Business Torts

Programmes Internationaux D'Echanges v. Grijalva

Date: 

09/21/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Danielle Joyce Grijalva; Veronica Beddick

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

North Carolina District Court, Forsyth County

Case Number: 

2007-CVD-656

Legal Counsel: 

Jennifer Arno (Grijalva)

Publication Medium: 

Email
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued

Description: 

Programmes Internationaux D'Echanges (P.I.E.), a French nonprofit that organizes student exchange programs, filed suit against Danielle Grijalva, director of the Committee for Safety of Foreign Exchange Students (CSFES), over emails and postings on CSFES's website that criticized the organization's handling of students. P.I.E.'s complaint asserted claims of defamation, civil conspiracy, interference with contract, and interference with business relationships. The suit also named as a defendant Veronica Beddick, a former employee of ASSE International, a nonprofit that assisted in student placements, alleging that she provided confidential information to Grijalva and assisted in the disputed acts.

In emails and postings to the CSFES website, Grijalva allegedly accused the plaintiff organizations of numerous wrondoings related to their treatment of foreign exchange students. According to the complaint and other court filings, the accusations included that the organizations failed to place students in schools, failed to place students in permanent homes, placed students in homes with felons, and otherwise violated laws that regulate foreign exchange programs.

According to press reports, Grijalva has said that she sent an email to the father of a foreign exchange student at the student's request but that she has not engaged in any "mass effort" to contact students, their families, or host families.

P.I.E.'s complaint included a request for a temporary restraining order against Grijalva and Beddick. On September 21, 2007, the court granted the request, ordering the defendants to cease communicating with P.I.E. students as well as the students' familes, host familes, and educational institutions. The temporary restraining order, by its terms, expired after 10 days unless the court renewed it.

On Dec. 12, 2007, the court granted a preliminary injunction against Grijalva that reiterated the prohibition on direct communication with students and others involved with the plaintiffs and further ordered her to refrain from disseminating false or misleading information about the plaintiff organizations via email or her website.

On May 30, 2008, the court granted a near-identical preliminary injunction against Grijalva brought by P.I.E. associates (and plaintiff-intervenors) ASSE and World Heritage, Inc.

Content Type: 

Priority: 

2-Normal

Jurisdiction: 

Subject Area: 

Georgia Community Support and Solutions v. Berryhill (Lawsuit)

Date: 

02/08/2005

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Shirley Berryhill

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Georgia State Court; Court of Appeals of Georgia; Georgia Supreme Court

Case Number: 

A05A1121 (GA Appeals); 06G0038 (GA Supreme)

Legal Counsel: 

Torin D. Togut

Publication Medium: 

Email
Website

Relevant Documents: 

Status: 

Pending

Description: 

On February 8th, 2005, Georgia Community Support and Solutions (GCSS), a non-profit organization that provides assistance to disabled adults and their families, filed a lawsuit against Shirley Berryhill for defamation and tortious interference with business relations over statements she made on a website for families of disabled adults and in emails to employees of the Atlanta Journal-Constitution and the Georgia Department of Human Resources.

According to court documents, GCSS placed Ms. Berryhill's mentally handicapped son with providers of personal care. Subsequently, Ms. Berryhill allegedly made statements in web postings and emails asserting that her son was suffering from poor treatment and care. GCSS sent Berryhill a cease-and-desist letter regarding the statements (see our database entry) and, after Berryhill refused to retract and apologize for the statements she made, the organization filed suit in Georgia state court.

Ms. Berryhill filed a motion to strike the complaint pursuant to Georgia's anti-SLAPP statute (GA. Code Ann. § 9-11-11.1(b), and the trial court granted the motion. The court concluded that Berryhill's statements satisfied the threshold requirement of the anti-SLAPP statute because they were made in furtherance of her right to free speech about an issue of public concern.

The Georgia Court of Appeals reversed the trial court's decision, ruling that the anti-SLAPP statute only protects statements made in connection with  official government proceedings. The Georgia Supreme Court affirmed the appellate court's decision, concluding that Ms. Berryhill's speech and acts did not fall within the scope of Georgia's anti-SLAPP statute.

The American Civil Liberties Union of Georgia, the Georgia First Amendment Foundation, and the Atlanta Press Club filed an amicus brief in support of Ms. Berryhill.

We have not determined what happened in the litigation following the Georgia Supreme Court's 2006 decision.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

 

 

Jurisdiction: 

AnswerThink Consulting Group v. Hackett

Date: 

03/30/2000

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Gregory P. Hackett

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Florida

Case Number: 

1:00cv01223

Legal Counsel: 

Ronald Bennett Ravikoff (Zuckerman Spaeder Taylor & Evans LLP); David B. Webster (Webster Roosa Webster)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

In March 2000, AnswerThink, a business and technology consulting firm, fired Gregory P. Hackett for allegedly criticizing the company on a Yahoo! forum and sued him for breach of contract, breach of fiduciary duty and loyalty, and defamation in Florida federal court.

AnswerThink fired and sued Hackett after subpoenaing Yahoo! and learning Hackett's identity during a related lawsuit, AnswerThink Consulting Group v. Doe. In that lawsuit, AnswerThink sued Hackett and several others as John Does for defamation.

Hackett and AnswerThink settled both cases in July 2000.

In a related matter, Hackett sued Yahoo! in California federal court in May 2000 for violating his privacy when it complied with AnswerThink's subpoena. Hackett and Yahoo! settled in August 2000.

Jurisdiction: 

Subject Area: 

Content Type: 

Quixtar, Inc. v. Does 1-30

Date: 

10/08/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Does 1-30

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Michigan Circuit Court, Ottawa County

Case Number: 

07-59739-CZ

Legal Counsel: 

Daniel A. O’Brien (for John Does 1-5, 8, 9, 12-18, & 21)

Publication Medium: 

Blog
Website

Relevant Documents: 

Status: 

Pending

Description: 

On October 8th, 2007, Quixtar Inc., a sister company of Amway Corp., sued thirty “John Does” for anonymous posts they made on blogs focused on Quixtar including freetheibo.com, theiborebellion.blogspot.com, and quixtarlostmycents.blogspot.com, and for anonymous videos posted on YouTube that the company considers disparaging and malicious. Quixtar seeks an injunction and damages of more than $25,000.

Quixtar claims two counts of tortious interference and one count of unfair competition. The complaint alleges the defendants have caused proprietary information to be disclosed and encouraged Quixtar’s distributors, known as “Independent Business Operators” (IBOs) not to buy certain products, to stop building their businesses, and to resign from the Quixtar business. Quixtar also claims unfair competition alleging the defendants misled current and prospective IBOs into believing Quixtar’s business practices are unethical, its products are not competitively priced, and it is operating contrary to law.

According to Quixtar’s official news blog called “Alticor Media Blog,” the lawsuit was filed in order to discover the identities of the bloggers and discern whether they are working in concert with Orrin Woodward, the subject of a separate Quixtar legal action Quixtar, Inc. v. Woodward, No. 07-08413-CK, slip op. (Mich. Cir. Ct. Aug. 10, 2007). An October 12th, 2007, blog post reflects this motivation:

We filed suit this week in Ottawa County, Michigan seeking to learn more about a number of “John Does” who have cropped up online since our dispute with Orrin Woodward and TEAM began.

Because we believe we can prove that some of their sites and posts were engineered or directed by Woodward, TEAM, their lawyers or their PR agency. And that those sites were purposely used to post material that violates a court order.


…So we are seeking to support the legal system – and not attack First Amendment speech. Tough line to walk, but we’ll walk it. Because we believe in both principles.

Some of the John Does filed a motion to dismiss the suit on October 15, 2007, arguing collateral estoppel in connection with the pending Quixtar v. Woodward case where Quixtar also seeks to discover the identities of the John Does and that Quixtar’s complaint violates the defendants' freedom of speech rights under the U.S. Constitution and article I of the Michigan Constitution.

Content Type: 

CMLP Notes: 

May need to have "Injunction Denied" added to the disposition field.  Check with lawyer.

Updated 6/25/2008 (JMC)

Jurisdiction: 

Subject Area: 

Allegheney Energy v. Doe

Threat Type: 

Lawsuit

Date: 

10/16/2003

Party Receiving Legal Threat: 

John Doe (Cliff Swiger)

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Court of Common Pleas of Philadelphia County

Case Number: 

001615

Legal Counsel: 

Pro se

Publication Medium: 

Forum

Status: 

Concluded

Disposition: 

Subpoena Enforced
Withdrawn

Description: 

Allegheney Energy ("AE") sued a John Doe who posted anonymous criticism of the company that included racial epithets on a Yahoo! Finance forum dedicated to AE.  Because the anonymous author included statements in his posts indicating that he was a long-time AE employee, AE claimed  breach of fiduciary duty and breach of duty of loyalty in its filing in Pennsylvania state court.

After filing the suit on October 16, 2003, AE subpoenaed Yahoo! to reveal Doe's identity. Yahoo! sent notification of its receipt of the subpoena to Doe, whose real name turned out to be Cliff Swiger, and revealed Swiger's identity to AE.  Swiger claimed he never received the notification.  On November 25, AE filed a motion to dismiss the suit against John Doe (Swiger).

AE subsequently fired Swiger for his postings on the Yahoo! forum. Swiger then filed a lawsuit against AE for abuse of process, wrongful use of civil proceedings, intrusion of seclusion, and publication of private facts. See Allegheney Energy v. Swiger for more information.

Content Type: 

Jurisdiction: 

Subject Area: 

Crazy Legal Battle Between Newspapers Settles, But Leaves Worrisome Fair Use Decision Intact

Many readers are probably familiar with the meltdown of the Santa Barbara News-Press, a local daily newspaper in Santa Barbara, California. Starting in 2006, reporters and editors of the newspaper clashed with now-infamous Wendy McCaw, controlling shareholder of Ampersand Publishing LLC, which owns the paper. Tensions swirled around McCaw's perceived intervention in editorial and reporting judgments, traditionally left to the paper's professional staff.

Jurisdiction: 

Subject Area: 

Content Type: 

Ampersand Publishing v. Santa Barbara Independent

Date: 

10/26/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

The Santa Barbara Indpendent, Inc.

Type of Party: 

Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California, Western Division

Case Number: 

2:06-cv-06837

Legal Counsel: 

Louis P. Petrich, Robert S. Gutierrez, Thomas J. Peistrup - Leopold, Petrich & Smith, P.C.

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Settled (total)

Description: 

In October 2006, Ampersand Publishing LLC, the company that owns the Santa Barbara News-Press, filed a lawsuit against Santa Barabara Independent, Inc., publisher of the Santa Barbara Independent, another local newspaper. The case arose out of Independent editor Nick Welsh's posting of a draft News-Press article in connection with a post on his "Angry Poodle" blog on the Independent's website. The facts are a bit complicated.

Welsh's post appeared on July 14, 2006, during the turmoil following the resignation of several of the News-Press's top editors and a leading columnist because of conflicts between the newspaper staff and Wendy McCaw, the local billionaire who controls Ampersand and essentially owns the News-Press. On July 6, 2006, News-Press reporter Scott Hadley wrote an article about the resignations, but the News-Press chose not to publish it, and instead published a "note to readers" written by McCaw, which discussed the resignations and the departing staff members' supposed motivations for leaving. Apparently in response to this decision, Scott Hadley also resigned from the News-Press. (Since then, over fifty more employees have either quit or been fired. The whole crazy drama is chronicled in the documentary film, Citizen McCaw.)

Welsh's July 14 post reported on Hadley's resignation and criticized the News-Press for publishing McCaw's "note to readers" instead of Hadley's article. Crucially, Welsh included a hyperlink in the blog post to a copy of Hadley's draft article, which an unknown person had sent to the Independent's office the day before. (The link in Welsh's post led to a scanned PDF of the article hosted on the Independent's site). Welsh and the Independent contend that Welsh posted the draft in order to expose and comment upon what he saw as the censorship of an unflattering article. In court documents, they also argue that Welsh's use of the draft "contrasted its fact-based account of the News-Press resignations with the defensive editorializing published by the News-Press." The link and the draft article remained online from July 14 to July 19, at which point the Independent removed them after Ampersand threatened legal action.

Ampersand sued the Independent in federal court in California, claiming that Welsh's posting of the draft article constituted copyright infringement. Ampersand also alleged that Welsh had misappropriated its trade secrets by acquiring and publishing the draft article and by acquiring another draft News-Press article relating to the paper's arbitration proceeding against a former editor. (Welsh and the Independent deny ever obtaining a copy of this latter arbitration article.) Ampersand argued that although the draft articles contained publicly available facts, they also embodied confidential processes and information because they reflected the reporters' labors and ideas of how to investigate and report on an issue. Ampersand also brought claims for unfair competition under California law, intentional interference with propsective economic advantage and contract, and negligent interference with prospective economic advantage and contract.

In September 2007, both parties moved for summary judgment. Among other things, the Independent argued that Welsh's publication of Hadley's draft article for purposes of commentary and criticism was a fair use, that the draft article was not a trade secret, and that it never acquired or published a copy of the arbitration article. Ampersand argued that it was entitled to judgment as a matter of law on its copyright infringement claim. In November 2007, the court granted Ampersand summary judgment on its copyright infringement claim, holding that Welsh's posting of Hadley's draft article was not fair use. The court dismissed Ampersand's trade secret claim based on the Hadley article, finding that the draft was not a trade secret. It reserved decision on the trade secret claim relating to the arbitration article, pending resolution of Ampersand's motion to compel Welsh to answer questions about his source of information about the article. (Welsh had refused to answer these questions, relying on the federal reporter's privilege.) The court also dismissed the unfair competition and tortious interference claims, finding that they were preempted by federal copyright law and the California Uniform Trade Secrets Act.

After this ruling, the only issues remaining were the amount of damages to be awarded to Ampersand on the copyright infringement claim and whether Ampersand had a valid trade secret claim based on Welsh's alleged acquisition of the arbitration article. Related to this latter issue, the parties fought bitterly over Ampersand's motion to compel Welsh to reveal the source of his information about the arbitration article, presenting a bizarre and unprecedented legal battle between two newspapers over application of the reporter's privilege. Before the court resolved the motion to compel or ruled on the final trade secret claim, the parties settled the case. As part of the settlement, the Independent agreed not to challenge the court's ruling that it had violated federal copyright law. The financial terms of the settlement are not public.

Jurisdiction: 

Subject Area: 

Content Type: 

Bauer v. Wikimedia

Date: 

01/31/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Wikimedia Foundation; Jenna Glatzer; MacAllister Stone; James D. MacDonald; Kent Brewster; Ann C. Crispin; Patrick Nielsen-Hayden; Teresa Nielsen-Hayden; Brian Hill; Dee Power aka Harrilane D. Power aka D. Carr Harrilane; David L. Kuzminski; Thomas S

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of New Jersey, Monmouth County

Case Number: 

No. L-1169-07

Legal Counsel: 

Charles LeGrand, Kevin Goering, James M. Chadwick - Shepphard, Mullin, Richter & Hampton LLP; Matt Zimmerman - EFF

Publication Medium: 

Blog
Website
Wiki

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

In January 2008, literary agent Barbara Bauer and her company Barbara Bauer Literary Agency, Inc. filed a lawsuit in New Jersey State court against twenty-two defendants, including the Wikimedia Foundation. The complaint includes claims for defamation, tortious interference with prospective business advantage, and conspiracy. According to court documents, the dispute revolves around statements made on a large number of websites and blogs describing Bauer as being among the "20 Worst Literary Agents" and claiming that she has "no . . . significant track record of sales to commercial (advance paying) publishers." The complaint also alleges that various defendants posted altered photographs of Bauer on the Internet and created YouTube videos, including "Crouching Snark, Hidden Draggon" and "Miss Snark's Happy Hooker Crapstravaganza," that allegedly defamed and belittle her.

With regard to Wikimedia, the complaint alleges that Wikipedia published false statements indicating that Bauer was "The Dumbest of the Twenty Worst" literary agents and that she has "no documented sales at all." It further alleges that Bauer informed Wikimedia about the allegedly false statements, and that the foundation "has refused to remove the statements from Wikipedia." Finally, it alleges that Wikimedia conspired with the other defendants to defame and interfere with her prospective economic advantage, without providing any details.

On May 1, 2008, Wikimedia moved to dismiss the complaint, arguing that section 230 of the Communications Decency Act (CDA 230), the federal law that shields providers and users of "interactive computer service[s]" from liability for defamation and other torts for publishing the statements of third parties, bars Bauer's claims as a matter of law. Wikimedia's memorandum in support of its motion also argued that, even if CDA 230 did not bar Bauer's claim, the underlying statements are protected opinion under the New Jersey Constitution and the First Amendment to the United States Constitution.

On May 20, 2008, WritersNewsWeekly.com wrote that the court will hear Wikimedia's motion to be dismissed from the lawsuit on June 6, 2008.

Update:

7/1/08 - Court dismissed the case against Wikimedia Foundation, ruling that section 230 of the Communications Decency Act barred liability for publishing the statements of others. The court left open the possibility that Bauer could amend her complaint to state a claim against Wikimedia.

Content Type: 

CMLP Notes: 

Status checked on 6/02/08 (AAB)

Updated 1/29/09 - VAF

Jurisdiction: 

Subject Area: 

Nemet v. ConsumerAffairs.com

Date: 

03/17/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

ConsumerAffairs.com, Inc.

Type of Party: 

Individual
Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

US District Court for the Eastern District of Virginia

Case Number: 

1:08-cv-00254

Legal Counsel: 

Jonathan D. Frieden; Sean P. Roche (Odin, Feldmen & Pittleman PC)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Nemet Chevrolet and its owner Tom Nemet filed a lawsuit against ConsumerAffairs.com, a consumer ratings site run by former reporter James Hood, for publishing user complaints against his company. Nemet claims the postings published on the site constitute defamation, tortious interference with business expectations and violations of the Lanham Act.

According to Nemet's complaint, visitors to the website fill out an online complaint form, which the editors check for defamatory content before publishing. One disputed user complaint alleges that the company had reneged on a promise made by one of its salespersons to a customer. Another customer posting quoted in the complaint asserts that the company sold the car to her at an inflated price. Nemet maintains that these and other statements are defamatory. 

Nemet's complaint also alleges that the website's name "Consumer Affairs" is misleading and deceptive in violation of the Lanham Act, because it misleads members of the public into believing that it is a government body.

On April 14, 2008, defendant filed a motion to dismiss or strike the complaint, arguing that it has immunity from defamation and tortious interference under section 230 of the Communications Decency Act. It also argued that plaintiffs had failed to state a Lanham Act claim, because Nemet has no rights to the trademark "Consumer Affairs." The court set a motion hearing for May 16, 2008 at 10:00 AM before District Judge Gerald Bruce Lee.

Update:

6/18/2008 - The district court granted ConsumerAffair's motion to dismiss or strike the complaint.

7/15/2008 - The district court granted Nemet Chevrolet's motion for leave to file an amended complaint.

08/04/2008 - ConsumerAffairs filed a motion to dismiss or strike the amended complaint.

9/11/2008 - The district court granted ConsumerAffair's motion to dismiss or stike the amended complaint.

9/25/2008 - Nemet Chevrolet filed a notice of appeal.

12/29/2009 - The Fourth Circuit affirmed the lower court's dismissal of the case.

Jurisdiction: 

Subject Area: 

Content Type: 

World Wide Association of Specialty Programs v. PURE, Inc.

Threat Type: 

Lawsuit

Date: 

01/04/2002

Party Issuing Legal Threat: 

World Wide Association of Specialty Programs, Inc.

Party Receiving Legal Threat: 

PURE, Inc.; Sue Scheff; Jeff Berryman

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Utah; United States Court of Appeals for the Tenth Circuit

Case Number: 

2:02-CV-00010 (trial level); 04-4312 (appellate level)

Legal Counsel: 

C. Richard Henriksen, James Seaman, Aaron Flater

Publication Medium: 

Forum
Print
Verbal
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Verdict (defendant)

Description: 

World Wide Association of Specialty Programs and Schools ("World Wide") is a Utah corporation that provides referral services, counseling, and recomendations with regard to schools and residential treatment programs for troubled and at-risk teenagers. In January 2002, World Wide sued PURE Foundation, Inc., Sue Scheff, and Jeff Berryman in federal district court in Utah after Ms. Scheff and Mr. Berryman made negative comments about World Wide on various Internet sites. The dispute arose when Scheff sent her teenage daughter to a World Wide-affiliated school, removed her daughter from the school, sharply criticized World Wide's practices on her website and various Internet chatrooms (allegedly in conjunction with Berryman), and then founded PURE, a competing service.

World Wide 's complaint alleged defamation, intentional interference with prospective economic advantage, and unfair business practices under the Lanham Act (15 U.S.C. sec. 1125(a)). After lengthy proceedings, the trial court granted summary judgment for Mr. Berryman and dismissed the case against him. World Wide's case against Ms. Scheff went to trial, and the jury found in her favor on all counts. World Wide appealed, and the Tenth Circuit Court of Appeals affirmed.

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Jurisdiction: 

Subject Area: 

Anthony Ciolli, former AutoAdmit Defendant, Sues Everyone

Breaking news from Above the Law: Anthony Ciolli, former defendant in the controversial AutoAdmit case, has filed a lawsuit in Pennsylvania state court against the two plaintiffs in that case, their lawyers, ReputationDefender and one of its employees, and the shadowy "T14 Talent." He alleges wrongful initiation of civil proceedings, abuse of process, libel, slander, false light invasion of privacy, tortious interference wi

Jurisdiction: 

Subject Area: 

Julius Baer Bank and Trust v. Wikileaks

Date: 

02/06/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Wikileaks; Dynadot LLC, Does 1-10

Type of Party: 

Large Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of California

Case Number: 

3:08-cv-00824-JSW

Legal Counsel: 

Garret D. Murai (for Dynadot); Thomas R. Burke, Davis Wright Tremaine LLP (for media amici); Karl Olson, Levy, Ram & Olson LLP (for intervenor Public Citizen and California First Amendment Coalition); Ann Brick, American Civil Liberties Union (for i

Publication Medium: 

Wiki

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Denied
Injunction Issued
Withdrawn

Description: 

On February 6, 2008, Julius Baer Bank and Trust Company, a Cayman Islands banking entity, filed suit in federal court in California against Wikileaks, which is developing an "uncensorable Wikipedia for untraceable mass document leaking and analysis." Two days later, the bank and its Swiss parent company filed an ex parte application for a temporary restraining order seeking to enjoin Wikileaks from publishing or distributing copies of documents the plaintiffs claim contain "stolen or otherwise wrongfully obtained confidential and protected bank files and records."

On February 15, 2008, the court issued what it captioned as an "Order Granting Permanent Injunction." This order, which appears to be the result of a stipulation between the plaintiffs and Dynadot, Wikileaks' domain name registrar and web host, required that Dynadot immediately disable the entire wikileaks.org domain name and account and remove all DNS hosting records.

Later that same day, the court issued an Amended Temporary Restraining Order that enjoins Wikileaks and and "all others who receive notice of this order" from "displaying, posting, publishing, distributing, or linking to . . . all documents and information originating from [the plaintiffs' banks] which are internal non-public company documents and/or which contains private client or customer bank records."

As of February 28, 2008, the Wikileaks.org domain is still down, but the organization issued a press release through one of its mirror sites:

Transparency group Wikileaks forcibly censored at ex-parte Californian hearing -- ordered to print blank pages -- 'wikileaks.org' name forcibly deleted from Californian domain registrar -- the best justice Cayman Islands money launderers can buy?

When the transparency group Wikileaks was censored in China last year, no-one was too surprised. After all, the Chinese government also censors the Paris based Reporters Sans Frontiers and New York Based Human Rights Watch. And when Wikileaks published the secret censorship lists of Thailand's military Junta, no-one was too surprised when people in that country had to go to extra lengths to read the site. But on Friday the 15th, February 2008, in the home of the free and the land of the brave, and a constitution which states "Congress shall make no law... abridging the freedom of speech, or of the press", the Wikileaks.org press was shutdown.

On February 28, Julius Baer issued a press release stating:

It is not and has never been Julius Baer's intention to stifle anyone's right to free speech. Indeed, Julius Baer has specifically made no attempt to remove material on the website which refers to the organization but which does not include information personal to its customers. However, Julius Baer denies the authenticity of this material and wholly rejects the serious and defamatory allegations which it contains.

Updates:

The court has scheduled a hearing on the injunction for February 29, 2008 at 9:00AM.

2/26/08 - Coalition of media companies filed an Amici Curiae brief primarily addressing the issue of prior restraints

2/26/08 - ACLU and Electronic Frontier Foundation filed a motion to intervene

2/26/08 - Public Citizen and the California First Amendment Coalition filed a motion to intervene that argues that the court did not have jurisdiction in the case, and therefore had no power to issue the injunctions

2/28/08 - Plaintiffs filed opposition to the motions by Amici and potential intervenors

2/28/08 - John Shipton, the owner of the wikileaks.org domain, filed a Notice of Intent to Appear and Joinder in Motions & Oppositions of Amici/Intervenors

2/28/08 - Daniel Mathews, a user of the site who was served with the TRO by the plaintiffs, filed a Memorandum in Opposition to TRO, Preliminary Injunction, and Permanent Injunction

2/29/08 - Court held hearing on the TRO; judge vacated the Permanent Injunction against Dynadot and tentatively denied the motion for a preliminary injunction.

2/29/08 - Court issued Order Denying Motion For Preliminary Injunction; Dissolving Permanent Injunction; and Setting Briefing and Hearing Schedule

3/5/08 - Plaintiff banks filed a notice of dismissal, without prejudice, as to all parties

Jurisdiction: 

Subject Area: 

Content Type: 

Krinsky v. Doe 6: New Decision from California Provides Strong Protection for Anonymous Speech

A California appellate court issued a new anonymity decision yesterday in Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008). (For background on the facts of the case, see the CMLP database entry, Krinsky v.

Jurisdiction: 

Subject Area: 

Content Type: 

Krinsky v. Doe 6

Threat Type: 

Lawsuit

Date: 

01/01/2006

Party Receiving Legal Threat: 

Does 1-10

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California, Santa Clara County; Court of Appeal of the State of California - Sixth Appellate District

Case Number: 

1-06-CV-059796 (trial level); H030767 (appellate level)

Legal Counsel: 

Arlene Fickler, Lawrence T. Hoyle, Jr., Barry W. Lee, Amy B. Briggs

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Subpoena Quashed

Description: 

Lisa Krinsky, the former president, chief operating officer, and chairman of the board of SFBC International, Inc., a Florida company, sued ten anonymous defendants over comments about her posted to a Yahoo! message board. According to court papers, the anonymous forum posters made "scathing verbal attacks" against SFBC, Krinsky, and fellow corporate officers. (For juicy details, see Ars Technica's article on the case.)

Krinsky filed a lawsuit in Florida state court in January 2006 (the exact date is uncertain), alleging defamation and intentional interference with contractual relations. She served a subpoena on Yahoo! in California, seeking the identities of the anonymous forum posters. After Yahoo! notified the posters, one of them -- Doe 6 -- filed a motion to quash the subpoena in California state court. The court denied the motion to quash, noting (quite strangely) that Doe 6's conduct "appeared to be similar to federal cases involving "'pump and dump' stock manipulation efforts," although no claim to that effect was in Krinsky's complaint.

In February 2008, a California appellate court reversed the lower court's ruling. It held that Internet users have a First Amendment right to engage in anonymous speech, but this right must be balanced against a plaintiff's legitimate interest in pursuing a valid legal claim based on constitutionally unprotected speech, such as defamation. In striking this balance, the court rejected the "good faith" standard applied in In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000), indicating that this test "offers no practical, reliable way to determine the plaintiff's good faith and leaves the speaker with little protection." The court also declined to apply the test devised in Doe v. Cahill, 884 A.2d 451 (Del. 2005), arguing that the "summary judgment" terminology used in that case is "unnecessary and potentially confusing."

Instead, the court adopted a test that requires a plaintiff to make a "prima facie showing" that he or she has a valid legal claim against the anonymous speaker before allowing disclosure of the speaker's identity. The court made it clear that a prima facie showing required Krinsky to bring forward evidence (not just allegations) to support each element of her defamation and interference with contract claims, except for those elements that were beyond her control or dependent on the identity of the defendant.

Applying this standard, the court held that Krinsky had not made a prima facie showing on her defamation claim because the message board comments, viewed in context, constituted opinion protected by the First Amendment rather than statements of fact about Krinsky. The court further held that Krinsky could not make a prima facie showing on her interference with contract claim because this claim was based on the same constitutionally protected opinion.

CMLP Notes: 

needs to be updated - what happened back in the trial court? is it over?

Status checked on 6/5/2008, no new information (AAB)

Jurisdiction: 

Subject Area: 

Content Type: 

Nam Tai v. Doe

Threat Type: 

Lawsuit

Date: 

01/26/2001

Party Receiving Legal Threat: 

John Does

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court for the State of California, County of Los Angeles; Circuit Court of Loudon County, Virginia; Virginia Supreme Court

Case Number: 

No. 012761 (Va. Sup. Ct.)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Subpoena Enforced

Description: 

Nam Tai Electronics, Inc., a Hong Kong-based electronics company, sued 51 "John Doe" defendants in California state court for libel, trade libel, and violations of California's unfair business practices statute.  The lawsuit revolved around negative comments about Nam Tai posted to a Yahoo! message board pertaining to Nam Tai. 

After filing the complaint, Nam Tai obtained a subpoena in California directing Yahoo! to disclose its subscriber data (IP address) for "scovey2," one of the anonymous forum posters.  Based on this information, Nam Tai determined that "scovey2" obtained his Internet access through AOL.   Nam Tai then obtained a "commission" for out-of-state discovery from the California court to depose AOL's custodian of records in Virginia, in order to seek identifying information for "scovey2."  Nam Tai asked a Virginia state trial court to issue a subpoena, and AOL moved to quash the subpoena. 

The trial court denied AOL's motion to quash, concluding that it would enforce the California "commission" and reasoning that First Amendment concerns implicated by the libel and trade libel claims were not implicated by the California unfair business practices claim.  The Supreme Court of Virginia affirmed, relying heavily on the principle of "comity" (that is, the respect states extend to the judgments of other states).  

The record is not clear regarding what happened in California court after the poster's identity was revealed.

Content Type: 

Priority: 

1-High

Jurisdiction: 

CMLP Notes: 

Subject Area: 

Nationwide v. Belo Corp.

Date: 

07/28/2004

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Belo Corp., the Dallas Morning News; and Scott Burns

Type of Party: 

Large Organization

Type of Party: 

Individual
Media Company

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Texas

Case Number: 

3:06-cv-00600

Legal Counsel: 

Richard Michael Goehler; Monica Louise Dias; Paul C Watler

Publication Medium: 

Print
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

On July 29, 2003, the Dallas Morning News published in print and on its website an allegedly defamatory article by financial writer Scott Burns about an accelerated mortgage program offered by Nationwide Bi-Weekly Administration, a company that provides mortgage payment services for borrowers. The article, among other things, accused Nationwide of engaging in deceptive business practices.

Nationwide filed a complaint in Ohio state court on July 28, 2004, asserting claims for defamation, tortious interference with prospective business relations, and business disparagement against the Dallas Morning News, its owner Belo Corp., and Burns. Nationwide did not, however, serve the complaint on any of the defendants until June 2005. Shortly thereafter, Defendants successfully removed the case to federal court in Ohio, whereupon the court transferred venue to the Northern District of Texas.

On May 30, 2006, Defendants filed a motion to dismiss, arguing that Nationwide had failed to state a claim upon which relief could be granted because Texas' 1 year statute of limitations for libel claims barred Nationwide's lawsuit.

On October 16, 2006, the court granted Defendants' motion, holding that Nationwide failed to exercise diligence in serving the defendants and that under the single publication rule, the limitations period expired in July 2004.

Nationwide appealed the decision and on December 21, 2007, the Fifth Circuit affirmed the dismissal, holding that
the continued availability of an article on a website should not result in republication, despite the website’s ability to remove it. Perhaps more important than the similarities between print media and the Internet, strong policy considerations support application of the single publication rule to information publicly available on the Internet. See Firth, 775 N.E.2d at 466 (discussing the “potential for endless retriggering of the statute of limitations, multiplicity of suits and harassment of defendants” and warning of a corresponding chilling effect on Internet communication). We agree that these policy considerations favor application of the single publication rule here and we note that application of the rule in this context appears consistent with the policies cited by Texas courts in adopting and applying the single publication rule to print media: to support the statute of limitations and to prevent the filing of stale claims. See Holloway, 662 S.W. 2d at 691.
As to the business disparagement and tortious interference claims, which are normally entitled to a 2 year statute of limitations under Texas law, the court stated that when allegedly defamatory statements form the sole basis for a business disparagement or tortious interference claim, defamation’s one-year statute of limitations applies.

Jurisdiction: 

Subject Area: 

Content Type: 

Freecycle Network v. Oey

Date: 

04/04/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Tim Oey; Jane Doe Oey

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

US District Court, District of Arizona

Case Number: 

4:06cv00173

Legal Counsel: 

Ashley Lynn Kirk - Hayes Soloway PC; Ian N. Fienberg, Donald M. Falk, Dennis S. Corgill, Eugene Volokh

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)
Injunction Issued

Description: 

The Freecycle Network (TFN) is a nonprofit corporation that acts as a central administrative point for local recycling communities around the United States and operates a website at www.freecycle.org. It had been operating under this name since 2003, and in 2004 submitted a trademark application for the "The Freecycle Network" and "Freecycle" marks.

Tim Oey, a former volunteer at TFN became a vocal critic of TFN's attempt to trademark its name, expressing his view that "freecycle" had become a generic term and thus not an appropriate word to be protected by trademark .

On April 4, 2006, TFN filed a lawsuit against Oey, alleging trademark infringement. TFN argued that Oey's claims in various Yahoo! Groups that TFN did not own the "freecycle" trademark constituted trademark disparagement, and his encouraging others to freely use the term "freecycle" constituted contributory trademark infringement. TFN also sought relief under the Arizona common law actions of injurious falsehood, defamation, and intentional interference with business relationships.

The action caught the attention of academics, which came out to support Oey. Two amici curiae submissions were filed in the U.S. District Court of Arizona arguing in Oey's favor, and academic Eugene Volokh assisted Oey's lawyers as an adviser.

On April 24, 2006, the court granted TFN's request for a preliminary injunction, restraining Oey from communicating about the merits of TFNs claim of trademark ownership of the disputed terms.

Oey appealled to the Ninth Circuit, arguing that the injunction was an "unjustified prior restraint on Oey's constitutional right to speak about TFN's efforts to trademark the word 'freecycle'." Oey's appellate brief also attacked the validity of TFN's trademark claims and common law claims.

On September 26, 2007, the Ninth Circuit overturned the injunction and remanded the case to the district court, holding that TFN's trademark infringement arguments failed on a number of bases, including that Oey's use of the marks was unlikely to constitute "use in commerce." The court also held that Oey was expressing an opinion about a putative trademark, and the Lanham Act does not restrain such behavior. It held further that trademark disparagement was not a valid action under the Lanham Act.

There has been no significant activity in the district court after remand.

Content Type: 

CMLP Notes: 

1/5/08: Check district court docket for action after remand.

nothing since 1/9/08 when one attorney withdrew

AVM 6/17/09 UPDATE check - nothing new, last action was 1/9/2008 withdrawl of Attorney Lynn Kirk - but case isnt marked as closed

also, fixed attorney firms etc

Jurisdiction: 

Subject Area: 

Energy Automation Systems v. Xcentric Ventures

Threat Type: 

Lawsuit

Date: 

11/06/2006

Party Issuing Legal Threat: 

Energy Automation Systems, Inc.

Party Receiving Legal Threat: 

Xcentric Ventures, LLC, d/b/a Badbusiness Bureau, d/b/a Badbusinessbureau.com, d/b/a Rip-Off Report, d/b/a Ripoffreport.com; Edward Magedson

Type of Party: 

Organization

Type of Party: 

Individual
Organization
Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the Middle District of Tennessee

Case Number: 

3:06CV01079

Legal Counsel: 

James Freeman, Maira Speth, Talmage Watts, William Shreffler

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Xcentric Ventures, LLC, operates the Bad Business Bureau, which provides a forum in which consumers may accuse companies and individuals of various "rip-off" and "bad business" practices. This forum is located on a website that may be accessed through either of two domain names: ripoffreport.com or badbusinessbureau.com. The site solicits and receives complaints from all over the country and recommends tactics for writing “rip-off reports,” providing sample questions to ask companies, and advice for locating similarly situated consumers on the Internet.

On November 6, 2006, Energy Automated Systems filed a lawsuit against Xcentric and a site administrator, Edward Magedson, alleging defamation, interference with business relations, civil conspiracy, and violations of the Tennessee Consumer Protection Act. More specifically, EAS alleges in its complaint that it was listed on the website’s “Top Rip-Off Links” and has been the subject of various “rip-off reports.” Those reports have included titles, headings and editorial messages that, the plaintiff alleges, were created by the defendants, stating that EAS’s dealerships are a “complete” and “long running” “scam,” that EAS is a “damn scam ripoff business from hell,” that EAS’s Chief Executive Officer and other employees are “crooked” and “crooks,” that “EASI likes to threaten anyone that complains whether dealer or ex-employee” and that EAS has engaged in “fraud.”

On March 26, 2007, Xcentric filed a motion to dismiss for lack for personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). Xcentric also raised the defense that section 230 of the Communications Decency Act, 47 U.S.C. sec. 230(c)(1), should mandate dismissal of the claims.

On May 25, 2007, the court held that Xcentric could not raise CDA 230 on a motion to dismiss for lack of personal jurisdiction. The court refused to convert the motion into a Rule 12(b)(6) motion to dismiss. However, the court stated that CDA 230 could still be used as a defense in a later summary judgment determination.

After the parties proceeded to discovery, the case appears to have settled. On December 12, 2007, the parties filed an Agreed Order of Dismissal.

Jurisdiction: 

Subject Area: 

Content Type: 

Gilding v. Carr

Date: 

09/11/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Carr; National Air Traffic Controllers Association; John Does I-V and Jane Does I-V, ABC Associations I-V

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal
State

Court Name: 

The Superior Court of the State of Arizona, Maricopa County; United States District Court for the District of Arizona

Case Number: 

CV 2007-016329 (state); 2:08-cv-02137 (federal)

Legal Counsel: 

Kraig J. Marton, David N. Farren

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

John Carr is the former past president of the National Air Traffic Controllers Association (NATCA). Carr operates a blog, The Main Bang, on which he often criticizes the Federal Aviation Administration (FAA). In two blog posts in July 2007, Carr wrote about an FAA employee who committed suicide and detailed the actions of the employee's supervisor, John Gilding.

On September 11, 2007, Gilding commenced a lawsuit against Carr, claiming that Carr defamed him and placed him in a false light. Gilding further claims that Carr's blog falsely accused Gilding of "lying under oath in an administrative hearing" and "harrassing and intimidating a subordinate CPC to death." The complaint outlines several other statements that plaintiff alleges Carr "falsely and maliciously" made on his blog. The complaint requests relief in the form of general and punitive damages.

On October 31, 2007, Carr filed a motion to dismiss for lack of personal jurisdiction, asserting that Arizona state courts do not have jurisdiction over him because he is a resident of Ohio and has no contacts or business with Arizona. Carr later filed motions for summary judgment based upon defenses of truth, opinion, and absence of actual malice. On April 25, 2008, the court denied Carr's motion to dismiss.

Update:

10/27/08 - Gilding filed a Third Amended Complaint that added NATCA as a defendant.

11/19/08 - The case was removed to the US District Court for the District of Arizona.

11/25/08 - NATCA filed a motion to dismiss. Gilding opposed.

04/07/09 - The court  granted Gilding's motion to remand back to state court and denied NATCA's motion to dismiss.

04/20/09 - The court granted Gilding's motion to  appoint a Special Master to referee the discovery process.

04/23/09 - NATCA filed a notice of intent to appeal to the Ninth Circuit the decision to remand. Other defendants file similar notices. 

04/24/09 - Gilding requested an award of attorney's fees. 

05/14/09 - Gilding moved to dismiss NATCA's appeal.

06/02/09 - Guilding moved for a subpoena to be issued to obtain FAA investigation records regarding  defendants Bob Marks and Jerry Johnston.

06/05/09 - The court denied Gilding's motion for an award of attorney's fees (originally made 4/24/09 and supplemented 5/21/09).

06/08/09 - NATCA moved to stay proceedings pending its appeal to the Ninth Circuit. 

06/11/09 - Gilding submitted a brief opposing NATCA's appeal.

06/12/09 - Guilding opposed NATCA motion to stay. 

 

 

Content Type: 

CMLP Notes: 

Updated 1/29/09 - VAF

Note: Check the Curry, Pearson, & Wooten link for case updates.

Updated 6/18/09 AVM - added removal information etc. 

Jurisdiction: 

Subject Area: 

WRNN-TV v. Does

Threat Type: 

Lawsuit

Date: 

12/01/2000

Party Receiving Legal Threat: 

Does 1-10; Yahoo!, Inc.

Type of Party: 

Organization

Type of Party: 

Individual
Large Organization

Court Type: 

State

Court Name: 

Judicial District of Stamford/Norwalk at Stamford, Connecticut

Case Number: 

CV-00-0181990S

Legal Counsel: 

Paul Alan Levy, Allison Zieve, Alan B. Morrison

Publication Medium: 

Forum
Website

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

An anonymous Internet user ("webmaster") created the website "RNN Sucks" and a related Yahoo! message board in order to critize New York television station WRNN-TV. A number of anonymous posters used the message board to criticize WRNN.

WRNN filed suit against Yahoo! and 10 anonymous posters, claiming libel and revelation of confidential business information. At the outset of litigation, the station filed a motion to compel Yahoo! to disclose the identities of the anonymous posters (including "webmaster"). The court initially denied the motion to compel discovery, but reversed itself when WRNN noted that Yahoo! had not opposed the motion. Yahoo! withheld the identifying information to allow the anonymous parties an opportunity to file a motion to quash.

At this point in the litigation, the parties settled out of court. Defendant "webmaster" agreed as part of the settlement to take down the site and forum and to refrain from putting them back online in the future. "Webmaster" also agreed to refrain from commenting about the settlement. In exchange, WRNN agreed to dismiss the lawsuit as to all defendants.

Content Type: 

Subject Area: 

CMLP Notes: 

to-do: get more precise date

Jurisdiction: 

Pages

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