Business Torts

Real or Fake, It's Protected by the First Amendment: Court Awards Fees in "Storage Wars" Case

StorageA California court recently held that an allegedly fake reality television show can be an expression of free speech that warrants protection under the First Amendment.

Jurisdiction: 

Subject Area: 

Content Type: 

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: 

Subject Area: 

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Guadagnini Violin Shop v. TruthTeller1790

Date: 

01/23/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Eric Swanson, a.k.a. TruthTeller1790

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Circuit Court for Cook County, Illinois

Case Number: 

2012-L-000802

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On January 23, 2012, the Guadagnini Violin Shop (the "Shop") and owner Chunyee Lu filed suit in Illinois state court against a then-anonymous online reviewer. The complaint alleged that on January 21, 2011, a person using variations on the screen name "TruthTeller1790" posted negative reviews of the Shop on multiple user-review sites, including Yelp and Kudzu. All of the reviews were posted from the same IP address. Plaintiffs attached copies of the contested reviews to the complaint, and alleged that the reviews contained numerous libelous statements, such as allegations that Guadagnini Violin Shop performed unnecessary repairs and sold overpriced and falsely-identified instruments.

The complaint alleged counts of defamation (per se and per quod), false light, and tortious interference, and sought money damages.

On February 7, 2012, plaintiffs filed an amended complaint, identifying Eric Swanson as "TruthTeller1790." According to the amended complaint, plaintiffs traced the IP address linked to the reviews to cable provider RCN Corporation, which identified Swanson as that address's subscriber. The amended complaint alleged that Swanson operated a competing Chicago violin shop.

In addition to the original four counts of defamation, false light, and tortious interference, the amended complaint added counts of violations of Illinois' Consumer Fraud and Deceptive Business Practices Act, its Uniform Deceptive Trade Practices Act, and a common-law trade disparagement claim. The amended complaint also added requests for punitive damages.

Content Type: 

CMLP Notes: 

3/23/2012: JS creating

Jurisdiction: 

Subject Area: 

PhoneDog, LLC v. Kravitz

Threat Type: 

Lawsuit

Date: 

07/15/2011

Party Receiving Legal Threat: 

Noah Kravitz

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court, Northern District of California

Case Number: 

C11-03474

Legal Counsel: 

Kletter Law Firm, Dewey & LeBoeuf LLP

Publication Medium: 

Micro-blog

Relevant Documents: 

Status: 

Pending

Description: 

PhoneDog, LLC, an "interactive mobile news and reviews resource," filed suit against former employee Noah Kravitz on July 15, 2011, for ownership of a Twitter account Kravitz used while he was employed by PhoneDog. As a product reviewer for PhoneDog, Kravitz was allegedly given use of a Twitter account with the handle @PhoneDog_Noah to promote PhoneDog's services. PhoneDog claimed that after his employment ended, Kravitz changed the Twitter handle to @noahkravitz and continued use of the account, even though PhoneDog requested Kravitz relinquish use.

The complaint asserts four claims for relief. First, PhoneDog alleged that Kravitz willfully and intentionally obtained and misppropriated confidential information from PhoneDog, primarily the passwords to its Twitter accounts. According to PhoneDog, this information "would be of substantial value to PhoneDog's competitors" if it leaked. PhoneDog claimed that Kravitz used this confidential information to his own advantage, constituting trade secret misappropriation.

The second and third claims for relief allege that Kravitz intentionally and negligently interfered with PhoneDog's prosepctive economic advantage by using the confidential information to disrupt PhoneDog's business with current and prospective users. 

Finally, PhoneDog claimed that Kravitz unlawfully converted the Twitter account to his own use by changing the handle, even after PhoneDog requested that he relinquish the account.

PhoneDog requested that the court issue a temporary restraining order, preliminary injunction, and permanent injunction preventing Kravitz from using its confidential information. Additionally, PhoneDog asserted it suffered $340,000 in compensatory damages as a result of the alleged conversion. To arrive at this figure, PhoneDog assumed that, according to industry standards, Twitter followers are valued at $2.50 per month each. Since Kravitz's account has approximately 17,000 users, PhoneDog has suffered damages of $42,500 per month since October 2010.

On October 4, 2011, Kravitz moved to dismiss the complaint for lack of subject matter jurisdiction under FRCP 12(b)(1), and failure to state a claim under FRCP 12(b)(6). On the jurisdictional issue, Kravitz asserted that the amount in controvery, if any, could not exceed $8,000, which is under the statutory limit, a federal court could not hear the case. Kravitz used sites such as tweetvalue.com and whatsmytwitteraccountworth.com to value the account.

Kravitz also claimed that PhoneDog could not satisfy the misappropriation of trade secrets claim, because any information obtained by Kravitz (including the identity of the account's followers and its password) are not trade secrets under California law. Regarding claims of intentional and negligent interference with prospective economic advantage, Kravitz alleged that PhoneDog could not establish the existence of a current economic relationship between PhoneDog and the Twitter account followers, an essential element of each claim. Finally, Kravitz contended that PhoneDog's complaint did not establish ownership or the right to possess the Twitter account, which would require the court to dismiss the conversion claim.

After both PhoneDog and Kravitz filed subsequent pleadings related to the motion to dismiss (PhoneDog Response; Kravitz Reply), the court issued an order granting in part and denying in part the motion. The court denied the motion with respect to lack of jurisdiction, stating that the determination of whether the court has subject matter jurisdiction is so tied up with PhoneDog's claims that it could not be resolved in this early stage. Turning to the substantive claims, the court granted Kravitz's motion with respect to the claims of intentional and negligent interference with prospective economic advantage, finding that PhoneDog failed to assert essential elements of the claim, including the existence of economic relationships and a duty of care. The court denied, however, the motion with respect to the misappropriation of trade secrets and conversion claims. The court also granted PhoneDog leave to amend its complaint.

The amended complaint, filed on November 29, 2011, alleges that PhoneDog has economic relationships with its users, including CNBC and Fox News. The amended complaint also claimed that Kravitz owed a duty of care to PhoneDog as a former agent of the company.

Content Type: 

Subject Area: 

Threat Source: 

Blog Post

CMLP Notes: 

Author: LC (2/8/12)

Jurisdiction: 

Colocation America v. Garga-Richardson (2nd Letter)

Date: 

08/16/2010

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Archie Garga-Richardson

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Legal Counsel: 

Pro Se

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

On August 16, 2010, counsel for Colocation America and Mr. Albert Ahdoot sent a cease-and-desist letter to Archie Garga-Richardson, the founder and operator of ScamFraudAlert.com. ScamFraudAlert.com is a forum site that focuses on alleged Internet scams, security threats, and fraudulent practices.  The letter accused Garga-Richardson of trade libel and tortious interference with contractual relations, and demanded that he sign a statement (which was attached to the letter) retracting his comments.  The letter warned that if he did not sign the statement of retraction, Colocation America would file a civil complaint, which counsel also included with the letter, against him.

Update:

10/29/2010 - Colocation America filed suit in the Superior Court of Los Angeles County.

Content Type: 

CMLP Notes: 

Letter supplied by Garga-Richardson.  - AAB 5/2/2011

Jurisdiction: 

Subject Area: 

Rajagopal v. Does

Threat Type: 

Lawsuit

Date: 

10/22/2010

Party Receiving Legal Threat: 

John Does 1-10

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Henrico Circuit Court, Virginia

Case Number: 

CL 10-3014

Legal Counsel: 

Michael H. Page, Paul A. Levy, Public Citizen Litigation Group; Rebecca K. Glenberg, ACLU of Virginia

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Usha Rajagopal, a plastic surgeon in San Francisco, sued ten John Does for defamation and various business torts in Virginia state court.  The claims stem from reviews of Rajagopal posted by the defendants on Google.com. Rajagopal also subpoenaed Google to determine the identities of five of the Does.

One of the Does, Cannoli38, moved to quash the subpoena.  He argued that because he and the other Does have a First Amendment right to speak anonymously, Rajagopal must make a five-part showing that satisfies the Dendrite standard to identify the Does.  Cannoli38 argued that Rajagopal did not give the Does noticed as required by Dendrite, nor did she provide any evidence supporting her claims against the Does.

Cannoli38 alleged that the Does' reviews consisted solely of opinion statements, which are protected by the First Amendment, and restatements of an article from SFWeekly, a San Francisco news site, that posted a story about Rajagopal's advertising practices and allegations brought against her by the California Medical Board.  Cannoli38 argued that the balance of the equities weighed against Rajagopal.

Cannoli38 also called upon Rajagopal and her attorney to be sanctioned, as he argued the lawsuit is meritless, has no ties to Virginia, and was meant to be an end run around California's anti-SLAPP law, which would likely prevent Rajagopal from pursuing the case in her home state.

Content Type: 

Subject Area: 

Jurisdiction: 

Yaldo v. Doe

Threat Type: 

Lawsuit

Date: 

12/10/2009

Party Receiving Legal Threat: 

John Doe

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court, Eastern District Michigan

Case Number: 

2:10-cv-11886-JCO-MJH

Relevant Documents: 

Status: 

Pending

Description: 

On May 10, 2010, Dr. Mazin K. Yaldo filed a lawsuit in federal district court against an unnamed Doe defendant, asserting claims for false light ant federal and state trademark infringement and unfair competition.  The claims were based on a Google AdWords campaign that used Plaintiff's trademark YALDO EYE CENTER to trigger an ad with the headline "Yaldo Eye Center Bankrupt" and the text "What you should know before considering yaldo" next to the URL "www.crainsdetroit.com" (a website that reports on local businesses in the Detroit area).  The link redirects to an article on the Crain's Detroit Business website titled "Eye surgery centers declare bankruptcy," which reported that "[f]ive companies headed by ophthalmologist and eye surgeon Dr. Mazin Yaldo have filed for Chapter 11 bankruptcy protection." 

According to the Complaint, Defendant purchased the keywords "Yaldo Eye Center," "Dr. Mazin Yaldo," "Dr. Yaldo," and "Mazin Yaldo" through the Google AdWords program.  The Complaint alleges that "Defendant's advertising is deliberately designed to cause consumers to believe that the advertisement was sponsored by Crain's Detroit Business and that the apparent warning is coming from a credible news source rather than Defendant," and that Defendant's acts were done "with the intent of urging consumers to reconsider their choice of vision correction services."  (Complaint ¶¶ 22-23)  Plaintiff further asserts that the advertisements are misleading, because they "deceiv[e] consumers. . . into believing that Crain's Detroit Business is offering a warning about the quality of services offered by Dr. Mazin Yaldo and or the Yaldo Eye Center." (Complaint ¶ 40)

According to the Complaint, Plaintiff complained to Google about the use of the YALDO EYE CENTER mark in the Google AdWords result, and Defendant subsequently modified the language of the advertisement to read "Yaldo LASIK Bankrupt," and "What You Should Know Before Considering Yaldo LASIK." (Complaint ¶¶ 29-31) 

Content Type: 

Subject Area: 

Jurisdiction: 

Warranty Automotive Services v. Does

Date: 

04/06/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Does 1-5 and ABC Corporations 1-5

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Georgia

Case Number: 

1:10-CV-1006-JEC

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On April 6, 2010, Warranty Automotive Services Corp. filed a complaint in federal district court against unnamed Does for claims arising out of defendants' operation of a website at www.lifetimewarrantymyths.com. The Complaint indicates that plaintiff believes the defendants may be residents of Connecticut who own or are otherwise affiliated with a car dealership that is a former customer of Warranty Automotive Services, Premier Subaru, LLC of Branford, Connecticut. (Complaint ¶¶ 20-24.)

According to the Complaint, Warranty Automotive Services Corp. sells lifetime warranty services to automotive dealerships, which extend the manufacturer's limited powertrain warranty for new vehicles for as long as the original purchaser of the vehicle owns it. Plaintiff alleges that in January 2010, defendants began publishing a website at www.lifetimewarrantymyths.com that contains a number of false and defamatory statements about plaintiff's services, including allegations that plaintiff "has been guilty of causing 'consumer confusion,' . . . that plaintiff's lifetime warranty is and will be worthless. . . . that plaintiff has been 'fined' by the Federal Trade Commission, and that the warranty which plaintiff markets and sells is a 'marketing tool to compensate for inherent deficiencies in either [plaintiff's] product, their process or both.'" (Complaint ¶ 14.)  The Complaint further alleges that defendants, throught their website, make claims that plaintiff operates a fraudulent "pyramid scheme." (Complaint ¶ 15.)

The Complaint asserts causes of action for (i) defamation; (ii) tortious interference with prospective economic advantage; (iii) trade libel; (iv) unfair business practices in violation fo O.C.G.A. § 10-1-370 et seq.; and (v) violation of the Cyber Piracy Prevention Act, 15 U.S.C. § 1125(d) (based on defendants' "labeling and positioning their website, 'www.lifetimewarrantymyths.com,' and by using metatags, and otherwise" in a manner alleged to have infringed plaintiff's rights in its WASCOR trademark).

Content Type: 

Subject Area: 

Jurisdiction: 

Threat Source: 

Westlaw Alert

Advanced Armament Corp. v. Garner

Date: 

05/06/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Ian Hale Garner

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Oregon

Case Number: 

06:08-cv-06142

Legal Counsel: 

Michael H. McGean - Francis Hansen & Martin LLP

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Advanced Armament Corp., a Georgia manufacturer of silencers for firearms, sued Ian Hale Garner in Oregon over statements he posted on Internet chat rooms for gun enthusiasts.  Advanced Armament brought suit in federal court in May 2008 seeking damages and injunctive relief for defamation and interference with contractual relations. In particular, Advanced Armament sought to prevent Garner from "making, stating, or posting any defamatory statements," including but not limited to statements about its "products, designs, customer relationships, business plans and contracts." Compl. ¶ 4.

Garner moved to strike the complaint under Oregon's anti-SLAPP statute, arguing that American Armament's claims arose out of written statements in a public forum concerning issues of public interest.  He argued that the chat rooms were public forums because "[i]n this case, anyone who is interested" in the topic "may in fact register and gain access," analogizing chat rooms to newspapers, magazines, and newsletters. Def.'s Reply Mem. in Supp. of Mot. to Strike at 3-4. Garner argued that his statements concerned an issue of public interest because the two chat rooms had "thousands of members each." Id. at 6. He also pointed out American Armament described itself as providing weapons to police departments and the U.S. government, making its activities a matter of public interest. Id. at 5.

American Armament countered that Garner was not speaking in the public interest when he made the statements because he had a relationship with one of its business competitors, which was also financing Garner's defense.  Pl.'s Supp. Brief in Opp. to Def.'s Mot. to Strike at 4.

The case proceeded to discovery before it was dismissed in April 2009 because the parties had reached a settlement.  

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Under review, HCF (10/14/2009)

Jurisdiction: 

Video Professor, Inc. v. Montgomery

Threat Type: 

Lawsuit

Date: 

02/26/2009

Party Receiving Legal Threat: 

Cameron Montgomery

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Colorado

Case Number: 

1:09-cv-00417-REB-BNB

Legal Counsel: 

Penniann J. Schumann

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

On February 26, 2009, Video Professor filed a lawsuit in the U.S. District Court for the District of Colorado against Cameron Montgomery, the owner of a website that labels itself "the Internet's ONLY Certified Review AuthorityTM for work at home opportunities" at www.ripoff-review.org.  The Complaint asserted claims for trademark infringement under state and federal law, commercial and business disparagement,  violation of the Colorado Consumer Protection Act, and tortious interference with business relationships.

According to the Complaint, defendant purchased the trademark "Video Professor" as a Google AdWords keyword. (Compl. ¶ 14)  As a result, whenever a consumer used Google to search for the words "Video Professor," an advertisement for defendant's website appeared, containing the statements "NEW VIDEO SCAM" and "Stop! Dont [sic] fall for this Scam.  Read this Report before you Buy."(Compl. ¶ 19)  Clicking on the link lead to a page on the website Ripoff-Review.org (which has, itself, been the subject of complaints on the Ripoff Report website) headlined "Online Fraud Investigator Dr. William J. Tomlin Reveals the Shocking Truth You MUST Know About Video Professor Program. . ." (Compl. ¶ 20). The website further claimed that "Dr. Tomlin" himself "was scammed by the Video Professor." (Compl. ¶ 22)  On the same page outlining claims against plaintiff's Video Professor program, defendant recommended its own "Top 3 Work at Home CertifiedTM Programs," along with links to the websites of these programs.  (Compl. ¶¶ 26-28)  The Complaint alleges that these three programs are under common ownership by defendant.  (Compl. ¶ 30)

On March 5, 2009, Video Professor filed a Notice of Dismissal stating that the parties had reached a settlement.  The statements about Video Professor no longer appear on the ripoff-review.org website.

Subject Area: 

Content Type: 

Priority: 

1-High

Jurisdiction: 

CMLP Notes: 

KI

Threat Source: 

Westlaw Alert

Video Professor v. Informercial Consumer Awareness

Date: 

05/03/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Dean Graziosi; Ryan Patten; Michael Savage; Edward Johnson; The Tax Club, Inc.; Infomercial Consumer Awareness, Inc.; Justin Leonard; Leonard Fitness, Inc.

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Colorado

Case Number: 

1:09-cv-01025-RPM

Legal Counsel: 

Stanford B. Owen and Gregory E. Goldberg (for Graziosi); Scott T. Ashby (for Patton); Jersey M. Green (for Savage); Randall H. Miller (for Informercial Consumer Awareness); Barry Douglas Roseman and Paul A. Levy (for Leonard)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Settled (partial)

Description: 

Video Professor, a computer instruction software company, filed a lawsuit against the owners of Infomercialscams.com, a website which hosts anonymous reviews of infomercial products, and several related individuals asserting claims that the owners of Infomercialscams.com used the threat of negative consumer ratings to extort the company. 

Video Professor's ten-count complaint alleged that Informercial Consumer Awareness, the corporation which runs Infomercialscams.com, used Video Professor's trademarks in its metadata, such that any web search for the company would return a listing for Informercialscams.com and potentially negative consumer reviews. Compl. ¶ 47. According to the complaint, Infomercial Consumer Awareness allegedly offered Video Professor the opportunity to "delist" negative reviews of its product and to boost its rating on the site in exchange for a yearly payment of approximately $300,000.  Compl. ¶ 67.

Video Professor argued that, through these actions, Informercial Commercial Awareness and the associated individuals violated the federal Racketeer Influenced and Corrupt Organization Act (RICO) and misused the protections of the Communications Decency Act Section 230. Video Professor also filed for a preliminary injunction against Informercial Commercial Awareness. 

On July 8, 2009, Video Professor voluntarily dismissed the case against all defendants pursuant to an undisclosed settlement agreement. The Stipulated Notice of Dismissal as to Defendants Justin Leonard and Leonard Fitness, Inc. (the "Leonard Defendants") reserved to those Defendants the right to file a motion for attorneys' fees and sanctions pursuant to Federal Rule of Civil Procedure 11. 

On July 22, 2009, the Leonard Defendants filed the motion for attorneys' fees and sanctions, asserting that Video Professor lacked any evidentiary support for its claims against those defendants.  Specifically, the Leonard Defendants claimed that Section 230 immunized them from liability for the allegedly defamatory postings, and that Video Professor's attempts to plead around Section 230 by asserting claims for extortion were insufficient as to the Leonard Defendants because Leonard had sold the web site in May 2008, before the alleged extortion attempts occurred.

The Leonard Defendants' motion for attorneys' fees and sactions is still pending.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Same plaintiff as Video Professor v. Justin Leonard and Video Professor v. Doe. Same defendant Leonard as in those threats as well.

8/3/009 - avm editing

Jurisdiction: 

Quest Diagnostics v. Mercola

Date: 

05/29/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Joseph Mercola

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court, District of New Jersey

Case Number: 

09-CV-2632

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Quest Diagnostics, a medical diagnostic testing company, sued Joseph Mercola, who runs the Natural Health Center along with a couple of related websites, over articles critical of Quest that were allegedly published by Mercola on one of his websites. 

Quest alleged that that the articles contained false and defamatory information, stating that its tests are "inaccurate and unreliable" and have "caused some dialysis patients to undergo unnecessary surgery," while advocating on behalf of LabCorp, one of Quest's competitors.  (Compl. ¶¶ 11-12, 14-15.)  Advertisements for Mercola's products and services also allegedly appeared in close proximity to the articles.  (Compl. ¶ 12.)  Based on user comments posted to Mercola's articles, Quest claimed that the articles have deceived consumers and caused Quest significant harm.  (Compl. ¶ 13.) 

According to the Complaint, Quest had previously asked Mercola to remove an article he published in January 2009 that Quest claimed was "false and misleading."  Mercola allegedly agreed to take down the offending article and "refrain from making false and misleading statements regarding Quest Diagnostics, Inc."  (Compl. ¶ 16.)  Quest alleged that the articles that were at issue in this lawsuit violated this agreement.  

Quest brought claims of unfair competition under both the federal Lanham Act and New Jersey state statutes, defamation, trade libel, and breach of contract.  Quest sought money damages, attorneys' fees and costs, as well as a permanent injunction requiring Mercola to remove "all false and misleading statements regarding Quest Diagnostics from any publication or on-line medium under [Mercola's] direction, custody or control," post a retraction, and refrain from making any false or misleading statements regarding Quest.

On July 31, 2009, Quest voluntarily dismissed its claims.  All posts regarding Quest Diagnostics appear to have been removed from the mercola.com website.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

08/03/2009 - LB editing

Jurisdiction: 

Alvi Armani Medical, Inc. v. Hennessey

Threat Type: 

Lawsuit

Date: 

05/19/2008

Party Receiving Legal Threat: 

Media Visions, Inc.; Patrick Hennessey

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Florida

Case Number: 

1:08cv21449

Legal Counsel: 

James J. McGuire and Deanna K. Shullman - Thomas & LoCicero PL

Publication Medium: 

Forum
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Settled (total)

Description: 

Dr. Antonio Alvi Armani, a California hair-restoration surgeon, filed a lawsuit in Florida federal court against Media Visions, Inc., and its president, Patrick Hennessey, the operators of The Hair Tranplant Network, a hair-loss forum.  The complaint, also filed on behalf of Armani Medical, Inc., claimed that Hennessey and Media Visions posted false comments about Armani and his practice on the forum site and created the false impression that posters on the site were bona fide disgruntled patients, when if fact they were either fictitious persons or undisclosed affiliates of doctors on the site's recommended list of "pre-screened" doctors.  The complaint included claims for deceptive and unfair trade practices, defamation, trade libel, and tortious interference with contract.

The complaint further claimed that the defendants failed to comply with an alleged "industry practice" of hair-loss forums:

It is industry practice and procedure to respond to this kind of posting by having the moderator of the website send a private message to the alleged "patient" requesting they privately submit verifying information to the moderator establishing their identity as a bona fide patient of the doctor in question. If the patient is verified as real then the clinic or hospital responsible for their treatment is allowed to post a response.

Compl. ¶ 50. The defendants filed a motion to dismiss the suit, arguing Media Visions was immune from liability for user comments under section 230 of the Communications Decency Act (Section 230).  The plaintiffs then withdrew their claims for trade libel and tortious interference with contract. They also filed a response in opposition to the defendant's motion to dismiss, arguing that the defendants were not immune under Section 230 because the defendants themselves posted defamatory comments. 

In a December 2008 ruling, the court denied the motion to dismiss plaintiffs' unfair trade practices claim, ruling that Section 230 did not apply because the claim was not based soley on "information provided by another information content provider."  In support of this conclusion, the court noted that the plaintiffs had alleged, among other things, that Media Visions created fake website content itself, failed to adequately disclose its sponsorship relationship with rival doctors, and refused to comply with the standard industry practice of verifying the identity of posters who have been called into question.

The court granted dismissal of the defamation claim on grounds that the plaintiffs had not complied with Fla. Stat. § 770.01, part of the Florida retraction statute that required them to give written notice of the alleged defamatory statements at least five days before filing suit.

The parties stipulated to dismissal of the complaint with prejudice in February 2009, apparently due to a settlement.

Subject Area: 

Content Type: 

Priority: 

1-High

Jurisdiction: 

CMLP Notes: 

Alvi Armani Medical, Inc. v. Hennessey, Slip Copy, 2008 WL 5971233(S.D.Fla. Dec 09, 2008) (NO. 08-21449-CIV)

CMF-6/4/09

Threat Source: 

Westlaw Alert

Colocation America v. Garga-Richardson (Lawsuit)

Date: 

04/22/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Archie Garga-Richardson; Premier Financial & Accounting Services, LLC; Scam Fraud Alert; Does 1-10

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of the State of California, County of Los Angeles

Case Number: 

09K08409

Verdict or Settlement Amount: 

$1.00

Legal Counsel: 

Pro Se

Publication Medium: 

Forum
Print

Relevant Documents: 

Status: 

Pending

Disposition: 

Verdict (plaintiff)

Description: 

In April 2009, Colocation America, a company providing computer server co-location to companies operating on the Internet, sued Archie Garga-Richardson, the founder and operator of ScamFraudAlert.com.  The complaint, filed in small claims court in California, includes claims for trade libel, intentional and negligent interference with economic advantage, and breach of contract. Mr. Garga-Richardson filed a separate small claims action against Colocation in another California court, which was subsequently transferred and consolidated with Colocation's case.

Colocation's complaint alleges that Garga-Richardson, formerly a client of Colocation America, published false statements about the company in writing and on the Internet after a contract dispute arose between the parties.  The contract dispute related to a distributed denial-of-service attack targeted at Garga-Richardson's site, which took down Colocation's network and upstream providers.  According to the complaint, Colocation removed Garga-Richardson from its network for a violation of its acceptable use policy.

In May 2009, Garga-Richardson filed a demurrer (a motion to dismiss), objecting to the California court's jurisdiction over the case.  His filing argues that Colocation America is not registered to do business in California and therefore cannot bring a lawsuit there.  The court has not yet ruled on this motion.

Update:

05/29/2009 - Garga-Richardson filed an answer to the complaint.

06/17/2009 - The court sustained Garga-Richardson's demurrer.  The court stayed all action until 08/24/2009 and indicated: "[i]f proof is filed and served before then of a Certificate of qualification having been issued to Colocation under Corp Code section 2105, at that date and time the 'complaint' of Colocation will be dismissed without further notice or hearing and the case will be transferred back to the Small Claims Court for Mr. Garga-Richardson to proceed on his small claims action [against Colocation]."

02/09/2010 - After a trial on January 17, the court issued an order on February 9 entering judgment in favor of Colocation America on its contract claim and awarding $1.00 in damages. The court dismissed the cross-complaint against Colocation America.

Content Type: 

Jurisdiction: 

Subject Area: 

Equidyne Corporation v. Does

Date: 

05/16/2002

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Does, including "Aeschylus"; Henry Rhodes

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court, District of Delaware

Case Number: 

1:02-cv-00430

Legal Counsel: 

Norman M. Monhait - Rosenthal Monhait Gross & Goddess, P.A. (for Aeschylus); Bayard J. Snyder - Snyder & Associates, P.A. (for Henry Rhodes)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)
Settled (partial)
Subpoena Enforced

Description: 

On May 16, 2002, Equidyne Corporation, a medical device company, sued twenty-one John Doe defendants (identified by pseudonyms) who posted statements about the company on the Yahoo! and Lycos financial message boards. Equidyne claimed that the defendants were current or former employees, that they signed confidentiality agreements, and that their postings to the websites violated their confidentiality agreements.  Equidyne also argued that the postings violated federal securities laws.

Equidyne obtained permission of the court to subpoena Yahoo and Lycos to obtain information that would identify who used the twenty-one pseudonyms.  Lycos identified five defendants.  Three of these defendants, including Henry Rhodes, moved to dismiss the complaint. Equidyne voluntarily dismissed its complaint against two of the defendants, but not Rhodes. The court ultimately granted Rhodes' motion to dismiss for improper venue.

Yahoo provided notice of the subpoena to its relevant subscribers by email.  One such defendant, going by the moniker Aeschylus_2000, filed a motion to quash the subpoena, invoking the First Amendment right to speak anonymously.  According to CyberSLAPP, the district judge applied the standard from Dendrite v. Doe and found that Equidyne had shown a prima facie case under federal securities laws and denied the motion to quash.  The court also denied a motion to reargue.  Aeschylus appealed to the Third Circuit arguing that the district court judge misapplied the Dendrite standard.

The case appears to have settled while on appeal.

Content Type: 

Priority: 

1-High

Jurisdiction: 

Subject Area: 

First Cash Financial Services v. Doe

Date: 

08/19/2002

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Doe, aka knowfcfs

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Tarrant County (Texas) District Court; Superior Court of California, Santa Clara County

Case Number: 

No. 96 19455202 (Texas); 1-03-CV-002135 (California)

Legal Counsel: 

Mark Goldowitz - California Anti-SLAPP Project; Cindy A. Cohn - Electronic Frontier Foundation

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Subpoena Enforced

Description: 

First Cash Financial Services, a Texas-based company operating a chain of pawn shops and cash checking services, sued a John Doe defendant in Texas state court.  The complaint alleged breach of contract arsing out of critical statements about the firm's accounting practices posted to Fast Cash's Yahoo! Finance message board

After obtaining permission of the Texas court, First Cash asked a California state court to issue a subpoena requiring Yahoo to provide identifying information for the anonymous poster.  A clerk of the court issued the subpoena, and the anonymous poster filed a special motion to strike the action (including the subpoena) under California's anti-SLAPP statute.  According to EFF, the California court denied the motion to strike, presumably allowing the subpoena to be enforced.

The CMLP was not able to find any information about what happened to the case upon its return to Texas state court. 

Content Type: 

Priority: 

1-High

Jurisdiction: 

Subject Area: 

Monex Deposit Co. v. Gilliam

Date: 

03/04/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Richard Gilliam; Jason Gilliam; Steven Bowman

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California; Superior Court of California, County of Orange

Case Number: 

8:09-cv-00287-JVS-RNB (federal); 30-2009, 00249439 (state)

Legal Counsel: 

Jason Gilliam - Pro Se

Publication Medium: 

Forum
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued
Material Removed

Description: 

On March 4, 2009, Monex Deposit Company and Monex Credit Company (collectively "Monex"), two companies in the precious metals business, filed a lawsuit suit against Jason Gilliam, Richard Gilliam, and Steven Bowman for publishing allegedly defamatory statements on the website MonexFRAUD.com and attempting to extort money from Monex.  Monex initially sued in California state court, but the Gilliams removed the case to federal court.

In its complaint, Monex claims that the Gilliams and Bowman threatened to "continue to libel Monex on their website, . . . share information with government regulators, and . . . interfere with Monex's relationships with investors and banks" unless the company paid them $15 million dollars.  According the complaint, the defendants called Monex's president a "ruthless sociopath" and the firm's sales pitch "flat-out lies," in addition to other comments.  Monex alleges that the defendants made these false statements on MonexFRAUD.com and in comments posted on other websites, including YouTube and Digg.

In addition to defamation and extortion, Monex's complaint alleges cyberpiracy, unfair competition, racketeering, interference with contract, attempted conversion, trade libel, interference with prospective economic advantage, and trade secret misappropriation. The Gilliams, father and son, allegedly lost approximately $32,000 with Monex.  On March 16, Jason Gilliam filed counter claims against Monex, including racketeering and breach of fiduciary duties.

On March 24, 2009, a federal court in California granted Monex's request for a temporary restraining order against the Gilliams and Bowman, expiring on April 7, 2009. The temporary restraining order prohibits them from taking any steps to extort money from Monex by (1) threatening to publish information about Monex on any forum or share information about Monex with third parties, or (2) threatening to defame Monex or its employees.  The order also barred them from retaining, disclosing, or using any Monex trade secret or proprietary information. 

The court also ordered the Gilliams and Bowman to show cause why a preliminary injunction should not issue, continuing the terms of the temporary restraining order until judgment or dismissal.  If granted, the preliminary injunction would also bar the defendants from "publishing or republishing any negative statements about Monex on any website" and require them to "remove, from any website over which they have sufficient control, all negative material about Monex that they have published or republished there, and to stop using the word MonexFRAUD."  It would also bar them from operating the MonexFRAUD website or any "other websites critical of Monex."  

Update:

04/09/09 -The court issued a preliminary injunction, prohibiting the defendants from (1) making any efforts to extort money from Monex by threatening to publish or share information about Monex or defame Monex or its employees; (2) operating www.MonexFRAUD.com or any other website using the Monex name in combination with any modifier that implies illegal, unlawful or unethical conduct; (3) publishing or republishing on any website, including www.MonexFRAUD.com, any statement that "Monex does not have title to or the ability to deliver precious metals sold under contract to any Monex customer; that Monex was expelled from the National Futures Association for fraud; that Monex operates a boiler room; that Monex violates any federal or state statutes regulating the business operations of Monex; that Monex has been charged by the Internal Revenue Service with tax evasion; and that Monex fails to accurately disclose to customers account and trading terms (collectively "Prohibited Statements"); (4) disclosing, using, or retaining any trade secret documentation or other proprietary information belonging to Monex.  The injunction also requires the defendants to remove all previously published Prohibited Statements within 24 hours.  It does not prohibit the defendants from (a) making statements regarding their own business dealings with Monex, including losses they have sustained; or (b) communicating with any governmental entity concerning matters within the scope of that entity's legislative, administrative, or regulatory responsibilities.

05/07/2009- Monex filed an amended complaint in district court. 

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Source: OCRegister.com

UPDATED 7/24/09- AVM added information on amended complaint and uploaded am. compl.

 

Jurisdiction: 

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