Not Learning When To Give In: Sedgwick Decides To Appeal Decision Against Griper

from the bad-idea dept

Remember that discussion a few months ago about how most lawyers apparently understood the Streisand Effect, and knew better than to file bogus lawsuits against individuals putting up "gripes" sites about their business? We've already seen that's not quite true, but it takes a special level of thoughtlessness to lose such a bogus lawsuit (badly) and then file an appeal. We recently wrote about lawsuit filed by Sedgwick Claims Management against a guy who was upset with the company. Part of his griping, involved taking photos of Sedgwick execs and putting them on a fake "WANTED" poster. The judge, correctly, threw out most of the lawsuit as being a SLAPP and tossed out the ridiculous "copyright infringement" claim on the use of the photos, noting that it was certainly a case of fair use. Most impressive? The guy fighting Sedgwick and its big law firm won the case defending himself (pro se).

Perhaps because of the pro se nature of defense, Sedgwick has decided to appeal, but Eric Goldman can't figure out what they're thinking as all it does is call more attention to the complaints against the company:

Put this one in the "Are you kidding me?" file. Last month I blogged about Sedgwick Claims Management v. Delsman involving a small-time griper who had the temerity to cut-and-paste some company executive headshots to create his griping material. Sedgwick went after Delsman in a big way, hiring a big national firm (Lord Locke) to take Delsman down, apparently unaware of or unconcerned about the Streisand effect. Delsman defended pro se. Despite the long odds, Delsman nevertheless got a rousing dismissal of the claims. The court held the use of the headshots was a fair use (a clearly correct ruling, IMO), and the court casually tossed all of the other claims using California's anti-SLAPP law.

That should have been the end of it. Instead, surprisingly, Sedgwick has decided to appeal the ruling to the Ninth Circuit. This sets up a potentially important Ninth Circuit showdown over how copyright fair use and anti-SLAPP doctrines apply to Internet gripers. It also gives Sedgwick extra time to bask in the glow of the Streisand effect.

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Company Threatens EFF With Defamation In Response To EFF Trying To Bust Its Patent

from the slappity-slapp-slapp dept

Back in January, we noted that the EFF had scored another hit in its ongoing patent-busting project, getting the USPTO to re-examine a patent held by Seer Systems. It appears that Seer Systems doesn't much like being targeted by the EFF and decided to threaten the group with a defamation lawsuit over how it described Seer's actions. For example the EFF claimed that Seer was "threatening small companies" and Seer disputes the EFF's definition of small. That seems like pretty fine tooth nitpicking there, and hardly defamatory. It certainly feels like a threatened SLAPP, and (luckily) California has a pretty good anti-SLAPP law, which the EFF's attorney has suggested that Seer Systems acquaint itself with before moving forward with any lawsuits. Either way, it's fairly amazing that anyone would think it's a wise move to threaten the EFF with defamation based on something as weak as whether or not some startup is "small" or not.

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Auto Forum Moderator Sued For Highlighting Problems With Aftermarket Maker

from the can't-take-the-criticism,-so-we'll-sue dept

It really amazes me when we see companies go out of their way to sue critics or those who post negative reviews of their products or practices. If those companies put the same amount of effort into actually treating their customers right and taking the criticism as feedback, they'd probably be doing a lot better. Instead, companies that treat customers badly usually discover that suing critics only helps turn more people off to the company. Reader Crash70rs points us to a post on the HotRodders.com forum, where one of the moderators at the site is being sued for defamation by an aftermarket manufacturer named Streetbeasts.

The moderator had written a wiki article about the company, highlighting the fact that the company was connected to another company that had been found guilty of wire fraud and defrauding customers. Streetbeasts seems upset about a bunch of things that were said about the company -- though, some of them clearly seem to be opinion-based, and others hardly seem defamatory. The moderator notes that this is basically a SLAPP lawsuit designed to silence him rather than to win a defamation case, and he's decided to fight it (good for him). Maybe, one day, companies will realize that dealing with your problems is better than suing those who point them out.

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Once Again: Do Not Send Legal Threats To Companies Because You Don't Like What A User Says

from the both-according-to-the-law-and-common-sense dept

It's getting to be rather silly how many times we've posted about section 230 of the CDA, which protects websites from the actions of their users -- but it seems that there's no shortage of folks with quick legal trigger fingers, who figure that anything they dislike online must be illegal, and they can blame the site that hosted it. The latest example, sent in by an anonymous reader, is that 800Notes, one of many websites that allows users to post notes on random callers (telemarketers and such) discovered that the owner of one company, mynutritionstore, whose phone number was listed on the site sent an angry threat demanding it be taken down, because someone had a negative experience with the company. When 800Notes told the owner of mynutritionstore that it would not remove the negative reviews, he apparently threatened to sue 800Notes. Public Citizen stepped in and sent him a quick legal lesson on the safe harbors provided by the CDA, how anti-SLAPP laws work and also pointed out that his claim that the posts were defamatory is clearly shown to be untrue by the fact that the same demand for a takedown claims that the content is proprietary to mynutrtionstore. If it's proprietary than that would indicate that it's truthful, not defamatory. It's not libel if it's the truth.

So, once again, just because you dislike what someone has to say about you online, it doesn't mean that it's illegal. Also, threatening to sue the service provider for content you dislike generated by users is bound to backfire -- often badly. Hopefully, more people will learn this, and we'll stop seeing these sorts of threats.

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Lawyer Seriously Slapped Down For SLAPP Attempt Against Librarian Blogger

from the ouch dept

We've covered the concept of SLAPP (Strategic Lawsuit Against Public Participation) suits plenty of times before. These are bogus lawsuits filed to try to bully a critic into shutting up. In one such case, involving an incredibly broad subpoena against a librarian blogger compiling information on the potential link between mercury and autism, a magistrate judge has seriously smacked down the lawyer who filed the subpoena. The blogger had merely published on her blog information about the fees the lawyer in question had received. In response, the lawyer subpoenaed a ridiculous amount of information from her: "all documents pertaining to the setup, financing, running, research, maintaining" of the blog, "including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any 'religious groups (Muslim or otherwise), or individuals with religious affiliations,' and any other 'concerned individuals.'"

The judge quashed the subpoena quickly, but has now hit back really hard on the lawyer, Clifford Shoemaker, for filing it in the first place:

Shoemaker has not offered a shred of evidence to support his speculations. He has, he says, had his suspicions aroused because she has so much information. Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate. If Shoemaker wanted to know if Ms. Seidel was in part supported by or provided information by Bayer, he could have inquired of Bayer or limited the Seidel subpoena to that information. Instead he issued the subpoena calling for production of documents and a deposition on the day before he stipulated to dismiss the underlying suit with prejudice. His failure to withdraw the subpoena when he clearly knew that suit was over is telling about his motives. His efforts to vilify and demean Ms. Seidel are unwarranted and unseemly....

I find that Clifford Shoemaker violated Fed. R. Civ. P. 11(b)(1) and Rule 45(c)(1).... The 11(b)(1) violation may also violate Virginia's Rules of Professional Conduct .... Clifford J. Shoemaker’s action is an abuse of legal process, a waste of judicial resources and an unnecessary waste of the time and expense to the purported deponent.

The Clerk of Court is directed to forward a certified copy of this order, the motion to quash, the show cause order, and the response of Shoemaker and Seidel to the appropriate professional conduct committee of the Virginia State Bar in order that it may be made aware of Clifford J. Shoemaker's conduct and so that those authorities may take whatever action they deem appropriate.

As a sanction from this court, Clifford J. Shoemaker is ordered to attend within three months, a continuing legal education program on ethics and on the discovery rules in the Federal Rules of Civil Procedure. He is ordered to file a certification of completion of the programs.

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California Looks To Strengthen Anti-SLAPP Laws; Protect Online Anonymity

from the good-for-them dept

We've covered various anti-SLAPP laws in the past. These are laws that protect people from bogus lawsuits that are merely designed to shut them up. SLAPP (Strategic Lawsuits Against Public Participation) are basically when a large corporation just files suit against someone knowing that the lawsuit alone will cause them problems, no matter how bogus the lawsuit is. Many states have created anti-SLAPP laws that let victims of SLAPP suits ask for them to be quickly dismissed. California has good anti-SLAPP laws, but they may get even stronger. While current California law lets those accused in SLAPP lawsuits to also get back attorneys fees, the law may now be extended to cover lawsuits filed outside of California against California residents. This should serve to help protect anonymity online as well as the ability to speak out against much larger entities. Hopefully, other states will follow suit as well.

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Infomercial Companies Never Learn: Another One Suing Site For Negative Reviews

from the or-you-could-just-improve-your-product dept

Greg Beck, from Public Citizen, has written us in the past a few times about bogus trademark lawsuits being brought against online review sites, such as InfomercialScams.com. Back in May there was a case where a company advertising its wares via infomercials sued the site for trademark infringement. Clearly, it was not the trademark use that was the problem (especially since it's difficult to see how that's trademark infringement). It was merely a way to try to get negative reviews (written by third party users of the site) taken offline. A similar case came up this fall when the infamous Video Professor sued 100 anonymous critics on the site, demanding that the owner of InfomercialScams.com turn over their IP addresses.

Beck is now back alerting us to the fact that the Video Professor has withdrawn his subpoena for info from the site, but is still forging ahead with the lawsuit (and is seeking the identity of a user on Wikipedia). However, he also notes that yet another company that advertises via infomercials is now suing InfomercialScams, claiming trademark infringement. Once again, this is clearly not trademark infringement, but an attempt by the company to bully an independent site into taking negative reviews offline. Just imagine if any of these companies put half as much effort into improving their products and services instead of calling the lawyers whenever anyone has anything critical to say about these firms.

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Court Dismisses Lawsuit Filed Against Blogger For Criticizing Company

from the slapp-this dept

We've seen so many cases recently of companies trying to shut down negative criticism online by suing critics, it's nice to point out a case where those cases get shot down by the courts. Eric Goldman has the details on how a court has thrown out the lawsuit filed by BidZirk, one of many, many companies that will sell your stuff on eBay for you, against a blogger for criticizing BidZirk's service in a blog post. The lawsuit claimed defamation, privacy invasion and trademark violations -- all of which seem like a stretch. If anything, this sounds like a SLAPP situation, where the company isn't suing because anything wrong was done, but because it just doesn't like criticism. In this case, the court found no defamation, as the blog post was clearly the guy's opinion. It found no trademark violation because the guy used the company's name in the course of reporting on the company, which is perfectly legal. As Goldman notes, the unfortunate part of this story is that a blogger had to spend a year and a half in court dealing with this lawsuit. While it's great that he eventually won, many bloggers wouldn't have the time, money or stamina to deal with such lawsuits -- which is why they're likely to keep happening.

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Video Professor Sues Anonymous Critics

from the buy-my-product dept

If you watch enough TV, you've probably come across the commercials for "the video professor" who offers DVD videos teaching you how to do things like use your computer. The commercials involve an appeal from the CEO and founder of the company to "buy my product" and promote how you can get a trial for "free!" However, if you look around online, you find many, many complaints that the company ended up charging people money for the supposedly "free" products. What is actually happening is that when you sign up for the "free" trial, you're actually signing up for a subscription to receive other training videos periodically. The problem is that many people don't realize this -- and claim that they were mislead (in many ways, this is similar to the Amazon Prime mess that still hasn't been cleared up. Whether or not the company clearly explains to buyers what they're signing up for is open to debate.

However, with such widespread criticism for its practices online, it isn't surprising that the company is concerned. Of course, rather than addressing those criticisms, instead the company has decided to sue. Greg Beck writes in to point out that the company (which tells people to look for reviews online) has sued 100 anonymous critics of the company claiming trademark violations and defamation. Lots of companies seem to think negative reviews constitute a trademark violation, but a review is a perfectly legitimate use of a trademark. Defamation depends specifically on what the reviewers said, so it's difficult to judge that aspect of the lawsuits. However, to tell people to look for reviews online, and then go out and sue a bunch of folks who negatively reviewed your product seems like highly questionable activity.

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iPhone Supposedly Gets Unlocked, AT&T Apparently Freaks Out

from the on-what-grounds dept

There were several reports last week that the operator lock on the iPhone had been broken, meaning that people might be able to use the device with service from a company other than AT&T. The first to emerge was from a New Jersey teenager, who came up with a complex method involving soldering and software; then two separate companies later said they had software-only unlocking methods. To be sure, these unlocking methods and services will only ever appeal to a small number of users, as most general consumers won't really care, or won't want to go to the trouble. With that in mind, it really doesn't seem like AT&T has much at stake financially, but that apparently hasn't stopped its lawyers from threatening one of the software providers. The company claims it got a call from a law firm representing the company, tossing around things like copyright infringement and "illegal software dissemination" in what appears to be an attempt at intimidating the company to keep them from releasing the software (particularly since the DMCA doesn't cover phone unlocking). It's worth reiterating that these are supposedly AT&T's lawyers, not Apple's -- but it's not clear what standing AT&T would have to sue, making this look like little more than a SLAPP situation. Apple's remained quiet on the matter, but it wouldn't be surprising to see the company close the loophole or re-lock the phones with one of its software updates, since it has a financial stake in iPhone buyers activating and using their phones on AT&T thanks to its revenue-sharing deal with the operator. Of course, it could take the more enlightened view that it doesn't want to frustrate and annoy the customers who would go to the trouble of unlocking their iPhones -- but if it were going to do that, it wouldn't have locked the device to AT&T in the first place.

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