Novak v. Active Window Productions [1]

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 [2] 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 [3] 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 [4] 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 [5] with Novak in December 2001 and agreed to remove any posts or messages "concerning or referring to" Novak. According to the "stipulation of settlement" [6] posted on the defendants' information site, Dan Resler also agreed to pay $4,150.

In 2007, Novak amended [7] his complaint against AWP, AWP's editor Mark Rosenstein, and AWP poster Robert Hudson. AWP and  Mark Rosenstein answered [8], denying Novak's claims and invoking section 230 [9] 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 [10]a pretrial conference for May 29, 2009.