False Light

Naffe v. Frey

Date: 

10/02/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Patrick Frey; Christi Frey; Steve Cooley; County of Los Angeles

Type of Party: 

Individual

Type of Party: 

Individual
Government

Court Type: 

Federal

Court Name: 

U.S. District Court for the Central District of California; U.S. Court of Appeals for the Ninth Circuit

Case Number: 

CV 12-8443-GW (District Court); No. 13-55666 (Court of Appeals)

Legal Counsel: 

Kenneth P. White; Paul B. Beach

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

Nadia Naffe accused a colleague of sexual assault and filed a criminal harassment complaint. John Patrick Frey, a Deputy District Attorney in Los Angeles County, raised questions about plaintiff's allegations on his blog and Twitter account which he maintained in his personal capacity. Naffe sued Frey, his wife, the former District Attorney for Los Angeles County and Los Angeles County under the theory that the defendant was acting in his official capacity as Deputy District Attorney while writing on his private blog, and that his actions violated her First Amendment and due process rights.

In a complaint filed in the U.S. District Court for the Central District of California, Naffe asserted the following causes of action:

1. violations of 42 U.S.C. § 1983
2. public disclosure invasion of privacy
3. false light invasion of privacy
4. defamation
5. intentional infliction of emotional distress
6. negligence
7. negligent supervision

Naffe subsequently filed a First Amended Complaint naming only Frey and the County as defendant. Frey moved to dismiss the First Amended Complaint, both for failure to state a claim (as to counts 1-6) and for a lack of subject matter jurisdiction over the state law claims (counts 2-7); the County filed its own motion to dismiss and also joined Frey's motions. Frey also filed a special motion to dismiss the state law claims under California's anti-SLAPP law. Naffe opposed all four motions.

In a tentative ruling (later confirmed), the district court found that it did not have independent subject matter jurisdiction over Naffe's state law claims because she had not sufficiently demonstrated a claim for relief exceeding the sum of $75,000. Accordingly, the court focused on whether Naffe had properly asserted a claim under 42 U.S.C. § 1983.

The court held that to state a claim under Section 1983, Naffe was required to allege facts sufficient to show that Frey's action related in some meaningful way either to his governmental status or to the performance of his duties, but found that Naffe had merely offered allegations that were conclusory or speculative. The court further held that merely "mentioning the fact that [Frey] [wa]s a deputy district attorney or prosecutor... does not transform everything he says on his blog or on Twitter into state action." Accordingly, the court dismissed Naffe's Section 1983 claim without leave to amend and dismissed her state law claims without prejudice. The court did not address the merits of Frey's anti-SLAPP motion.

Naffe appealed the ruling to the United States Court of Appeals for the Ninth Circuit. In her appellate brief, Naffe focused on a comment Frey had made on his twitter account, in which he states: "@NadiaNaffe My first task is learning what criminal statutes, if any, you have admitted violating." Naffe interprets this tweet to be a threat by a state prosecutor to investigate her for alleged criminal violations and offers it as evidence that her allegations are not merely speculative. Frey, in his appellee's brief, responded that such musings could not be deemed an official act, and that the factual context proves that the comment had nothing to do with anything over which a Los Angeles County Deputy District Attorney such as Frey could have jurisdiction.

The Digital Media Law Project ("DMLP") filed an amicus brief in support of Frey arguing that there are over 20 million Americans working for the government and that, even when those individuals speak on matters that relate to government activity, their ability to speak in their personal capacities must be preserved in order to ensure that these individuals' valuable viewpoints are part of public discussion.

Content Type: 

Jurisdiction: 

Subject Area: 

McGibney v. Moore

Date: 

08/20/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Hunter Moore

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

District Court of Clark County, Nevada

Case Number: 

A-12-667156-C

Verdict or Settlement Amount: 

$263,170.00

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Default Judgment

Description: 

The defendant, Hunter Moore, founded a now-defunct website at the URL IsAnyoneUp.com, which hosted sexually explicit user-submitted photos and videos. The plaintiff, James McGibney, owns a website called BullyVille, which works to counsel people who have been bullied by offering advice from professionals. McGibney bought the domain name for IsAnyoneUp.com from Moore on April 19, 2012. After the purchase, Moore referenced McGibney in tweets sent from his twitter handles @huntermoore and @is_anyone_up.

On August 20, 2012, McGibney filed a complaint against Moore in the District Court of Clark County, Nevada for defamation per se and false light. McGibney's complaint denied assertions made in Moore's tweets. McGibney claimed that Moore's tweets suggested that McGibney was a pedophile, a child abuser, and that McGibney possessed illegal content obtained from IsAnyoneUp.com. (Moore's full tweets can be viewed as exhibits to the complaint.)

On the defamation claim, the complaint alleged that Moore posted the statements intentionally, with the specific malicious intent to harm McGibney's reputation, and with actual malice, as Moore knew the statements were false at the time he tweeted them or else had reckless disregard for the truth. The complaint asserted damages relating to McGibney's business, as Moore's tweets referenced McGibney's connection to BullyVille.

On the false light claim, the complaint stated that Moore portrayed McGibney as a pedophile and child abuser on Moore's twitter account. The complaint said Moore's statements were categorically false, made with actual malice, and highly offensive to any reasonable person. It alleged that, by publishing the "false and harmful statements" to a Twitter following of over 160,000 people, Moore gave publicity to such statements.

The complaint requested: (1) more than $10,000 on the defamation claim for harm to McGibney's reputation; (2) more than $10,000 on the false light claim for resulting mental harm; (3) more than $10,000 for Moore's willful, deliberate, and malicious defamation of McGibney; (4) attorney's fees and related costs; and (5) any additional relief ordered by the Court.

On February 26, 2013, the plaintiff filed affidavits for Colleen Connolly-Ahern and Steven Rohr in support of an application for a default judgment against Moore. Connolly-Ahern, an Associate Professor of Advertising and Public Relations at the Pennsylvania State University, evaluated the McGibney's defamation claim against Moore. Her affidavit stated that because of Moore's "quasi-celebrity status" he will have a "larger-than-normal percentage" of followers who believe his statements about McGibney are truthful. Rohr, a founder and president of a Public Relations organization, confirmed the statements made in Connolly-Ahern's affidavit and added that with the existence of sites like www.archive.org, an Internet Archive, Moore's allegations may follow McGibney for years to come and damage his professional reputation. Rohr also stated that Moore's tweets caused real and tangible "lifetime reputational harm" to McGibney, which justified a judgment of $250,000.

The next day, on February 27, 2013, the plaintiff filed an affidavit of J. Malcolm DeVoy, one of the plaintiff's attorneys. DeVoy's affidavit included a copy of McGibney's redacted billings totaling $8,003.00.

On March 8, 2013, the court entered a default judgment against Moore for defamation and false light. The court held that Moore falsely accused McGibney of serious crimes and offenses that were defamatory per se. The court stated that Moore had been properly served with process and Moore had acknowledged the service on his tweets. The court referenced the affidavits of both Connolly-Ahern and Rohr and specifically addressed Rohr's mention of a $250,000 judgment, stating that the affidavits and Rohr's oral testimony were sufficient to support a judgment of $250,000 against Moore. Accordingly, the court ordered that Moore pay: (1) $250,000 in damages; (2) Interest accruing at 3.25%/month until the judgment is paid in full; (3) $1,588.50 for suit costs; and (4) $11,581.00 in attorney's fees.

On March 12, 2013, a notice of entry of default judgment was filed and on April 19, 2013, a writ of execution was issued to the Constable of Clark County, Nevada for $263,169.50 against Moore, commanding that the judgment be satisfied via Moore's Bank of America checking, savings, or other financial account.

Content Type: 

Jurisdiction: 

Subject Area: 

Duffy v. Godfread

Threat Type: 

Lawsuit

Date: 

02/19/2013

Party Receiving Legal Threat: 

Paul Godfread, Alan Cooper, and Does 1-10

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal
State

Court Name: 

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

Case Number: 

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

Legal Counsel: 

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

Publication Medium: 

Blog
Email
Forum

Relevant Documents: 

Status: 

Pending

Description: 

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

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

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

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

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

Update:

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

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

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

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

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

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

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

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

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

Content Type: 

Jurisdiction: 

Subject Area: 

Steele v. Godfread

Threat Type: 

Lawsuit

Date: 

02/24/2013

Party Receiving Legal Threat: 

Paul Godfread, Alan Cooper, and Does 1-10

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal
State

Court Name: 

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

Case Number: 

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

Legal Counsel: 

Bradford A. Patrick

Publication Medium: 

Blog
Email
Forum

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

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

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

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

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

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

Content Type: 

Jurisdiction: 

Subject Area: 

Prenda Law v. Godfread

Threat Type: 

Lawsuit

Date: 

02/12/2013

Party Receiving Legal Threat: 

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

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal
State

Court Name: 

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

Case Number: 

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

Legal Counsel: 

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

Publication Medium: 

Blog
Email
Forum

Relevant Documents: 

Status: 

Pending

Description: 

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

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

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

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

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

Update:

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

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

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

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

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

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

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

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

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

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

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

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

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

Content Type: 

Jurisdiction: 

Subject Area: 

Filing Lawsuits in the United States over Google Autocomplete is...

On December 21, 2012, Dr. Guy Hingston, a cancer surgeon from Port Macquarie in New South Wales, Australia, filed suit against Google in the U.S. District Court for the Central District of California. Dr.

Subject Area: 

Jurisdiction: 

Saltsman v. Goddard

Date: 

10/25/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Alexandria Goddard aka "Prinnie" and anonymous Doe defendants

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

The Court of Common Pleas, Jefferson County, Ohio

Case Number: 

12-CV-00544

Verdict or Settlement Amount: 

$0.00

Legal Counsel: 

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

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Content Type: 

Jurisdiction: 

Subject Area: 

Seaton v. TripAdvisor, LLC

Date: 

10/11/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

TripAdvisor LLC

Type of Party: 

Individual

Type of Party: 

Media Company

Court Type: 

Federal
State

Court Name: 

Circuit Court for Sevier County, Tennessee (state); U.S. District Court for the Eastern District of Tennessee (federal)

Case Number: 

2011-0676-I (state); 3:11-cv-00549 (federal district court); 12-6122 (federal appellate court)

Legal Counsel: 

S. Russell Headrick, Meghan H. Morgan (Baker, Donelson, Bearman, Caldwell & Berkowitz); James Rosenfeld, Samuel Bayard (Davis, Wright, Tremaine LLP)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

In January 2011, TripAdvisor, operator of the travel review website http://www.tripadvisor.com, published a list entitled "Dirtiest Hotels, as reported by travelers on TripAdvisor," which purported to be a list of the dirtiest hotels in the United States. Grand Resort Hotel and Convention Center in Pigeon Forge, Tennessee, topped the list. The feature included a user-provided picture of a ripped bedspread and a quote from a user report - "There was dirt at least ½" thick in the bathtub which was filled with lots of dark hair." It also noted that "87% of reviewers do not recommend this hotel."

In an accompanying press release, titled "TripAdvisor Lifts the Lid on America's Dirtiest Hotels: Top 10 U.S. Grime-Scenes Revealed, According to Traveler Cleanliness Ratings," TripAdvisor wrote, "true to its promise to share the whole truth about hotels to help travelers plan their trips, TripAdvisor names and shames the nation's most hair-raising hotels." The press release also contained the slogan "world's most trusted travel advice." The press release also stated, "If you are looking for a hotel with chewing tobacco spit oozing down the halls and corridors; spiders actively making webs in every corner of your room; carpeting so greasy and dirty you wouldn't want to sit your luggage down - let alone walk around barefoot ..... by all means stay at the Grand Resort."

The list and the accompanying press release stated that the list was based on traveler ratings for cleanliness posted on the site. According company policy, available on its website, while TripAdvisor "dedicate[s] significant time and resources" to detecting fraud, and screens reviews to ensure they meet posting guidelines, it does not verify or fact check reviews.

On Oct. 11, 2011, after TripAdvisor produced a list naming his hotel the dirtiest hotel in America, Kenneth M. Seaton sued the travel site for defamation and false light in Tennessee state court, asking for five million dollars in compensatory damages and five million dollars in punitive damages and demanding a jury trial.

In his complaint, the plaintiff alleged that TripAdvisor had defamed his business with "unsubstantiated rumors and grossly distorted ratings and misleading statements," and that TripAdvisor used a rating system that is "flawed and inconsistent" and "overstates the level of trust that can be placed in" TripAdvisor's review of the hotel.

TripAdvisor removed the case to the U.S. District Court for the Eastern District of Tennessee and filed a motion to dismiss for failure to state a claim on Jan. 6, 2012. Seaton filed a response to the motion on March 31, 2012. TripAdvisor filed a reply brief on May 14, 2012.

On August 22, 2012, the court granted the motion to dismiss. The court treated the plaintiff's complaint as raising claims for defamation and false light, but disposed of the claims together, focusing its discussion on the defamation claim. It did not address the parties' arguments under the Communications Decency Act.

According to the court, the central question the case presented was whether a reasonable person could understand the language in question as an assertion of fact or as a mere hyperbolic opinion or rhetorical exaggeration. It cited to Milkovich v. Lorain Journal Co. for the proposition that "expressions of ‘opinion' may often imply an assertion of objective fact," and therefore "can give rise to a defamation claim when they imply an assertion of fact or when the opinion is based upon erroneous information." 497 U.S. 1, 18 (1990).

However, the court ultimately concluded that TripAdvisor's "Dirtiest Hotels" list is "clearly unverifiable rhetorical hyperbole," and that a reasonable person "would not confuse a ranking system, which uses consumer reviews as its litmus, for an objective assertion of fact."

According to the court, a reasonable person could not believe that TripAdvisor's list and press release reflected anything more than "the opinions of TripAdvisor's millions of online users, and the article was therefore not ... a statement of opinion that it intended readers to believe was based on facts."

Finally, the court noted that TripAdvisor's method of compiling the list based on unverified online user reviews "is a poor evaluative metric," but held that, "it is not a system sufficiently erroneous so as to be labeled ‘defamatory' under the legal meaning of the term."

On September 21, 2012, Seaton filed a notice of appeal in the U.S. Court of Appeals for the Sixth Circuit.

Update:

On January 4, 2013, Seaton filed his brief before the Sixth Circuit. Seaton argued that the stated reliability and accuracy of TripAdvisor's list made the statements objectively verifiable, and thus capable of being found to be actionable defamation. Seaton further argued that TripAdvisor used a flawed methodology to reach its conclusion, and that Section 230 did not shield TripAdvisor against liability because the alleged defamation comes from statements made by TripAdvisor directly.

On February 20, 2013, TripAdvisor filed its appellee brief urging affirmance of the district court's opinion. TripAdvisor argued that a top-10 list is inherently subjective, as it necessarily includes editorial judgments, and therefore cannot be objectively verified. TripAdvisor further noted that its own list was based on sliding-scale rankings by its users, which also include inherently subjective considerations.

On February 27, 2013, the Digital Media Law Project (DMLP, the operator of this website) filed a brief as an amicus curiae. The DMLP argued that TripAdvisor's statements were protected under Tennessee law and the First Amendment as an opinion based on disclosed facts. The DMLP also argued that finding liability for TripAdvisor could jeopardize the many crowdsourced research efforts conducted in both journalism and academia.

Oral argument before the Sixth Circuit was held on July 30, 2013, and on August 28, 2013, the Court of Appeals issued a decision affirming the district court's dismissal of the case and its denial of leave to amend the complaint. The Sixth Circuit ruled that TripAdvisor's description of the Grand Resort as the "dirtiest" hotel was rhetorical hyperbole, and could not be read as "an actual assertion of fact."

Content Type: 

Jurisdiction: 

Subject Area: 

Garcia v. Nakoula

Threat Type: 

Lawsuit

Date: 

09/18/2012

Party Receiving Legal Threat: 

Nakoula Basseley Nakoula; Google, Inc.; YouTube; Does 1-200

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

California Superior Court, Los Angeles County (state); United States District Court for the Central District of California (federal)

Case Number: 

BC492358 (state); 2:12-cv-8315 (federal district court); 12-57302 (Ninth Circuit)

Legal Counsel: 

Timothy Alger, Perkins Coie (for defendants Google and YouTube)

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Description: 

This case concerns the "Innocence of Muslims" video, which portrays the Prophet Muhammad in a highly offensive light and caused protests throughout the world in the fall of 2012.

Cindy Lee Garcia was an actress who appeared in the film. According to the complaint filed on September 19, 2012, Garcia was never informed during the production of the movie of the offensive and inflammatory nature of the film. According to the complaint, "Plaintiff was unaware of the vile content contained in the Film, as the content and overall purpose of the Film was concealed from them at all times . . . ." The complaint further claims that Garcia has received death threats because of the film, was fired from her job, and has been informed by her family that she is no longer permitted to see her grandchildren.

The complaint alleges invasion of privacy under the California Constitution, false light, violation of California's right of publicity statute, violation of California's unfair competition law, and intentional infliction of emotional distress. As against defendant Nakoula and 50 doe defendants allegedly associated with Nakoula, Garcia also alleges fraud and slander. Garcia also sought a temporary restraining order blocking distribution of the film.

On September 20, 2012, the California Superior Court for Los Angeles County denied the temporary restraining order, finding a lack of likely success on the merits.

According to the docket (search for case BC492358) plaintiff Garcia filed a request for dismissal without prejudice, which was granted on September 25, 2012.

Update:

On September 26, 2012, Garcia filed a federal complaint in the United States District Court for the Central District of California, re-alleging fraud, unfair business practices, libel, and intentional infliction of emotional distress against defendant Nakoula and the doe defendants allegedly associated with Nakoula. Garcia also alleges copyright infringement as against all defendants, claiming that Nakoula's contract never addressed copyright ownership, and her performance in the film vested her with a copyright interest in the film. Garcia notes in the complaint that she filed five DMCA "takedown" notices to YouTube on September 24th and 25th, which were not acted upon by the time of the complaint's filing.

On October 17, 2012, Garcia filed an application for a temporary restraining order to take down the video on YouTube. Garcia again argued that her performance was independently copyrightable from the Innocence of Muslims film, and that neither Nakoula nor YouTube had a license to use the performance. Garcia cites the recently-signed WIPO Audiovisual Performances Treaty for this proposition (which is currently in the ratification process) and statements made by the United States Patent and Trademark Office suggesting that actors are currently treated as authors under copyright law. Garcia filed a request for judicial notice with the statements from the USPTO.

On October 18, 2012 the court issued a minute order on Garcia's application, rejecting an ex parte ruling on the injunction and transforming the application to a motion for a preliminary injunction. The court ordered any opposition briefs from the defendants to be filed by October 29, and a reply filed by November 5, before a hearing scheduled for November 19, 2012.

On October 19, 2012, Occupy Los Angeles moved to intervene in the case, in support of the plaintiff. The court denied this motion in a minute order on November 15th.

On October 29, 2012, Google and YouTube filed an opposition brief against a preliminary injunction. Google and YouTube argued that Garcia's brief appearance in the film does not vest her with any copyright interest, and that the lawsuit is a plain attempt to censor the video because of its offensiveness. Google and YouTube also filed an opposition to the request for judicial notice of certain factual circumstances around the film and the USPTO's opinions regarding the WIPO treaty.

On November 5, 2012, Garcia filed a reply to Google and YouTube's opposition to the preliminary injunction. Garcia argued that denial of authorship rights to actors in films contravenes the custom and practice of the film industry, and that First Amendment concerns should not be addressed, due to lack of state action.

On November 28, 2012, Timothy Alger, attorney for defendants Google and YouTube, filed a declaration wherein he stated that he had obtained a copy of a copyright and likeness release filled out by Garcia in relation to this film, which assigns any copyright interest in her performance to Nakoula. After Garcia's attorney expressed doubts as to the authenticity of this document, Alger went to Nakoula (who is referred to in this document by his alternative name, "Mark Basseley Youssef") who signed his own declaration stating that Garcia signed this release.

On November 29, 2012, Garcia filed a request to cross examine both Nakoula and Alger. Google and YouTube filed an opposition to this request on November 30th. The court denied the request to cross examine on the same day, noting that the declarations would not be used for disposition of the pending motion for preliminary injunction. On the same day Garcia filed a request to strike the two declarations, accompanied by a declaration by James Blanco, a handwriting analyst, who concluded based on comparison of specimen handwriting samples that Garcia is not the person who signed the copyright and personality release.

Also on November 30th, the court issued a minute order denying the motion for a preliminary injunction. The court found that Garcia was unlikely to be able to prove success on the merits of her copyright claim, as the Ninth Circuit case Aalmuhammed v. Lee would suggest that she should not be considered the author of the final film, and to the extent that a copyright interest could be found in the performance it is likely that Garcia gave Nakoula an implied license under the Ninth Circuit case Effects Associates v. Cohen.

On December 21, 2012, Garcia filed a notice of appeal of the preliminary injunction ruling to the Ninth Circuit. The Ninth Circuit's scheduling order has appellant briefs due January 18, 2013, with appellee's brief due February 15, 2013, or 28 days after service of the appellant's brief.

Content Type: 

Subject Area: 

CMLP Notes: 

AFS created post and edits through 1/3/12

Jurisdiction: 

Guadagnini Violin Shop v. TruthTeller1790

Date: 

01/23/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Eric Swanson, a.k.a. TruthTeller1790

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Circuit Court for Cook County, Illinois

Case Number: 

2012-L-000802

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

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

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

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

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

Content Type: 

CMLP Notes: 

3/23/2012: JS creating

Jurisdiction: 

Subject Area: 

Pan Am Systems v. Hardenberg

Date: 

09/06/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Chalmers Hardenberg, C.M. Hardenberg, P.A., Atlantic Northeast Rails & Ports

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, District of Maine

Case Number: 

2:11-cv-00339-NT

Legal Counsel: 

Preti Flaherty Beliveau & Pachios, LLP

Publication Medium: 

Print
Other

Relevant Documents: 

Description: 

In September 2011, Pan Am Systems, Inc. (a railway transportation company), its subsidiary Springfield Terminal Railway Co., and its former President and CEO David Fink sued Atlantic Northeast Rails & Ports (ANRP) for defamation and false light. The complaint also named Chalmers Hardenberg as owner, editor, and publisher of ANRP and C.M. Hardenberg, P.A., as an owner and principal of ANRP. The complaint alleged that the defendants distributed false and defamatory information about the plaintiffs through newsletters and e-bulletins. Among the information cited in the complaint were discussions of Pan Am's service and reliability, a Springfield Terminal derailment, and David Fink's removal from Pan Am.

Defendants subsequently filed a motion to dismiss for failure to state a claim, arguing, among other things, that as to the defamation claim: (1) the statements were true; (2) all of the plaintiffs were public figures, and there were insufficient allegations to support a claim of actual malice; (3) there were insufficient allegations of negligence; (4) some of the challenged statements were non-actionable opinion; and (5) some of the statements were protected by the fair report privilege. With respect to the false light claim, defendants argued that the statements were not "highly offensive," as required for such a claim, that corporations are not entitled to bring false light claims in Maine, and that the complaint did not adequately plead fault.

Plaintiffs opposed the motion to dismiss claiming, among other things, that: they had pleaded the existence of false statements of fact; it was inappropriate to resolve conditional privileges on a motion to dismiss; the existence of actual malice was a factual matter to be resolved after discovery; the plaintiffs were, in any event, private figures; and the defendants' statements did not involve matters of public concern, such that a claim for presumed damages could proceed without a showing of actual malice. Plaintiffs also argued that the individual plaintiff, Fink, had adequately pleaded a false light claim.

Content Type: 

Subject Area: 

Jurisdiction: 

Sherrod v. Breitbart

Date: 

02/11/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Andrew Breitbart, Larry O'Connor, John Doe

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of the District of Columbia, Civil Division

Case Number: 

000157 11

Legal Counsel: 

Baker & Hostetler LLP (for Defendant O'Connor); Katten Muchin Rosenman LLP (for Defendant Breitbart)

Publication Medium: 

Blog
Micro-blog
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

On February 11, 2011, former United States Department of Agriculture official Shirley Sherrod filed in District of Columbia Superior Court a defamation lawsuit against Andrew Breitbart and Larry O'Connor, two individuals involved with the prominent conservative political blog BigGovernment.com. The complaint also names a John Doe defendant.

The complaint stems from a March 2010 speech Sherrod gave to the NAACP, and the defendants' subsequent treatment of that speech. On July 19, 2010, Breitbart posted on BigGovernment an edited video of Sherrod's speech, along with allegations that Sherrod carried out her USDA duties "through the prism of race and class distinctions." The complaint also discusses slides added to the video of the speech that allege that Sherrod "discriminates against people due to their race." Along with Breitbart's post discussing Sherrod's speech, the complaint also alleges that O'Connor posted the edited video to YouTube, and that the John Doe defendant provided Breitbart and O'Connor with the unedited video and assisted in editing it.

After the defendants' alleged actions, Sherrod left her job with the USDA; the complaint alleges that the White House asked for her resignation because of the edited video and ensuing media uproar. Sherrod's complaint alleges defamation (for the edited video, blog post, and a Twitter post promoting the video and post), false light, and intentional infliction of emotional distress, and also seeks punitive damages.

The defendants removed the case to the U.S. District Court for the District of Columbia. Sherrod responded by moving to remand, arguing that the other defendants knew that the John Doe lived in Georgia (where Sherrod lives), and that Doe's citizenship defeats federal diversity jurisdiction. The defendants opposed remand on the grounds that a John Doe defendant's citizenship is irrelevant for diversity-jurisdiction purposes.

On the same day (April 18) that they filed their opposition to remand, the defendants moved to dismiss, both pursuant to Federal Rule 12(b) and under the D.C. Anti-SLAPP Act. The Rule 12(b) motion argues improper venue (with an alternative request to move the case to California, where Breitbart and O'Connor live), as well as substantive grounds (that the blog post was non-actionable opinion, and that the edited video was an accurate depiction of Sherrod's speech). The anti-SLAPP motion incorporates the motion to dismiss in arguing that Sherrod cannot show that her claims are likely to succeed.

On May 19, Sherrod filed memoranda opposing both motions to dismiss. Her opposition to the anti-SLAPP motion argues, among other things, that the D.C. Anti-SLAPP Act was passed after the lawsuit began and does not apply retroactively, and/or that it does not apply in federal court. Her opposition to the Rule 12(b) motion argues both that venue in D.C. is proper, and that the defendants' comments are non-opinion and "indefensible." Sherrod also filed a reply in further support of her motion to remand. On June 3, the defendants filed replies in support of both motions to dismiss.

Content Type: 

Subject Area: 

Jurisdiction: 

Davis v. Avvo, Inc.

Threat Type: 

Lawsuit

Date: 

08/26/2010

Party Receiving Legal Threat: 

Avvo, Inc.

Type of Party: 

Individual

Type of Party: 

Organization

Court Type: 

Federal
State

Court Name: 

Circuit Court of the Ninth Judicial Circuit in and for Pinellas County, Florida, Civil Division; U.S. District Court for the Middle District of Florida; U.S. District Court for the Western District of Washington

Case Number: 

10-12785CI11 (Fla. state); 8:10-cv-02352 (Fla. fed.); 2:11-cv-01571 (Wash. fed.)

Legal Counsel: 

Gregg D. Thomas, Susan Tillotson Bunch, Paul R. McAdoo, Thomas & LoCicero PL

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Description: 

Florida attorney Larry Joe Davis, Jr. filed a complaint in Florida state court against Avvo, Inc.  Avvo operates a website, www.avvo.com, that serves as a social networking site for attorneys and doctors.  The site also allows members of the public to research attorneys by maintaining profile pages for individual attorneys on which Avvo provides information about the attorney's practice and a numerical rating for the attorney.  The profile pages also allow members of the public to post comments about the attorney.  Avvo does not permit attorneys to withdraw or to shut down their profiles after initially "claiming" the profile.

Davis claims that Avvo (1) defamed him in the information contained in his attorney profile, including allegedly incorrect information regarding the nature of his law practice and his level of public recognition, (2) engaged in the unauthorized commercial use of his likeness by posting a photo of Davis on the profile page, and (3) engaged in unlawful trade practices by placing allegedly false information on Davis's profile page, requiring him to "claim" the page in order to correct the information, and then refusing to allow him to remove the page because it had been claimed.

Updates:

  •  9-14-2010: Davis files an Amended Complaint, deleting his claims for libel and replacing them with claims for false light invasion of privacy and false advertising based upon the alleged misrepresentation of his practice area.
  • 10-19-2010: Avvo removes the case to the U.S. District Court for the Middle District of Florida on the basis of diversity of citizenship.
  • 4-25-2011: Davis files his Third Amended Complaint.
  • 5-23-2011: Avvo moves to strike Davis's Third Amended Complaint.
  • 5-30-2011: Avvo moves to transfer venue to the Western District of Washington, arguing that Davis agreed to the website's Terms of Use which include a choice of venue provision naming the Washington district.
  • 7-7-2011: The court denies as moot Avvo's motion to strike the Third Amended Complaint.
  • 9-13-2011: The court grants Avvo's motion to transfer venue to the Western District of Washington.

Content Type: 

Subject Area: 

Jurisdiction: 

Yaldo v. Doe

Threat Type: 

Lawsuit

Date: 

12/10/2009

Party Receiving Legal Threat: 

John Doe

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court, Eastern District Michigan

Case Number: 

2:10-cv-11886-JCO-MJH

Relevant Documents: 

Status: 

Pending

Description: 

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

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

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

Content Type: 

Subject Area: 

Jurisdiction: 

Morrone v. The Journal News

Threat Type: 

Lawsuit

Date: 

03/19/2009

Party Receiving Legal Threat: 

The Journal News (Gannett Satellite Information Network); XYZ Corps; John Does 1-10

Type of Party: 

Individual

Type of Party: 

Organization
Large Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of New Jersey; United States District Court for the Southern District of New York

Case Number: 

08-CV-05732; 09-CV-02533

Legal Counsel: 

Satterlee Stephens Burke & Burke LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On November 19, 2007, James Morrone accidentally shot a friend who was hunting with him. The friend, who was shot in the leg, survived the shooting and recovered. The Journal News published an article about the shooting with the headline: "Purchase Man Charged with Felony in Hunting Death" on its online news and communty website, www.lohud.com.

Mr. Morrone sued the Journal News and its parent company, Gannett Satellite Information Network, on November 20, 2008 in the United States District Court for the District of New Jersey. Mr. Morrone sought $500,000 in damages for defamation, intentional and negligent infliction of emotional distress for the allegedly false statement that there was a "Hunting Death." (Compl. 2)

Gannett argued that the average reader would understand from reading the article as a whole that the friend did not die. Gannett also argued that if liability is based solely on the headline, the "'gist' or ‘sting' of the article—Morrone's felony charge for first-degree reckless endangerment, which included accidentally shooting his friend in the leg—is substantially true." (Reply Mem. 2)

The case was transferred to the United States District Court for the Southern District of New York on March 10, 2009.

Content Type: 

Subject Area: 

Priority: 

1-High

Jurisdiction: 

Clem v. Richmond Register

Threat Type: 

Subpoena

Date: 

08/25/2008

Party Receiving Legal Threat: 

Richmond Register

Type of Party: 

Individual

Type of Party: 

Media Company

Court Type: 

State

Court Name: 

Madison Circuit Court

Case Number: 

08-CI-01296

Legal Counsel: 

Kenyon Meyer

Publication Medium: 

Website

Status: 

Pending

Description: 

A Kentucky college student who was kicked out of a mall for wearing a short dress issued a subpoena to the Richmond Register seeking the identity of an anonymous poster on the newspaper's website.  The subpoena was issued in connection with a case filed in Kentucky state court against the anonymous commenter for allegedly posting a defamatory comment about her on the Richmond Register's site on Aug. 13, 2008, under a story about the mall incident. According to the complaint, the commenter, identified only as 12bme, claimed Clem was kicked out because she exposed herself to another woman and her children. 

The newspaper subsequently deleted the comment and banned 12bme from the site for violating the site's terms of service. According to the Student Press Law Center, the newspaper opposed Clem's subpoena, claiming that the identity of the commenter  should fall under the Kentucky's reporter shield law because a Register reporter wrote an article about the lawsuit, which mentioned the comment.

Content Type: 

Subject Area: 

Jurisdiction: 

CMLP Notes: 

6/28/09 AVM - court website has no images, nothing in W, similar to the LVR case 

6/24/09 CMF

Priority: 

1-High

Clem v. Doe

Threat Type: 

Lawsuit

Date: 

08/25/2008

Party Receiving Legal Threat: 

John Doe a/k/a 12bme

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Madison Circuit Court

Case Number: 

08-CI-01296

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On August 25, 2008, a Kentucky college student who was kicked out of a mall for wearing a short dress filed suit in Kentucky state court against an anonymous commenter for allegedly posting a defamatory comment about her on a newspaper's website.  According to news reports, the comment appeared on the Richmond Register's site on Aug. 13, 2008, under a story about the mall incident. According to the complaint, the commenter, identified only as 12bme, claimed Clem was kicked out because she exposed herself to another woman and her children. 

The newspaper subsequently deleted the comment and banned 12bme from the site for violating the site's terms of service. Clem filed suit against 12bme and subpoenaed the Register for the identity of the poster. According to the Student Press Law Center, the newspaper opposed Clem's subpoena, claiming that the identity of the commenter  should fall under the Kentucky's reporter shield law because a Register reporter wrote an article about the lawsuit, which mentioned the comment.

Content Type: 

Subject Area: 

CMLP Notes: 

6/28/09 AVM - court website has no images, nothing in W, similar to the LVR case 

6/24/09 CMF

Priority: 

1-High

Jurisdiction: 

Jones v. Above The Law

Date: 

10/27/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

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

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Florida

Case Number: 

09-23256

Legal Counsel: 

Marc John Randazza

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

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

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

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

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

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

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

Content Type: 

Subject Area: 

Jurisdiction: 

Lang v. Mason

Threat Type: 

Lawsuit

Date: 

05/09/2002

Party Receiving Legal Threat: 

Michael Mason; Waterman Broadcasting Corp. of Florida; MSNBC Interactive News L.L.C.; Mary Catherine Tourtillott

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Media Company

Court Type: 

State

Court Name: 

20th Judicial Circuit, Lee County, Florida (trial); Florida Second District Court of Appeals (appeal)

Case Number: 

02-CA-005053 (trial); 2D04-3687 (appeal)

Legal Counsel: 

Steven William Carta - Henderson & Carta (for Mason, Waterman Broadcasting, and MSNBC); Martin Khoury (for Mary Catherine Tourtillott)

Publication Medium: 

Broadcast
Website

Relevant Documents: 

Status: 

Pending

Description: 

Jeffrey Lang, a Florida reconstructive and cosmetic surgeon, filed a lawsuit against reporter Michael Mason, MSNBC, its affiliate Waterman Broadcasting, and Mary Catherine Tourtillott, a former patient, for an allegedly defamatory news report that accused Lang disfiguring his patients. Lang's four-count complaint alleged defamation, false-light invasion of privacy, tortious interference, and civil conspiracy.

The disputed report aired on television in 2000, and was allegedly posted on MSNBC's website, according to the complaint. In their answer, Mason, MSNBC, and Waterman denied that the report was defamatory. Tourtillott also denied Lang's allegations in her answer.

In 2004, the trial court granted the defendants' motions to dismiss for lack of prosecution. On appeal, the ruling was reversed and the case was remanded. The Florida Supreme Court denied the media defendants' petition for review in 2005.

On remand in 2007, MSNBC filed a motion for summary judgment, claiming immunity under Section 230 of the Communications Decency Act. In its motion, MSNBC said the disputed report was created and posted to the site by a third party -- the Waterman-owned WBBH-TV station in Florida. 

The CMLP has not been able to determine the final outcome of the case. 

Content Type: 

Subject Area: 

Jurisdiction: 

Priority: 

1-High

CMLP Notes: 

both dockets on WL -many docs available through docket and filings

appeal at 911 So.2d 167

trial opinion dismissing at 2004 WL 5706499 (many documents available here)

to do:  Need to find trial after reverse and remand, not on docket on wl

7/20/09 - CMF

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