Roca Labs Sues Opposing Lawyer, Marc Randazza, Because Of What We Wrote On Techdirt

from the i'm-still-trying-to-figure-it-out-myself dept

So, the Roca Labs story continues to get more and more bizarre. There are these stories that we follow, sometimes, that we think can’t get any more bizarre… and then they do. Joseph Rakofsky, Righthaven, Charles Carreon and Prenda Law all seemed to have trouble recognizing the infamous first rule of holes1. And it would appear that Roca Labs is very firmly in that camp as well. Roca Labs has chosen to sue Marc Randazza, the lawyer representing PissedConsumer in Roca’s case against PissedConsumer. Roca is suing him for defamation, but, as Ken “Popehat” White points out, not for anything specific that Randazza has said, but mostly for stuff that we wrote on Techdirt (and some of what was written by Cory Doctorow on Boing Boing) on the bizarre, and simply wrong, assumption that Randazza somehow fed us what to say. Adam Steinbaugh summarizes the situation nicely:

Roca Labs? theory is that Randazza made defamatory statements to the media, which published them, and then proceeded to make the above statements in pleadings against the company.  The litigation privilege does not extend to statements made outside the litigation ? such as statements to the media.

But this position is circumspect at best: Roca Labs is vague about the statements supposedly made to the media. Roca Labs simply notes that two media outlets ? Techdirt and BoingBoing ? published articles before Randazza filed the pleadings, and those articles contain statements that are also critical of Roca Labs for similar reasons: that the complaint is ridiculous and that the product has the aura of being snake oil ? a miracle product that will let its consumers shed weight like a snake sheds skin.

Roca Labs has pulled a bait-and-switch, essentially saying: ?look, the media criticized us for similar things that Randazza criticized us, so let?s assume Randazza said those same things to the media.? Except each of those statements are observations that anyone familiar with free speech issues would probably have made on their own.  The Techdirt article doesn?t even quote or mention Randazza, and it?s not exactly surprising that either outlet would slam Roca Labs? complaint: these types of half-baked lawsuits are something of a cause célèbre for Mike Masnick (who, himself, is not exactly a scrivener sycophant of Randazza.)  As for the BoingBoing article, it did little more than quote Techdirt, adding, in total:

Roca Labs sells dubious snake-oil like a ?Gastric Bypass Alternative,? and their terms of service forbid their customers from ever complaining; they say that committed ?tortious interference? by providing a place where disgruntled buyers could air their grievances.

Calling something a ?snake oil? is clearly an opinion no journalist would formulate on his own without talking to the defendants? counsel, right? Much less BoingBoing, which never calls anything snakeoil.

You can read the lawsuit itself at the link above or embedded below. It makes a huge number of assumptions — basically all incorrect — that Randazza spoke to us in particular for our post. He did not. Either way, the Popehat analysis explains why this whole thing is ridiculous:

On to the substance of the claim, if I may use the term very generously. Roca ? through Johnny G. ? asserts that Marc has been defaming Roca Labs during this litigation by making statements to the press (or, as Johnny G. puts it, to “webzines”) and then putting those same statements in court pleadings. They imply he’s trying to cloak his statements to the media with litigation privilege by repeating them in court filings. This theory is . . . odd.

Moreover, Johnny G. and Roca Labs are conspicuously vague about exactly what statements are defamatory, and exactly how. Other than complaining that Randazza defamed Roca Labs through a very clearly satirical tweet on Halloween, there are few specifics. Roca Labs complains that Randazza’s purpose is to “mock, ridicule, humiliate, harm, and continue his war against ROCA,” but that’s not very specific. Roca Labs complains about statements in articles by Techdirt and tries to attribute them to Randazza, but doesn’t explain exactly what Randazza said and exactly how it was wrong. That lack of specificity is probably deliberate ? if Roca Labs admitted they were mad over the term “snake oil,” they’d have to confront the fact that the phrase is obviously protected opinion. See, e.g., Phantom Touring v. Affiliated Publ’ns, 953 F.2d 724, 728, 730?31 (1st Cir.1992) (holding that description of theatre production as ?a rip-off, a fraud, a scandal, a snake-oil job? was no more than ?rhetorical hyperbole?). Moreover, in some parts of the complaint Roca Labs is attacking statements that are clearly, objectively true based on Roca Labs’ own court documents. For instance, Roca Labs angrily quotes a paragraph in which Techdirt accused them of trying to silence customers. Which is what they are doing.

Finally, the complaint attaches a motion for a temporary injunction, in which Johnny G. demands that Randazza cease and desist saying mean things about Roca Labs, retract prior mean things, and remove any online content about Roca Labs. At this point I have to admit that I don’t know whether Roca Labs and Johnny G. are powerfully stupid, breathtakingly cynical, unapologetically unethical, or all three. Despite the fact that they are suing a renowned First Amendment lawyer, despite the fact that they are demanding an injunction silencing him, despite the fact that they have lost a similar injunction request in which Randazza schooled them on the First Amendment and prior restraint issues, and despite the fact that it is clear those issues will arise again, their motion makes no mention whatsoever of the overwhelming First Amendment and prior restraint issues presented by their demand.

So there’s that. The complaint against Randazza also seems to try to smear Randazza for the fact that he’s represented the First Amendment interests of some pornographers and “supported” other “undesirable” folks, including writing about the first amendment rights of a pro-pedophilia author.

As Popehat further points out, Roca’s lawyer also appears to use “defamation per se” incorrectly. We’ve noted in the past that Roca has used that claim based on a clause in its terms of service that says if you say negative things about the company it will count as defamation per se (which is not how defamation per se works), but Roca again seems confused with it in regards to Randazza. Popehat provides the primer:

Most people who use “defamation per se” use it wrong. That is the case here. “Defamation per se” does not mean “this is automatically defamatory.” It means that certain statements, if proved false with the requisite mental state (malice or negligence), do not require extra proof of special damages.

I can’t imagine this particular lawsuit will go far, but I do wonder if Roca Labs and its lawyers will ever recognize that first rule of holes.

1. Stop digging

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Companies: consumer opinion corp., pissedconsumer, roca labs

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Comments on “Roca Labs Sues Opposing Lawyer, Marc Randazza, Because Of What We Wrote On Techdirt”

Subscribe: RSS Leave a comment
Digger says:

Re: Re:

So I was digging and found that this article is based on Adam Steinbaugh accused of…. Pedophilia? He ran away from paying his rent of over $8,000 and, according to that site: “convicted of raping 3 year old boy”. I find it hard to believe that Adam Steinbaugh, this story’s source, will even be accused of something like this.

I hope Mike will respect First Amendment and will permit this comment.

Adam Steinbaugh (profile) says:

Re: Re: Re:

Read my comment in response to the post. The guy who runs that site (or someone working with him) apparently creates fake reviews. He found out I was going to be writing about his “revenge lovers” (aka revenge porn) section. Lo and behold, a complaint from my “landlord” appears a few days later accusing me of raping children, trashing my apartment, and bailing on the rent. And, shockingly, the “landlord” has the same last name as one of the site owner’s relatives.

I’m by no means a perfect person and have made plenty of mistakes in the past, and will likely do some things in the future that I’ll later regret. There’s plenty to criticize me for, but this ain’t one of them.

Also, the First Amendment has nothing to do with whether you can comment on a private site. Given your interest in being a “digger” into my background, your unclear English, and your lack of basic understanding of what the First Amendment means, I frankly wouldn’t be surprised if you were affiliated with Roca.

Good Night and I am out of here says:

Re: Re: Re: Adam Steinbaugh

Nasty enough to drive some people right into zombiehood. Take Adam Steinbaugh, for example. He can’t find work, so he blogs about things he doesn’t understand. How could he understand them? A lawyer with no experience in the courthouse or the conference room is simply a helpless creature, often veering from one near-disaster to another, frightened of judges, frightened of other lawyers, unable to communicate with clients effectively, spreading an aura of discombobulation throughout the vicinity.

Of course, Adam doesn’t feel like a zombie, yet. He knows that some sense of decorum is required, that he needs to show restraint, but he doesn’t know where the boundaries are. Meanwhile, he makes heroes of people whose own careers are not exactly the envy of the profession, like Marc Randazza. Adam worked for a little while at a firm that represents truly bad lawyers, like the Prenda Law Group fellas, whose conduct seemed so clearly criminal to Judge Otis D. Wright III that he referred these bad lawyers to the U.S. Attorney for investigation in a sanctions order. Adam scrounges around for praise from Ken Popehat White, and what good does it do him?

Tell you what – the more closely he associates himself with the Rapeutation business, the longer it’s going to be before he is able to cleanse himself of the association and begin a life of normal, meaningful lawyering.

Anon E. Mous (profile) says:

Roca Labs is suing more Randazza now? These guys obviously don’t realize this sue everyone strategy isn’t working.

The publicity they were seeking to avoid about their company has now come tenfold at them. Honestly, how many people heard of Roca Labs before they sued Pissed Consumer…Not too many I’d suspect.

But ever since they sued Pissed Consumer, now everyone has heard about these guys and not for anything good. Obviously Roca Labs company heads are not masters of the PR game

tqk (profile) says:

Re: Re: Re:

So much for the only (semi-)rational theory of their behaviour I could concoct.

I’m wondering if there’s some sort of analogue to click bait farms, where this analogue makes money based on the number of utterly irrational lawsuits these outfits file. Thinking conspiracy theory here, maybe Comedy Central is running some kind of secret Ultra-prime deal that they sell to insiders, possibly lawyers and judges and their ilk.

How do these people manage to pass a bar exam? Isn’t this stuff obviously barratry?

Nom du Clavier says:

Re: Re: Re: Re:

In a world filled with goo, a gaggle of law wranglers set out to punk all the webzines.

On a browser near you soon, from the producers of Carreon: Eat Crow and Prenda: 1,000 milliPrendas And Counting, comes a new legal dramedy: Roca: Swinging the Legal Baton.

“Wow, it’s the reality show you didn’t even know you were on!” – Oscar Wilde.

Anonymous Coward says:

Re: Re:

They are masters of the PR game. They just play it differently:

Step 1: Sell your product under convincing name.

Step 2: Profit

Step 3: Pursue vigorous legal action against any and all critics in any forum or venue. Continue to bombard them and their lawyers until they run out out money or the will to continue the legal battle. Force the losers to withdraw their claims and accept a settlement gag order.

Step 4: Claim loudly that you have been vindicated in the courts and no claim of fraud or malfeasance has ever been sustained against you.

Step 5: Continue Steps 1-2, repeat Step 3-4 as required.

Nigel (profile) says:

I was particular amused with Ken’s Post

“The complaint itself — which I have uploaded here — brings the crazy and brings it good and hard. It was penned by Roca Labs’ latest attorney, one Johnny G. DeGirolamo, a 2009 law school graduate and 2011 bar admittee, whose website is No, really. His site offers a flattering headshot of a smiling advocate, and it was a very good choice to use that picture rather than, say, his booking photo.”

Leader1 says:

You are blinded by your leader, herd

Facts, dear herd, facts….

I am not as smart as most of you. But I love facts.

1. Who is Adam Steinbaugh? Is he your source?! His he an attorney? A law office clerk? Who is he? I am not sure the guy passed the bar…

2. The leader of the herd is a very PR seasoned porn attorney using First Amendment for his convenience and because he knows the herd (you) loves a sense of “ideology” while he is using you to defend a site that misuses the beauty of the First Amendment and what it is really standing for. He is GREAT in manipulating the herd and the trolls for his financial gain. BRAVO.

3. And this respectful site, second in command to the leader of the herd, is sitting the following: “…Roca Labs and Johnny G. are powerfully stupid, breathtakingly cynical, unapologetically unethical, or all three. Despite the fact that they are suing a renowned First Amendment lawyer”

WRONG: your leader is a very smart port attorney and an attorney of a site that hurts people and small business. Randazza is so smart that Randazza:

A. Randazza was fast to remove ALL of his blogs and corresponding with Senator Johns (who seemed to be washing his hands from Randazza). PS Sources say the matter is not over though the herd assumed it is.

B. RANDAZZA Smartly advised Tracey Coanen to REMOVE ALL POSTS and Tweets regarding Roca Labs. Or, alternatively, Tracey C. also simply washed her hands off him…

Would a “renowned” First Amendment attorney quickly remove his blogs and those he wrong for others so quickly?! NO. Only a smart porn attorney who knwo business and let’s give it to him. He is smart. He has manipulated us all. I even tweeted for him against Roca Labs.

4. “schooled” Adam? You don’t have to pass the Bar to see that the Judge, not the majesty, has rules that she is not impressed with Randazza’s arguments and the case MOVES ON to discoveries and depositions (and I have the feeling that much more).

I was also part of the herd….

Pretty Woman says:

Re: Dear Mike Masnick,

Dear Mike Masnick,

I know that you are a thinker of your own and not just a follower. Reading your other articles, I also know that you are not like…. my husband.

Therefore, I hope you are not using your writing talent and leadership to fool your followers or be blind to the fact. We trust your integrity and we like your style.

Leader1 sounds like a smart man (probably a woman) and we should relate to the facts instead of “bring popcorn”….

Thanks, gentleman

Gwiz (profile) says:

Re: You are blinded by your leader, herd

Facts, dear herd, facts….

Ummm…nothing in your comment is fact whatsoever.

Conjuncture, hearsay and opinions, yes, but not facts. Not only that, but your comment also appears to be a disjointed ramblings to me. I couldn’t figure out who you were talking about most of the time.

And, btw, Adam Steinbaugh graduated law school cum laude and has passed the California bar.

That One Guy (profile) says:

Re: Bold is for emphasis, not the default

Where to even start…

1. Ad hom.

2. Ad hom, appeal to emotion, bandwagon.

3. Bandwagon, ad hom and lie.(Here’s a hint, do your research before making claims that can be easily verified)

PS Sources say the matter is not over though the herd assumed it is.

Yeah, that would probably be because the claim was dismissed in a matter of days by the Nevada AG.

‘And… the whole issue quickly became moot anyway, because the Nevada Attorney General has dismissed Juravin’s bribery complaint (pdf) already. The Nevada’s Attorney General’s office (who kindly provided me with the rejection letter) tells me that there was “insufficient evidence” in the complaint to believe that there was any criminal activity at all, and that Juravin’s “theory of the offense does not rise to the level of a crime.” Basically, it didn’t take long for the Attorney General to look at the complaint and realize that it was nothing more than someone’s personal vendetta against Marc Randazza for having the gall to be involved in a lawsuit which Juravin himself had started (along with his lawyer Paul Berger).’


4. Yes, of course, that’s why they’ve had to cycle through multiple lawyers so far, because their case is just so strong, a single lawyer isn’t enough to handle it.

5. Bandwagon, appeal to emotion.

If you didn’t mean to bold everything, ‘Preview’ is your friend, allows you to spot those misplaced tags before posting your comment.

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