ProspectMatch Threatens Forum That Hosts Negative Reviews; Says It Will Bury Forum Owner In Legal Fees

from the and-there's-a-great-review dept

Paul Levy alerts us to yet another case of companies looking to abuse the legal process to shut down negative reviews and opinions. In this case, amazingly, someone involved in the company even seems to admit this in writing to the site being threatened. The situation involves a company called Javelin Marketing, but which is doing business as ProspectMatch.com -- a company that supposedly sells leads. Over at InsuranceForums.net, a site run by Melnet Media, there are a few different threads where multiple people give negative reviews of ProspectMatch, which the Javelin Marketing/ProspectMatch folks weren't very happy about.

While Levy has the details of the rather aggressive legal threat sent by a lawyer hired by ProspectMatch, Levy also notes that someone from Javelin Marketing also contacted Insurance-Forums.net's operator directly and explained:
"I really don't care what the law allows you to do. It's a more practical issue. Do you want to send your attorney a check every month indefinitely as I continue to pursue this? Now, we will both spend needless money and when you get sick of paying your attorney, you will take down the posts."
Of course, the case looks like a typical Section 230 deal, where the forum owner has no liability over statements made in the forums -- and it appears that ProspectMatch knows this, but doesn't care. Of course, saying that -- in writing no less -- probably was not a wise move, and might expedite a quick dismissal for any legal action.

On top of that, there are number of interesting moves by ProspectMatch's lawyer, a guy by the name of Richard Newman. First, in his threat letter to Melnet, he tried to avoid the likely Streisanding of the threat by declaring:
Please be aware that this letter is copyrighted by our law firm, and You are not authorized to republish it in any manner whatsoever, including in a posting, in full or in part. Doing so will subject You to further legal and equitable causes of action.
We've been seeing this sort of technique more frequently these days (unfortunately), and it is pretty pointless for lawyers to include. They do so for fearmongering purposes, but publishing and discussing such a threat letter would almost universally be declared fair use, so Levy has posted the full letter (pdf).

On top of this, it appears that Newman is trying to get around Section 230 claims by (1) pretending that Melnet has more direct involvement than it does and (2) claiming false advertising and trade libel under the Lanham Act. Basically this is an attempt to rebrand "defamation" (which is covered by Section 230) as a "trademark violation" (which is not). But, just because you try to make that claim, it doesn't mean any court in the land will believe you.

Finally, Levy notes that, despite being in California, it was interesting that Newman indicated plans to avoid filing the lawsuit in California, and suggests a reason why he believes Newman did this:
It struck me that the most likely explanation is that Newman understood that, if he sued in either California state court or a federal court in California, the suit would be subject to dismissal under California’s anti-SLAPP statute.

The reason we were particularly interested in defending this otherwise plain-vanilla section 230 immunity case is that it presents the opportunity to argue that a California libel plaintiff is still subject to California’s anti-SLAPP laws even if it sues elsewhere, because under common choice of law principles, the law of the plaintiff’s domicile applies to libel and other intentional tort claims. And because the anti-SLAPP law is substantive rather than procedural, we could file a special motion to strike and seek an award of attorney fees.
This does seem like an interesting legal question, and Levy indicates in his letter to Newman (embedded below), that he fully intends to test this theory if ProspectMatch does decide to file a lawsuit. Anyway, you can read Levy's full letter below. As with most of Levy's letters, it's well worth reading.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    The eejit (profile), Feb 18th, 2011 @ 2:28pm

    Isn't this grounds for disbarment, due to being involved in fraudulent activity? Or am I just reading this wrong?

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Feb 18th, 2011 @ 3:24pm

    Re:

    Not really - lawyers are allowed to argue legal theories, no matter how far off the wall they are. Attempting to circumvent the overwhelming huge barrier of section 230 protections, which (in my opinion) provide too much cover for "service providers" who profit from protected activities, is a noble goal. It is no different from the somewhat lame attempts to get copyright tossed out on first amendment grounds. We might all think it is wrong, but the goal is "noble".

    Avoiding the California courts is a good idea, mostly because it keeps them from having to have a whole discussion of the anti-SLAPP laws, which I suspect could be found as an unconstitutional restraint against seeking legal redress.

     

    reply to this | link to this | view in thread ]

  3.  
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    Anonymous Coward, Feb 18th, 2011 @ 3:25pm

    Re:

    He's a lawyer. It's probably grounds for promotion.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    John Duncan Yoyo, Feb 18th, 2011 @ 3:27pm

    This sounds like a prime case for the EFF to make that lawyers life miserable.

     

    reply to this | link to this | view in thread ]

  5.  
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    Chris, Feb 18th, 2011 @ 3:40pm

    Lame

    What's the matter ProspectMatch, can't handle legitimate criticism?

     

    reply to this | link to this | view in thread ]

  6.  
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    Torinir (profile), Feb 18th, 2011 @ 3:46pm

    Re: Re:

    Actually, because the lawyer threatened endless frivolous lawsuits, he could be censured from the courts. (If anyone remembers a certain Florida lawyer with a penchant for submitting porn as evidence as well as his huge volume of frivolous lawsuits, he was censured and eventually disbarred because of it.)

     

    reply to this | link to this | view in thread ]

  7.  
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    Richard (profile), Feb 18th, 2011 @ 4:05pm

    Re: Re:

    Not really - lawyers are allowed to argue legal theories, no matter how far off the wall they are.

    Admitting that you are probably wrong but saying you will pursue the case anyway because the process of litigation will achieve your ends anyway isn't "arguing a legal theory". It's a plain admission that you are abusing the law. Nothing about what ProspectMatch is doing is "noble" - it's downright disgraceful and shameless. How you can use the word "noble" in this context beats me - have you lost it completely?

     

    reply to this | link to this | view in thread ]

  8. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Feb 18th, 2011 @ 4:06pm

    comment appreciation day

    Hey guys,
    I just wanted to remind all of you that today between 4:00 and 5:00 (pacific time) techdirt will hold blog-writing appreciation hour. Replies to Mike Ho's great daily dirt column (Sponsored by StumbleUpon don't count.)

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  9.  
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    LumpyDog (profile), Feb 18th, 2011 @ 4:09pm

    Is it weird that Levy's letters always make me giggle a little?

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Feb 18th, 2011 @ 6:34pm

    "But, just because you try to make that claim, it doesn't mean any court in the land will believe you. "

    The problem is that these lawyers are very good at finding a court that will believe you, or one that will at least pretend to believe you.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Feb 18th, 2011 @ 6:49pm

    Re: Re:

    "Attempting to circumvent the overwhelming huge barrier of section 230 protections, which (in my opinion) provide too much cover for "service providers" who profit from protected activities, is a noble goal."

    So you don't care about the principle of obeying and enforcing the law, you only care about your own agenda and you only care about the principle of following the law when it's convenient to you. Otherwise, the law should just be ignored.

    Then IP maximists turn around and claim that people shouldn't infringe because it's against the law and it's wrong to break the law.

    "It is no different from the somewhat lame attempts to get copyright tossed out on first amendment grounds."

    What about the lame attempts to censor free speech under copy'right' grounds.

    "which I suspect could be found as an unconstitutional restraint against seeking legal redress."

    The defendant has the right to seek legal redress against plaintiffs who file frivolous lawsuits that waste the defendants time and money for no good reason. I don't think the constitution places such restraints against seeking legal redress in that regard.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Feb 18th, 2011 @ 6:52pm

    Re: Re:

    "Avoiding the California courts is a good idea"

    From his point of view, sure, but from a legal point of view, this venue shopping is an abuse of the system and should be banned.

     

    reply to this | link to this | view in thread ]

  13.  
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    Anonymous Coward, Feb 18th, 2011 @ 6:53pm

    Re: Re: Re:

    or from a social point of view *

     

    reply to this | link to this | view in thread ]

  14.  
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    Atkray (profile), Feb 18th, 2011 @ 7:37pm

    :/

    I think that is the saddest thing I've ever heard

     

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  15.  
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    John D (profile), Feb 18th, 2011 @ 8:00pm

    Yet another...

    Yet another company I had never heard of, that I will remember to never do business with in the future.

     

    reply to this | link to this | view in thread ]

  16.  
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    Paul Alan Levy (profile), Feb 18th, 2011 @ 8:30pm

    There won't be a lawsuit

    Prospect Match's counsel let me know that he is withdrawing the threat of litigation

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Dohn Joe, Feb 18th, 2011 @ 9:11pm

    License to Read It

    Please be aware that this letter is copyrighted by our law firm, and You are not authorized to republish it in any manner whatsoever, including in a posting, in full or in part. Doing so will subject You to further legal and equitable causes of action.

    =================================

    Does this mean you can safely ignore the letter because you weren't granted a "license" to the "content"?

     

    reply to this | link to this | view in thread ]

  18.  
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    The eejit (profile), Feb 19th, 2011 @ 12:42am

    Re: There won't be a lawsuit

    Even so, the attitude has damaged their reputation, which is something that should always be considered, at least a little, before sending threatening letters.

     

    reply to this | link to this | view in thread ]

  19.  
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    John Duncan Yoyo, Feb 19th, 2011 @ 6:24am

    Re: Re: There won't be a lawsuit

    It does have the ring of extortion to it. To paraphrase Monty Python- You've got a nice little army base here you wouldn't want to see anything happen to it.

    http://www.youtube.com/watch?v=cNZKUozrBl4

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Jim L, Feb 19th, 2011 @ 8:03am

    UPDATE

    Richard Newman has withdrawn the threat of litigation.

    I'm shocked!

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Feb 20th, 2011 @ 5:36am

    Re: Prospect Match - Oh Boy!

    Hate to say it, but IMHO PM is a ripoff, like so many others.
    I went to the insurance forum to see what was there. Bunches, I'm afraid. Following a link in one of the posts there, I ran across this (as a result of a search for "Prospect Match":

    http://www.ripoffreport.com/Search/prospect-match.aspx

    Pure fraud, apparently. The insurance-forums.net site has lots more, and they're simply telling it like it is. PM can scream and yell all they want to, but I don't think they want to get anywhere near a court. They'll lose. Bottom line: Don't buy from them, EVER!

     

    reply to this | link to this | view in thread ]

  22.  
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    Tex, Feb 20th, 2011 @ 9:40pm

    Another SLAPP Lawsuit

     

    reply to this | link to this | view in thread ]

  23.  
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    btr1701 (profile), Feb 22nd, 2011 @ 3:15pm

    Re: Re: SLAPP

    > which I suspect could be found as an
    > unconstitutional restraint against
    > seeking legal redress

    If that were the case, it would have almost certainly already happened, considering how long these laws have been around and how many frivolous plaintiffs have felt their sting.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Casey Mahoney, Aug 8th, 2011 @ 2:23pm

    becareful

    You have to be careful investing into anything.Read the boards and study it.Do your research.

    Casey Mahoney

     

    reply to this | link to this | view in thread ]


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