SI03, Inc., the company that makes the "Syntrax" line of nutritional supplements, sued 31 individual John Doe defendants and 5 Doe companies over derogatory comments made about Syntrax on the BodyBuilding.com Forums.  The complaint claimed that some of the individual Doe defendants were agents of the Doe companies, believed to be Syntrax competitors.  

SIo3 alleged that the anonymous posters made defamatory statements on the forums, suggesting in numerous posts that Syntrax products caused ill-health effects and that SI03 had engaged in unethical conduct.  The complaint, filed in federal district court in Illinois, included claims of defamation, trade libel, commercial disparagement, tortious interference with prospective economic advantage, and civil conspiracy, as well as breach of the Consumer Fraud and Deceptive Business Practices Act (815 Ill. Comp. Stat. 505/1), and the Uniform Deceptive Trade Practices Act (815 Ill. Comp. Stat. 510/1).

The U.S. District Court in the Northern District of Illinois dismissed SI03's claim without prejuduce on the ground that it had not sufficiently identified the defendants to determine whether the court had personal jurisdiction over them. However, the court granted SI03 permission to conduct expedited discovery in order to ascertain the identity of the defendants for the purposes of determining jurisdiction. 

SI03 subpoenaed Bodybuilding.com for the identity of the posters, which  Bodybuilding.com resisted on the basis that a subpoena could not be issued because SI03's complaint was no longer active.  SI03 sought and obtained clarification from the court that it was permitted to use a subpoena.

When Bodybuilding.com still refused to hand over its members' information, SI03 filed a motion to compel and a motion to preserve electronic evidence in the U.S. District Court for the District of Idaho, where Bodybuilding.com is based.  The Idaho district court dismissed the motion to compel on the ground that SI03 had not provided adequate notice to the Doe defendants.  The court granted the motion to preserve evidence in part, ordering BodyBuilding.com to preserve the requested data but not requiring the site to turn it over to a court or third party.

Update:

06/27/08 - SI03 filed a renewed motion to compel.

In October 2005, Eagle Broadband, Inc. brought a John Doe lawsuit for defamation, trade libel, and unfair competition under California law after anonymous users posted critical statements about it on a Yahoo! Finance message board. Shortly thereafter, the court granted Eagle leave to take discovery from Yahoo! regarding the identity of the anonymous posters. Eagle determined the identity of two of the posters -- Thomas Mould (Doe 5) and Richard Williams (Doe 4).

Williams and Mould moved to strike the complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). The court granted the motion with respect to Mould and awarded him approximately $65,000 in attorney's fees. The court denied the motion with respect to Williams. On appeal, a California appellate court upheld the trial's court's rulings regarding Mould, but reversed the denial of Williams's motion and remanded the case with instructions to award attorney's fees to Williams upon proper motion.

Eagle voluntarily dismissed the action with regard to Doe 2 in October 2006. The case appears to be still pending against the remaining anonymous defendants.

William A. Sheehan sued a number of credit reporting agencies, including Experian, in federal court in Washington, alleging violations of the Fair Debt Collections Practices Act and the Fair Credit Reporting Act. In that litigation, Experian asserted a counterclaim against Sheehan for defamation, commercial disparagement and other torts based on the statements appearing on Sheehan's website.

According to documents filed in that case, Sheehan operated a personal website, on which he posted criticism of government officials and credit reporting agencies. His postings included comments about Experian, allegedly calling its employees "liars" and "scumbags." Sheehan also allegedly posted employees' home addresses and telephone numbers.

Experian moved for a temporary restraining order and a preliminary injunction to prohibit Sheehan from posting on his website: (1) "any false or defamatory statements about Experian, its employees or agents"; and (2) "any other language specifically calculated to induce others to harass, threaten or attack Experian, its employees or agents, including, but not limited to, their social security numbers, home phone numbers and maps to their homes." In June 1998, the court denied the first part of Experian's requested order, but granted the second.

In July 1998, the court granted Sheehan's motion to dissolve the temporary restraining order and denied Experian's motion for a preliminary injunction. The court reaffirmed its prior ruling that the first part of the restraining order would constitute an unconstitutional prior restraint on speech because it asked the court to prohibit speech that had not yet been found to be defamatory. It further held that the second part of the restraining order constituted an unconstitutional prior restraint because Sheehan's online speech was protected by the First Amendment since there was no evidence that he had published anything that could be deemed an incitement to imminent unlawful action.

On November 1, 2007, Internet Solutions, a company that runs a number of employment recruiting and Internet advertising businesses, including VeriResume, sued blogger Tabatha Marshall in federal court in Florida.

Marshall runs a blog and website at www.tabathamarshall.com, on which she writes about suspicious online job solicitations and so-called "phishing" practices. Part of her site consists of the "PhishBucket," a "directory of companies/individuals suspected of targeting job seekers with deceptive offers." Included in the PhishBucket is an entry for "VeriResume (Internet Solutions)," which bears the statement "Pending Investigation Phisher" at the top-right of the page. The entry also contains physical and web addresses for the company, links to posts about it (internal and external), and names of affiliated companies. The PhishBucket also includes entries for other companies operated by Internet Solutions, including Ask America, Scout 2007, Too Spoiled, and USA Voice.

Marshall's site also contains articles relating to her research and views about certain companies and their online job solicitations. Among these is a post entitled "Something's VeriRotten with VeriResume." In this post, Marshall excerpts a sample email from VeriResume soliciting job applications, criticizes the company's position on resume fraud, and links to other sites (like the Better Business Bureau) with information about VeriResume and Internet Solutions. She invites readers to "[c]heck out the research and YOU decide if you want to give them your info."

Several users submitted comments to the post that were critical of VeriResume. One user, who claimed to be a company employee, alleged that the company engages in a "bait-and-switch" routine after applicants submit their information, according to documents attached to the complaint. In an update to her original post, Marshall summarized these user's comments and expounded on the situation.

Starting on October 30, 2007, a representative of VeriResume (or Internet Solutions -- the record is not clear on this point) contacted Marshall via email, claiming that information about VeriResume and other companies posted on Marshall's website was incorrect and asking her to remove it. According to Marshall, the company representative also contacted her landlord, claiming that Marshall was operating a business in her house, a claim that Marshall disputes. On October 31, 2007, one day before filing suit, counsel representing VeriResume and ten other Internet Solutions-affiliated companies sent a cease-and-desist letter to Marshall via email. (For more information on the emails and letter, please see the CMLP database entry, VeriResume v. Marshall (Email)).

Internet Solutions's complaint includes claims for defamation, false light invasion of privacy, and injurious falsehood (trade libel). It alleges that Marshall has "author[ed], post[ed], and publish[ed]" statements claiming that Internet Solutions engages in "phishing," "scams," and other criminal and fraudulent conduct. It requests compensatory and punitive damages, and an injunction requiring Marshall to remove the allegedly defamatory posts and prohibiting her from making future defamatory statements about the company.

Marshall was served with the complaint on November 3, and she has 20 days to respond. Marshall maintains that she merely posts her opinions, publicly available information, and third-party comments and asks her readers to draw their own conclusions. She is seeking legal assistance in this matter.

Update:

4/8/2008 - The court dismissed the complaint, holding that it lacked personal jurisdiction over Marshall.

4/24/08 - Internet Solutions indicated to Marshall that it intends to file an appeal and commence another lawsuit in Washington state.

04/29/08 - Internet Solutions filed a notice that it has appealed the dismissal to the 11th Circuit.

06/06/2008 - Internet Solutions filed its appellate brief with the 11th Circuit.

07/16/2008 - Marshall filed her appellate brief with the 11th Circuit.

02/10/2009 - The 11th Circuit certified a question to the Florida Supreme Court: "Does posting allegedly defamatory stories and comments about a company with its principal place of business in Florida on a non-commercial website owned and operated by a nonresident with no other connections to Florida constitute a commission of a tortious act within Florida for purposes of Fla. Stat. section 48.193(1)(b)?"

03/03/2010 - Florida Supreme Court heard oral argument on the certified question.

06/17/2010 - Florida Supreme Court issued its decision on the certified question:

We answer the rephrased certified question in the affirmative. We conclude that posting defamatory material on a website alone does not constitute the commission of a tortious act within Florida for purposes of section 48.193(1)(b), Florida Statutes. Rather, the material posted on the website about a Florida resident must not only be accessible in Florida, but also be accessed in Florida in order to constitute the commission of the tortious act of defamation within Florida under section 48.193(1)(b). 

9/30/2010 - District Court dismissed case based on lack of personal jurisdiction.

Justin Leonard runs the websites infomercialratings.com and infomercialscams.com. These websites give users of infomerical products the opportunity to voice their criticisms and defenses of these products and associated sales tactics. Pages on these websites are devoted to criticisms and defenses of Video Professor, Inc., a Colorado company that develops and sells video tutorials on a variety of computer-related topics. Apparently, a number of anonymous posters made critical statements about Video Professor's products on these forum pages.

In August 2007, Video Professor filed a John Doe lawsuit against 100 anonymous defendants (and some anonymous corporations and LLCs too!) in federal court in Colorado. The complaint includes claims for violations of the Lanham Act, violations of a Colorado consumer protection statute, tortious interference with business relations, and common law product disparagement/defamation. The complaint states that the anonymous defendants made false and defamatory statements about Video Professor's products, but does not identify any specific statements.

Video Professor moved ex parte for an order authorizing it to conduct discovery, in the form of third-party subpoenas requiring the recipients to produce documents identifying the anonymous posters. The court granted the motion.

On September 6, 2007, Justin Leonard's company, Leonard Fitness, Inc., received a subpoena, requesting that it produce identifying information for the author of every post on Leonard's websites relating to Video Professor. Along with the subpoena, Video Professor provided a check for $40.81 to compensate Leonard for his expenses in complying with the subpoena.

The Public Citizen Litigation Group took up the matter on behalf of Leonard and sent a letter to Video Professor's counsel objecting to the subpoena and laying out the reasons why, in its view, the subpoena was invalid.

Specifically, the letter argued that the subpoena encroached upon the rights of the anonymous defendants to engage in anonymous speech on the Internet without meeting the legal requirements necessary to justify disclosure of their identities. It also argued that the subpoena was unduly burdensome because it called for information relating to all postings about Video Professor on Leonard's sites, rather than identifying which postings were allegedly defamatory or otherwise unlawful. Finally, the letter stressed that the check provided with the subpoena was not sufficient to compensate Leonard for the work he would have to do to comply with the subpoena.

Communications ensued between Public Citizen and counsel for Video Professor. Video Professor narrowed the list of anonymous posters to 43. It also endeavored to provide Public Citizen with evidence supporting its allegations for each of the postings.

On or around October 18, 2007, Public Citizen sent a notice to each of the 43 posters identified by Video Professor. The letter informed the posters of the pendency of the lawsuit and the request for identifying information about them. It encouraged them to hire a lawyer and explained that Leonard would not produce any documents before October 31, 2007, in order to to give them the opportunity to file a motion to quash the subpoena in federal court. It also indicated that Public Citizen had asked Video Professor for evidence to support its claims, and that Public Citizen (on behalf of Leonard) would move to quash the subpoena should it determine that Video Professor had not done so.

On October 19, 2007, Public Citizen sent Video Professor a letter, explaining that it had sent the notice. The letter also questioned the legal adequacy of the Lanham Act claims and the adequacy of Video Professor's factual showing on the defamation claims. It requested more documents to establish, among other things, the falsity of the statements at issue.

Update:

12/26/2007 - Video Professor filed a notice of voluntary dismissal, ending the case.

07/10/2009 - Consumer Law and Policy Blog reports that the websites infomercialratings.com and infomercialscams.com have been taken down.

NXIVM provides a course manual for the paid subscribers of its exclusive and expensive seminar training program, "Executive Success." The course manual contains a copyright notice on almost every page and all seminar participants sign non-disclosure agreements, purporting to bar them from releasing the manual or the proprietary techniques learned in the seminars to others.

Rick Ross runs nonprofit websites, www.rickross.com and www.cultnews.com, in connection with his work as a for-profit "cult de-programmer." The websites provide information to the public about cults and other controversial groups. Ross obtained a copy of NXIVM's course manual from fellow defendant, Stephanie Franco, a one-time NXIVM participant. Ross commissioned two self-styled experts, Paul Martin and John Hochman, to write reports analyzing and critiquing the course manual. The reports quoted sections of the manual in support of their analyses and criticisms and were published on Ross's websites. The reports also made statements that, according to NXIVM, misled readers into believing that the Executive Success program is a "cult." The websites also included Executive Success on a list of organizations designated as "cults."

NXIVM sued Ross and various co-defendants for copyright infringement, trademark disparagement under federal law, interference with contractual relations, and product disparagement. On the basis of the copyright claim, NXIVM moved for a preliminary injunction to require that Ross remove the copyrighted information from his websites. The United States District Court for the Northern District of New York denied the preliminary injunction, finding that NXIVM had no likelihood of success on the merits of its claim because the defendants' use of quotations from the course manual constituted fair use. On appeal, the Second Circuit Court of Appeals affirmed, finding that the websites' use of quotations from the manual to support their critical analyses of the seminars was transformative, and that this outweighed the concurrent commercial purpose of Ross's use (in connection with his for-profit business as a de-programmer of cult victims) and his (assumed) bad faith in obtaining the manuscript in violation of NXIVM's non-disclosure agreement. The court also held that the defendants' use of portions of 17 pages out of a 500-page manual was not unreasonable in light of their purpose, and that any damage to the market for NXIVM's work was a result of criticism (which weighs in favor or fair use), not substitution (which weighs against fair use). NXIVM Corp. v. Ross Institute, 364 F.3d 471 (2nd Cir. 2004) (Second Circuit website version attached). The Supreme Court denied certiorari. NXIVM Corp. v. Ross Institute, 543 U.S. 1000 (2004).

The case was then transferred to New Jersey on 03/07/2006 (Case No. 06-CV-01051). NXIVM amended its complaint, apparently dropping its trademark claim and adding a trade secrets claim. Morris and Rochelle Sutton moved to dismiss the product disparagement, interference with contractual relations, tortious interference with contractual relations, and copyright infringement counts of the amended complaint. The court dismissed the product disparagement claim, holding that the challenged statements were statements of opinion protected by the First Amendment. It dismissed the tortious interference claims on the same grounds, holding that, where a claim for tortious interference with contractual relations or prospective economic advantage implicates constitutionally protected speech, the constitutional privilege for statements of opinions applies. The court also dismissed the vicarious copyright infringement claims against the Suttons, finding that they had no right or ability to control the statements published on the websites. See NXIVM Corp. v. Sutton, No. 06-CV-1051 (D.N.J. June 27, 2007).

Update:

2/13/2008 - A number of defendants moved to strike NXIVM's pleadings and for sanctions as a result of discovery disputes.

2/23/2008 - NXIVM filed a memorandum in opposition to the motions to strike.

5/9/2008 - Court denied the motions to strike, but awarded attorneys' fees to defendants for discovery costs.

4/09/2009 - NXIVM  filed suit with similar claims against the defendants in the Western District Court of New York (2009 WL 1524800). NXIVM also added Lollytogs, a children's clothing supplier, as a defendant. All defendants have moved to dismiss. The Suttons in their motion to dismiss point out that by refiling this complaint in New York, NXIVM is forum-shopping. The court has not yet ruled on these motions.

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

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

On October 4, 2005, Vilenchik's attorney sent Gregerson a letter demanding that the webpage be removed or he would file a lawsuit for defamation.

Vilana initially sued Gregerson for defamation in Minnesota state court on October 24, 2005. Gregerson then filed suit against Vilana and Vilenchik in the United States District Court for the District of Minnesota on March 27, 2006, claiming copyright infringement. The Vilana state-court action was removed and consolidated with the federal action, and Vilana and Vilenchik counterclaimed for deceptive trade practices, trademark infringement (including cybersquatting), interference with business and contractual relationships, appropriation, and unjust enrichment. The defendants abandoned the defamation claim.

On August 15, 2006, the federal district court denied Vilana and Vilenchik's motion to dismiss the copyright claim and their motion to remand the state-law claims.

On September 18, 2006, Gregerson moved to dismiss the plaintiff's counterclaims against him, arguing that the counterclaims violated Minnesota's anti-SLAPP statute (Minn. Stat. § 554.01-05). The court denied the motion on November 17, 2006. Gregerson v. Vilana Financial, Inc., 446 F.Supp.2d 1053, 1059 (D. Minn. 2006).

On August 31, 2007, the district court granted Vilenchik's motion for summary judgment, holding that he could not be held liable in his personal capacity for Vilana's corporate actions. The federal district court granted partial summary judgment for Gregerson on his copyright claim against Vilana, holding that there was no triable issue of fact regarding Vilana's infringement of Gregerson's exclusive rights in his photographs, but reserving the issue of damages for trial. It also granted summary judgment for Gregerson on Vilana's counterclaim for trademark infringement and cybersquatting, holding that Gregerson's use of Vilana's trademarks as website metatags did not create a likelihood of confusion, and that Vilana failed to establish that Gregerson had a bad faith intent to profit by using its trademarks in a domain name. Gregerson v. Vilana Financial, Inc., Civil No. 06-1164, 2007 WL 2509718 (D. Minn. Aug. 31, 2007).

Minnesota law provides a claim for deceptive trade practices when a person, in the course of a business, vocation or occupation, disparages the goods, services, or business of another by false or misleading representations of fact. The federal district court denied summary judgment to Gregerson on Vilana's deceptive trade practices counterclaim, find that there was evidence that Gregerson had posted comments on his website, and allowed others to post comments, indicating that the defendants were thieves, members of the Russian mafia, and actively engaged in fraudulent business practices and predatory lending. Gregerson v. Vilana Financial, Inc., Civil No. 06-1164, 2007 WL 2509718 (D. Minn. Aug. 31, 2007).

The court also denied Gregerson's motion for summary judgment on the interference with business and contractual relationship and appropriation of likeness counterclaims. Gregerson v. Vilana Financial, Inc., Civil No. 06-1164, 2007 WL 2509718 (D. Minn. Aug. 31, 2007).

Updates:

8/15/2006 - The federal district court denied Vilana and Vilenchik's motion to dismiss Gregerson's copyright claim.

11/17/2006 -The federal district court denied Gregerson's motion to dismiss Vilana and Vilenchik's counterclaims based on Minnesota's anti-SLAPP statute.

8/31/2007 - The federal district court granted summary judgment for Vilenchik, case dismissed as to him;

8/31/2007 - The federal district court granted partial summary judgment for Gregerson on his copyright claim and on Vilana's counterclaim for trademark infringement, cybersquatting, and unjust enrichment, and denied Gregerson summary judgment on the the deceptive trade practices, interference with business and contractual relationships, and appropriation of likeness counterclaims.

2/15/2008- After a bench trial, the court awarded Gregerson $19,462 on his copyright claim and denied all counterclaims against him.