the Saltsman's] business because I never want to spend money there," the statement "CS father owns Fort Steuben Plumbing/Maintenance."

On October 25, 2012, Saltsman and his parents, James and Johna Saltsman, filed a complaint against Goddard, fifteen anonymous commenters identified by screen names and Internet Protocol (IP) addresses (including those who made the above statements), and ten additional John Doe defendants. Saltsman sued for defamation and intentional infliction of emotional distress, and sought injunctive relief, compensatory damages in excess of $25,000, and punitive damages. The complaint was amended on November 19, 2012 to add claims for false light and spoliation of evidence.

Saltsman's attorneys obtained the IP addresses for each anonymous commenter from HostGator, the Internet Service Provider (ISP) for the "prinnified" blog, which apparently turned over the IP addresses without providing notice to the commenters or to Goddard. On November 16, the plaintiffs moved for authorization to conduct discovery from each anonymous commenter's ISP in order to obtain the commenters' identities.

Goddard's counsel objected to Plaintiffs' motion for authorization to conduct discovery to obtain the identities of the anonymous defendants, asserting that the First Amendment right to speak anonymously barred such discovery.

In a supplemental memo supporting the motion for authority to conduct discovery, Saltsman disputed that the First Amendment protected the identities of the authors, urged the court to act quickly in order to prevent the ISPs from deleting relevant information, and argued that Goddard had no standing to object on behalf of the Does.

Acknowledging that there were no published Ohio decisions on point, Saltsman directed the court to the often-followed test laid out in Dendrite Int'l Inc. v. Doe No. 3. 775 A.2d 756 (N.J. Super. A.D. 2001). Under Dendrite, courts allow plaintiffs to conduct discovery on anonymous online posters' identities when plaintiffs (1) attempt to notify defendants that their identities are being sought and explain how to present a defense; (2) quote verbatim the allegedly actionable online speech; (3) allege all elements of the cause of action; (4) present evidence supporting the claim of violation; and (5) show that, on balance and in context, the plaintiff's right to identify the speaker in order to redress alleged wrongs outweighs the First Amendment right to anonymous speech. Saltsman asserted that he met all of these elements, particularly focusing on the fifth element, the balancing of rights. Because the First Amendment does not protect false assertions of fact, he argued, the defendants had no right to anonymous speech in this context.

Goddard filed a Memorandum in Opposition to the motion on November 21, and a supplemental Memorandum in Opposition on November 26. Plaintiffs' responded with a second supplemental memorandum in support of their motion on November 28.

The Court filed an order on November 29, granting the plaintiffs' motion. The court authorized the relevant ISPs to release personally identifiable information associated with the IP addresses identified in the complaint. The court required that notice of the discovery be given to the anonymous commenters and that the commenters be given fourteen days after the notice to file motions to quash.

On December 14, the American Civil Liberties Union of Ohio stated in a press release that they had offered to represent a number of the "John Doe" defendants. ACLU Volunteer Attorney Scott Greenwood stated, "[w]e believe the real goal of this lawsuit is to discover the identity of anonymous online commenters so that they, and future commenters will be intimidated and discouraged from voicing their opinions. This is just an updated form of a classic Strategic Lawsuit Against Public Participation (SLAPP) which is typically used to silence speech that is protected under the First Amendment."

Plaintiffs reached a settlement with Goddard and the anonymous commenters and voluntarily dismissed the case with prejudice on December 27, 2012. With one exception (defendant Waguespack), the identities of the commenters were not disclosed. No money was exchanged, and Goddard did not retract any statements or agree to stop covering the case. Goddard did write on her blog that she "never had any evidence of [Cody Saltsman's] direct involvement" in the events of the night and agreed to give him space on her blog to present his side of the story.

The "prinnified" blog also ran the following statement from Cody Saltsman: "I deeply regret my actions on the night of August 11, 2012. While I wasn't at the home where the alleged assault took place, there is no doubt that I was wrong to post that picture from an earlier party and tweet those awful comments. ... At no time did my family mean to stop anyone from expressing themselves online - we only wanted to correct what we believed were misstatements that appeared on Ms. Goddard's blog. "

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