Trade Libel

Art of Living Foundation v. Does 1-10

Date: 

11/05/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John or Jane Doe ("Skywalker"), John or Jane Doe ("Klim")

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court, N.D. California, San Jose Division

Case Number: 

10–CV–05022–LHK

Legal Counsel: 

Joshua Koltun

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)
Settled (partial)

Description: 

Substantive Proceedings

The Art of Living Foundation is an international nonprofit organization that, according to its website, is "engaged in stress-management and service initiatives." Two former followers, Skywalker and Klim, published anonymous blogs (entitled "Leaving the Art of Living" and "Beyond the Art of Living") criticizing the Art of Living's practices and their leader, Sri Sri Ravi Shankar. In addition to their critiques, they also provide excerpts from the Art of Living's teaching manuals and other materials (normally provided to members in courses for a fee).

On August 14, 2010, Skywalker and Klim received a demand from Art of Living (from its headquarters in India) to take down this material. The branch of Art of Living in the United States (based in California) also filed a complaint on November 5, 2010, in the U.S. District Court for the Northern District of California. Art of Living alleged copyright infringement under federal law for the blogs' publication of portions of the "Breath Water Sound Manual." In addition, Art of Living alleged misappropriation of trade secrets, defamation, and trade libel under California law, based on the aforementioned publication and the Does' critical statements about the organization.

On January 31, 2011, the Does filed a motion to dismiss the defamation and trade libel claims for failure to state a claim. They also filed a special motion to strike the defamation, trade libel, and trade secrets claims under California's anti-SLAPP statute. Art of Living filed both an opposition to the motion to dismiss and an opposition to the motion to strike on March 17, 2011, to which the Does replied (reply re: motion to dismiss; reply re: motion to strike) on April 6, 2011. After a hearing in May, on June 15, 2011, U.S. District Judge Koh dismissed the defamation and trade libel claims and denied (without prejudice) the motion to strike. Judge Koh found that the statements at issue were opinions rather than assertions of fact, resolving the defamation claim, and that Art of Living did not sufficiently allege harm or damages for the trade libel claim. Judge Koh also held that discovery on the trade secrets claim could not proceed until Art of Living identified the trade secrets with reasonable particularity.

On July 14, 2011, Art of Living proceeded to amend their complaint in accordance with the June 15th order, removing the dismissed claims from their complaint. Art of Living also provided further detail and content identification in regards to the remaining copyright infringement and trade secrets claims. The Does answered the amended complaint on July 28, 2011.

The Does then filed a second special motion to strike on September 12, 2011 (with the redacted version entering the docket on January 9, 2012), this time directed at the remaining trade secret claim. This motion was opposed by Art of Living on September 29, 2011. Additionally, on September 27, 2011, the Does filed a motion for summary judgment on the copyright infringement claims. Art of Living filed an opposition to this motion on October 11, 2011, which the Does replied to on October 24, 2011. 

In an order on May 1, 2012, Judge Koh granted summary judgment on the copyright infringement claim. Judge Koh found that Klim was entitled to summary judgment based on noninfringement, and that Art of Living did not provide enough support for its claim of authorship of the manual to pursue a copyright infringement claim against Skywalker because the copyright registration certificate was obtained after the litigation began). The district court also granted Klim's motion to strike the trade secrets misappropriation claim while denying the motion to strike in regards to Skywalker. While Skywalker conceded that there was at least some overlap between his blog postings and the materials Art of Living designated as trade secrets, Art of Living presented no evidence that Klim misappropriated any of these materials.

Anonymity in Art of Living v. Does

Throughout the proceedings described above, there was an ongoing issue with respect to the defendants' ability to proceed anonymously.

On November 9, 2010, Art of Living filed a motion for leave to take expedited discovery. Pursuant to an ex parte order by Magistrate Judge Beeler, on December 20, 2010, Art of Living subpoenaed Google and Wordpress to reveal the identities of bloggers Skywalker and Klim. Not long after being notified of this by Google, the Does filed a motion to quash the subpoena. In response, Art of Living filed an opposition on March 22, 2011, and the Does replied on April 28, 2011. On August 10, 2011, Magistrate Judge Lloyd denied the motion to quash in regards to Skywalker's claim while granting it for Klim, finding that the copyright claim was a sufficient basis for permitting identification of Skywalker.

In response, on August 24, 2011, Skywalker filed a motion for relief from the order of the Magistrate Judge regarding the motion to quash. On August 31, 2011, Public Citizen, joined by the Electronic Frontier Foundation and the ACLU, submitted an amicus brief. This brief urged the court to apply the balancing test adopted in Dendrite Int'l v. Does, despite the copyright claim being considered in the case. Art of Living's opposition to the motion for relief was filed on September 16, 2011, and Skywalker replied on September 30, 2011.

On November 9, 2011, Judge Koh granted the motion, finding that Skywalker's First Amendment right to anonymous speech outweighed Art of Living's need for discovery at this time. Judge Koh applied the Highfields Capital two-part test (which relied heavily on Dendrite) for determining whether to allow discovery seeking the identity of an anonymous defendant: "(1) The plaintiff must produce competent evidence supporting a finding of each fact that is essential to a given cause of action; and (2) if the plaintiff makes a sufficient evidentiary showing, the court must compare the magnitude of the harms that would be caused to the competing interests by a ruling in favor of the plaintiff and by a ruling in favor of the defendant."

In a case management conference and corresponding minute order on May 9, 2012, Judge Koh again denied all of Art of Living's motions to disclose Skywalker's identity. By also refusing to extend discovery a setting the trial date and length, these rulings potentially allowed Skywalker to defend at trial anonymously.

Related Case and Settlement

On June 8, 2012, Judge Koh granted Art of Living's motion to relate Art of Living Foundation v. Eng-An Chou (Docket no. 5:12-CV-02748-LHK) to this case. Chou involves Art of Living's claim that Eng-An Chou breached her contracts with Art of Living by disclosing some of the organization's confidential texts to Skywalker for posting on his blog.

The next week, the cases were referred to Judge Joseph C. Spero for a Magistrate Judge Settlement Conference. The conference was held on June 12, 2012 and a settlement was reportedly reached. As part of the settlement agreement, Skywalker and Klim published a joint statement informing readers of the settlement and would proceed to freeze their blogs on June 19, 2012. The joint statement noted that there are no restrictions on the Does to create new blogs, and that no identity had or would be disclosed in relation to this litigation and settlement. Art of Living also agreed to drop the lawsuit with prejudice (also dropping the separate suit against Chou) and to pay Skywalker and Klim's attorney's fees.

Content Type: 

Subject Area: 

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: 

Newport Television, LLC v. Free Press

Threat Type: 

Correspondence

Date: 

07/01/2011

Party Receiving Legal Threat: 

Free Press

Type of Party: 

Media Company

Type of Party: 

Organization

Legal Counsel: 

Corie Wright (Policy Counsel for Free Press)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Non-profit media reform organization Free Press recently created a brief video related to its "Change the Channels" campaign, a campaign to resist what it calls the "covert consolidation" of media companies. The video included a critique of Jacksonville, Florida stations WAWS-TV (a Fox affiliate) and WTEV-TV (a CBS affiliate), who share a common website. The video was posted on YouTube.

Newport Television, LLC, a television station holding company that is the owner of WAWS-TV and the operator of WTEV-TV, sent Free Press a cease-and-desist letter on July 1, 2011, demanding that Free Press remove all WAWS and WTEV content from the video, including the stations' logos. Newport alleges that Free Press's use of the  logos constitutes copyright infringement. The letter also suggests that use of the stations' logos was false and misleading. Newport further requested that YouTube remove the Free Press video under the notice-and-takedown procedures of the Digital Millennium Copyright Act. YouTube complied with this takedown request on July 7.

On July 8 Free Press responded to Newport's letter, rejecting Newport's copyright claim and its suggestion that any of the material in the video was false or misleading. Free Press further asserted that the DMCA takedown filed by Newport was without merit, constituting tortious interference with contract and a unlawful misrepresentation under the DMCA. Free Press also asserts that they have filed a DMCA counter-notice with YouTube, demanding that the video be reinstated.

The issue is still pending.

Content Type: 

Jurisdiction: 

Subject Area: 

Colocation America v. Garga-Richardson (2nd Letter)

Date: 

08/16/2010

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Archie Garga-Richardson

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Legal Counsel: 

Pro Se

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

On August 16, 2010, counsel for Colocation America and Mr. Albert Ahdoot sent a cease-and-desist letter to Archie Garga-Richardson, the founder and operator of ScamFraudAlert.com. ScamFraudAlert.com is a forum site that focuses on alleged Internet scams, security threats, and fraudulent practices.  The letter accused Garga-Richardson of trade libel and tortious interference with contractual relations, and demanded that he sign a statement (which was attached to the letter) retracting his comments.  The letter warned that if he did not sign the statement of retraction, Colocation America would file a civil complaint, which counsel also included with the letter, against him.

Update:

10/29/2010 - Colocation America filed suit in the Superior Court of Los Angeles County.

Content Type: 

CMLP Notes: 

Letter supplied by Garga-Richardson.  - AAB 5/2/2011

Jurisdiction: 

Subject Area: 

Colocation America v. Garga-Richardson (2nd Lawsuit)

Date: 

10/29/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Archie Garga-Richardson; Scamfraudalert.com; Does 1-25

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of the State of California, County of Los Angeles

Case Number: 

BC448509

Legal Counsel: 

Pro se

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

In October 2010, Albert Ahdoot and Colocation America, a company providing computer server co-location to companies operating on the Internet, sued Archie Garga-Richardson, the founder and operator of ScamFraudAlert.com, in California. The plaintiffs claimed that Garga-Richardson committed trade libel and both intentional and negligent interference with economic advantage against the company by posting statements on his website impugning the honesty of Ahdoot and Colocation America.

Garga-Richardson moved on February 4, 2011, to strike the lawsuit under California's anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16.  Garga-Richardson argued that the plantiffs' claims were really an attempt to bring a defamation lawsuit in the guise of trade libel and tortious interference claims.  Garga-Richardson further argued that the plaintiffs' conduct was a matter of public interest and his comments upon that conduct were an exercise of his right of free speech.  As the plaintiffs' claims stem from that exercise, he argued, their lawsuit was a SLAPP and should be struck.

The plaintiffs opposed the motion to strike, arguing that Garga-Richardson had filed his special motion to strike after the 60-day window for filing such a motion had closed.  The plaintiffs also argued that Garga-Richardson's motion was a de facto motion for summary judgment, and that he had not provided the statutory notice required for such a motion under California law.

On April 7, 2011, the court granted Garga-Richardson's special motion to strike.  The court wrote that while Garga-Richardson's motion was a day late, the court would exercise its discretion to consider and rule on the motion.

The lawsuit was the second filed by Colocation America against Garga-Richardson.  Details on the first case, filed in April 2009, are available here.

Content Type: 

Subject Area: 

CMLP Notes: 

Archie faxed us all the documents we posted. - AAB 4/29/11

Jurisdiction: 

Warranty Automotive Services v. Does

Date: 

04/06/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Does 1-5 and ABC Corporations 1-5

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Georgia

Case Number: 

1:10-CV-1006-JEC

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On April 6, 2010, Warranty Automotive Services Corp. filed a complaint in federal district court against unnamed Does for claims arising out of defendants' operation of a website at www.lifetimewarrantymyths.com. The Complaint indicates that plaintiff believes the defendants may be residents of Connecticut who own or are otherwise affiliated with a car dealership that is a former customer of Warranty Automotive Services, Premier Subaru, LLC of Branford, Connecticut. (Complaint ¶¶ 20-24.)

According to the Complaint, Warranty Automotive Services Corp. sells lifetime warranty services to automotive dealerships, which extend the manufacturer's limited powertrain warranty for new vehicles for as long as the original purchaser of the vehicle owns it. Plaintiff alleges that in January 2010, defendants began publishing a website at www.lifetimewarrantymyths.com that contains a number of false and defamatory statements about plaintiff's services, including allegations that plaintiff "has been guilty of causing 'consumer confusion,' . . . that plaintiff's lifetime warranty is and will be worthless. . . . that plaintiff has been 'fined' by the Federal Trade Commission, and that the warranty which plaintiff markets and sells is a 'marketing tool to compensate for inherent deficiencies in either [plaintiff's] product, their process or both.'" (Complaint ¶ 14.)  The Complaint further alleges that defendants, throught their website, make claims that plaintiff operates a fraudulent "pyramid scheme." (Complaint ¶ 15.)

The Complaint asserts causes of action for (i) defamation; (ii) tortious interference with prospective economic advantage; (iii) trade libel; (iv) unfair business practices in violation fo O.C.G.A. § 10-1-370 et seq.; and (v) violation of the Cyber Piracy Prevention Act, 15 U.S.C. § 1125(d) (based on defendants' "labeling and positioning their website, 'www.lifetimewarrantymyths.com,' and by using metatags, and otherwise" in a manner alleged to have infringed plaintiff's rights in its WASCOR trademark).

Content Type: 

Subject Area: 

Jurisdiction: 

Threat Source: 

Westlaw Alert

Bennoti, Inc. v. Complaintsboard.com

Date: 

03/25/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

www.complaintsboard.com; Elizabeth Arden

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of New York

Case Number: 

1:08-cv-03118-JGK

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

In March 2008, Bennoti, Inc., an espresso machine marketer and merchandiser, sued consumer review site Complaints Board and its owner, Elizabeth Arden, for defamation of business reputation (trade libel) and unfair competition. In March 2009, the United States District Court for the Southern District of New York discontinued the action with prejudice, noting that "[i]t [had] been reported to this Court that the plaintiff wishes to voluntarily dismiss this action."

According to the complaint, Complaints Board published six false or inflated consumer complaints about Bennoti. One complaint featured a photograph of a Bennoti espresso machine, to which Defendant added "a comic strip style balloon" featuring the words "Don't call us! We're busy cheating customers!"

The complaint also alleged that Complaints Board diverted "hits" away from Bennoti's website, and in doing so exposed consumers to defamatory remarks and "pirate[d] the millions of dollars Plaintiff spends to develop consumer awareness of its coffee products brand, and then diverts those consumers to Plaintiff's competitors."

The complaint asserted that Section 230 of the Communications Decency Act did not shield Complaints Board because the website allegedly created fictional complaints and inserted "headings, report titles and messages for the reports."

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

-mw reviewing 10/9

Jurisdiction: 

Video Professor, Inc. v. Montgomery

Threat Type: 

Lawsuit

Date: 

02/26/2009

Party Receiving Legal Threat: 

Cameron Montgomery

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Colorado

Case Number: 

1:09-cv-00417-REB-BNB

Legal Counsel: 

Penniann J. Schumann

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

On February 26, 2009, Video Professor filed a lawsuit in the U.S. District Court for the District of Colorado against Cameron Montgomery, the owner of a website that labels itself "the Internet's ONLY Certified Review AuthorityTM for work at home opportunities" at www.ripoff-review.org.  The Complaint asserted claims for trademark infringement under state and federal law, commercial and business disparagement,  violation of the Colorado Consumer Protection Act, and tortious interference with business relationships.

According to the Complaint, defendant purchased the trademark "Video Professor" as a Google AdWords keyword. (Compl. ¶ 14)  As a result, whenever a consumer used Google to search for the words "Video Professor," an advertisement for defendant's website appeared, containing the statements "NEW VIDEO SCAM" and "Stop! Dont [sic] fall for this Scam.  Read this Report before you Buy."(Compl. ¶ 19)  Clicking on the link lead to a page on the website Ripoff-Review.org (which has, itself, been the subject of complaints on the Ripoff Report website) headlined "Online Fraud Investigator Dr. William J. Tomlin Reveals the Shocking Truth You MUST Know About Video Professor Program. . ." (Compl. ¶ 20). The website further claimed that "Dr. Tomlin" himself "was scammed by the Video Professor." (Compl. ¶ 22)  On the same page outlining claims against plaintiff's Video Professor program, defendant recommended its own "Top 3 Work at Home CertifiedTM Programs," along with links to the websites of these programs.  (Compl. ¶¶ 26-28)  The Complaint alleges that these three programs are under common ownership by defendant.  (Compl. ¶ 30)

On March 5, 2009, Video Professor filed a Notice of Dismissal stating that the parties had reached a settlement.  The statements about Video Professor no longer appear on the ripoff-review.org website.

Subject Area: 

Content Type: 

Priority: 

1-High

Jurisdiction: 

CMLP Notes: 

KI

Threat Source: 

Westlaw Alert

Cash4Gold v. Liberis

Date: 

03/12/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Michele Liberis; Consumer Media LLC d/b/a Consumerist.com; Elizabeth Arden d/b/a ComplaintsBoard.com

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida

Case Number: 

09-014536 (09)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

In March 2009, Cash4Gold sued Michele Liberis, a former employee, for defamation based on a post Liberis submitted to the consumer watchdog website Complaints Board

As described in Cash4Gold's complaint, the posting contained numerous allegations of unsavory business practices.  One of Liberis's claims was that checks were often held for several days before being mailed, thereby narrowing the window for consumers to invoke the company's 10-day satisfaction guarantee.  (Compl. ¶13)  The claims were later featured in a post on Consumerist.com, a sister publication of Consumer Reports.

In June, Cash4Gold obtained a default judgment and injunction
against the Liberis, prohibiting her from "publishing any more confidential,proprietary information, and any defamatory information on the
internet."  In July, Cash4Gold contacted Consumerist.com and Complaints Board, demanding that they remove the posts referring to Liberis's allegations. 

When neither website complied, Cash4Gold filed a 19-page amended complaint, suing Consumerist.com and Complaints Board for defamation per se and injunctive relief based on Liberis' original post and Consumerist.com's article detailing Liberis' allegations.

Update: 

9/11/2009 - Liberis filed a motion to set aside the default judgment against her.  In the court filing, Liberis claims she responded to Cash4Gold and explicity denied all allegations.  The motion also contains Liberis' answer.

Content Type: 

Threat Source: 

Blog Post

Subject Area: 

Jurisdiction: 

Video Professor v. Informercial Consumer Awareness

Date: 

05/03/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Dean Graziosi; Ryan Patten; Michael Savage; Edward Johnson; The Tax Club, Inc.; Infomercial Consumer Awareness, Inc.; Justin Leonard; Leonard Fitness, Inc.

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Colorado

Case Number: 

1:09-cv-01025-RPM

Legal Counsel: 

Stanford B. Owen and Gregory E. Goldberg (for Graziosi); Scott T. Ashby (for Patton); Jersey M. Green (for Savage); Randall H. Miller (for Informercial Consumer Awareness); Barry Douglas Roseman and Paul A. Levy (for Leonard)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Settled (partial)

Description: 

Video Professor, a computer instruction software company, filed a lawsuit against the owners of Infomercialscams.com, a website which hosts anonymous reviews of infomercial products, and several related individuals asserting claims that the owners of Infomercialscams.com used the threat of negative consumer ratings to extort the company. 

Video Professor's ten-count complaint alleged that Informercial Consumer Awareness, the corporation which runs Infomercialscams.com, used Video Professor's trademarks in its metadata, such that any web search for the company would return a listing for Informercialscams.com and potentially negative consumer reviews. Compl. ¶ 47. According to the complaint, Infomercial Consumer Awareness allegedly offered Video Professor the opportunity to "delist" negative reviews of its product and to boost its rating on the site in exchange for a yearly payment of approximately $300,000.  Compl. ¶ 67.

Video Professor argued that, through these actions, Informercial Commercial Awareness and the associated individuals violated the federal Racketeer Influenced and Corrupt Organization Act (RICO) and misused the protections of the Communications Decency Act Section 230. Video Professor also filed for a preliminary injunction against Informercial Commercial Awareness. 

On July 8, 2009, Video Professor voluntarily dismissed the case against all defendants pursuant to an undisclosed settlement agreement. The Stipulated Notice of Dismissal as to Defendants Justin Leonard and Leonard Fitness, Inc. (the "Leonard Defendants") reserved to those Defendants the right to file a motion for attorneys' fees and sanctions pursuant to Federal Rule of Civil Procedure 11. 

On July 22, 2009, the Leonard Defendants filed the motion for attorneys' fees and sanctions, asserting that Video Professor lacked any evidentiary support for its claims against those defendants.  Specifically, the Leonard Defendants claimed that Section 230 immunized them from liability for the allegedly defamatory postings, and that Video Professor's attempts to plead around Section 230 by asserting claims for extortion were insufficient as to the Leonard Defendants because Leonard had sold the web site in May 2008, before the alleged extortion attempts occurred.

The Leonard Defendants' motion for attorneys' fees and sactions is still pending.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Same plaintiff as Video Professor v. Justin Leonard and Video Professor v. Doe. Same defendant Leonard as in those threats as well.

8/3/009 - avm editing

Jurisdiction: 

Quest Diagnostics v. Mercola

Date: 

05/29/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Joseph Mercola

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court, District of New Jersey

Case Number: 

09-CV-2632

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Quest Diagnostics, a medical diagnostic testing company, sued Joseph Mercola, who runs the Natural Health Center along with a couple of related websites, over articles critical of Quest that were allegedly published by Mercola on one of his websites. 

Quest alleged that that the articles contained false and defamatory information, stating that its tests are "inaccurate and unreliable" and have "caused some dialysis patients to undergo unnecessary surgery," while advocating on behalf of LabCorp, one of Quest's competitors.  (Compl. ¶¶ 11-12, 14-15.)  Advertisements for Mercola's products and services also allegedly appeared in close proximity to the articles.  (Compl. ¶ 12.)  Based on user comments posted to Mercola's articles, Quest claimed that the articles have deceived consumers and caused Quest significant harm.  (Compl. ¶ 13.) 

According to the Complaint, Quest had previously asked Mercola to remove an article he published in January 2009 that Quest claimed was "false and misleading."  Mercola allegedly agreed to take down the offending article and "refrain from making false and misleading statements regarding Quest Diagnostics, Inc."  (Compl. ¶ 16.)  Quest alleged that the articles that were at issue in this lawsuit violated this agreement.  

Quest brought claims of unfair competition under both the federal Lanham Act and New Jersey state statutes, defamation, trade libel, and breach of contract.  Quest sought money damages, attorneys' fees and costs, as well as a permanent injunction requiring Mercola to remove "all false and misleading statements regarding Quest Diagnostics from any publication or on-line medium under [Mercola's] direction, custody or control," post a retraction, and refrain from making any false or misleading statements regarding Quest.

On July 31, 2009, Quest voluntarily dismissed its claims.  All posts regarding Quest Diagnostics appear to have been removed from the mercola.com website.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

08/03/2009 - LB editing

Jurisdiction: 

Alvi Armani Medical, Inc. v. Hennessey

Threat Type: 

Lawsuit

Date: 

05/19/2008

Party Receiving Legal Threat: 

Media Visions, Inc.; Patrick Hennessey

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Florida

Case Number: 

1:08cv21449

Legal Counsel: 

James J. McGuire and Deanna K. Shullman - Thomas & LoCicero PL

Publication Medium: 

Forum
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Settled (total)

Description: 

Dr. Antonio Alvi Armani, a California hair-restoration surgeon, filed a lawsuit in Florida federal court against Media Visions, Inc., and its president, Patrick Hennessey, the operators of The Hair Tranplant Network, a hair-loss forum.  The complaint, also filed on behalf of Armani Medical, Inc., claimed that Hennessey and Media Visions posted false comments about Armani and his practice on the forum site and created the false impression that posters on the site were bona fide disgruntled patients, when if fact they were either fictitious persons or undisclosed affiliates of doctors on the site's recommended list of "pre-screened" doctors.  The complaint included claims for deceptive and unfair trade practices, defamation, trade libel, and tortious interference with contract.

The complaint further claimed that the defendants failed to comply with an alleged "industry practice" of hair-loss forums:

It is industry practice and procedure to respond to this kind of posting by having the moderator of the website send a private message to the alleged "patient" requesting they privately submit verifying information to the moderator establishing their identity as a bona fide patient of the doctor in question. If the patient is verified as real then the clinic or hospital responsible for their treatment is allowed to post a response.

Compl. ¶ 50. The defendants filed a motion to dismiss the suit, arguing Media Visions was immune from liability for user comments under section 230 of the Communications Decency Act (Section 230).  The plaintiffs then withdrew their claims for trade libel and tortious interference with contract. They also filed a response in opposition to the defendant's motion to dismiss, arguing that the defendants were not immune under Section 230 because the defendants themselves posted defamatory comments. 

In a December 2008 ruling, the court denied the motion to dismiss plaintiffs' unfair trade practices claim, ruling that Section 230 did not apply because the claim was not based soley on "information provided by another information content provider."  In support of this conclusion, the court noted that the plaintiffs had alleged, among other things, that Media Visions created fake website content itself, failed to adequately disclose its sponsorship relationship with rival doctors, and refused to comply with the standard industry practice of verifying the identity of posters who have been called into question.

The court granted dismissal of the defamation claim on grounds that the plaintiffs had not complied with Fla. Stat. § 770.01, part of the Florida retraction statute that required them to give written notice of the alleged defamatory statements at least five days before filing suit.

The parties stipulated to dismissal of the complaint with prejudice in February 2009, apparently due to a settlement.

Subject Area: 

Content Type: 

Priority: 

1-High

Jurisdiction: 

CMLP Notes: 

Alvi Armani Medical, Inc. v. Hennessey, Slip Copy, 2008 WL 5971233(S.D.Fla. Dec 09, 2008) (NO. 08-21449-CIV)

CMF-6/4/09

Threat Source: 

Westlaw Alert

Remove Your Content v. Does

Threat Type: 

Lawsuit

Date: 

03/02/2009

Party Receiving Legal Threat: 

John Does 1-20

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Texas

Case Number: 

3:09-cv-00393-O

Publication Medium: 

Blog
Email
Forum

Relevant Documents: 

Status: 

Pending

Description: 

Remove Your Content LLC, which bills itself as a "targeted adult content removal service," filed suit in federal district court in Texas against 20 unnamed defendants for defamation, business disparagement, tortious interference, assault, and trademark infringement.

Remove Your Content's claims stem from a series of anonymous blog posts (on the now-defunct websites ericgreensuck.blogspot.com and removeyourcontent.blogspot.com), forum comments (NSFW), and emails directed at Remove Your Content and its owner, Eric Green. According to the Complaint, the complained-of communications contain both physical threats against Mr. Green ("We tried to pay a visit to you dude," Complaint Ex. 1 and "Either quite (sic) bothering all these sites and blogs or will (sic) take the bet and nuke you with an early Christmas present," Complaint ¶7), and false and defamatory statements about Remove Your Content's business practices ("He gets paid by other sites (sic) owners to take down pirated content. However he does it in a totally illegal matter (sic)," Complaint Ex. 2 and "Most of his DMCA (sic) are not legid (sic) because he would reported (sic) unlicensed material or matrial (sic) he doesn't even own (sic) its copyright," Complaint Ex. 2).

Remove Your Content seeks exemplary damages and attorneys' fees in excess of $100,000, as well as preliminary and permanent injunctions barring the defendants from contacting Plaintiff's place of business, employees, and clients, and from making false and defamatory statements about Plaintiff and Plaintiff's employees. Further, Remove Your Content has indicated its intent to seek discovery to uncover the identities of Does 1-20 ("Plaintiff now sues in order to discovery and verify the identities of the Defendants and recover damages." Complaint ¶11)

The blogs involved --  ericgreensuck.blogspot.com and removeyourcontent.blogspot.com -- have been removed, and cached copies are no longer available on Google.

Content Type: 

Subject Area: 

Threat Source: 

Westlaw Alert

Priority: 

1-High

CMLP Notes: 

Source: Westlaw Alerts

KAI - 6/3/09

Jurisdiction: 

David v. Nourallah

Threat Type: 

Lawsuit

Date: 

09/11/2008

Party Receiving Legal Threat: 

Salim Nourallah

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

116th District Court Dallas County, Texas

Publication Medium: 

Blog
Email

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed

Description: 

On September 11, 2008, concert promoter Ally David filed a defamation suit in conjunction with Bend Studio, LLC against local musician Salim Nourallah after Salim criticized David's handling of charity funds on his blog. David had been one of a group in charge of scheduling concerts and other events with funds honoring Anju Gill, a young girl who committed suicide in 2006. The complaint also alleged that Nourallah emailed the statements in question to The Dallas Observer, D Magazine, and the Dallas Morning News. The complaint states that Nourallah removed the statements from the blog before the lawsuit was filed. The blog itself is no longer available.

According to press accounts (here, here), on the same day David and Bend Studio filed their lawsuit, the board of directors for the Anju Gill Foundation filed a suit against David and Bend over the disputed funds.

Content Type: 

Subject Area: 

CMLP Notes: 

Source: Dallas Observer

 

RPK

Priority: 

1-High

Jurisdiction: 

Eppley v. Iacovelli

Date: 

03/30/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Lucille Iacovelli

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Indiana

Case Number: 

1:09-cv-00386

Legal Counsel: 

Lucille Iacovelli - Pro Se

Publication Medium: 

Blog
Email
Forum
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued

Description: 

On March 30, 2009, Dr. Barry Eppley, a plastic surgeon in the Indianapolis area, filed a lawsuit against former patient, Lucille Iacovelli.  The complaint included claims for defamation, trade disparagement, harassment, false designations and descriptions of fact, and false light publicity based on webpages, videos, and postings Iacovelli allegedly made regarding her past surgery experience with Eppley.  Eppley also asked for a temporary restraining order prohibiting Iacovelli from carrying out or writing about an alleged plan to commit suicide and publicize it in order to destroy his career. 

The court granted a temporary restraining order preventing Iacovelli from publishing anything related to a suicide attempt, her prior treatment by Eppley, or commenting on Eppley's role in preventing the suicide attempt the same day. Following a hearing on April 8, 2009, U.S. District Court Judge Sarah Barker issued an order extending the temporary restraining order until April 18. 

On April 9, 2009, Iacovelli filed an answer to Eppley's complaint and counter sued Eppley, his lawyer Todd Richarson, and Lewis & Kappes (Richardson's law firm). On April 13, 2009, the court accepted Iacovelli's answer to the complaint but rejected her counterclaims as not conforming to the Federal Rules of Civil Procedure. 

On April 17, the court granted Eppley's motion for a preliminary injunction.  The court found that Iacovelli's speech would not likely be protected by the First Amendment due to its defamatory and likely false nature as well as its lack of advancement of debate on a public issue. 

The preliminary injunction prevents Iacovelli or anyone in active concert with her from posting on the internet or emailing about Eppley, Eppley's attorneys, Lewis & Kappes, or referencing Eppley's actions with respect to Iacovelli's suicide threats.  It also requires her to remove any information about Eppley from any websites she controls, remove www.eppleyplasticsurgerysucks.com, www.barryeppleyplasticsurgeon.com, and www.lewis-kappessucks.com in their entirety, and refrain from registering any new websites that use Eppley's name.  It also requires her to remove any links to the listed websites until the conclusion of the lawsuit. 

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Source: IBJ.com

RPK

Jurisdiction: 

Ecommerce Innovations v. Doe (Lawsuit)

Threat Type: 

Lawsuit

Date: 

07/14/2008

Party Receiving Legal Threat: 

John Does 1-10

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California

Case Number: 

2:08-cv-04596

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

On July 14, 2008, jewelry retailer Ecommerce Innovations filed a lawsuit against anonymous Ripoff Report posters who allegedly made "false and disparaging statements of fact about the [company's] products and services." Ecommerce allleged that Does 1-5 posted the comments as agents for Does 6-10, unknown companies that are competitors of Ecommerce.

The complaint includes claims for defamation in violation of California law and "trade libel" in violation of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), which ordinarily applies to false advertising claims.

After filing the suit, Ecommerce subpoenaed Ripoff Report in Arizona, seeking the identities of the posters.  See our related database entry, Ecommerce Innovations v. Doe (Subpoena), for details.

Content Type: 

Subject Area: 

CMLP Notes: 

Source: Eric Goldman

Priority: 

1-High

Jurisdiction: 

Raintree Homes v. Silverstein

Threat Type: 

Lawsuit

Date: 

07/10/2001

Party Receiving Legal Threat: 

Carl Silverstein; CBS Networking Services

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Middle District of Pennsylvania

Case Number: 

3: CV01-1277

Legal Counsel: 

Paul Alan Levy - Public Citizen Litigation Group; Robert E. Kelly Jr., Marc A. Moyer - Kelly, Hoffman & Goduto

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Settled (partial)

Description: 

In July 2001, real estate developer Raintree Homes, Inc., filed suit against Carl Silverstein alleging trademark infringement and dilution under the Lanham act and common law claims including defamation, unfair competition, and trade libel. The complaint, filed in the United States District Court for the Middle District of Pennsylvania, claimed that Silverstein’s gripe site using the domain names www.1800whyrent.net and www.1800whyrent.org infringed Raintree's "WHY-RENT" trademark.

Specifically the complaint alleged that Silverstein’s gripe site was confusingly similar to Raintree’s official website and diluted its trademark. Raintree also claimed that Silverstein’s statements, including "no other home builder has ruined the life of so many people with this program,” defamed the developer, and that the revision of Raintree’s motto to “we-screw-you” suggested that Raintree engaged in wrongful conduct. Raintree requested an injunction and unspecified damages.

Silverstein moved to dismiss the lawsuit in September 2001. A supporting memorandum was jointly filed by Silverstein’s attorney and Public Citizen. The memorandum argued that Silverstein’s website was protected by the First Amendment and that the site was a noncommercial parody outside the scope of trademark law.

Judge Munley granted the motion to dismiss in part, dismissing the trade libel claim and removing CBS Networking Services (a name used by Silverstein to register the doman names, but not a legal entity) from the case.  The court left the trademark claims intact, ruling that the establishment of a website satisfied the "use in commerce" requirement for an infringement claim, and that discovery was needed to determine whether Silverstein's use was "commercial" for purposes of the dilution claim.  Following the partial dismissal, the parties stipulated to dismiss the case with prejudice, suggesting a settlement.

Subject Area: 

Content Type: 

Priority: 

1-High

Jurisdiction: 

CMLP Notes: 

Source: Public Citizen

 

Threat Source: 

Public Citizen

Monex Deposit Co. v. Gilliam

Date: 

03/04/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Richard Gilliam; Jason Gilliam; Steven Bowman

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California; Superior Court of California, County of Orange

Case Number: 

8:09-cv-00287-JVS-RNB (federal); 30-2009, 00249439 (state)

Legal Counsel: 

Jason Gilliam - Pro Se

Publication Medium: 

Forum
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued
Material Removed

Description: 

On March 4, 2009, Monex Deposit Company and Monex Credit Company (collectively "Monex"), two companies in the precious metals business, filed a lawsuit suit against Jason Gilliam, Richard Gilliam, and Steven Bowman for publishing allegedly defamatory statements on the website MonexFRAUD.com and attempting to extort money from Monex.  Monex initially sued in California state court, but the Gilliams removed the case to federal court.

In its complaint, Monex claims that the Gilliams and Bowman threatened to "continue to libel Monex on their website, . . . share information with government regulators, and . . . interfere with Monex's relationships with investors and banks" unless the company paid them $15 million dollars.  According the complaint, the defendants called Monex's president a "ruthless sociopath" and the firm's sales pitch "flat-out lies," in addition to other comments.  Monex alleges that the defendants made these false statements on MonexFRAUD.com and in comments posted on other websites, including YouTube and Digg.

In addition to defamation and extortion, Monex's complaint alleges cyberpiracy, unfair competition, racketeering, interference with contract, attempted conversion, trade libel, interference with prospective economic advantage, and trade secret misappropriation. The Gilliams, father and son, allegedly lost approximately $32,000 with Monex.  On March 16, Jason Gilliam filed counter claims against Monex, including racketeering and breach of fiduciary duties.

On March 24, 2009, a federal court in California granted Monex's request for a temporary restraining order against the Gilliams and Bowman, expiring on April 7, 2009. The temporary restraining order prohibits them from taking any steps to extort money from Monex by (1) threatening to publish information about Monex on any forum or share information about Monex with third parties, or (2) threatening to defame Monex or its employees.  The order also barred them from retaining, disclosing, or using any Monex trade secret or proprietary information. 

The court also ordered the Gilliams and Bowman to show cause why a preliminary injunction should not issue, continuing the terms of the temporary restraining order until judgment or dismissal.  If granted, the preliminary injunction would also bar the defendants from "publishing or republishing any negative statements about Monex on any website" and require them to "remove, from any website over which they have sufficient control, all negative material about Monex that they have published or republished there, and to stop using the word MonexFRAUD."  It would also bar them from operating the MonexFRAUD website or any "other websites critical of Monex."  

Update:

04/09/09 -The court issued a preliminary injunction, prohibiting the defendants from (1) making any efforts to extort money from Monex by threatening to publish or share information about Monex or defame Monex or its employees; (2) operating www.MonexFRAUD.com or any other website using the Monex name in combination with any modifier that implies illegal, unlawful or unethical conduct; (3) publishing or republishing on any website, including www.MonexFRAUD.com, any statement that "Monex does not have title to or the ability to deliver precious metals sold under contract to any Monex customer; that Monex was expelled from the National Futures Association for fraud; that Monex operates a boiler room; that Monex violates any federal or state statutes regulating the business operations of Monex; that Monex has been charged by the Internal Revenue Service with tax evasion; and that Monex fails to accurately disclose to customers account and trading terms (collectively "Prohibited Statements"); (4) disclosing, using, or retaining any trade secret documentation or other proprietary information belonging to Monex.  The injunction also requires the defendants to remove all previously published Prohibited Statements within 24 hours.  It does not prohibit the defendants from (a) making statements regarding their own business dealings with Monex, including losses they have sustained; or (b) communicating with any governmental entity concerning matters within the scope of that entity's legislative, administrative, or regulatory responsibilities.

05/07/2009- Monex filed an amended complaint in district court. 

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Source: OCRegister.com

UPDATED 7/24/09- AVM added information on amended complaint and uploaded am. compl.

 

Jurisdiction: 

Nam Tai v. Yahoo! Inc.

Threat Type: 

Subpoena

Date: 

02/01/2001

Party Receiving Legal Threat: 

Yahoo! Inc.

Type of Party: 

Organization

Type of Party: 

Large Organization
Intermediary

Court Type: 

State

Court Name: 

Superior Court for the State of California, County of Los Angeles

Publication Medium: 

Forum

Status: 

Concluded

Disposition: 

Subpoena Enforced

Description: 

Nam Tai Electronics, Inc., a Hong Kong-based electronics company, subpoenaed Yahoo! Inc. in connection with a lawsuit against 51 "John Doe" defendants alleging libel, trade libel, and violations of California's unfair business practices statute.  The lawsuit revolved around negative comments about Nam Tai posted to a Yahoo! message board pertaining to Nam Tai. After filing the complaint, Nam Tai obtained a subpoena in California directing Yahoo! to disclose its subscriber data (IP address) for "scovey2," one of the anonymous forum posters.

Content Type: 

Subject Area: 

Jurisdiction: 

CMLP Notes: 

Priority: 

1-High

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