SLAPP

California Anti-SLAPP Project Takes Up Case for Yelp and Parents Sued Over Negative Dentist Review

On January 21, the California Anti-SLAPP Project (CASP) filed a special motion to strike the complaint of Yvonne Wong, a pediatric dentist who sued Yelp! Inc. and two parents based on a negative review of her services the parents posted on Yelp

Jurisdiction: 

Subject Area: 

Sandra Caron European Spa v. Kerber

Date: 

05/10/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Malagorzata Kerber; Janusz Kerber

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California, County of San Mateo; California Court of Appeal of the First Appellate District

Case Number: 

CIV454815 (trial level); No. A117230 (appellate level)

Legal Counsel: 

Allen J. Capeloto (withdrawn); Richard M. Kelley

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

In May 2006, Sandra Caron European Spa, based in San Mateo, California, sued a former employee and her husband for trade libel over critical reviews about the Spa on Yahoo.com and consumer review website Yelp.com.  According to court decision in the case: 

A Yahoo.com user posted a review of Caron Spa on January 17, 2006. It stated: "My first impression was its tacky d[é]cor. Then I encountered an extremely rude [E]uropean gentlemen, I believe this is the owner. From what I could see, the employees are miserable and tired. When I went into the steam room I saw mildew and brown spots on the walls.... I could not even sit in there. I went for my massage, and that was ok. But the room had a strange smell and the blankets were dingy. It was also very cold. I guess the owner does not put on the heat. There is just too much to go on about. I will never go there again, and I will make sure I will tell as many people as I can about the horrible experience that I had."

Another review, posted on Yelp.com under the user name "Pippi L.," appeared on March 5, 2006. Pippi L. wrote: "One star is even too much for this place. First of all, when I walked in there it looked lik[e] selling a whole bunch of useless things you'll wind up selling at a garage sale. The serv[ice was] horrible. I had this creepy old [E]uropean man helping me and he was just outright rude. [The] guy was acting as if he was doing me a favor by letting me come to his spa.... And what was with the 18 [percent] service charge? ? ? It's questionable that the therapists or the providers ever receive it. My massage was ok and that was the only highlight of this.... And their sauna and steam room ... was really disgusting. Their lounge are was just full of tacky decorations as what I've heard they've been around for a long time, and I really don't understand why.... I would never come back and much would rather go to the spa at my gym."

Sandra Caron European Spa, Inc. v. Kerber, 2008 WL 3976463, at *2 (Cal. Ct. App. 2008).

On July 31, 2006, defendants filed a special motion to strike the complaint under California's anti-SLAPP law.  The trial court ultimately denied the motion, finding that Caron Spa had made a preliminary showing that the Kerbers conspired to commit trade libel with third parties not named as defendants in the case.  See Sandra Caron European Spa, 2008 WL 3976463, at *3.

The Kerbers appealed, and a California appellate court affirmed the district court's decision, albeit on other grounds.  The appellate court held that the statements in question were not made in connection with "a matter of public interest," which is required to trigger the protection of the anti-SLAPP law.  Id. at *4-7.  The court specifically rejected the argument that all "discussion on internet sites is protected speech" under the anti-SLAPP law.  Id. at *7. 

The case is currently pending in the trial court. 

Priority: 

1-High

CMLP Notes: 

Via Wendy Davis at MediaPost

Content Type: 

Threat Source: 

User Feedback

Subject Area: 

Jurisdiction: 

Styger v. Johnson

Date: 

07/10/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Deborah J. Johnson; Does 1 - 10

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California, County of San Francisco

Case Number: 

CGC-08-477322

Legal Counsel: 

Mark A Goldowitz - California Anti-SLAPP Project

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

In July 2008, Joseph Styger, a San Francisco dentist, sued former patient Deborah Johnson and various John Doe defendants over a critical review that Johnson posted to consumer review website Yelp.com.  According to the Complaint, the review falsely accused Styger of being an "unethical dentist." Cmplt. ¶ 6.

On August 22, 2008, Johnson filed a special motion to strike the complaint under California's anti-SLAPP law.  The court granted the motion to strike on September 23, 2008, finding that "plaintiff has not demonstrated a probability of prevailing on his claim against Johnson" due to the California's one-year statute of limitations for defamation. See California Code of Civil Procedure 340(c).

Jurisdiction: 

CMLP Notes: 

from Wendy Davis at MediaPost

Priority: 

1-High

Content Type: 

Threat Source: 

User Feedback

Subject Area: 

DiAdamo v. Duggan

Date: 

09/29/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Thomas J. Duggan, Jr.; Valley Patriot, Inc.; Merrimack Valley Radio, LLC; John Doe 1-2

Type of Party: 

Individual

Type of Party: 

Individual
Media Company

Court Type: 

State

Court Name: 

Superior Court of Massachusetts, Essex

Case Number: 

08-1931D

Legal Counsel: 

Peter Caruso

Publication Medium: 

Blog
Broadcast
Website

Relevant Documents: 

Status: 

Pending

Description: 

Thomas Duggan, who who hosts the "Paying Attention!" radio program on WCAP 980AM in Lowell Massachusetts, was sued by William DiAdamo, a local attorney, over statements Duggan made on his radio program and republished on his blog, Paying Attention! With Tom Duggan, and the website for The Valley Patriot, a monthly newspaper in North Andover Massachusetts.

According to plaintiff's complaint, on August 23, 2008, Duggan broadcast a segment about DiAdamo in which he falsely stated that DiAdamo was, among other things,  "being accused of throwing [a legal] case and has been fired by the City of Lawrence because he is being accused of throwing the case."

On November 24, 2008, Duggan served a special motion to dismiss under the Massachusetts anti-SLAPP law.  Plaintiff served his opposition to the motion on December 5.

Update:

1/12/09 -  Hearing on all motions, including anti-SLAPP, SLAPP-back, Motion to Dismiss Counterclaim, and Motion to Authorize Release of Attorney-Client Privilege, are all scheduled for Monday, January 12, 2009, at 2:00 PM at Lawrence Superior Court.

2/23/09 - Court denied Duggan's special motion to dismiss the lawsuit under the Massachusetts anti-SLAPP law and granted DiAdamo's motion to dismiss Duggan's counterclaim.

Priority: 

1-High

CMLP Notes: 

via Peter Caruso

status checked 6/17/09; no new info - CMF

Content Type: 

Threat Source: 

User Feedback

Subject Area: 

Jurisdiction: 

CMLP and Leading Online News Organizations File Amici Curiae Brief in Cape Cod Defamation Case

On Friday, the Citizen Media Law Project joined with the Online News Association, Media Bloggers Association, New England Press Association, and Globe Newspaper Company, publisher of The Boston Globe and Boston.com, to submit an amici

Jurisdiction: 

Subject Area: 

Kesler v. Doe

Date: 

05/16/2000

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Doe 1 (aka Mezzzman); John Does 2 - 50

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

California Superior Court, Orange County; California Court of Appeals, Fourth Appellate District

Case Number: 

00CC05951 (trial); G029100 (appeals)

Legal Counsel: 

Ryan K. Roth, Joanna Joyce - Paul, Hastings, Janofsky & Walker (for Mezzzman)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Grant S. Kesler, President and CEO of Metalclad Corporation, filed a John Doe suit after comments critical of him and the company appeared on the Yahoo! Finance message board dedicated to Metalclad.  The comments allegedly called into question Mr. Kesler's honesty in connection with a dispute over the company's authorization of a reverse stock split.  Kesler sought to discover the identities of a number of anonymous posters to the forum, including that of one commenter going by the moniker  "Mezzzman." 

Mezzzman moved to strike the complaint based on California's anti-SLAPP statute, Cal. Code Civ. Proc. § 425.16, arguing that his comments were a free speech activity and that Kesler could not show a probability of prevailing on his defmation claim.  The trial court disagreed and denied Mezzzman's motion to strike.  Mezzzman appealed, but the parties settled on confidential terms before the appellate court reached a decision.

Jurisdiction: 

Priority: 

1-High

Content Type: 

Threat Source: 

CyberSLAPP.org

Subject Area: 

Global Direct Sales, LLC v. Krowne

Date: 

09/19/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Aaron Krowne individually and dba The Mortgage Lender Implode-O-Meter and ML-Implode.com; Krowne Concepts, Inc., Implode-Explode Heavy Industries Inc.; Justin Owings; Krista Railey; Streamline Marketing, Inc.; Lorena Leggett

Type of Party: 

Individual
Organization
Government

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Maryland

Case Number: 

8:08-cv-02468

Legal Counsel: 

Tamara Good - Good Law PC; Charles J. Borrero; Henry R Abrams - Saul Ewing LLP (withdrawn); Julie S Turner - The Turner Law Firm (withdrawn)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Global Direct Sales, LLC, its principals Ryan Hill and Christopher Russell, and the Penobscot Indian Nation sued Aaron Krowne, Krista Railey, Implode-Explode Heavy Industries, Inc. (IEHI), Krowne Concepts, Inc. (KCI), and others after Krowne's mortgage watchdog website, The Mortgage Lender Implode-O-Meter, published an article written by Railey that criticized the Grant America Program. The Grant America Program is a seller-financed down payment assistance program for low- to moderate-income homebuyers, operated under an agreement between Global Direct Sales and the Penobscot Indian Nation.

The Implode-O-Meter site hosts Railey's "FHA Mortgage Whistleblower" column, where the article appeared. In her article, Railey allegedly made a number of false and defamatory statements, including that the Grant America Program was a "scam," and that Russell and Hill had treated another charity they founded "like their own personal piggy bank." Cmplt.¶ 37. In response to an angry comment by Russell, Railey conferred with Krowne and other website editors, who edited the article to "tone down" the commentary and removed references to the word "scam" from the article before it was republished on Railey's blog (apparently the original version that appeared online was a draft published inadvertantly). The plaintiffs filed suit nonetheless. Railey, Krowne, and the other defendants maintained that the article was accurate and based on publicly available information.

The plaintiffs filed a motion for a temporary restraining order and preliminary injunction on September 26, 2008. The defendants filed a response on October 7, arguing that the requested injunctive relief would constitute an unconstitutional prior restraint on speech, and that the allegedly defamatory statements were not actionable. 

Update:

At a hearing on November 3, 2008, the court denied the plaintiffs' motion for a temporary restraining order and preliminary injunction. Noting that the "article is out there, has been and cannot be eliminated from the internet," and that damages would be available later, the court held that the plaintiffs had failed to establish irreparable harm. The court also found that an injunction "would affect a First Amendment right of the defendants" and would "stifle rather than foster appropriate debate."

The court subsequently dismissed three defendants-Aaron Krowne, Justin Owings, and Lorena Leggett-for lack of personal jurisdiction, and a fourth defendant, Streamline Marketing, Inc., without prejudice.

On November 11, 2009, the remaining defendants (IEHI and KCI) filed a special motion to dismiss under Maryland's anti-SLAPP law, arguing that the plaintiffs filed the suit in bad faith because of defendants' exercise of their First Amendment rights and rights granted by the Maryland Declaration of Rights.

Plaintiffs responded on December 7, 2009, contending that Maryland's anti-SLAPP law does not apply in federal court because it is predominantly procedural and conflicts with the Federal Rules of Civil Procedure. They also argued that the statute was inapplicable because it only applies to communications "regarding any matter within the authority of a government body," and "multiple" statements in the article at issue did not involve such matters. Plaintiffs further claimed that the complaint was filed in good faith, that the article was not entitled to First Amendment protection because it "contains both false statements of fact and unsupported opinion that implies defamatory facts," and that the article was prompted by constitutional malice in "retaliation for the plaintiffs' refusal to advertise on [defendants'] website." Throughout the brief, the plaintiffs relied heavily on a declaration provided by the author of the article at issue, Railey, which "admit[ted] that ‘there are significant problems with the final published article" and that the "article contains and implies false statements of fact and is misleading in a material manner." 

The defendants filed a reply in support of the special motion to dismiss on January 26, 2010. They argued that the Maryland's Anti-SLAPP statute was applicable, because it is not inconsistent with federal rules. Defendants also claimed that the article "addressed an issue within the authority of a government body, . . . Plaintiffs cannot satisfy their burden for their defamation claim, and . . . this suit was brought in bad faith to drive Defendants out of business and thereby silence them." Defendants contrasted Railey's declaration for the plaintiffs with a "much earlier declaration," in which she stated "I stand behind all of the statements I have made in my article about the Plaintiffs and believe each and every one of them to be based in truth and supported by my research."

On July 12, 2010, the court denied the defendants motion to dismiss pursuant to Maryland's anti-SLAPP statute. The court applied the statute because it "is limited in its scope and appears not to conflict with the Federal Rules of Civil Procedure." However, the court concluded that there were genuine issues of material fact as to whether "the suit was brought in bad faith," the article "was regarding any matter within the authority of a government body," and "whether Defendants maliciously published the article."

The attorneys for IEHI and KCI subsequently filed motions to withdraw from the case, and, on May 31, 2011, the court granted them. In doing so, the court advised the defendants that, as corporate entities, they could not move forward without representation. The court subsequently defaulted both entities for failure to answer the complaint through counsel. Plaintiffs then filed an unopposed motion for default judgment as to liability against the defaulted defendants, for summary judgment, and for a permanent injunction. The court denied that motion on April 9, 2012, finding that, although the plaintiffs' had properly pled the elements of defamation, a final judgment could not be entered while the claims against defendant Railey were still pending.

On July 6, 2012, IEHI and KCI, represented by new attorneys, filed a motion to vacate the entry of default. The court granted the motion, finding that the defendants' had established "the viability of four defenses to Plaintiffs' defamation claims"-they "demonstrated, with ample factual support,: (1) Plaintiffs . . . are government entities, and as such, under the First Amendment cannot maintain actions for defamation or libel; (2) Plaintiffs cannot meet their burden to prove falsity . . .; (3) the author, Railey, was not an agent of the IEHI and Krowne Concepts . . .; and (4) Plaintiffs do not allege that they suffered any harm as a result of Defendants' statements." The court decided that the defendants' yearlong delay in moving to vacate the default was not dispositive, as it did not prejudice the plaintiffs.

On July 1, 2013, the defendants moved for summary judgment. They elaborated on the claims included in their motion to vacate the judgment and raised, for the first time, a defense under Section 230 of the Communications Decency Act, claiming that the defendants "did little more than provide a canvas upon which third parties placed material." Plaintiffs responded to the motion by arguing that Section 230 was inapplicable. According to plaintiffs, IEHI "was responsible for both creating and developing" the article as a "joint project" with Railey. Relying on Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008), the plaintiffs argued that a website is a content provider "even if it did not ‘create' the content as long as it ‘materially contributes to the illegal conduct.'" Plaintiffs argued that IEHI materially contributed to the article because IEHI editors performed research for the article, edited the article before it was published, exchanged drafts, and "had the last say on what was published."

The district court dismissed the case on summary judgment on Sept. 18, 2013, holding that even if the plaintiffs' allegations were true, Section 230 "immunize[d] IEHI from this defamation action." The court noted that "determining what makes a party responsible for the ‘development' of content under Section 230(f)(3) is unclear," but that, under Roommates.com, 521 F.3d at 1163, "one is responsible for the ‘development' of information when he engages in an act beyond the normal functions of a publisher (such as deciding to publish, withdraw or modify third-party content) that changes the meaning and purpose of the content." On the other hand, the court stated, if an internet service provider "only passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content."

The court found that, in this case, "[h]olding IEHI liable for mere control of the website on which allegedly defamatory content was published is precisely the type of conduct that falls squarely within the protections of the CDA." The court held that even if plaintiffs' assertions that "Railey received direct input from Krowne, that [an editor] performed research and that drafts were exchanged, and IEHI had the last say on what was published" were true, these actions merely amounted to "monitoring and publication of content on its network - ‘actions quintessentially related to a publisher's role.'" "[E]ven assuming Krowne edited or altered the content of the allegedly defamatory article," the court noted, "IEHI would still be immune." The court therefore concluded that Section 230 barred the plaintiffs' defamation claims.

By party agreement, the complaint was withdrawn as against KCI, and Penobscot Indian Nation was removed as a Plaintiff. The claims against Railey appear to have been settled outside of court. According to the docket, the case was terminated on September 25, 2013.

Jurisdiction: 

CMLP Notes: 

Updated 1/29/09 - VAF

Content Type: 

Threat Source: 

MLRC

Subject Area: 

Gilchrist v. Young

Date: 

04/16/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Brook Young; Barbara Coe; Chelene Nightingale; Marvin L. Stewart; Deborah Ann Peterson; Paul Sielski; Does 1-100

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California, Orange County

Case Number: 

30-2008-00105431

Legal Counsel: 

Daniel F. Lula - Payne & Fears LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

In April 2008, Jim Gilchrist, an immigration enforcement activist and founder of the Minuteman Project, filed a lawsuit against Brook Young of Immigration Watchdog, Chelene Nightingale of Save Our State, Barbara Coe of California Coalition for Immigration Reform, Minuteman Project Treasurer Deborah Peterson, and Minuteman Project President Marvin Stewart. The lawsuit claimed that the defendants defamed Gilchrist by publishing statements "to the effect that [Minuteman Project] corporate funds were being misused, embezzled, and that theft and fraud was being committed by [Gilchrist and his colleague Stephen Eichler]." Cmplt. ¶ 12. It also alleged that the defendants invaded Gilchrist's privacy by publishing his address and a photograph of his driver's license on the Internet. Id. ¶ 25.

The defendants moved to strike the complaint pursuant to California's anti-SLAPP law. The court granted the motion in August 2008, dismissing the case and awarding Barbara Coe more than $9000 in attorneys fees. The other defendants have filed motions seeking attorneys fees as well. These motions are pending.

Update:

11/19/2008 - Judgment entered against Gilchrist awarding Nightengale more than $10,000 in attorneys fees.

 

Jurisdiction: 

CMLP Notes: 

The OC Register article references a similar lawsuit brought by Steve Eichler, an associate of Gilchrist. Whoever edits this threat should look into that case to see if it merits inclusion here or a separate threat entry. {MCS}

Looks to me like the Eichler suit focuses on the non-online-speakers. smb

Updated 2/19/2009 VAF

Priority: 

1-High

Content Type: 

Subject Area: 

Marc Randazza: First Amendment Juggernaut

My good friend Marc Randazza has given me the green light on an exciting piece of news.  On September 11, 2008, Florida Circuit Court Judge George Sprinkle entered a default judgment in favor of Randazza's client Larry Giles, operator of the Veranda Park News, an online newspaper offering observations and commentary on events and aesthetic issues in Giles's development community.  The court

Jurisdiction: 

Content Type: 

Subject Area: 

Ocean Towers Housing v. Stone

Date: 

10/02/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Richard Stone

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of Los Angeles County; California Court of Appeal, Second Appellate District

Case Number: 

No. BC359619 (Superior Ct.); B198657 (Appellate)

Legal Counsel: 

Alan N. Goldberg; Maxine J. Lebowitz

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Ocean Towers Housing Corp., the owner of an apartment building in Santa Monica, California filed a defamation lawsuit against one of its tenants Richard Stone, who accused the company of breaching its fiduciary duty to its shareholders.  According to filings in the case, in a posting on his website The Ocean View, Stone accused Ocean Towers of using company funds to finance a loan for a board member's nephew.  Stone claimed that the company did this despite statements that it lacked sufficient funds to engage in "much needed building repairs."

On December 22, 2006, Stone filed a motion to dismiss the suit under California's anti-SLAPP statute.  As an alternative reason for dismissal, Stone argued that his statements were priviliged because they litigation or were protected communications between parties who share an "interest" in an issue of direct and immediate concern.

The Superior Court denied the motion, finding that the statement constituted defamation per se and that there was evidence suggesting Stone's statements were false.  Further, the court found that Stone may have had malice in publishing the disputed statement.  The court also found that the litigation privilege didn't apply because both Stone and his comments were unrelated to the other Ocean Towers lawsuit.

Stone appealed to California's Second Appellate District.  The appeals court affirmed the ruling on essentially the same grounds.  The court also explicitly rejected the "interest" privilege, which Stone argued had not been addressed in the trial court.  The court recognized that Stone might have qualified for the privilege if he had made his statements in a letter to another interested party, but it determined that posting a statement on the Internet does not prove the required intent to reach a specific interested party.

The case is scheduled to go to trial in L.A. Superior Court on 03/30/2009.

Update:

05/15/2009 - According to the case summary (search "BC359619"), the case was dismissed by the plaintiff without prejudice.  It appears that a settlement was reached.

Priority: 

1-High

CMLP Notes: 

Can check for updates at the LA Superior Court link above. {MCS}

Updated 6/18/2009 (LB)

Content Type: 

Threat Source: 

Westlaw Alert

Subject Area: 

Jurisdiction: 

Wilbanks v. Wolk

Date: 

07/05/2001

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Gloria Wolk (dba Bialkin Books)

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California, County of San Francisco; California Court of Appeals, First Appellate District

Case Number: 

CGC-01-322652 (trial), A101100 (appeal)

Legal Counsel: 

Philip R. Green (Law Offices of Green & Green); Wendy M. Lazerson (Holland & Knight); Thomas A. Trapani (Rankin Sproat & Pollack)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Scott Wilbanks, a viatical settlement broker, filed a defamation and unfair business practices lawsuit against Gloria Wolk, a former insurance agent and author of books on viatical settlements (viaticals are arrangements that allow dying persons with life insurance policies to sell their policies to investors for a percentage of the death benefits). 

According to Wilbanks's complaint, Wolk defamed him and his company on her website Viatical & Life Settlements Consumer Information, which provides information about settlement brokers, by publishing the following statements:

  • Be very careful when dealing with this broker. Wilbanks and Assoc. is under investigation by the CA dept. of insurance. The complaint originated with a California viator who won a judgment against Wilbanks. How many others have been injured but didn’t have the strength to do anything about it?
  • The company is under investigation. Stay tuned for details.
  • Wilbanks and Associates provided incompetent advice.
  • Wilbanks and Associates is unethical.

Wolk moved to strike the defamation claim under California's anti-SLAPP statute.  The court granted her motion and awarded Wolk $7,000 in attorney fees and costs.

On August 17, 2004, the California Court of Appeals reversed, finding that Wilbanks had shown a reasonable probability of success on the merits of his claims.

Update:

The California Superior Court's electronic docket states that the case was dismissed with prejudice on August 18, 2005, following settlement discussions in chambers. 

Jurisdiction: 

Priority: 

1-High

Content Type: 

Subject Area: 

Zwebner v. Coughlin

Date: 

06/21/2005

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

James W Coughlin aka Irishjim44; Does 1-25

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of California

Case Number: 

3:05-cv-01263

Legal Counsel: 

Edward P Swan, Jr. - Luce Forward Hamilton and Scripps

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Michael J. Zwebner, CEO of penny-stock holding company Universal Communication Systems, sued James Coughlin, a.k.a. IrishJim44, and 25 "Doe" defendants over statements on the Raging Bull financial message board that were critical of him and his company. According to the Miami New Times, "[i]t was the latest of five lawsuits Zwebner has filed since June 2004, all of them aimed at silencing people who have posted malicious messages about him on two Websites: Raging Bull and Bad Business Bureau."

Zwebner's complaint seeks damages for defamation and intentional infliction of emotional distress.

On July 15, 2005, defendants filed a Special Motion to Strike under California's anti-SLAPP law. The motion was granted, and the case was dismissed with fees and costs awarded to the defendants. Defendants also won on appeal to the Ninth Circuit. On remand to the district court, defendants won fees and costs arising from the appeal as well.

Zwebner had previously filed this action in federal court in Florida, but the court dismissed the case because Coughlin is a California resident and the court held that it lacked personal jurisdiction over him.  Zwebner, et al v. Coughlin, et al 05-CV-20168 (S.D. Fla)

Jurisdiction: 

CMLP Notes: 

DSA Editing

Priority: 

1-High

Content Type: 

Subject Area: 

Peters & Freedman, LLP v. McMahon

Date: 

10/27/2005

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Elizabeth McMahon; Arnold McMahon; David Osterpil; Sharon Stephens

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Orange County Superior Court

Case Number: 

05CC11632 (trial); G037871 (appeal)

Legal Counsel: 

Philip A. Putman

Publication Medium: 

Website

Status: 

Pending

Description: 

The California law firm Peters & Freedman sued Elizabeth and Arnold McMahon for libel and invasion of privacy based on statements they posted on their website, American Homeowners Resource Center, which describes itself as a “public interest interactive website for homeowners” to "help citizens in homeowner associations . . . take back their homes from the two generations of crooked lawyers, politicians, judges and vendors who have stolen them."

The law firm, which specializes in homeowners’ association law, asserts in its complaint that the McMahons falsely accused it of committing illegal and unprofessional conduct while representing homeowners associations in various lawsuits. One of the law firms lawyers, Jeffrey Pratt, also sued the McMahons for libel. See the related entry, Pratt v. McMahon, for more information.

On September 27, 2006, the McMahons filed a motion under California's anti-SLAPP statute to strike the complaint, arguing that the plaintiff's claims arose from the exercise of their constitutional rights to freedom of speech and to petition for the redress of grievances.

The court denied the motion to dismiss, and a California appellate court affirmed, holding that the comments “do not concern a public issue."

The case is set for a jury trial on 1/12/09.

CMLP Notes: 

To-do: Get complaint and other court documents

Content Type: 

Threat Source: 

MLRC

Subject Area: 

Jurisdiction: 

Pratt v. McMahon

Date: 

01/06/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Elizabeth McMahon; Arnold McMahon

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Orange County Superior Court

Case Number: 

06CC01968 (trial); G038236 (appeal)

Legal Counsel: 

Philip A. Putman

Publication Medium: 

Website

Status: 

Pending

Description: 

Jeffrey Pratt, a lawyer at the California law firm Peters & Freedman, sued
Elizabeth and Arnold McMahon for libel and invasion of privacy based on statements they posted on their website, American Homeowners Resource Center, which describes itself as a “public interest interactive website for homeowners” to "help citizens in homeowner associations . . . take back their homes from the two generations of crooked lawyers, politicians, judges and vendors who have stolen them."

Pratt asserts in his complaint that the McMahons falsely accused him and the firm, which specializes in homeowners’ association law, of committing illegal and unprofessional conduct while representing homeowners associations in various lawsuits. The law firm also sued the McMahons for libel. See the related entry, Peters & Freedman, LLP v. McMahon, for more information.

On December 13, 2006, the McMahons filed a motion under California's anti-SLAPP statute to strike the complaint, arguing that the plaintiff's claims arose from the exercise of their constitutional rights to freedom of speech and to petition for the redress of grievances.

On January 17, 2007, the court denied the motion to dismiss, and a California appellate court affirmed, holding that the comments “do not concern a public issue."

CMLP Notes: 

To-do: Get complaint and other court documents

Content Type: 

Threat Source: 

MLRC

Subject Area: 

Jurisdiction: 

Cedillos v. Madigan

Date: 

06/16/2005

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Michael Madigan; Litigation Archives Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Orange County Superior Court

Case Number: 

05CC07333 (trial); G036941 (appeal)

Legal Counsel: 

John R. Hanson - Worthe Hanson & Worhte

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In April 2005, Ronald Cedillos, an Orange County reserve sheriff's deputy, allegedly got into a shouting match at a Newport Beach restaurant with attorney Joe Cavallo. Later, Cedillos allegedly used a key to scratch Cavallo's Bentley automobile.  Michael Madigan, a private investigator who operates TwistedBadge.com, a site with the motto "our mission is to promote public awareness of the need to be vigilant in matters involving law enforcement malfeasance," reported the incident.

On May 31, 2005, Madigan received a letter from Cedillos’ attorney demanding a retraction. After Madigan refused to retract the story, Cedillos then filed a defamation action. Madigan responded with a special motion to dismiss under California's anti-SLAPP statute.

On June 22, 2007, a California appellate court affirmed the dismissal.

Jurisdiction: 

Content Type: 

Threat Source: 

MLRC

Subject Area: 

Danks v. Harris

Date: 

03/22/2005

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Don Danks

Party Receiving Legal Threat: 

Bill Harris; Alex Khachaturyan; Andrew Left; Alex Waynberg; StockLemon.com

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California, Los Angeles County; California Court of Appeals, 2nd Appellate District

Case Number: 

BC330676 (trial); B184860 (appeal 1); B190111 (appeal 2)

Legal Counsel: 

Peter Kravitz, Kavita Amar

Publication Medium: 

Website

Status: 

Concluded

Description: 

Don Danks, CEO of Imergent, Inc., filed a lawsuit against Stocklemon.com and its operators, Andrew Left, Bill Harris, Alex Waynberg, and Alex Khachaturyan, alleging defamation, tortious interference with economic advantage, and violations of federal and state securities laws.  According to one press account, Danks maintained that Stocklemon posted defamatory statements about companies in order to manipulate their stock price for profit.  Danks appears to have been complaining about statements posted by website operators and anonymous users of the site, but the record is not entirely clear.  Barry K. Rothman, Danks's lawyer, said the following about the lawsuit soon after it was filed:

This litigation is intended to be a test case that will make it mandatory for principals of these self-professed consumer watchdog sites to disclose their identities, and the true identities of the fictitious names of the people who post. Most importantly this litigation is intended to be a test case that these websites have a financial motive in publishing the false and negative information they publish and they cannot hide behind Freedom of Speech and 1st Amendment Rights and we intend to have the court impose severe punitive damages against all defendants as a result of the outrageous defamation that has been published "for profit." (source)

Andrew left filed a special motion to strike the complaint based on California's anti-SLAPP law,  but the record is not clear on the result of that motion. Two appeals were taken during the course of the litigation, but their outcomes are similarly unclear. The trial- and appeals-level dockets for this case indicated that it is closed, but the CMLP has not been able to determine exactly what happened.

Jurisdiction: 

Priority: 

1-High

Content Type: 

Subject Area: 

Thalin v. Misbach

Date: 

06/15/2004

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Laura Thalin; Hope for Children

Party Receiving Legal Threat: 

Alan Misbach; Matt Misbach

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

District Court of Utah, 4th District

Legal Counsel: 

Evan Schmutz

Publication Medium: 

Website

Status: 

Pending

Description: 

In 2004, Laura Thalin and Hope for Children sued Alan Misbach and Matt Misbach for defamation in Utah state court over information posted on their website, KidsComeFirst. According to the Deseret News, the website site contained photos and links to news articles critical of "holding therapy," a controversial method for treating troubled children advocated by the now-defunct Cascade Center for Family Growth in Orem, Utah, which was affiliated with Hope for Children and Thalin, its former director.  The Misbach's also allegedly posted a picture of Thalin and information about her past.

Alan Misbach filed a counterclaim against Thalin, Hope for Change, and the Cascade Center, alleging that the lawsuit was a malicious attempt to chill his free speech rights.  It appears that the parties came close to settling in 2005.  According to one news report, Thalin offered to drop the lawsuit against the Misbachs if Alan would drop the counterclaim.  However, the suit did not settle at that time, and the Misbachs brought a motion to dismiss the complaint under Utah's anti-SLAPP statute. In March 2006, the court denied the motion to dismiss.

It is unclear what has happened since then.

Jurisdiction: 

Priority: 

1-High

Content Type: 

Subject Area: 

Vogel v. Felice

Date: 

09/01/2001

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Joseph Felice

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

San Benito County California Superior Court; Court Of Appeal of the State of California Sixth Appellate District

Case Number: 

CV0127424 (trial); H024448 (appeal)

Legal Counsel: 

Jesse F. Ruiz, Ann A. Nguyen

Publication Medium: 

Email
Forum
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In September 2001, John Vogel and Paul Grannis, who at the time were candidates for public office, sued Joseph Felice for libel, false light invasion of privacy, intentional and negligent infliction of emotional distress, and negligence. According to legal filings in the case, Felice operated several website on Geocities (www.geocities.com/bobvalenzuelasass and www.geocities.com/bobvalenzuelasass.isonfire.com) that allegedly contained defamatory statements about Vogel and Granis, including "a list entitled 'Top Ten Dumb Asses,'" in which Vogel and Grannis were "listed as the number 1 and number 2 dumb asses, respectively."

Vogel and Granis also alleged that the website “contained statements associating Plaintiffs with criminal conduct and fraud,” and specifically noted “the statement ‘J. J. Vogel’s Wanted as a Dead Beat Dad,’ which, when clicked upon, opened another web site dedicated to locating ‘deadbeat dads,’ ” and “the statement, ‘Paul Grannis—Bankrupt, Drunk & Chewin’ tobaccy’ which when clicked upon, opened a new web page associating Plaintiff Grannis with criminal, fraudulent, and immoral conduct.” Plaintiffs alleged that additional (but unspecified) defamatory statements appeared in “[n]umerous e-mails and bulletin messages . . . sent and received through said web site” as well as in “[o]ther web pages in said web site,” which “contained false and defamatory statements about Plaintiffs, including . . . patent associations with criminal and fraudulent conduct.”

Felice brought a special motion to strike the complaint under California’s anti-SLAPP statute, Cal. Civ. Proc. Sec. 425.16, which requires dismissal of any cause of action “arising from any act of [the defendant] in furtherance of [his or her] right of petition or free speech under the United States or California Constitution in connection with a public issue . . . unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

On April 9, 2002, the trial court denied the motion to strike.  Felice appealed the decision, and the Court of Appeal reversed, finding that Vogel and Granis had failed to establish a probability of success because they had failed to plead that Felice acted with “actual malice.”  Vogel v. Felice, 127 Cal. App. 4th 1006 (2005).  The court also concluded that being called a "dumb ass" was not defamatory because it was a statement of opinion and could not be proven true or false.

Jurisdiction: 

CMLP Notes: 

found via browsing

Content Type: 

Subject Area: 

MacDonald v. Paton

Date: 

09/14/1999

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Elsa L.M. Paton; Athol Daily News; Richard J. Chase, Jr.; and Barney Cummings.

Type of Party: 

Individual

Type of Party: 

Individual
Media Company

Court Type: 

State

Court Name: 

Superior Court Department, Worcester; Appeals Court of Massachusetts

Case Number: 

01-P-323 (appeal)

Legal Counsel: 

Robert A. Bertsche, David E. Plotkin (for Elsa L.M. Paton)

Publication Medium: 

Website

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Elsa Paton operated a website that reported on local affairs in Athol, Massachusetts and the surrounding community. The site functioned as an interactive public forum on issues relating to Athol town governance, including education funding and municipal use of tax dollars. It included information on education reform, a citizen letters section, cartoons, quotes, a link inviting public participation by email, and satirical articles.

On September 14, 1999, Mark MacDonald, a former Athol selectman, sued Paton and others for defamation and intentional infliction of emotional distress.  According to filings in the case, MacDonald claimed that a local newspaper published an article referring to him as a "Gestapo agent," and Paton published a "dictionary entry" for the term "Nazi" that referred to him:

nazi - not see 1. A political affiliation whose platform espouses military dictatorship, racial cleansing, eugenics and intolerance. 2. In Athol, a term sometimes used to describe certain selectmen who wish to ignore most issues except for those which place them firmly in bed with chiefs of police. (see Old Macdonald had a gun, E - I - E - I - Oh shit). 

Paton filed a special motion to dismiss the complaint under the Massachusetts anti-SLAPP law, M.G.L. c. 231, § 59H.  The Superior Court judge rejected Paton's argument, saying that the state's anti-SLAPP law did not apply to her statement.  Paton appealed.

A Massachusetts appeals court held that Paton's publication of the statement was "petitioning activity" within the meaning of the Massachusetts anti-SLAPP statute because "the Web site served as a technological version of a meeting of citizens on the Town Green, a space where concerned individuals could come together to share information, express political opinions, and rally on town issues of concern to the community."

Paton's website has since been shutdown.

Priority: 

1-High

Content Type: 

Threat Source: 

Public Citizen

Subject Area: 

Jurisdiction: 

Bidbay.com v. Bruce Spry Jr.

Date: 

04/02/2002

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Bruce Spry Jr.; Auctioncow; Mootropolis

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of California, County of Los Angeles; California Court of Appeal, 2nd Appellate District

Case Number: 

EC034110 (trial); B160126 (appeals)

Legal Counsel: 

Asher Levin (Levy McMahon & Levin); Michael Duberchin

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

Internet auction website Bidbay.com and its president and CEO, George Tannous, sued Bruce Spry Jr. and two of its competitors for libel, intentional interference with prospective business advantage, unfair business practices, invasion of privacy, and disparagement in California state court.  According to a court opinion in the case, Spry allegedly made statements under various psuedonyms in forums and chat rooms stating that Bidbay.com sold child pornography and that Tannous failed to file or pay income taxes. Separately, the complaint alleged that Bidbay's competitor Auctioncow and its affiliate Mootropolis had conspired to drive Bidbay out of business through a defamation campaign.

Spry denied that he made the offending comments and moved to dismiss the case under California's anti-SLAPP statute. The court denied the motion, ruling that because Spry denied having made the defamatory comments, he could not have been engaged in an act in furtherance of his right of free speech.

Spry appealed the lower court's ruling to the California Court of Appeals, arguing that he was not required to admit making the statements in question in order to bring an anti-SLAPP motion. The court of appeals affirmed the lower court's decision, albeit on different grounds.  It concluded that Bidbay.com had submitted sufficient evidence supporting its claim to overcome the motion to strike. The appeals court then remanded the case back to the trial court.

The CMLP has not been able to determine what happened after the case returned to the trial court. 

Jurisdiction: 

CMLP Notes: 

Very little of the filings are freely available, since the LA court charges for access. No docket information either, so it's unclear how the case came out (though it may be informative that bidbay.com and all its subsequent iterations seem to be defunct). It's also unclear where either party is from, though Cal. seems likely

Let's get our hands on the filing or find out what happened with this case [DA]

AAB editing

Content Type: 

Subject Area: 

Pages