Roca Labs Threatens To Sue All Three Former Customers Who Provided Evidence Against Roca In PissedConsumer Case

from the the-ultimate-in-sleazy dept

The Roca Labs story keeps getting more and more ridiculous. Each time you think the company couldn't act in a way that seems even more sleazy and questionable, it raises the bar. If you don't recall, Roca Labs sells a "dietary supplement" (they describe it as a "food additive" or a "nutraceutical") that, according to one doctor, "consists primarily of industrial food thickening agents" which the company claims is an "alternative" to gastric bypass surgery. More importantly, the company has some crazy terms of service that say if you buy the product the company will offer a "discount" in exchange for agreeing to never say anything negative about the product ever in any form (and requiring you to allow the company to showcase any positive results). One of our readers went through the ordering process and claims that the "discount" is a mirage -- as there appeared to be no way to order without the "discount" (i.e., without agreeing to the gag clause). Despite all this, there are numerous complaints about Roca Labs and its product both with the Better Business Bureau (which gives the company an F grade) and with PissedConsumer, where people have complained about both the company and the product.

In response, Roca Labs used some unique legal theories to sue PissedConsumer's parent company, Consumer Opinion Corp., claiming that it's "tortious interference" to solicit consumer reviews, given the company's gag order. PissedConsumer fought back, arguing that the gag clause was clearly unenforceable, questioning the quality of Roca's products, and highlighting the company's history of threatening lawsuits when people complained to the Better Business Bureau. On top of all that, we noted that Roca Labs decided, in the midst of all this, to sue a former customer for complaining to the Better Business Bureau. This lawsuit was filed the day after PissedConsumer responded to Roca's lawsuit, the timing of which will become more interesting as you read a little further.

If you're keeping score at home, among the questionable actions by Roca Labs (leaving aside any questions about the efficacy and safety of the product), we've got (1) a gag order that both demands silence if you're unhappy and compels endorsement if you are happy, (2) a questionable legal threat against a website that collects consumer reviews, and (3) legal threats and lawsuits against unhappy customers for merely complaining to the BBB about Roca Labs.

And now the company has taken it up to another level. As we noted, when PissedConsumer fought back, it included declarations from three former customers, all of whom had complained to the BBB. It had been a while since any of those former customers had heard from Roca Labs, but four days after PissedConsumer's response, all three of those customers received new letters from Roca Labs, threatening legal action for "breach of contract."

Marc Randazza, the lawyer for PissedConsumer, has now filed for a temporary restraining order against Roca Labs, claiming that the company is engaged in witness intimidation.

Via the attachments in the filing, you can see that Randazza had a ridiculous email conversation with Roca Labs' lawyer, Paul Berger, in which Randazza bent over backwards offering to allow the company to file such lawsuits if needed to avoid a statute of limitations, but otherwise asked the company to defer any such threats or legal action until after the court expresses an opinion on the legitimacy of Roca's gag order (which is expected next week). Berger appears unwilling to respond directly to what Randazza is clearly offering, and also makes some bizarre claims about not being able to respond as the legal representative of Roca Labs, despite his own email signature noting that he's the "independent general counsel" for the company and the fact that all the threat letters came directly from him (his reason: not being admitted to the bar in that part of Florida -- a meaningless excuse for the purpose of communications between lawyers, since that only concerns his ability to appear in court).

In the threat letters to the three customers sent on Monday morning, September 22nd, Berger directly references that one lawsuit he filed the previous Friday, September 19th, as evidence of the "seriousness" with which Roca takes these issues. So, the timeline: on Thursday, September 18th, PissedConsumer responds to Roca's lawsuit, including declarations from three former customers who complained to the Better Business Bureau, only to receive initial threats from Roca soon after, though no actual lawsuit (two of these happened in 2011, one earlier in 2014). On Friday, Roca sues a different former customer who complained to the Better Business Bureau. Then, early Monday morning, Roca sends letters to the three former customers whose declarations were part of the Thursday filing, pointing to the Friday lawsuit as evidence of how the company will sue customers who complain to the BBB. You can see all three threats embedded below.

As Randazza notes in his own filing, this appears to be a fairly clear attempt to "intimidate and harass defense witnesses." From the filing:
So far, three of Roca’s prior customers have agreed to serve as witnesses. Most others declined to respond, wishing to not get involved, out of fear that Roca would retaliate against them for testifying. Those concerns proved to be well-founded, as Roca threatened all three of the witnesses Opinion Corp. identified. The timing of its aggression against these three women makes its intentions transparent – Roca wants to intimidate them and any other potential witnesses in this case.

As for Ms. Walsh and Ms. Anderson, it has been in excess of three years since they lodged their complaints with the Better Business Bureau. Roca threatened litigation at the outset, demanding they retract their complaints. Roca then went completely silent for more than three years. However, after such a long period of dormancy Roca now seeks to threaten imminent legal action against these witnesses. Nothing could have motivated Roca to reach out to these women after such a long period other than to try and intimidate witnesses in this case.
The filing only seeks a rather brief temporary restraining order, asking the court to block Roca from any such threats or lawsuits until after the October 8th hearing in this case, when it's likely the judge will determine if the original gag order from Roca Labs is legit. As Randazza notes, the only possible "harm" to Roca is delaying a possible lawsuit by less than two weeks (which seems completely minor given that Roca Labs ignored the issue with at least two of the customers in question for over three years). Furthermore, Randazza asks for any and all communications with those and other potential witnesses in the case to make sure that there hasn't been anything else that might be deemed witness harassment or intimidation.









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  • identicon
    Anonymous Coward, 29 Sep 2014 @ 6:10am

    Witness intimidation

    I thought that witness intimidation is criminal offence?
    If so it seems that Roca's lawyer risk disbarrement...

    reply to this | link to this | view in chronology ]

  • icon
    ACasey (profile), 29 Sep 2014 @ 6:33am

    Marc Randazza isn't the greatest lawyer in the world, but I'm glad he's on this case.

    reply to this | link to this | view in chronology ]

  • icon
    Oblate (profile), 29 Sep 2014 @ 6:40am

    So this is how they work...

    > the company claims is an "alternative" to gastric bypass surgery.

    Figured out how this works-
    1. Gullible/ignorant person becomes customer of Roca Labs.
    2. Person consumes 'alternative' weight loss supplement.
    3. Person becomes irate/displeased with performance of the 'alternative'.
    4. Person legitimately complains about Roca Labs.
    5. Person is sued and harassed by Roca Labs.
    6. Person must spend income on lawyer fees instead of food.
    7. Due to financial based malnutrition and stress from lawsuits, person becomes thinner, and no longer needs gastric bypass surgery.
    8. Person discovers that the supplement has worked as intended, just not in the method they thought it would.

    reply to this | link to this | view in chronology ]

    • identicon
      Andrew D. Todd, 29 Sep 2014 @ 9:34am

      Re: So this is how they work...

      Fallacy in argument #6. If you shop around, junk food is much cheaper than good food, eg. salad. You can get a whole bag of Snickers bars for a couple of dollars. The thing about salad is that it spoils, and the shopkeeper is forever pitching stuff which has gone overdue, and that is reflected in the price. I just spent four dollars at the convenience store for a little tray containing half a dozen cherry tomatoes, three banana peppers, and three sprigs of broccoli. So, so, and such small portions...

      Come to that, off-brand whiskey is remarkably cheap. If the pain of your existence is too great to tolerate, you can get completely bombed for a dollar or two, at the rate of twenty-five cents a drink (1.75 liters/$15, see Rite-Aid newspaper circular). Hogarth's famous engraving, Gin Lane, shows a sign reading: "drunk for one pence, dead drunk for twopence, straw for free." A penny, circa 1750, would be worth about a dollar now, so not much has changed. Except for the straw...

      reply to this | link to this | view in chronology ]

      • icon
        Oblate (profile), 29 Sep 2014 @ 10:45am

        Re: Re: So this is how they work...

        > I just spent four dollars at the convenience store

        Well there's your problem. You are buying prepackaged at the premium convenience store rate. Buy normal sized amounts of whatever is on sale at the regular (inconvenience?) store and you won't pay nearly as much per serving.

        So there is no fallacy. Just because someone may buy junk food that is cheaper than healthy food, does not mean that they must buy that junk food or that they have to spend their reduced budget on junk food instead of reasonably priced healthy food.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Sep 2014 @ 6:44am

    Paid by the hour

    The Roca Labs top lawyer must get paid by the hour for cases he works on for them. He is obviously drumming up enough legal trouble for them, that he will end up owning whatever assets are given to the defense in these obvious Streisand affect inducing actions.

    reply to this | link to this | view in chronology ]

  • icon
    Anon E. Mous (profile), 29 Sep 2014 @ 6:58am

    The more I read about this case, the more I get a Prenda like sense of Deja-vu in how the legal arguments from Roca seem to be filled with more filler than substance

    The fact that they are suing people who were former customers many years later just adds to the air of desperation of Roca's case in my opinion and seem to be more concerned with the statues of limitation running out than actually saving fact and getting out of this mess.

    Honestly the bad publicity that is going to surround this case almost reminds me of the KlearGear mess, in that trying to hold people to a policy that is coercive at best is just bad for business.

    If your product isn't what is cracked up to be then people are going to complain about it. Maybe if they actually offered refund peoples complaints wouldn't be so bad.

    If people are saying this product didn't work for me and I cant get a refund, then you cant expect them to sit by and just flush their cash down the drain and be all quiet about it

    It would seem this is more about silencing the critics who say the product didn't work, as it may effect future sales. I guess it is easier to try and quiet your detractors then to fix your product

    reply to this | link to this | view in chronology ]

    • icon
      ACasey (profile), 29 Sep 2014 @ 7:19am

      Re:

      Prenda wasn't nearly as bad as these people, IMO. They only sued over porn; these people are trying to stifle speech.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Sep 2014 @ 7:41am

        A rare sentence

        Prenda wasn't nearly as bad as these people

        Now that's a sentence I didn't expect I'd ever see.

        reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 29 Sep 2014 @ 12:38pm

        Re: Re:

        o_O
        Ummm really?
        Did you miss where they attempted to not only out 10 "John Does" but all of ip addresses that visited DTD & FCT for a multiyear period, including times when Prenda didn't exist.

        Pretty sure they thought they could shut me up by threatening litigation (Oh hey that case is STILL going on, someday they might even get over the sanctions for their actions before even 1 bit of "evidence" has been heard. Next hearing in 2015.).

        Sadly for them we know a couple people who know stuff about this sort of thing. One of the claims that they were defamed is because we implied the corporation fornicated.
        O_O

        My avatar, posts, & tweets (and the other merry misfits I hang with) appear on more Federal Dockets across the country than I want to think about. Prenda gave other copyright trolls the idea that flinging accusations in court is a good way to try and win, trying to discredit the people exposing their bad behavior.

        Seems pretty similar.

        reply to this | link to this | view in chronology ]

        • icon
          ACasey (profile), 29 Sep 2014 @ 12:44pm

          Re: Re: Re:

          TAC, I'm well aware of Pretenda's defamation suit, as I was one of the commenters listed. The problem with Roca is that they're going after something much worse than porn - sure porn causes people to pay up, but it's also why nobody takes this shit seriously.

          reply to this | link to this | view in chronology ]

          • icon
            Blackfiredragon13 (profile), 11 Oct 2014 @ 5:04am

            Re: Re: Re: Re:

            Too new to techdirt to know much about this. Some guys from prenda(what is that? Some kind of store?) named you in a lawsuit?

            reply to this | link to this | view in chronology ]

      • icon
        Niall (profile), 2 Oct 2014 @ 1:44am

        Re: Re:

        Not to mention a potentially harmful product.

        reply to this | link to this | view in chronology ]

    • icon
      Gracey (profile), 29 Sep 2014 @ 8:49am

      Re:

      [quote]in how the legal arguments from Roca seem to be filled with more filler than substance[/quote]

      Well why not? Isn't that the way they work ... the product is no different ... filled with more filler than substance too.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Sep 2014 @ 7:59am

    Selling Snake Oil , should be hit and run why do you think the guys that started doing this always had a cart and left town afterwards sooner or later the person you fooled is going to figure out your scam , repackage and move on.

    reply to this | link to this | view in chronology ]

  • icon
    G Thompson (profile), 29 Sep 2014 @ 10:30am

    I wonder if Roca are smart enough to see what is now about to happen to them and what Marc (who is really a master strategist) is doing here. Sun Tzu would be proud ;)

    *munches popcorn*

    reply to this | link to this | view in chronology ]

  • icon
    Howard Robinson (profile), 29 Sep 2014 @ 11:55am

    Wonder if Ken from Popehat

    Just curious if Ken from Popehat has seen this yet?

    reply to this | link to this | view in chronology ]

  • icon
    z! (profile), 29 Sep 2014 @ 2:32pm

    If Roca made legal threats to former customers then waited 3 years to bring them up again, the doctrine of laches ought to apply and kill any possible actions.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Sep 2014 @ 7:41pm

    Careful. We all know what recently happened to people who decided to enforce their rights.

    reply to this | link to this | view in chronology ]

  • icon
    JoeBuckley (profile), 29 Sep 2014 @ 11:05pm

    Fishy

    Seems like Covington has seen seen Roca in front of her before (okay more like several times) and it seems to also be the start (or perhaps trail) of some lets say highly "amusing" antics:

    http://law.justia.com/cases/federal/district-courts/florida/flmdce/8:2012cv02231/276325/33

    and then there's this little tidbit that kind of ties nicely with their website "branding issues":

    http://www.scambook.com/report/view/91962/Roca-Labs-Complaint-91962-for-$3,700.00

    Seems like they're a sue happy company, hell going as far as basically quashing ANY discussion about their product in anything but "glowing" testimonials

    https://www.chillingeffects.org/protest/notice.cgi?NoticeID=70226&print=yes

    reply to this | link to this | view in chronology ]

  • identicon
    not a customer, 30 Sep 2014 @ 7:50pm

    Their website is absolutely infuriating.

    Everything is underhanded, from "product sold 'as is' only" and "no medical advice implied" notices to the money back bs, to the rules which must be obeyed - which is the diet you need to follow to lose weight without any product whatsoever.

    What a bunch of sleaze bags. I can say that since I am not a customer.

    reply to this | link to this | view in chronology ]


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