Defamation

Trosch v. Layshock

Date: 

04/01/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Justin Layshock; Thomas Cooper; Brendan Gebhart; Christopher Gebhart

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Court of Common Pleas, Mercer County, Pennsylvania

Legal Counsel: 

Michael L. Magulick (Cooper); Gina M. Zumpella (Gebharts)

Publication Medium: 

Social Network

Status: 

Pending

Description: 

In December 2005, Justin Layshock and three other high school students created fake MySpace profiles for their principal, Eric Trosch. The profiles included an official school portrait of Trosch and answers to the website's template questions for creating a profile. Many of the answers were derogatory and sexually explicit. One profile indicated that Trosch's favorite movie was a pornographic film. Another indicated that Trosch "liked to have sex with students and brutalize women." A third said that he "kept a keg of beer at his desk at school, was on steroids, and smoked marijuana."

After the school district disciplined Layshock, he brought a federal lawsuit claiming that the school's punishment violated his First Amendment rights. (Please see the CMLP database entry on the school's disciplinary action for more information).

At some point, the identies of the other three students came to light, and Trosch filed a defamation suit in Pennsylvania state court in April 2007.

Update:

12/01/2007 - Judge Christopher J. St. John denied the defendants’ motion to dismiss the state case, but held that the statements were not made with actual malice and that the principal could not recover punitive damages.

11/2008 - Trosch dropped his claims against three of the defendants, leaving only Layshock in the case.

Jurisdiction: 

CMLP Notes: 

Updated 6/09/2008 (JMC) - Court records don't seem to available on-line. Sharon Herald reporter Joe Pinchot would likely know the status of this case.

Content Type: 

Subject Area: 

Copyright Misuse and Cease-and-Desist Letters

William Patry has an excellent post today called "Misuse via Cease & Desist Letters." It discusses the recent trend of lawyers asserting copyright in cease-and-desist letters in an effort to prevent posting of those letters on the Internet.

Subject Area: 

Covington v. King

Date: 

06/11/2007

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Steve Covington

Party Receiving Legal Threat: 

Harold King; John Does

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

District Court, Pittsburg County, Oklahoma

Case Number: 

C-07-00687

Legal Counsel: 

Gary W. Gardenhire

Publication Medium: 

Forum

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Sometime in 2007, statements appeared on Harold King's forum site, "McAlister Watercooler," questioning the legality of Steve Covington's payday loan business and linking him to a former State Senator who had pled guilty to charges of perjury, conspiracy to obstruct a Federal Election Commission investigation, and conspiracy to violate the Federal Election Commission Act.

In June 2007, Covington sued King and an undefined number of anonymous users of the forum for libel in Oklahoma state court. Covington sought a temporary restraining order against the forum, but the record is unclear as to the precise nature of the requested restraining order (i.e., to remove specific content, take down the site, or restrain future statements). Covington also moved for an order granting expedited discovery (presumably, discovery of the unknown defendants' identities). The court denied Covington's motion for a temporary restraining order in June 2007. The status of Covington's discovery request is unclear.

Update:

6/14/2007 - King filed a motion to dismiss.

3/28/2008 - Court granted King's motion to dismiss.

Jurisdiction: 

CMLP Notes: 

to-do: further research required; get court documents

As of 6/3/2008, unclear whether Covington will refile - bears monitoring. (AAB)

Content Type: 

Subject Area: 

Jankovic v. International Crisis Group

Date: 

07/15/2004

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Milan Jankovic (aka Philip Zepter); Fieldpoint B.V.; United Business Activities Holding

Party Receiving Legal Threat: 

International Crisis Group; James Lyon

Type of Party: 

Individual
Large Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Columbia; United States Court of Appeals for the D.C. Circuit

Case Number: 

1:04 CV 01198 (RBW); No. 06-7095

Legal Counsel: 

Amy L. Neuhardt , Jonathan L. Greenblatt, Cynthia P. Abelow

Publication Medium: 

Email
Print

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

Milan Jankovic, aka Philip Zepter, along with two of his businesses, Fieldpoint B.V. and United Business Activities Holding, filed suit against International Crisis Group (ICG), claiming defamation, false light invasion of privacy, and tortious interference with business expectancy. Non-profit ICG publishes newsletters, reports, and other documents aimed at influencing policymakers worldwide, apparently focusing on the prevention of armed conflict. Zepter's claims arose from ICG documents -- two reports and an e-mail -- that accused Zepter and his business ventures of improper ties to deceased Serbian president Slobodan Milosevic.

On May 1, 2006, the district court dismissed plaintiffs' claims as to the e-mail and one of the reports (“Report 141”) because the statute of limitations had run. It dismissed the claims involving the other document (“Report 145”) as to Zepter's businesses because the report did not concern them and as to Zepter himself because the disputed statements were not defamatory as a matter of law. Plaintiffs amended their complaint to remove ICG employee James Lyon, who had sent the disputed e-mail, after the District Court found that Lyon's presence in the case destroyed diversity for the purposes of jurisdiction.

On July 24, 2007, the United States Court of Appeals upheld the district court's finding that the case in its original form failed due to lack of jurisdiction over Lyons. It also upheld the dismissal of all claims relating to the e-mail and Report 141 due to the statute of limitations, as well as Zepter's businesses' claims arising from Report 145.

However, the Court of Appeals held that Zepter had established a prima facie defamation case regarding certain statements in Report 145. The opinion discussed three disputed portions of Report 145 separately. It affirmed the dismissal of the claims as to the first portion, which had implicated another Zepter venture -- Zepta Banka -- but not Zepter himself. Due to the size and scope of Zepter's business enterprises, spanning more than 50 countries on five continents, the court found that statements regarding Zepta Banka did not concern Zepter.

According to the court, the second statement in Report 145 could give the impression that Zepter was a “crony” of Milosevic and thus was sufficient to establish a prima facie case of defamation. Though the Court of Appeals did not discuss them, it revived plaintiffs' false light and tortious interference claims as to the second statement in Report 145.

The Court of Appeals affirmed the dismissal of the claims regarding the third statement in Report 145 because the statement referred to a former Zepter employee rather than Zepter himself.

The net result was that all claims against ICG were dismissed except for those involving the second statement from Report 145, which were remanded to the district court. ICG raised a number of defenses not reached by the district court or on appeal -- Opinion and Fair Comment Protection, the Fair Report Privilege, the Neutral-Reportage Doctrine -- which will be considered in the lower court.

Update:

7/24/2007 - Case remanded to district court.

5/13/2008 - ICG filed memorandum supporting its motion to dismiss first amended complaint.

5/23/2008 - Jankovic filed memorandum in opposition to ICG's motion to dismiss.

Jurisdiction: 

CMLP Notes: 

Status updated on 6/5/2008 (AAB)

Content Type: 

Subject Area: 

Best Western v. Doe

Date: 

06/16/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Best Western International, Inc.

Party Receiving Legal Threat: 

John Doe; John Does 1-X; Jane Does 2-X; James Dial; Nidrah Dial; James Furber; Teresa Furber; Loren Unruh; Gayle Unruh

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Arizona

Case Number: 

CV06-1537-PHX-DGC

Legal Counsel: 

Richard T Mullineaux; Robert J Lowe; Daniel J McAuliffe; Gregory B Collins; Todd Feltus; William R Denny; H. James Dial

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Best Western International (BWI) is a non-profit organization whose members operate Best Western hotels around the world. In May 2006, the website "www.freewrites.com" was established as a forum for BWI members and "governors" to discuss matters about BWI administration on a confidential basis. (BWI "governors" act as liasons between the members and the board of directors.) Although designed as a forum for members and governors only, the website was accessible to members of the public who knew of its location. The site was not authorized by BWI.

Proposed changes in BWI's method of operation drew extensive comment and criticism from anonymous posters on the site.

In June 2006, BWI brought a lawsuit in federal court in Arizona against the website administrator (John Doe), as well as BWI members who posted comments on the website ('Jane Does 1-X') and BWI governors who posted comments on the website ('John Does 1-X'). BWI alleged defamation and trademark infringement, as well as breach of contract, breach of implied contract, and breach of implied covenant of good faith and fair dealing. The complaint did not specify any allegedly defamatory statements.

BWI moved for expedited discovery, requesting permission to serve subpoenas on various internet service providers. The subpoenas sought disclosure of the identities of the operator of the forum site and those individuals who had posted messages.

Following Doe v. Cahill, 884 A.2d 451 (Del. 2005), the court denied BWI's motion to expedite discovery, concluding that BWI had not made a sufficient evidentiary showing to overcome the defendants' qualified First Amendment right to engage in anonymous speech. The court stressed that BWI had failed to identify a single false statement made by the anonymous defendants, a single item of confidential information posted on the site by them, or a single instance where BWI's mark was improperly used. Best West. Int'l v. Doe, 06-cv-01537, slip op. at 7 (D. Ariz. July 25, 2006). The court left open the possibility that BWI could meet its required evidentiary showing on a renewed motion.

During the course of litigation, two defendants came forward of their own accord: James Furber, the operator of the website, and James Dial, a BWI member who posted comments on the site.

BWI renewed its motion for expedited discovery seeking disclosure of the identities of the remaining anonymous defendants, and the court granted the motion in October 2006. The court found that BWI had overcome the defendants' qualified First Amendment right to engage in anonymous speech by introducing evidence sufficient to create a genuine issue of fact on its breach of contract claims. Best West. Int'l v. Doe, 06-cv-01537, slip op. at 9-10 (Oct. 25, 2006).

In the same opinion, the court dismissed the trademark and unfair competition claims in BWI's original complaint because there was no allegation that the defendants had used BWI's marks in connection with the sale or advertising of goods or services. See id. at 4-5. The dismissal was without prejudice, and the trademark claims appeared again in BWI's amended complaints.

In November 2006, BWI named Furber and Dial in its first amended complaint. After conducting discovery, BWI filed its second amended complaint in August 2007, naming six defendants: James Dial, Nidrah Dial, James Furber, Teresa Furber, Loren Unruh, and Gayle Unruh. James and Nidrah Dial and Loren Unruh are BWI members.

In May 2007, the court denied James Furber's motion for summary judgment without prejudice, finding it premature. It granted Furber leave to re-file his motion after August 17, 2007.

Update:

8/21/2007 - Best Western filed second amended complaint.

9/10/2007 - James Dial filed answer to second amended complaint.

11/28/2007 - Parties filed joint stipulation to dismiss defendant Theresa Thurber.

5/9/2008 - Defendants James Dial, Nidrah Dial, Loren Unruh, Gayle Unruh, and James Furber moved for summary judgment.

9/5/2008 - The court granted in part and denied in part the defendants motion for summary judgment.

10/20/2008 - Court denied the plaintiffs' motion to dismiss Dial's counterclaim.

12/5/2008 - Court referred the case to a magistrate for a settlement conference. 

3/12/2009 - Court dismissed the case with prejudice after the parties stipulated to the dismissal.

Jurisdiction: 

CMLP Notes: 

6/16/09 updated - CMF

Case still ongoing as of 04/21/2008. {MCS}

Updated 1/29/08 - VAF

Content Type: 

Subject Area: 

Reynolds v. Falk (Letters)

Date: 

08/25/2004

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

Jerry Reynolds

Party Receiving Legal Threat: 

Edward Falk

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

Edward Falk operates a spam watchdog website, the "Spam Tracking Page." On the website, Falk indicated that Jerry Reynolds was associated with a number of spamming companies and pornographic websites.

On August 24, 2004, Reynolds's lawyer sent Falk a cease-and-desist letter, threatening to sue for defamation and unspecified violations of the Lanham Act if Falk did not remove the offending content within 10 days. Falk made some minor changes to the website, but left the bulk of the material relating to Reynolds unchanged. On October 14, 2004, Reynolds's lawyer sent another letter, again claiming that material on Falk's website defamed Reynolds. This letter threatened suit (again) if Falk did not remove the entire website from the Internet within 10 days.

Reynolds filed suit anonymously in February 2006 (Please see the CMLP database entry on Reynold's lawsuit for more information.)

Jurisdiction: 

Content Type: 

Subject Area: 

Texas Judge Orders Discovery of Anonymous Blogger's Identity

A recent case from Texas highlights the difficulty of identifying the correct legal standard for determining when a court should order disclosure of the identity of an anonymous person engaging in speech on the Internet. In June 2007, a subsidiary of Essent Healthcare, Inc. filed suit in Texas state court against an anonymous blogger and an undefined number of anonymous posters to his blog.

Jurisdiction: 

Subject Area: 

Alvis Coatings, Inc. v. Does

Date: 

07/30/2004

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Alvis Coatings, Inc.

Party Receiving Legal Threat: 

John Does 1-10

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of North Carolina, Charlotte Division

Case Number: 

3:04-cv-00374-CH

Legal Counsel: 

John T. Hermann

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Alvis Coatings sells coating products, including "Alvis Spray-on Siding". The company filed a John Doe lawsuit in 2004 in North Carolina federal court against ten anonymous defendants, alleging that certain anonymous postings about its products violated the Lanham Act and North Carolina state laws prohibiting unfair and deceptive trade practices, unfair competition and defamation.

According to court documents, Alvis alleged that, in 2003, internet user(s) posted sixteen messages on home improvement message boards, including bobvila.com and oldhouse.com, about Alvis's products. The unknown poster(s) allegedly commented that Alvis Spray-on Siding was "Duron's siding in a can, privately labelled by Alvis" and that Alvis's officers and dealers were "criminals."

After filing suit, Alvis successfully obtained an order to conduct limited and expedited discovery and thereby obtained from the operators of bobvila.com and oldhouse.com the identity of two relevant ISPs, Roadrunner and Comcast.

When subpoeanaed by Alvis, Comcast refused to provide Alvis with information identifying its customer, and the anonymous poster, under the John Doe moniker, filed a motion to quash the subpoena. He claimed that the subpoena threatened his First Amendent right to anonymous speech.

On December 2, 2004, the Court denied the defendant's motion to quash, applying the "prima facie" standard from Doe v. 2TheMart.com, 140 F. Supp.2d 1088 (W.D. Wash. 2001) (holding that the plaintiff is entitled to discover the defendant's identity when it can establish a prima facie case against him). The Court held that Alvis was entitled under this standard to compell Comcast to produce information relating to the Doe defendants' identity.

Update:

2/28/06 - Court dismissed the case due to plaintiffs' failure to prosecute the case.

Jurisdiction: 

Content Type: 

Subject Area: 

Cahill v. Doe (Schaeffer)

Date: 

11/02/2004

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Patrick Cahill; Julia Cahill

Party Receiving Legal Threat: 

John Doe No. 1; Mark Schaeffer; Ruby Schaeffer; Cristina Rawley

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of the State of Delaware in and for New Castle County; Supreme Court of Delaware

Case Number: 

04C-011-022 (Superior Court); 266, 2005 (Supreme Court)

Legal Counsel: 

David L. Finger (in Supreme Court); Richard A. Forsten - Klett Rooney Lieber & Schorling (for Defendants Mark & Ruby Schaeffer); James S. Green - Seitz Van Ogtrop & Green P.A. (for Defendant Rawley)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Using the alias "Proud Citizen," an anonymous commenter posted two statements on the "Smyrna/Clayton Issues Blog," a website sponsored by the Delaware State News. The statements criticized Patrick Cahill, a City Councilman of Smyrna, saying that Cahill was "paranoid" and had undergone "an obvious mental deterioration," among other things.

Cahill and his wife filed a John Doe lawsuit in state court in Delaware. Pursuant to a local rule of procedure, they sought and obtained authorization of the court to conduct a pre-service deposition of the operator of the "Smyrna/Clayton Issues Blog." From the blog operator, the Cahills obtained the IP address associated with the postings. They then obtained a court order to compel Comcast (the owner of the IP address) to identify the poster, and Comcast notified Doe of the discovery request. Doe then filed an emergency motion for a protective order.

Applying a good faith standard, the trial judge denied Doe's request for a protective order. Doe filed an interlocutory appeal in the Supreme Court of Delaware.

The Supreme Court reversed the decision of the trial court and dismissed the case with prejudice. The court ruled that unmasking an anonymous critic requires a stricter standard than "good faith." It held that a plaintiff must provide evidence sufficient to defeat a summary judgment motion before a court will order disclosure of an anonymous defendant's identity. To defeat a summary judgment motion, a plaintiff must provide evidence to support each element of his/her claim such that the case would go to trial. Applying this standard, the court held that compelled disclosure of the defendant's identity was improper because no reasonable person would understand the statements at issue to be asserting facts about Cahill.

This is a landmark case on the rights of anonymous posters (and bloggers), and it marked the first time that a state high court addressed the issue.

Despite the Delaware Supreme Court ruling, the Cahills were later able to trace the IP address back to a computer in Smyrna Mayor Mark G. Schaeffer's house.  According to the New York Times, upon remand Schaeffer announced that his step-daughter, Cristina Rawley, was responsible for the comments, and asked that he and his wife, Ruby, be dropped as defendants.

According to the Associated Press, the lawsuit was settled in June 2006.  The details of the settlement were not made public.

Jurisdiction: 

CMLP Notes: 

 

 

Content Type: 

Subject Area: 

Vilenchik v. Gregerson (Letter)

Date: 

10/04/2005

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

Andrew Vilenchik

Party Receiving Legal Threat: 

Chris Gregerson

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

Gregerson is a photographer who maintains a website containing his professional photographs. Vilana Financial, Inc. used two of Gregerson's pictures without permission in phone-book and web advertisements, and print advertisements in a local Russian-language newspaper. Gregerson discovered Vilana's use of his photographs and contacted the company asking for compensation. Vilana refused, claiming that it purchased the photographs from a third party (neither party was able to locate this third party during the subsequent litigation).

Gregerson devoted a portion of his website to a discussion of the disagreement over the photographs. On it, he claimed that Andrew Vilenchik had published two of his photos without permission in a series of ads for Vilana. Along with the text, Gregerson posted a photograph of Vilenchik.

According to Gregerson's website, on October 4, 2005, Richard Raver sent him a cease-and-desist letter on behalf of Vilenchik, demanding that Gregerson remove the webpage or face a lawsuit for defamation. Apparently, Gregerson replied with an offer to remove anything that Vilenchik could show was not true.

Vilana Financial filed a lawsuit against Gregerson in Minnesota state court on October 24, 2005. Please see the CMLP's Database Entry on the related lawsuit, Gregerson v. Vilana Financial, for more information on the status of the suit.

Jurisdiction: 

CMLP Notes: 

Content Type: 

Subject Area: 

Veranda Partners v. Giles (Letter)

Date: 

02/23/2007

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

Veranda Partners, LLC

Party Receiving Legal Threat: 

Larry Giles

Type of Party: 

Organization

Type of Party: 

Individual

Legal Counsel: 

Marc Randazza

Publication Medium: 

Website

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

Larry Giles set up a website called "The Veranda Park News," which covered events in his residential community, aestethic issues in the neighborhood, and commentary. The site contained statements critical of Veranda Partners, LLC, the housing developer of Giles's community.

Through its lawyer, Veranda Partners ("VP") sent Giles a cease-and-desist letter on February 23, 2007, demanding that he take down the site. The letter asserted that the website constituted "a campaign designed to disparage and injure VP's reputation and goodwill and is intended to interfere with VP's contractual relationships with its customers and potential customers." It further indicated that Veranda Partners "intends to file a lawsuit against you for substantial monetary damages and injunctive relief to shutdown your Website" and that "[t]his letter is intended to serve as your sole opportunity to avoid ltigation." It gave Giles until 11:59pm the following day to shutdown his entire website in order to avoid litigation.

Giles apparently complied with this demand, but Veranda Partners sued him anyway, claiming that the statements on his site defamed them. Please see our database entry on the lawsuit for more information.

Jurisdiction: 

Content Type: 

Subject Area: 

Hollis v. Joseph

Date: 

05/31/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Todd Hollis

Party Receiving Legal Threat: 

Tasha Joseph (a.k.a. Tasha Cunningham); Empress Motion Pictures; Carolyn Lattimore; Alescia Roskov; Does 1-6

Type of Party: 

Individual

Type of Party: 

Individual
Intermediary

Court Type: 

State

Court Name: 

Pennsylvania Court of Common Pleas, Allegheny County

Case Number: 

GD-06-012677

Legal Counsel: 

Robert Byer, Daniel Beisler

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Todd Hollis objected to the description posted about him on DontDateHimGirl.com, a website that allows women to post about men and warn other women about them. Mr. Hollis sued Tasha Joseph/Cunningham, the operator of the website, alleging defamation in Pennsylvania state court, after she refused to remove the posts.

According to the initial complaint, four separate profiles were created by anonymous users of the site, which allegedly falsely claimed that Hollis had multiple children and had herpes; was "gay" or "bi"; had given the user an STD; and that he "wears dirty clothes," "complains about paying child support", and that his "crib is a dump."  (Compl. ¶ 20, 25-26, 30, 34.)  Hollis claims to have complained to Joseph/Cunningham, who refused to remove the profiles.  (Compl. ¶ 23.)  

Hollis sued Joseph/Cunningham, the Cavelle Company, Inc. (the registrant for dontdatehimgirl.com), and three individuals who he claims were responsible for the false profiles for defamation, seeking $50,000 in actual damages plus punitive damages.

Joseph and the Cavelle Company moved to dismiss for lack of personal jurisdiction.  The Pennsylvania court granted this motion with respect to Joseph/Cunningham, a resident of Florida, and the Cavelle Company.  Hollis filed a second lawsuit in federal court in Florida on November 29, 2007.

Jurisdiction: 

Content Type: 

Subject Area: 

Loan Center of California v. Krowne

Date: 

05/08/2007

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Loan Center of California

Party Receiving Legal Threat: 

Aaron Krowne, dba ml-implode.com, dba MortgageImplode.com; Krowne Concepts, Inc.; Does 1-50

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of California, County of Solano

Case Number: 

FCS029554

Legal Counsel: 

Turner Law Firm

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Settled (total)

Description: 

Krowne operates The Mortgage Lender Implode-O-Meter (ml-implode.com, mortgageimplode.com), a Web site that posts information about mortgage lending companies that have gone out of business or are expected to go out of business. On April 18, 2007, Krowne posted an e-mail from an anonymous source claiming to be a recently-laid-off employee of mortgage lender Loan Center of California (“LCC”). The e-mail stated that LCC was shutting down and that only a “skeleton crew” of employees remained to “clean up the mess.” It also accused LCC of fraud and various other improper business activities.

According to Krowne's case filings, an LCC attorney contacted him within hours of the e-mail's posting. Krowne says he was threatened with suit, and thus chose to remove the e-mail and all mention of LCC from his site. (For more information, please see the CMLP Database entry for the related email.) LCC filed suit nonetheless, bringing claims of defamation, unfair business practices, and interference with contract. Among LCC's allegations was that Krowne's actions directly caused the company losses in the form of disrupted lending arrangements, lost business, and harm to the company's reputation. LCC has asked for $50,000 in damages.

LCC included unknown defendants “Does 1-50” in its complaint. It noted that Doe 1 was the anonymous sender of the e-mail that Krowne posted on his site. LCC later determined Doe 2 to be Krowne Concepts -- Krowne's own company that runs the Implode-O-Meter site. It is unclear what Does 3-50 are alleged to have done, given that LCC's complaint does not mention them beyond naming them as defendants.

Krowne filed a motion to strike the complaint based on California's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute (Cal. Code Civ. Proc. § 425.16). The court denied the motion, determining that LCC had set forth a prima facie case of defamation. The court noted that Krowne had included his own statements with his posting of the e-mail, thus making protection under section 230 of the Communications Decency Act (47 U.S.C. § 230(c)) unavailable. Although it did not change the result, the court did find that Krowne's speech concerned a matter of public interest -- learning about mortgage industry issues.

Update:

12/30/2007 - The case settled. Under the settlement, Loan Center dismissed its claims against ML-Implode, without any admission of liability or any monetary payments. ML-Implode never divulged the identity of the former Loan Center employee who had provided the information "on the principle that the anonymity of news information sources is sacrosanct."

Jurisdiction: 

CMLP Notes: 

The Solano County court has an online docket for the case, but no documents. Keep watching this one. 10/20/07 {MCS}

Content Type: 

Subject Area: 

Xyience Inc. v. Bergeron

Date: 

07/18/2007

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Xyience Inc.

Party Receiving Legal Threat: 

Richard Bergeron

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal
State

Court Name: 

District Court, Clark County, Nevada; United States Bankruptcy Court, District of Nevada

Case Number: 

07-A-544781-C; BK-08-10474-MKN

Legal Counsel: 

Richard Bergeron (Pro Se)

Publication Medium: 

Social Network
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued

Description: 

Xyience Inc., a manufacturer of energy drinks and supplements, sued Rich Bergeron in Nevada state court over statements posted on his MySpace.com page and website, unlimitedfightnews.com. According to the complaint, Bergeron posted an article to his MySpace page that contained allegations that that Xyience was under investigation by the Securities and Exchange Commission and that a class action lawsuit was pending against the company. Xyience contends that Bergeron is the author of these statements, but he maintains that he found these statements in an email widely circulated on the web, which he merely posted to his MySpace page with a disclaimer. (MySpace removed the posting and Bergeron's profile shortly thereafter.) Mr. Bergeron provided us with links to other websites where the article apparently still appears (here, here, and here).

The complaint further alleges that Bergeron posted to his website a report entitled "Xyience Investigative Report: Creator Russell Pike's Criminal Tendencies Revealed," in which he claimed that the company and its majority shareholder, Russell Pike, were defrauding investors and conspiring with Dana White, president of Ultimate Fight Challenge, to defraud investors. The complaint claims also that Bergeron "continues to post defamatory articles" about the company on his website, but does not identify any specific statements.

The complaint sets forth claims for defamation, tortious interference with prospective economic advantage, and intentional interference with contract. Xyience alleges that Bergeron's reports have cost the company millions of dollars due to lost investor contributions, prompting the company to seek $25 million in damages.

Alongside the complaint, Xyience filed a motion for preliminary injunction to compel Bergeron to take down his reports and to prohibit him from publishing any future reports about Xyience. On July 27, 2007, Bergeron filed a motion to quash service of summons (i.e., a motion to dismiss) for lack of jurisdiction, arguing that the Nevada court does not have personal jurisdiction over him because he is a resident of Massachusetts without significant contacts with Nevada.

On September 6, 2007, the court granted Xyience's motion for a preliminary injunction. The court's order requires Bergeron to "remove any and all articles or postings regarding false claims about Xyience from the internet" and prohibits him from making any statements suggesting or implying that Xyience is being investigated by the SEC. It also requires Bergeron to remove "any and all articles or postings claiming that Xyience is defrauding investors and/or is conspiring with Dana White or the Ultimate Fight Challenge to defraud investors" and prohibits him from making any future represenations to that effect. On the same day, the court dismissed Bergeron's motion to quash the service of summons.

Update:

10/01/2007 - Bergeron filed a motion to dismiss the complaint.

3/20/2008 - Xyience filed a notice of removal to the United States Bankruptcy Court.

3/28/2008 - Bergeron filed a motion to suspend bankruptcy proceedings and for summary judgement on oustanding claims.

6/05/2008 - Counterdefendant Ferttita filed an application for order to show cause regarding unauthorized recording of court proceedings.

Jurisdiction: 

CMLP Notes: 

Still pending as of 6/5/20008. Updated 6/06/08 {JMC}

Updated 1/29/08 - VAF

Content Type: 

Subject Area: 

JL Kirk Associates v. Coble

Date: 

02/27/2007

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

JL Kirk Associates

Party Receiving Legal Threat: 

Katherine Coble

Type of Party: 

Large Organization

Type of Party: 

Individual

Legal Counsel: 

Ronald Coleman

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Katherine Coble posted information on her blog relating to her husband's personal experience with JL Kirk Associates, a job placement company. In the posting, Coble criticized the company's "interview process" and made other statements about the company and its recruitment tactics. A JL Kirk representative posted a comment to the posting, defending the company. Coble then posted the comment as a post of its own.

Through counsel, the company sent Coble a letter, claiming that various statements in her blog posting were libelous and threatening to sue if the statements were not removed.

Ms. Coble retained counsel through the Media Bloggers Association, and her lawyer sent a response letter to JL Kirk's attorney asking the company to discuss the matter. According to Ms. Coble, both sides expressed their desire to avoid litigation and discuss the matter privately.

Jurisdiction: 

Content Type: 

Subject Area: 

Democratic National Committee v. FreeRepublic

Date: 

05/10/2007

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

Democratic National Committee

Party Receiving Legal Threat: 

James Robinson, on behalf of FreeRepublic.com

Type of Party: 

Organization

Type of Party: 

Organization

Publication Medium: 

Forum

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

On May 10, 2007, a user on the FreeRepublic forum posted that he had heard on a XM Satellite Radio talk show that DNC Chairman Howard Dean had called Kansas Governor Kathleen Sebelius asking her to politicize the recovery effort from a tornado in Greensburg, Kansas, by dragging her feet on requesting federal aid and then blaming the lack of response on President Bush.

That same day, the DNC, through counsel, sent a cease-and-desist email to the webmaster of FreeRepublic. The email complained that FreeRepublic had not only repeated the defamatory statements of the radio show host, but indicated that the host's source was "extremely reliable and in a position that would give him direct knowledge of these revelations." The email asserted that the statements were "false and defamatory," "libelous and slanderous," and "clearly threaten to interfere with the DNC’s operations and ability to solicit support and raise funds." The email demanded that FreeRepublic remove the defamatory statements and post a prominent retraction.

The FreeRepublic did not remove the statements, and there is no indication that the DNC has taken any further action.

Incidentally, the DNC also sent a cease-and-desist letter to XM Satellite Radio, complaining about the original radio show broadcast. XM posted audio clips of the show on its website, but it does not appear that the DNC sent them a cease-and-desist letter in regard to that posting.

 

Jurisdiction: 

CMLP Notes: 

David Russcol editing

 

Sam Reviewing

 

Content Type: 

Subject Area: 

Flavaworks v. Cannick

Date: 

07/18/2007

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

Flavaworks, Inc.

Party Receiving Legal Threat: 

Cannick, Jasmyne; Tarver, Bernard

Type of Party: 

Organization

Type of Party: 

Individual

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Description: 

The Chicago Department of Public Health released a Winter 2006 report regarding a “cluster” of HIV and other STD outbreaks at a Chicago apartment building. The report noted that the outbreaks were associated with Flavaworks, an Internet pornography company that had used the building as a base for some of its pornographic ventures – including the site, "Cocodorm.com." Flavaworks subsequently was involved with investigations stemming from the report and other legal issues. Alongside print media coverage of the Flavaworks situation, bloggers Cannick and Tarver wrote posts critical of the company. According to the bloggers' sites, both received e-mails from Flavaworks asking for those posts to be removed. They refused.

Flavaworks then filed a complaint with Tarver's Web host, alleging that Tarver's use of a Cocodorm photo in his post infringed the company's copyrights. The Web host removed the photo from the blog without consulting Tarver. Tarver then replaced the photo, prompting the Web host to shut down his blog until he explained the situation. His blog was put back online without the photo, but the blog post remained intact.

In June 2007, a Flavaworks attorney sent letters to Cannick and Tarver alleging that they had defamed the company in their posts. Interestingly, the letter took issue with the bloggers' statements that Flavaworks was trying to shut down their blogs simply because they had criticised the company. It warned the bloggers that they would face legal action if they each did not issue an immediate public retraction and pay $250,000 before July 18. Both bloggers refused.

Flavaworks did not pursue legal action following Cannick's and Tarver's rejection of the terms of the letter. Although Cannick noted in a blog post that she had received notice Flavaworks was suing her, this statement referred to the letter discussed above, rather than a case filing.

Jurisdiction: 

CMLP Notes: 

Might be worth checking Cannick's and Tarver's blogs in case Flavaworks decides to revive the issue later, but it seems to be over. 10/17/2007. {MCS}

Content Type: 

Subject Area: 

Strahl v. Oh-Willeke

Date: 

07/13/2007

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

Joe Strahl; Mr. Trademark Inc.

Party Receiving Legal Threat: 

Andrew Oh-Willeke

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Publication Medium: 

Blog

Status: 

Concluded

Description: 

On his blog "Wash Park Prophet," Andrew Oh-Willeke wrote a post entitled "Mr. Trademark Abuse" about Leo Stoller, an entrepreneur who has litigated a number of trademark infringement claims asserting rights in the word "stealth." (According to the New York Times, Mr. Stoller apparently also has registered trademarks for the words "bootlegger," "hoax," and "chutzpah.")

A few days later, Oh-Willeke received an email from Joe Strahl, Vice President of Mr. Trademark Inc., the purported owner of the registered trademark "Mr. Trademark ®." The email asserted trademark rights in the words "Mr. Trademark" and complained that the blog post about Mr. Stoller wrongly created the impression that Stoller was associated with Mr. Trademark Inc. The email also appeared to raise a libel claim, arguing that the company's "reputation as a trademark search company and agent is being harmed by the defamatory and libelous post." Strahl threatened legal action unless all posts using the words "Mr. Trademark" were taken down.

Oh-Willeke responded by adding a disclaimer to the original post, which says:

Notice: The title of this post "Mr. Trademark Abuse", should in no way be confused with the firm "Mr. Trademark® Inc." which has no relation to Mr. Stoller, according to its representative Joe Strahl VP. Of course, if you had a brain, you would have realized that simply from the context of the post, but I'm putting it here for anyone too thick headed to understand that point on July 16, 2007 in response to a cease and desist e-mail I received today when I opened my work e-mail this morning.

Oh-Willeke also wrote Strahl an email denying that he made any false statements of fact and critiquing Strahl's trademark claim. It is worth reproducing here in full:

I have received your e-mail and have posted a disclaimer in the post in an abundance of caution. Nevertheless, I believe that you[r] cease and desist e-mail is off base. I will not remove the post or change the title as you have requested.

1. I am not trying to sell trademark services in this post.
2. I have made no false statements of fact.
3. I clearly identify the factual basis of my statements.
4. You, like Mr. Stoller, seem to fail to appreciate that a registered trademark is not a monopoly on use of certain words, it is merely a ban on marketing goods or services in a confusing fashion.
5. From context, it is clear that "Mr. Trademark Abuse," the title of my post,is something very different, indeed the opposite of, "Mr. Trademark," which you have registered.
6. Also, from context, it is clear that I am not using the words in a manner intended to have secondary meaning.
7. I seriously doubt that your registered trademark would withstand court scrutiny as it is merely descriptive of the services you provide. Descriptive trademarks are inherently weak. In the same way, it is impossible to get a valid trademark on “Liquor Store” or “Dry Cleaner” for a liquor store or dry cleaner respectively. Your own trademark verge[s] on frivolous itself.

Please refrain from taking further unreasonable action.

This precipitated an email exchange between Oh-Willeke and Strahl, in which Strahl continued to assert his trademark rights and demanded that the posting (or at least the title) be taken down. Oh-Willeke pointed out, among other things, that that the registered mark "Mr. Trademark" did not consist of the words "Mr. Trademark" alone, but rather the words in connection with a drawing of a little man, and that the registration document expressly stated that "no claim is made to the exclusive right to use 'trademark' apart from the mark as shown."

No resolution appears to have been reached between Strahl and Oh-Willeke.

Update:

As of 10/08/07, Oh-Willeke's blog had not included any updates regarding the situation.

Jurisdiction: 

CMLP Notes: 

Looks like this one stopped at the exchange of letters. No further reference from Wash Park Prophet as of 10/10/07. {MS}

SB: to-do: monitor for developments. perhaps add some legal analysis about how bad Strahl's claim is

Content Type: 

Subject Area: 

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