With respect to the Plaintiff being able to prove the statements false, the Plaintiff has a couple of insurmountable problems. First and foremost, the case boils down to two allegedly defamatory statements.

1) The Plaintiff (falsely) claims that the Defendant called her a “prostitute.” ... However, the record clearly reflects that the Defendant did no such thing.... In fact, the claim that she is a “prostitute” seems to have only been uttered by third parties, including Plaintiff's own counsel....

2) The Defendant (correctly) claims that Plaintiff was not permitted to leave China during a certain period of time....

With respect to the first statement, the record clearly reflects that this interpretation of the defendants’ statements is a fabrication. The Defendant, at worst, implied that Zhang Ziyi had wealthy boyfriends who lavished her with expensive gifts.... Given her public persona, and the fact that she is frequently unabashed about sharing her affections with wealthy paramour after wealthy paramour, this is almost certainly a given. Zhang Ziyi’s conduct could be less-than-charitably described as “gold-digging” ..., but it is a far cry from “prostitution.” If Ms. Ziyi intends to prove that she has never received any largesse or gifts from her series of wealthy boyfriends, then this will be an interesting trial to say the least.

As to the second statement, one must wonder what would be defamatory about claiming that a Chinese national found her travel privileges to be temporarily restricted. Given that the Chinese government is one of the most totalitarian regimes in the world, anyone prohibited from leaving the country would find themselves in good company, if not among some international heroes.... Even if the statement was held to have a defamatory meaning, and the defendant uttered the statements complained of, the plaintiff would still run into a legal impossibility – overcoming the actual malice standard in order for her case to survive.

When the defendant moved to strike this case under CCP 425.16, the Plaintiff immediately took steps to start an expensive and relentless discovery campaign. Mr. Meng was deposed three times. Mr. Meng produced reams of documents. The Plaintiff conducted three expert depositions. Throughout all of this, the Plaintiff has not produced one shred of evidence that Meng’s statements were false. Even if she were to somehow do so, mere falsity is not enough: she must also prove that Meng harbored serious doubts about the accuracy of his published information and recklessly disregarded the truth. Nevertheless, the Plaintiff’s discovery campaign has done nothing more than create a rock-solid record that the Plaintiff could never overcome her legal burden. The Plaintiff has, in an effort to run up the bill on the Defendant, managed to disprove her own case so solidly, that the “reasonable possibility” standard was left behind long ago.

Plaintiff Zhang Ziyi is an international celebrity with means that far exceed those of Defendant Watson Meng.... A $200,000 bond will not deprive her of access to the courts, and will likely not even cover the costs of litigation. The Plaintiff does not reside in California, and in fact, resides in a country where the Defendant is persona non grata.... If this court were to grant a fee award to Defendant, he would not likely find justice if he attempted to enforce that award in a country whose government considers him to be a thorn in their side, and where there is no independent judiciary....

Because she does not reside in the State of California, Plaintiff should be required to post an undertaking so that Meng may be assured of recouping his fees and costs following the hearing on the Motion to Strike.... The purpose of Section 1030 is to ensure that a fee award against an out of state plaintiff is not difficult to collect, or fully illusory. The facts of this particular case are probably the most extreme example of the necessity of an undertaking under Section 1030. The Plaintiff is a mega-millionaire with unlimited means; the defendant is all but impecunious; and the defendant would have no reasonable way to collect a fee award, as the plaintiff would be able to simply hide behind a border that the defendant cannot cross. If there was a case that called for a 1030 undertaking, this is it.

But by choosing to approach the trademark infringement question in the way that it did, the court perpetuated certain problems that we flagged in our brief. Applying the standard infringement factors to critical speech forces to the court to come to some awkward conclusions about how the factors should apply, and leaves open some potentially odd results in future cases. This analytic tension in applying a likelihood of confusion analysis to critical speech permeates the majority’s analysis. Some highlights follow below:

Similarity of the parties' goods: This is a classic factor in trademark infringement analysis, and when applied to two market rivals using similar marks to sell their goods it makes a great deal of sense: the more similar the goods are, the more likely a consumer may be confused looking at those goods. But here the application makes no sense whatsoever.

The court here notes (quite correctly) that Jenzabar sells educational software systems and Long Bow makes documentary films. Those two fields are unrelated, and thus the court held that this factor favors Long Bow. That is convenient for Long Bow, but in this context it is irrelevant. Consumers looking at critical speech are not any more likely to be confused as to the origin of the speech because it comes from a market competitor. To hold this as relevant is to say that Reed Elsevier or the New York Times would be more successful in attacking critical speech on trademark grounds, because those publishing criticism usually do so at media and publishing companies.

Long Bow Group burned though more than $250,000 in legal fees on preliminary motions and discovery, and veered close to bankruptcy before it found public interest lawyers who were willing to assume responsibility for the litigation; the Appeals Court upheld summary judgment after a review of a joint appendix more than 2700 pages long. Unlike other recent decisions that dismissed claims of “initial interest confusion” out of hand, such as because the Internet critic was not benefitting financially, or because “momentary confusion [is] dispelled the moment the Internet user reaches [underlying] site,” the Appeals Court conducted a lengthy analysis of the summary judgment record to reach that conclusion. To be sure, many of the undisputed facts on which the court relied are likely to be found in most cases where a critic’s page about a trademark holder has appeared prominently in the search results. In the end, the only evidence Jenzabar had was the search result itself, and the Appeals Court properly ruled that this is simply not enough to avoid summary judgment. Yet if avoidance of a trial depends on a painstaking analysis of a detailed summary judgment record—and if future abusive trademark litigants can avoid early summary judgment by arguing that they hope to compile a better record through extensive (and expensive) discovery—there will be many Internet critics who will find the cost of a legal defense too great a barrier to continued exercise of their free speech rights.

Another aspect of the decision that may take litigation in this area a step backward is the apparent acceptance of a confusing expert’s affidavit as being sufficient to create an issue about whether inclusion of a trademark in a keyword meta tag can raise the search ranking of a page containing that meta tag.  The Appeals Court acknowledged official statements by Google, cited by the Ninth Circuit and the McCarthy treatise, to the effect that search engines no longer take account of the keyword meta tag, but if a wealthy litigant can avoid summary judgment by hiring an expert witness who is willing to say whatever he needs to say to get paid (and we thought that the expert very carefully tiptoed around the issue of the impact of keyword meta tags, rather than addressing them directly), the social utility of the truth as a bar to litigation is substantially reduced.

Plaintiff fails to produce evidence showing that the statements in the article were false. The article reports on allegations made by levy against plaintiff.... The article at multiple points indicates that the accusations came from Levy and the article at no point states that plaintiff actually committed the alleged acts. The article does not state that plaintiff has been charged with any crime. Indeed, the article at several points indicates that Levy had been previously accused of dishonesty.

My guess is that their strategy is this: If you keep whiffing against a small time blogger, you might as well then just pick a fight with one of the biggest companies in the world. Sit back and get your popcorn and watch how this one works out. I want to thank Mr. Katz for bringing in an 800 lb gorilla to help me in his unsupportable SLAPP suit.

We have yet to speak to Google's lawyers about this case, but we expect that they will be receptive to standing up for the First Amendment along with us.

In his 20 years as a lawyer, he says, he’s written hundreds of letters like the one he sent Inman, but the response to this one was unique.

“So someone takes one of my letters and takes it apart. That doesn’t mean you can just declare netwar, that doesn’t mean you can encourage people to hack my website, to brute force my WordPress installation so I have to change my password. You can’t encourage people to violate my trademark and violate my twitter name and associate me with incompetence with stupidity, and douchebaggery,” he says. “And if that’s where the world is going I will fight with every ounce of force in this 5’11 180 pound frame against it. I’ve got the energy, and I’ve got the time.”

The implications of Mr. Carreon's position are profoundly chilling. Under the rule he seems to suggest, if you write about bad behavior by someone else, even if you don't urge action, you run the risk that you will be held liable when one of your readers is inspired to hack or threaten or harass. Perversely, this means that the more criminal or unconscionable or horrific the conduct you are describing, the greater legal risk you take by writing about it. That's not the law, thank God. The very suggestion is un-American and contemptible.

Moreover, note that Mr. Carreon is suggesting that it is actionable not only to inspire people to undertake (alleged) illegal action, but actionable to inspire people to "associate me with incompetence with stupidity, and douchebaggery." In other words, if your criticism of someone's conduct leads others to form an opinion of him, and express that opinion, that's actionable. That's true to the extent that someone states false facts about a person — for instance, by falsely accusing them of child abuse. But The Oatmeal offered satirically expressed opinions about Mr. Carreon's conduct in a letter which The Oatmeal presented to his readers to review. To the extent that The Oatmeal opined that Mr. Carreon is incompetent, stupid, and a douchebag, those are classic opinions absolutely protected by the First Amendment. Under First Amendment law governing defamation, they are particularly protected because The Oatmeal presented the facts based on which he drew his opinions — namely, the letter itself. Under the theory that Mr. Carreon seems to be advancing, if I wrote you a letter suggesting that your wife beds down with diseased ocelots and calling for your children to be flogged, and you publish the letter and say that it suggests that I am a disturbed person of low character, then I would be legally responsible if people formed the same opinion based on the evidence you provided. Indeed, under Mr. Carreon's apparent theory, if he criticizes The Oatmeal's response to him as vulgar or unprofessional or uncivilized, he's legally responsible for people agreeing with him. This is not law, this is madness. And bear in mind that Mr. Carreon markets himself as a First Amendment champion.

He may have a very difficult time proving that Inman “instigated attacks,” as he said on his website, but he’s certain he can find some legal recourse for what’s going on right now – “California code is just so long, but there’s something in there about this,” he says.

Oh, Mr. Carreon, indeed there is. There's California's magnificent anti-SLAPP statute, under which you'll be paying the attorney fees of anyone you sue. There's California's judgment debtor exam law, under which you can be interrogated about your income and assets in preparation for garnishing your income and, if necessary, seeking liquidation of your assets to satisfy a judgment for attorney fees against you. There's California's sanctions statute, under which you can be sanctioned for bringing suit to harass or without adequate legal or factual basis.

Read them carefully. And think. Think hard. Step back from the precipice. This can get better, by you letting it go. Or it can get worse. Much, much worse.

We were naive in thinking that this fact alone would lead to a victory in civil case we had deemed frivolous. We did not take into account the politics played in a courtroom -- between judges and counsel -- and the maneuverings of counsel who treat facts casually.

Your letter, its accusations, and its conclusions are shocking. And you are wrong in every respect...

[...]

I can't close a letter without pointing out the obvious: your letter, instead of addressing Mr. Shojaee's accurate claims about Mr. Hope's business activities, maligns his character and accuses Mr. Shojaee of "fail[ing] to disclose your true motives to your readers." You then go on to list a number of web domains that Mr. Shojaee legally owns in connection with a legitimate business purpose.

The idea that Mr. Shojaee has done anything to apologize for is laughable. It is Mr. Hope who has built a company based on deception; it is Mr. Hope who has illegally used technology to bilk consumers out of millions; it is Mr. Hope who has chosen to interfere with my client's business...

When Dallas developer H. Walker Royall found out about an impending book digging into one of his projects, he went on a lawsuit bender.

He sued the author, Carla Main, and her publisher, Encounter Books. He sued Richard Epstein -- the prominent libertarian academic -- for a blurb he wrote praising the book. He sued Mark Lardas, who reviewed the book, and the Galveston County Daily News for publishing the review.

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.

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.