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
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.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.
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.