Earlier this week, we posted about eBay seller "Med Express" suing a customer
for leaving accurate, but negative, feedback on eBay. We found the story from Paul Levy's original post
on the Public Citizen website, and a bunch of other sites picked up on the story, including our friends at Popehat
and Ars Technica
Yesterday, Richard Radey, the President of Med Express made the rounds on all of those sites, including ours, issuing what may appear to be a heartfelt apology
, saying that he never intended the customer to be a target, that the company fully supports any and all feedback, and that he had not read the actual lawsuit until the issue got attention. He also claims that he was trying to deal with a separate, but related issue in getting eBay
to remove a "Detailed Seller Rating" which impacts how much Med Express has to pay. He claims that the "low ratings caused us to lose our Top Rated Seller Plus" standings, which could lead to "a potential fee increase of tends of thousands of dollars over the course of the year." And, he claims, the only way to remove those "is by court order" and he "was told that such court orders were not uncommon." He concludes:
The only person to blame here is me. You have spoken and I have listened. A terrible wrong needs to be righted. I am instructing our attorneys to drop the lawsuit. I want to assure everyone that you may feel free to leave any feedback on our company without fear of reprisal. I have learned my lesson.
That certainly sounds sincere. But is it? The first thing that struck me was that he said low ratings
, plural -- not the single low rating we had heard about. And, indeed, Paul Levy has presented a compelling argument that Radey's apology raises more questions than it answers
. First off, he discovered that Med Express has been filing similar lawsuits for years
, all against customers who leave ratings that Med Express does not like. In one, quite incredible, case, they even sued a guy who left an accurate neutral
review. Yes, it wasn't even negative. And the company still sued.
Of the current crop of lawsuits, the suit against Nicholls isn’t even the worst. I haven’t yet been able to see the original documents from the transaction on which Med Express’ lawsuit against Guam resident Tan Jan Chen is based, but the lawsuit against Scranton-area resident Dennis Rogan is over a two-word “neutral” buyer feedback stating “Order retracted.” Apparently, Rogan bought a piece of equipment on eBay but Med Express had to refund his money because, as it explained in a message accompanying the PayPal refund, “This should not have been still listed—we removed this item a few weeks back-it broke.” As in Nicholls’ case, the statement over which Med Express sued for libel was true, but even worse than in Nicholls’ case, Rogan had not even left “negative” feedback.
Rogan could have suggested that the advertising and sale of an item that the seller knew it could not deliver violated FTC rules for mail-order merchants, but he gave the company the benefit of the doubt while concluding, at the same time, that other customers ought to learn that Med Express cannot always be trusted to have the goods that it is advertising. His generosity did not prevent Radey from signing an affidavit averring that the neutral feedback and negative statement were “false,” attempting to get an injunction requiring that the feedback be taken down, and demanding an award of compensatory and punitive damages as well as attorney fees—not the $1.00 in nominal damages that Radey claims are all that he wanted his lawyer to seek against Nicholls.
Yeah, also, that signing an affidavit
thing is a problem. Radey suggests in his apology that he didn't know what was going on, and seems to imply that this was a one off thing. But based on Levy's research, we see a long list of similar lawsuits -- and they include affidavits signed by Radey
. So for him to claim he was unaware of what was going on seems quite questionable.
In the meantime, it appears that the customer who was at the center of the original lawsuit, Amy Nicholls, has found highly qualified pro bono help in the form of Tom Haren
and Jeffrey Nye
, and they've already filed a response and counterclaims
. That also means that, even if Radey wants to dismiss this lawsuit, he can no longer do so unilaterally. If Nicholls, represented by Haren and Nye decide to pursue this, Radey may really regret trying to silence customers.