SLAPP

Cape Cod Blogger Peter Robbins Sued For Libel Over Comments About Local Dredging Dispute

Peter Robbins, author of the Robbins Report, a blog that appears on the popular community website Cape Cod Today, and an anonymous commenter have been sued over statements they made criticizing a group of Barnstable, MA residents who opposed the dredging of Barnstable Harbor.  The case raises a host of interesting questions, including whether the statements at issue are protected

Jurisdiction: 

Subject Area: 

Dugas v. Robbins

Date: 

07/07/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Peter Robbins; John Doe

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Barnstable Superior Court, Massachusetts

Case Number: 

CA 2008-491

Legal Counsel: 

Peter Morin - Ford Law P.C.

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Material Removed

Description: 

Robbins wrote a blog post that criticized a group of abutters for their actions in delaying the implementation of a dredging project through their appeals and interventions in numerous fora. The lead abutter, Joe Dugas, and his lawyer, Paul Revere, sued Robbins for defamation, alleging that his criticism of them for delaying the dredging was false and defamatory.

Robbins has filed a special motion to dismiss under the MA anti-SLAPP law. The special motion is scheduled for hearing on September 16, 2008.

(Portion above submitted by blogger's counsel Peter Morin.)

Added by CMLP Staff: 

The dispute arose over a March 11 post by Robbins entitled Barnstable Harbor: Filling in and falling in, in which he criticized a number of individuals, including Joseph Dugas and his lawyer Paul Revere III, who had challenged orders issued by the Town of Barnstable Conservation Commission and Massachusetts Department of Environmental Protection that authorized dredging in Barnstable Harbor. 

Robbins' original post -- which has since been edited  -- lamented the poor condition of Barnstable Harbor and its bulkhead, asserting that much of the blame for the town's failure to fix the problems was due to legal challenges filed by local residents. Robbins wrote:

In my opinion this, NIMBY, frivolous, malicious action is doing nothing but stalling the inevitable and costing us the taxpayers unnecessary time and money. . . . So when you run aground this summer, or bend that prop trying to get in or out of Barnstable Harbor at low tide, these are the people who are costing you . . . ." 

Robbins went on to name the people he claimed had challenged and thereby delayed the dredging, including Dugas and his lawyer, who Robbins described as "Paul (the dredge isn't coming) Revere III."

On July 7, 2008, Dugas and Revere filed a defamation lawsuit against Robbins and "John Doe," an anonymous commenter on the site who posted under the pseudonym "Noggin."  Plaintiffs' complaint alleges that the following statements by Robbins were false and defamatory:

  • A reference to Dugas as “the infamous sh*t stirring Joe Dugas."
  • A description of Revere as “Paul ‘the dredge isn’t coming’ Revere.”
  • The assertion that the "actions of Dugas and others represented by Revere with regard to the 'litigation' were malicious and not brought in good faith."
  • The claim that the reason the harbor wasn’t being dredged was because of the plaintiffs’ legal challenges.

Dugas and Revere also alleged in their complaint that a pseudonymous user named "Noggin" posted the following defamatory comments on Robbins' blog:

  • "In the Town of Barnstable, 'if you don't genuflect and pay off Joe Dugas, you may as well forget whatever you want to do."
  • "There are plenty of shysters like Revere to climb aboard . . ."

Update:

9/8/2008 - Robbins filed an emergency motion for leave to file supplemental affidavits, addressing, among other things, his personal interest in the navigability of the harbor.

9/16/2008 - The court held a hearing.  The judge allowed both parties to take depositions of the other side prior to the upcoming hearing on Robbins's special motion to dismiss on November 13th.  According to Peter Morin, the anti-SLAPP argument will come down to the question: "Does an individual blogger's commentary on a matter of personal interest qualify as petitioning activity when the blogger is also a paid correspondent of the website-host?"

11/6/2008 - According to Defendant's counsel, the court has ordered that depositions of both plaintiffs and the defendant will take place prior to a hearing on the special motion to dismiss scheduled for November 13th.

11/7/08 -  Citizen Media Law Project, Globe Newspaper Company, Media Bloggers Association, New England Press Association, and Online News Association filed a motion for leave to file an amici curiae brief in suppport of application of the Masschusetts anti-SLAPP law.

11/13/08 - Court heard oral argument on Defendant's special motion to dismiss; court denied motion for leave to file amici curiae brief.

11/17/08 - Court denied defendant's special motion to dismiss.

1/5/11 - Robbins moved that the Court reconsider its special motion to dismiss due to newly discovered evidence and changes of law.

Jurisdiction: 

CMLP Notes: 

checked 6/18/09; no new info - CMF

2/8/11 - updated with new filings provided by defense atty.  Morin adds that he "will be filing a
Motion to Enforce Settlement Agreement in the next few weeks after the
plaintiffs offered to dismiss their case with prejudice then reneged
unless we gave them confidentiality, which is not going to happen."  (AAB)

Content Type: 

Threat Source: 

User Submission Form

Subject Area: 

Vanginderen v. Cornell

Date: 

10/29/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Cornell University; Bert Deixler

Type of Party: 

Individual

Type of Party: 

Individual
School

Court Type: 

Federal
State

Court Name: 

San Diego Superior Court; United States District Court of the Southern District of California

Case Number: 

37-2007-00076496 (state); 3:07-cv-02045 (federal 1); 3:08-cv-00736 (federal 2)

Legal Counsel: 

Nelson E. Roth, Bert H. Deixler, Charles S. Sims, Clifford Scott Davidson (Proskauer Rose LLP)

Publication Medium: 

Print
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

Kevin Vanginderen, a Cornell graduate, sued Cornell University seeking $1 million in damages for libel and publication of private facts after Cornell made available online an 1983 issue of the Cornell Chronicle newspaper that reported that Vanginderen had been charged for third degree burglary in connection with incidents on the Cornell campus.

Vanginderen sued in California state court, but Cornell removed the case to the U.S. District Court for the Southern District of California. Cornell then moved to strike Vanginderen's complaint under California's anti-SLAPP statute, arguing that Cornell's posting of the 24-year-old article was an act of protected free speech, and Vanginderen could not show a likelihood of success on his defamation claim because the article was true and based on information from publicly available court records.  Further, Cornell argued that Vanginderen could not prove his pubication of private facts claim because the article was a matter of legitimate public concern.  

The court agreed with Cornell's arguments and granted its motion.  The court ruled that because the records of the underlying case were publicly available and the article dealt with a matter of legitimate public concern, Cornell was entitled to make the anti-SLAPP motion. It further held that Vanginderen could not succeed on the merits of his defamation and publication of private facts claims because the story was substantially true and newsworthy. The court did not reach Cornell's argument that the statute of limitations barred Vanginderen's lawsuit, an argument which raised the interesting question of whether digitizing the original print article and publishing it online re-published the article for purposes of the statute of limitations.

Vanginderen has appealed the ruling. Cornell filed a motion for an award of attorney's fees in July 2008, which is currently pending.

While Cornell's motion to strike was pending, Vanginderen filed a second lawsuit against Cornell in California state court, also naming Cornell's lawyer Bert Deixler as a defendant. In the second lawsuit, Vanginderen alleges that Cornell and Deixler defamed him and portrayed him in a false light by filing records of Cornell's original campus police investigation as exhibits to its motion to strike in the first case. Cornell removed the second lawsuit to federal court (docket no. 3:08-cv-00736), where the same judge is handling the case. Cornell and Deixler filed motions to strike the complaint in the second lawsuit under California's anti-SLAPP statute in June 2008.

Jurisdiction: 

Content Type: 

Subject Area: 

ViroLogic v. Does

Date: 

04/23/2002

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Does 1 - 10

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

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

Case Number: 

407068 (trial); A102811 and A101571 (appeals)

Legal Counsel: 

Joshua Kathriel Koltun (Steinbart & Falconer)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)
Subpoena Enforced

Description: 

ViroLogic, a biotechnology company, sued ten anonymous users of the Yahoo! Finance forum dedicated to it, after they allegedly posted internal ViroLogic information and made statements critical of the company and its officers. The original complaint included claims for defamation, trade libel, misappropriation of trade secrets, unfair competition, and intentional interference with prospective economic advantage. ViroLogic subsequently amended its complaint, limiting its claims to misappropriation of trade secrets and unfair competition. 

ViroLogic subpoenaed Yahoo! to uncover the identity of the Doe defendants. Yahoo! notified the Does of the subpoena, and one of them (Doe 1) filed a motion to quash.  Doe 1 also filed a motion to strike the complaint under California's anti-SLAPP statute, arguing that the lawsuit was an attempt to stifle his right to free speech. 

Meanwhile, ViroLogic moved for permission to take limited discovery regarding Doe 1.  The court granted the company permission to take his deposition, with the proviso that ViroLogic's attorneys could not reveal Doe 1's identity to ViroLogic employees. In the deposition, ViroLogic's lawyers discovered that Doe 1 had previously been a consultant for the company, and that he was closely related to a current company employee. The lawyers asked the court for permission to reveal this information, including Doe 1's identity, to ViroLogic, so that it could make a case in opposition to Doe 1's anti-SLAPP motion to strike.

In a subsequent hearing, the court granted Doe 1's motion to strike under the anti-SLAPP statute and denied ViroLogic's motion to permit its lawyers to disclose Doe 1's identity to it. The court ruled that the Doe 1's posts were an exercise of his protected right to free speech, and that ViroLogic had failed to show a sufficient likelihood of success should the case proceed.  The court dismissed the case and awarded attorneys' fees to Doe 1. It denied Doe 1's motion to quash the Yahoo! subpoena because dismissing the case mooted the issue.

ViroLogic appealed the decision and argued that the lower court had violated its due process rights by granting the anti-SLAPP motion to strike without permitting it to fully prepare a defense to that motion through access to Doe 1's identity. The California appeals court held that ruling on the anti-SLAPP motion to strike without giving ViroLogic access to Doe 1's identity deprived the company of a meaningful opportunity to oppose the motion. It recognized that Doe 1 has a right to anonymous speech, but reasoned that this right had to be balanced against ViroLogic's due process rights. See ViroLogic, Inc. v. Doe, 2004 WL 1941335, at *1, 5-7 (Cal. Ct. App. Sept. 1, 2004).

The appeals court set out a standard for lower courts to consider when deciding whether a plaintiff has shown "good cause" to discover a defendant's identity after an anti-SLAPP motion has been filed. Under this standard, the plaintiff seeking discovery must show: (1) the plaintiff's claims describe actionable conduct by the defendant; and (2) discovery of the defendant's identity is necessary for the plaintiff to present evidence in opposition to the special motion to strike. The court also indicated that, given the early stage when anti-SLAPP motions are usually litigated, it is not appropriate to impose upon the plaintiff a burden of supporting its claims with evidence.  See ViroLogic, Inc., 2004 WL 1941335, at *6. Applying this standard to the facts of the case, the appeals court determined that ViroLogic had shown "good cause" to uncover Doe 1's identity. It therefore reversed the lower court's grant of the anti-SLAPP motion to strike and its award of attorneys' fees to Doe 1, and directed the trial court to enter an order permitting disclosure of Doe 1's identity to ViroLogic.

UPDATE:

On 3/15/2005, the trial court permitted the disclosure of the identity of Doe. A series of case management conferences followed this disclosure. These conferences appear to have produced a settlement.

On 11/28/2005, ViroLogic filed a notice of settlement and dismissed the complaint with prejudice.

Jurisdiction: 

CMLP Notes: 

6/15/09 AVM- documents are on court's website (search virologic)

changed from pending to concluded with settlement

Priority: 

1-High

Content Type: 

Threat Source: 

CyberSLAPP.org

Subject Area: 

Hollis-Eden Pharmaceuticals v. Does

Date: 

12/12/2000

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Angelawatch; Ben_casale; Dickie13_62301; Dogmad2002; Gpalcus (M/Cell Block 5); Hephdiver; Heph_long; Jarhed2046; Lebeausoleil,; Nottescurra; Onxbray; Does 1-50

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California, San Diego County; California Court of Appeals for the Fourth Appellate District

Case Number: 

GIC 759462 (trial), D037907 (appeal)

Legal Counsel: 

Paul Alan Levy (Public Citizen Litigation Group); Charles A. Bird, Gregory D. Roper (Luce, Forward, Hamilton & Scripps)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Subpoena Quashed

Description: 

Hollis-Eden Pharmaceuticals ("HEPH") sued several anonymous users of a Yahoo! forum in California state court for defamation, trade libel, and tortious interference after the posters criticized the company and its management on the Yahoo! Message Board devoted to the company.

According to filings in the case, HEPH identified several statements it claims were defamatory, including the following post by Gpalcus:

Nay Say Not?
by: gpalcus (M/Cell Block 5) 11/3/00 10:40 am
Msg: 15762 of 16806

This company has plainly and simply misserved its investors. Whatever secret wizardry the man/men/monkeys behind the curtain are doing, the value of our investment has not been attended with the same (if only purported) vigor. I don't know a god-damned thing that this company has perfected solidly except a creeping but constant value seep. Is it simply millennial blue smoke and mirrors; propped up by thrice rejected science.... OR rather, is it revolutionary science hindered by an extremely poorly constructed public face and the business acumen of infected macaques.... Either way, investors dollars have been poorly served - by veiled fraud or by incompetance. Certainly, with 'the goods' - even at a preliminary stage - a worthwhile business model should be able to at least find a price support level... IT SHOULD BE ONE OF THE COMPANY's PRIORITIES!

"Enough hyperbole! Enough whispered promise! Enough waiting for firmamnet".... that's what the market has been saying. ENOUGH DISDAIN FOR YOUR INVESTORS - that's my personal rant....

Compl. ¶¶ 12k, 16.  As to a statement by Dickie13, the complaint quotes him or her as stating: "Once again, in my opinion, the Public Relations Department of Hollis-Eden couldn't promote Mickey Mouse into Disneyland." Compl. ¶ 12d.

HEPH also subpoenaed Yahoo! to reveal the identities of the anonymous posters. Upon being notified of the subpoena by Yahoo!, defendants Gpalcus and Dickie13 filed a motion to strike HEPH's claims under California's anti-SLAPP law and to quash the subpoena it had issued to Yahoo!. 

On March 20, 2001, the court granted the motion, finding that HEPH failed to show a sufficient likelihood of success on its claim because the defendants' statements were merely statements of opinion and could not be deemed defamatory.  HEPH appealed the decision to the California Court of Appeals, but later withdrew its appeal before the court issued a decision.

Jurisdiction: 

Priority: 

1-High

Content Type: 

Threat Source: 

Public Citizen

Subject Area: 

Illinois Appellate Court Raises Doubts About Constitutionality of Citizen Participation Act

An Illinois appellate court has tentatively concluded that Illinois' newly enacted Citizen Participation Act, which provides immunity for speech related to certain matters of government and public concern, violates the Illinois Constitution because it allows a party to appeal the denial of a motion to dismiss under the Act before the entire case has come to a conclusion. 

Jurisdiction: 

Subject Area: 

Mayor Sottile v. Richters

Date: 

05/15/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Clark Richters

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

New York Supreme Court, Ulster County

Case Number: 

002304/2008

Legal Counsel: 

Stephen Bergstein (Bergstein & Ullrich)

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Material Removed
Retraction Issued
Settled (total)

Description: 

James Sottile, the mayor of Kingston, New York, sued Clark Richters, an unemployed maintenance man and cable public access producer, for defamation after Richters posted an entry to his blog, Ulster County Politics, that incorrectly stated that Sottile would be indicted for bid-rigging. Sottile filed his claim in New York state court, asking for $100,000 in damages.

Richters took down the post (and his entire blog) and apologized to Sottile.  According to the Daily Freeman, Richters has moved to dismiss Sottile's claims under New York's anti-SLAPP laws.

Update

7/8/09 - Richters published a retraction and apology (updated page available here), apparently as part of a settlement.

Jurisdiction: 

Priority: 

1-High

Content Type: 

Subject Area: 

Perry v. Topping

Threat Type: 

Lawsuit

Date: 

08/07/2006

Party Receiving Legal Threat: 

Tom Topping, dba Boulevard Sentinel, Topping Publishing, and Boulevard Sentinel.com

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Los Angeles County Superior Court; California Court of Appeals for the Second Appellate District

Case Number: 

BC356548 (trial); B197522 (appeals); S161156 (Supreme)

Legal Counsel: 

Camilo Echavarria (Davis Wright Tremaine) (trial level); Pro se (on appeal)

Publication Medium: 

Print
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Los Angeles citizen James Perry sued Tom Topping for libel and invasion of privacy after Topping published an article stating that the Los Angeles City Attorney had determined that Perry had violated various conflict of interest laws while serving as a member of the Eagle Rock Neighborhood Council. Topping publishes the Boulevard Sentinel newsletter and website.

Soon after filing his complaint in California state court, Perry moved to withdraw his claims because he was too ill to litigate his own case.  A few days later, Topping moved to strike Perry's claims under California's anti-SLAPP laws.  The court granted Perry's motion to withdraw his claims, rendering Topping's motion moot. 

Topping then moved for an award of attorney's fees, claiming that he was entitled to them as a prevailing party under the anti-SLAPP statute.  The court denied Topping's motion, ruling that because Perry voluntarily withdrew the suit before Topping's motion to strike, Topping did not prevail as required by the statute. 

Topping appealed, but the California Court of Appeals affirmed the lower court's ruling.  Topping then appealed to the California Supreme Court, but the Court declined to consider the case.

 

Jurisdiction: 

Priority: 

1-High

Content Type: 

CMLP Notes: 

Available on Westlaw, 2008 WL 204219.

Subject Area: 

California Developer Sues Homeowners for Libel Over Disparaging Blog Comments

Los Angeles real estate developer Barry Shy and his development company, 5th St Loft, have sued Jessica Jordan and Alan Dylan, who reside in a building developed by Shy and run the website Truedowntown, the "unofficial" site for the Shybary Grand Loft in Los Angeles.  The lawsuit, which plaintiffs filed on June 17, 2008, claims that Jordan and Dylan libeled Shy and damaged his businesses by making disparaging comments about him.

Jurisdiction: 

Subject Area: 

Shy v. Dylan

Date: 

06/17/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Alan Dylan; Jessica Jordan; Does 1-100

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California, County of Los Angeles

Case Number: 

BC392796

Legal Counsel: 

Jamey Leonard (First Amendment Project)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

On June 17, 2008, Barry Shy, a Los Angeles real estate developer, and his development company, 5th St Loft, sued Jessica Jordan and Alan Dylan, who reside in a building developed by Shy and allegedly run the website Truedowntown, the "unofficial" site for the Shybary Grand Loft in Los Angeles.  The lawsuit claims that Jordan and Dylan libeled Shy and damaged his businesses by making disparaging comments about him.

Jordan and Dylan are both owners of units in the SB Grand, a prominent development in downtown Los Angeles.  Jordan also runs the website  Truedowntown, which she created to "inspire positive change at the Shybary Grand by identifying issues that need to be dealt with by the board and management company, especially if those issues have ignored California Law." (The suit claims that Dylan also is connected with the website, but Jordan has stated that is incorrect).

According to plaintiffs' complaint, Jordan and Dylan made the following disparaging statements about Shy:

a) Barry Shy is a criminal
b) Barry Shy is a "slum lord"
c) Barry Shy is "dishonest" and only cares about "making a profit"
d) "Do Not Buy or Rent from Barry Shy you will regret it"
e) Barry Shy has broken Federal Laws
f) Barry Shy is a horrible business man with no principals

Although the complaint does not identify where the statements appeared, Blogdowntown, a site that describes itself as a "central point for news and discussion of Downtown Los Angeles," noted that all of the statements were drawn from comments on that site's March of 2006 story about Shy's purchase of buildings in Los Angeles' historic core.  Some of these statements were posted psuedonymously, which likely explains why Shy also named "Does 1-100" as defendants in the suit.

Update:

A case management conference has been schedule for 11/04/2008 at 08:45 am in department 28 at 111 North Hill Street, Los Angeles, CA 90012. 

Jurisdiction: 

CMLP Notes: 

via RCFP RSS feed

Content Type: 

Threat Source: 

RSS

Subject Area: 

Bosley Medical Institute v. Kremer

Date: 

11/28/2000

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Michael Steven Kremer

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court for the Northern District of Illinois; U.S. District Court for the Southern District of California; U.S. Court of Appeals for the Ninth Circuit

Case Number: 

1:01-cv-04388 (Ill. trial); 3:01-cv-01752 (Cal. trial); 04-55962 (appeals); 04-57059 (2nd appeals)

Legal Counsel: 

Paul Alan Levy (Public Citizen Litigation Group); Charles A Bird (Luce Forward Hamilton and Scripps)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Settled (total)

Description: 

Bosley Medical Institute, a hair restoration company, sued Michael Kremer for federal trademark infringement, trademark dilution, unfair competition, and cybersquatting after Kremer created anti-Bosley "gripe sites" at bosleymedical.com and bosleymedicalviolations.com. Bosley also included state law claims for libel, trademark infringement, and unfair competition. According to Bosley's amended complaint, Kremer planned to "solicit money from Bosley in exchange for the domain name and Kremer agreeing not to publish the website."

After Bosley filed its complaint in federal court in Illinois, Kremer made a motion to transfer the case to California federal court, which the court granted. In California, Kremer argued that Bosley had not stated with sufficient specificity which statements he made were defamatory, and he moved to dismiss for failure to state a claim and for a protective order to prevent discovery until Bosley stated its claims more specifically. The court granted Kremer's motion for a protective order. Bosley and Kremer settled the libel claim.

Kremer then moved to dismiss the other claims for failure to state a claim, to strike the complaint under California's anti-SLAPP statute, and for partial summary judgment. Bosley moved for summary judgment on its claims of trademark infringement and trademark dilution.

The district court denied both of Bosley's motions, and granted all of Kremer's motions. It ruled that Bosley had failed to show that Kremer had made commercial use of its trademarks because Kremer's websites contained no paid advertising, sold no goods or services, and included disclaimers saying that they were "non-profit" and "for consumer information purposes only." The court concluded that the websites' "sole purpose [was] to provide critical content of Bosley and its services, and to inform the public about the varous government inquiries into Bosley's business practices."

Nor did Bosley show, the court wrote, that Kremer's website would cause confusion between Bosley's and Kremer's goods and services, as Kremer offered none. The court also granted summary judgment to Kremer on the claims of cybersquatting. Finally, the court found that Bosley's claims did impair Kremer's exercise of his right to free speech, and as a result, it granted Kremer's motion to strike under the state anti-SLAPP law, thereby making Kremer eligible to receive attorneys' fees.

Bosley appealed the ruling. The court of appeals affirmed the lower court's decision on the trademark claims, but reversed the lower court's decision on cybersquatting, writing that it was necessary for discovery to be completed before summary judgment for Kremer would be appropriate. The court of appeals also overturned the lower court's anti-SLAPP ruling, finding that Bosley's trademark claims did not show the bad faith necessary to merit striking under the anti-SLAPP statute.

Upon remand, Kremer moved to dismiss Bosley's state claims and for summary judgment. Kremer also filed an answer to Bosley's complaint. The court denied both of Kremer's motions. After the court ordered the parties to begin discovery proceedings, the parties settled, and the court dismissed the case.

Jurisdiction: 

CMLP Notes: 

Available on Westlaw at 403 F.3d 672. There is some kind of crazy history of transferring the case between districts or somesuch. {MCS}

Priority: 

1-High

Content Type: 

Subject Area: 

Novak v. Active Window Productions

Date: 

05/30/2001

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Active Window Productions, Inc.; Mark Rosenstein; Cynthia S. Powers; Dan Resler; Jared Weinberger; Sean Carney; Thomas Barr; John Doe; Mary Roe; Robert Hudson

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of New York

Case Number: 

2:01-cv-03566

Verdict or Settlement Amount: 

$4,150.00

Legal Counsel: 

Robert L. Folks, Cynthia A. Kouril (Robert L. Folks & Associates, LLP) (for Active Window Productions and Mark Rosenstein); Hilary B. Miller (for Dan Resler); Pro se (for Cynthia S. Powers)

Publication Medium: 

Email

Relevant Documents: 

Status: 

Pending

Disposition: 

Material Removed
Settled (partial)

Description: 

Pet shop owner Robert Novak, operator of Petswarehouse.com, sued Active Window Productions ("AWP"), host of the Aquatic Plants Digest ("APD"), a forum and email list for aquatic plant gardeners and hobbyists, and several individuals who criticized Pets Warehouse.  Novak added further claims against the individuals after they organized to protest Novak's lawsuit.  Novak sued in New York federal court on claims of cybersquatting, defamation, trademark dilution and infringement, trade libel, tortious interference with business, false light, unfair competition, and intentional infliction of emotional distress.

According to court documents, Dan Resler, a computer scientist, posted a message in May 2001 that warned: "Thinking of buying plants from Pet Warehouse? Don't." He went on to detail his gripes about the company's customer service, based on what he said was a delayed shipment of plants he'd ordered.  Resler later followed up with this post amending his previous warning: "to clarify: Pet Warehouse OK, Pets Warehouse NOT." 

Other members of the list soon added their own complaints, including the following alleged statements recounted in the plaintiff's complaint:

  • [a]s a source for purchasing plants, they do not have a good reputation (Defendant Jared Weinberger - May 21, 2001)
  • But you don’t have to take my word as the last word on their horrible service. Feeling lucky? Go ahead - try them out yourselves. After all, it’s only your time and money, right? (Defendant Dan Resler - May 18, 2001)
  • They claim to fill 90% of the orders. Well I can tell everyone it’s more like 20%. Or less. If at all. (Defendant Thomas Barr - May 17, 2001)
  • Given the continual flow of negative comments about PetSwarehouse that I’ve read for nearly two years on this list, I’ve decided to add a warning (and figure this is better than simply removing them. (Defendant Weinberger - May 18, 2001)
  • Remember petSWEARhouse, buy their plants and you’ll be swearing! (May 22, 2001)
  • I believe they call that deceptive advertising. Or bait-and-switch. Take your pick. (Defendant Sean Carney - May 16, 2001)

After seeing the criticism, Novak filed suit against the posters for libel and defamation seeking damages of $1 million, and for intentional infliction of emotional distress seeking damages of $15 million.

The defendants began to organize against the lawsuit via online forums and the APD list, and sought donations to their legal defense fund.  In organizing and promoting their legal defense, the defendants referenced Pets Warehouse.  In response, Novak brought additional claims against the defendants, including trademark violations and business torts. 

As a result, several defendants settled with Novak in December 2001 and agreed to remove any posts or messages "concerning or referring to" Novak. According to the "stipulation of settlement" posted on the defendants' information site, Dan Resler also agreed to pay $4,150.

In 2007, Novak amended his complaint against AWP, AWP's editor Mark Rosenstein, and AWP poster Robert Hudson. AWP and  Mark Rosenstein answered, denying Novak's claims and invoking section 230 of the Communications Decency Act as granting them immunity from any defamation or infringement stemming from APD posters' comments. They also brought counterclaims against Novak for violations of New York Civil Rights Law.

Update:

8/7/2008 - Court ordered that a status conference will be held in Courtroom 820 of the Federal Courthouse in Central Islip on September 5, 2008 at 11:30 a.m 

9/19/2008 - Status conference held. Court ordered a pretrial conference for May 29, 2009.

Jurisdiction: 

Priority: 

1-High

Content Type: 

CMLP Notes: 

PACER doesn't have most of the documents from the case's first few years. Probably worth digging them up somehow. {MCS}

Subject Area: 

Tendler v. Does

Date: 

05/24/2006

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

John Does

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

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

Case Number: 

1-06-CV-064307 (superior court), H031130 (appeals)

Legal Counsel: 

Cindy Cohn, Corynne McSherry (EFF); Paul Alan Levy (Public Citizen Litigation Group)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Rabbi Mordechai Tendler requested subpoenas in Ohio state court to force Google to uncover the identities of the writers of four blogs -  Jewish Whistleblower, Jewish Survivors of Sexual Violence Speak Out, New Hempstead News, and The Committee for Rabbinic Integrity.  According to court documents, these blogs wrote about Tendler's defrocking due to allegations of sexual abuse. The Ohio court granted Tendler's request, but Google ignored the subpoenas.

Tendler filed his subpoena request again, this time in California state court.  Upon receipt of the California subpoenas, Google notified the four bloggers.  The writers of Jewish Whistleblower, Jewish Survivors of Sexual Violence Speak Out, and New Hempstead News moved to quash the subpoena and to strike under California's anti-SLAPP law, Cal. Civ. Proc. Code § 425.16. Tendler voluntarily withdrew his subpoena request in response.

The bloggers proceeded on their motion to strike under section 425.16, which the Santa Clara Superior Court granted.  The court also awarded the bloggers $20,330 in attorney's fees under section 425.16 (c).  Tendler appealed the court's granting of the motion to strike.

The California Court of Appeals reversed the lower court's ruling.  The court ruled that, on a plain reading of section 425.16, the anti-SLAPP motion could only be used to strike a complaint, cross-complaint, petition, or other similar pleading.  A subpoena, the court said, does not fall into this category, and therefore the anti-SLAPP motion is unavailable to strike a subpoena. As a result, the court concluded that the lower court should have denied the bloggers' motion to strike and should not have awarded them attorney's fees.

Jurisdiction: 

Priority: 

1-High

Content Type: 

Subject Area: 

Anti-SLAPP Law in Virginia

Note: This page covers information specific to Virginia. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

The CMLP has not identified any relevant statues or cases concerning Strategic Lawsuits Against Public Participation (SLAPPs) in Virginia. If you know about an anti-SLAPP law in Virginia, please contact us.

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