Techdirt's Response To Roca Labs' Demand For A Retraction

from the threats-and-such dept

As you know, we've been reporting on a lawsuit involving Roca Labs against Consumer Opinion Corporation, better known as PissedConsumer. We recently received a letter from Roca Labs' "independent general counsel" Paul Berger, demanding that we retract certain information related to some of those posts. Below you can find that letter as well as our response, helpfully put together by Jamie Williams at EFF.


Filed Under: paul berger
Companies: roca labs


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  • icon
    MM_Dandy (profile), 10 Oct 2014 @ 2:55pm

    I looked,

    But I couldn't find any TechDirt articles published on September 22, 2104.

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

  • icon
    Adam Steinbaugh (profile), 10 Oct 2014 @ 3:09pm

    The most remarkable thing here is that the EFF's counsel resisted the urge to file the response I would have sent:

    "Dear Mr. Berger and Roca Labs, Inc.:

    lol.

    love,eff and techdirt and mike"

    In crayon, naturally.

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

    • identicon
      Anonymous Coward, 10 Oct 2014 @ 5:09pm

      Re:

      It's not like being legally right matters anymore. Look how badly the constitution has been eroded. Infinite copy protection lengths due to retroactive extensions, unwarranted seizures,etc... The law no longer matters.

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

    • icon
      That Anonymous Coward (profile), 10 Oct 2014 @ 11:36pm

      Re:

      STHAAAAP STEALING MY CRAYONS!

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

  • icon
    SmozeFroze (profile), 10 Oct 2014 @ 3:12pm

    Arkell v. Pressdram

    This would have been better...

    See: http://www.lettersofnote.com/2013/08/arkell-v-pressdram.html
    ---
    Dear Sirs,

    We acknowledge your letter of 29th April referring to Mr. J. Arkell. [Roca Labs]

    We note that Mr Arkell's [Roca Labs'] attitude to damages will be governed by the nature of our reply and would therefore be grateful if you would inform us what his attitude to damages would be, were he [Roca Labs] to learn that the nature of our reply is as follows: fuck off.

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

  • icon
    That One Guy (profile), 10 Oct 2014 @ 3:20pm

    'Please retract the following article in full'

    Yeah, they weren't demanding a retraction, it looks like they were demanding the removal of the first four articles covering the fiasco in their entirety.

    Of interest, and reminding me of the Ken/Popehat phrase 'Vague threats are a mark of legal thuggery', while they mentioned that the articles and what's listed in them are 'defamatory', they don't actually point to any specific examples of such, just giving a vague 'This article and its contents are defamatory'. Given truth is a defense against defamation, it's not hard to imagine why they'd avoid going into details.

    Oh and talk about a blast from the past, they end the letter with 'Please govern yourself accordingly', talk about deja vu...

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

    • identicon
      Anonymous Coward, 10 Oct 2014 @ 3:28pm

      Re:

      Legal Thuggery... What a nice turn of phrase to accurately describe this ...err... I hesitate to call it a legal business and it's actions.

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

    • identicon
      Anonymous Coward, 10 Oct 2014 @ 3:29pm

      Re:

      Bingo. "Vagueness in legal threats is the hallmark of meritless thuggery". The failure to identify so much as a single statement that is allegedly defamatory means that this appears to be nothing but an attempt at intimidating TD into silence.

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

    • identicon
      Anonymous Coward, 13 Oct 2014 @ 10:06am

      Re:

      Indeed...this is also used transliterated in French Canada (Quebec), last time I saw this was on a letter from my ex ISP who wasn't able to find new address in their system, to send me a final bill. Since they wouldn't send proof (very long story)that I owed them 76 dollars, things escalated to a letter from a collection agency ending with these wonderful words "Veuillez vous gouverner en conséquence". It sounds ominous even to people who does not get what it means lol.

      Then I just sent them my rented cable modem when I was with them and never heard from collection agencies again.

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

  • identicon
    Anonymous Coward, 10 Oct 2014 @ 3:22pm

    "It appears that these statements were made for no other purpose than to harass and defame Roca Labs."

    Hmm. Lawyer for litigious company can't see negative comments about said company as having any other purpose but to give them an opportunity to pursue billable hours and possibly monetary settlements/judgments. I am Jack's legal filing of a motion to be sarcastically surprised.

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

  • identicon
    Anonymous Coward, 10 Oct 2014 @ 3:23pm

    How about this...

    "I give you the finger... and you fuck off already."

    Seriously - did they expect this to work and not increase their douchebaggery points?

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

  • icon
    Michael Donnelly (profile), 10 Oct 2014 @ 3:32pm

    The phrase "pick your battles" comes to mind.

    Throwing down against TechDirt and the EFF over improper speech is just a really, really bad idea.

    It does serve to illustrate the mental state of the person making the decisions, however. And that state is not pretty.

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

  • identicon
    Anonymous Coward, 10 Oct 2014 @ 3:42pm

    Please govern yourself accordingly.


    Seriously?!

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

  • icon
    Ehud Gavron (profile), 10 Oct 2014 @ 3:44pm

    Dear Mike Masnick and Techdirt staffers

    My job has its interesting parts. One of the requirements is that I stay current on lots of entirely uninteresting things.

    THANK YOU for giving me three or four breaks a day when I can enjoy your writing and seriously relax.

    This series of articles (as well as the Scorpion writeups) have given me nothing but joy. If it weren't for you guys, and Ken White, and Marc Randazza... what a joyless world it would be.

    I wish you a wonderful weekend.

    Regards,

    Ehud Gavron
    Tucson AZ

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

  • identicon
    Quiet Lurcker, 10 Oct 2014 @ 4:01pm

    Confused

    I thought you had pass an intelligence test of some kind before being admitted law school. How did Roca's lawyer get away with not passing that test?

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

  • identicon
    Tim A, 10 Oct 2014 @ 4:10pm

    There's a whole lot of inferiority complex going on there.

    Paul Berger, I have some advice. You should clean the scan window on your fax machine.

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

  • icon
    tracyanne (profile), 10 Oct 2014 @ 4:13pm

    What I find interesting about the 2 leatters

    is the quality of them.

    The second appears to have been written by a professional.

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

  • identicon
    Anonymous Coward, 10 Oct 2014 @ 4:27pm

    Roca Labs is desperately trying to force a cone of silence over each and every customer that discovers that Roca Labs’ product is not only a specious remedy for their weight issues, but a potential cause of additional health problems. Plaintiff, desperate to sell as many of its tubs of goo to the public as it can before regulatory agencies come knocking does its best to bully its former customers into silence. "

    Please provide us with an independent verification of this factual statement or retract the statement.


    OK.

    The article said that the filing said this. The filing did say this. The article was therefore accurate. Independent verification can be obtained by the copy you already have of the filings. If you want a retraction of what's in the filings, perhaps you should do what you've already apparently done and ask opposing counsel to retract it, even though that's still kind of ridiculous.

    Oh, you wanted verification of the underlying claims? For that, you can refer to your OWN filings, where you admit that you do not allow your consumers to publish anything negative about you or your products in any forum. Sounds like a "cone of silence" to me. As far as the "bully its former customers into silence" claim goes, we have Roca Labs vs Alice King, where you sue a former customer for her negative comments. I don't think you dispute the general idea that you want to "to sell as many of [your] tubs of goo to the public as [you] can", although you might not like your products being called "tubs of goo". As far as the "regulatory agencies" go, certainly you have your factories inspected every once in a while, so they do occasionally "come knocking", right?

    If you were interested in a retraction based on an actual mistake of fact, you would point out the actual mistake of fact. For example, if you factories were overseas and therefore not subject to any knocking regulatory agencies, you could say so. Or if you had one designated customer who you allowed to make negative comments without repercussions, you could point out that the phrase "each and every" was not quite true. Or perhaps you could point out that no company who actually wanted to stay in business long enough to sell as much of its product as possible would have terms of service like yours. Or perhaps your understanding of the Streisand Effect was such that you did not believe that your actions would actually silence anyone. Who knows? We certainly don't if you don't tell us.

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

  • identicon
    Anonymous Coward, 10 Oct 2014 @ 4:35pm

    Party pooper

    Oh, come on. The high road is so boring.

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

  • identicon
    Anonymous Coward, 10 Oct 2014 @ 4:37pm

    So how many more stories are out there about rocaslabs , you could run a new one everyday , sooner or later they'll run out of printer ink.

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

  • identicon
    Anonymous Coward, 10 Oct 2014 @ 5:09pm

    Why is part of the PDF blacked out?

    Were other people at Techdirt named in the letter who wish to remain anonymous?

    If this defamation troll makes good on the threat and goes ahead with a lawsuit, let's hope Techdirt's legal defense fund accepts Bitcoin.

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

  • identicon
    Anonymous Coward, 10 Oct 2014 @ 5:12pm

    Sorry - what?!?!

    Is he really saying what I think he's saying here?
    "in publishing the articles without attempting to verify the alleged facts in the pleadings..."


    I thought that verifying the facts was the job of the court? Is he claiming that Techdirt has the responsibility to decide the outcome of a pending case before a judge has ruled? Or perhaps he's trying to claim that it's improper to report on a case that hasn't been decided yet?

    Just what the hell is he trying to claim here?

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

  • identicon
    KRA, 10 Oct 2014 @ 5:20pm

    It is truly amazing, how these thugs dig their heels in. What did they think would happen when they sent this threat?

    Maybe we've been wrong all these years...Maybe goodevil is dumb.

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

  • identicon
    KRA, 10 Oct 2014 @ 5:21pm

    I've deleted myself

    Make that good will always triumph because evil is dumb.

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

  • icon
    Carrie (profile), 10 Oct 2014 @ 5:40pm

    I would have written the letter differently.

    Dear Roca,

    We believe you have failed to take account of two elementary facts. One, it's almost legally impossible to defame a corporation, because courts assume that part of the privilege of doing business is the burden of being subjected to criticism. Two, America has this thing called a "Constitution" which includes something known as "the First Amendment."

    Free Speakingly Yours,

    Techdirt

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

  • identicon
    Another Anonymous Coward, 10 Oct 2014 @ 5:43pm

    Rule of Holes

    Looks like this guy's forgotten the first rule of holes.

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

  • identicon
    Anonymous Coward, 10 Oct 2014 @ 6:39pm

    TD re Roca

    http://yourlisten.com/xmoonbombx/bugs-he-dont-know-me-very-well-do-he

    What an (ignorant collection of) ultra-maroon(s their lawyers must be).

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

  • identicon
    I am jack's raging boner berger, 10 Oct 2014 @ 6:43pm

    Roca Labs' "attorney" Paul Berger seems a little too close to the pediphile doctor that works for the place. How much do you want to wager that he goes the way of Charles Carreon?

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

  • identicon
    Anonymous Coward, 10 Oct 2014 @ 7:37pm

    Reading both lawyer's letters, I don't think this issue is resolved at all.

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

  • identicon
    Anonymous Coward, 10 Oct 2014 @ 8:56pm

    Surprised to read the letter on EFF letterhead saying that it is representing this site. I had expected to read a letter where the individual associated with the EFF identified herself a representing the site as the former approach raises UPL Iissues that can divert attention away from the issue at hand.

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

    • identicon
      serge, 10 Oct 2014 @ 9:15pm

      Re: UPL

      I'm not sure what you are trying to say, I assume the acronym stands for Unauthroized practice of law however I don't understand why that has anything to do with this.

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

      • identicon
        Anonymous Coward, 11 Oct 2014 @ 5:21am

        Re: Re: UPL

        The EFF is not a law firm, and it is not at all clear from the letter if the writer is representing the EFF or the site.

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

        • icon
          Nate Cardozo (profile), 11 Oct 2014 @ 6:48am

          Re: Re: Re: UPL

          What makes you say EFF isn't a law firm? We (I'm an EFF lawyer) certainly are. We're not your average firm to be sure, and we're not ONLY a law firm, but from a legal ethics perspective we're a nonprofit law firm and represent clients as such.

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

          • identicon
            Anonymous Coward, 11 Oct 2014 @ 7:23am

            Re: Re: Re: Re: UPL

            I tend to associate law firms with the definition set forth in Rule 1-100, which does not seem to apply to the EFF. Importantly, I have not conducted any research of state bar opinions to explore the definition in depth.

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

            • icon
              Nate Cardozo (profile), 11 Oct 2014 @ 8:09am

              Re: Re: Re: Re: Re: UPL

              It absolutely applies to us.

              "(a) two or more lawyers whose activities constitute the practice of law, and who share its profits,expenses, and liabilities;"

              Yep. Nonprofit but yep.

              "(c) a division, department, office, or group within a business entity, which includes more than one lawyer who performs legal services for the business entity;"

              Yep. 501(c)(3)s are business entities.

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

            • identicon
              serge, 11 Oct 2014 @ 8:30am

              Re: Re: Re: Re: Re: UPL

              You evidentially haven't conducted research into the EFF either, it basically saved computer cryptography in the '90s via a lawsuit and has filed lawsuits in relation to digital rights ever since, amongst other things, do you seriously think it would be able to persist in that if it were not permitted to by law? I don't mean to sound hostile but I looked up "UPL" and the second result or so (on Duckduckgo, I don't know about google) brought me to a powerpoint where UPL is defined and it was immediately clear that the EFF is allowed to practice law and should be obvious just by logical deduction.

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

            • identicon
              Anonymous Coward, 11 Oct 2014 @ 10:43am

              Re: Re: Re: Re: Re: UPL

              I can see how you might make that mistake, in reading the letter. The letter is quite weak and milquetoasty. Lets face it, if the author of the letter was a paid lawyer, he would have at least put some more strength into the letter. The way it looks now is "oh, pweeze don't sue us, we are just widdwle and afwaid!"

              How about telling Burgher that he has no case for all the stupid reasons he has no case. What is the "defamation" here? What is the reason for his letter in the first place? Is he really that stupid?

              The demand deserved a Ken White style "snort my taint" letter. Something that showed that TD would fight and fight hard if he did not back off. If I got that reply, it would tell me that TD did not have the money for a real lawyer, so it got some low level do-nada at EFF to write a letter that took 30 seconds. If that letter gets followed up by a lawsuit, TD is going to fold like a cheap suit. It might not, it might fight, but that letter just screams "submissive".

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

              • identicon
                Anonymous Coward, 11 Oct 2014 @ 10:50am

                Re: Re: Re: Re: Re: Re: UPL

                "TD is going to fold like a cheap suit."

                Unlikely. Techdirt has been around since the last century, and still going strong.

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

              • icon
                WysiWyg (profile), 12 Oct 2014 @ 8:03am

                Re: Re: Re: Re: Re: Re: UPL

                To me the letter sounded more like "your threats are so pathetic that you are not even worth the time it takes to school you properly, so I'll just point out that you obviously don't know the law and leave it at that".

                Basically the worst insult a Klingon lawyer could give someone. ;-)

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

              • identicon
                Anonymous Coward, 12 Oct 2014 @ 1:55pm

                Re: Re: Re: Re: Re: Re: UPL

                There are times that opponents are worthy of a world-class beatdown using all of the snark and sarcasm available.

                This is not one of those times. This is not one of those opponents. Paul Berger is an inferior little man, and is unworthy of anything other than contemptuous dismissal.

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

  • identicon
    Peter, 10 Oct 2014 @ 9:01pm

    A note on Mr. Berger's omission and confusing pontification

    Mr. Berger’s letter is poorly written because it contains a certain omission and one confusing aspect. A key paragraph:

    For example, on September 29, 2014 you published an article Roca Labs Threatens To Sue All Three Former Customers Who Provided Evidence Against Roca in PissedConsumer Case from the the-ultimate-in-sleazy dept. This article contains numerous false, defamatory and malicious statements about Roca Labs. It appears that these statements were made for no other purpose than to harass and defame Roca Labs. Perhaps the true indication of you[] yellow journalism is that you fail to indicate that Mr. Randazza made a similar motion to the Court on September 22, 2104 [sic], which was denied by the Court on September 23, 2014.


    The omission bit

    If there really were “numerous false, defamatory and malicious statements about Roca Labs” in the cited article, then Mr. Berger should have enumerated these statements and shown how they satisfy the conditions of defamation and malice. It is a glaring omission that no such enumeration or showing has been provided by Mr. Berger.

    The confusing bit

    With the last sentence of the quote above, Mr. Berger makes a comparative claim that something in TechDirt’s article is supposed to be similar to Mr. Randazza’s motion filed on September 22. But Mr. Berger does not specify what that something in TechDirt’s article is. It is just downright confusing; it is not clear what Mr. Berger is suggesting by referencing that the Court promptly denied Mr. Randazza’s motion.

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

  • icon
    That Anonymous Coward (profile), 10 Oct 2014 @ 11:41pm

    something something of holes, STOP DIGGING.

    It is sad they couldn't be bothered to Google Mike and come across this little thing called the 'Streisand Effect'.

    Here lemme help your ignorance be enlightened...
    https://en.wikipedia.org/wiki/Streisand_effect

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

  • identicon
    Anonymous Coward, 12 Oct 2014 @ 8:07am

    Queuing up the legal defense fund beg-a-thon in 4...3...2...1...

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

  • identicon
    Mark Wing, 13 Oct 2014 @ 9:53am

    Go EFF

    Thank you EFF for being awesome. It's a very small list of people who actually give a shit about the Internet, and the EFF, PopeHat and Techdirt are at the top of that list. Being the good guys must be a mostly thankless task, so thank you!

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

  • icon
    John Pettitt (profile), 13 Oct 2014 @ 4:41pm

    Private Eye had the right answer to this sort of thing

    "We refer you to the reply given in the case of Arkell v. Pressdram"

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


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