Magistrate Judge Not Impressed By Roca Labs' Legal Arguments: Recommends Against An Injunction

from the sorry-nope dept

It's fairly surprising that it actually took this long, but nearly three weeks after the court hearing concerning Roca Labs' questionable lawsuit against PissedConsumer.com (actually, parent company Consumer Opinion Corp.), the magistrate judge in the case, Elizabeth Jenkins, has recommended against granting the temporary injunction Roca is seeking against PissedConsumer -- effectively blocking the site from letting people post reviews of Roca Labs' "alternative to gastric bypass surgery." We've been documenting the wackiness in this case for a few weeks now (click the "Roca Labs" link above to go through its bizarre twists and turns), so this recommendation is hardly unexpected, but is almost disappointing in how straightforward it is.

Jenkins leaves the Section 230 question aside, pointing out that either way, Roca Labs doesn't do nearly enough to satisfy its claim that PissedConsumer is violating the Florida Deceptive and Unfair Trade Practices Act (FDUPTA). The court notes that even if people are scared away from buying Roca Labs' goopy substance, it would be because of the reviews of PissedConsumer's users, not PissedConsumer itself. Furthermore, Roca Labs' random assertions of PissedConsumer's "unethical" behaviors don't come with any actual support (in a footnote, the judge notes that the one case Roca cites to prove the "unethical behavior" actually works against Roca, since it shows that PissedConsumer is eligible for Section 230 protections):
Plaintiff asserts Defendants' alleged actions have been found “troubling and perhaps unethical” and will be injurious to Plaintiff if not enjoined. However, Plaintiff has not offered any evidence that Defendants offered to remove the postings for a price. Further, the record indicates that businesses can respond for free to any review by using the comments section beneath the review on the website and that Defendants do not sell the option to remove reviews, although Defendants do offer monthly subscription monitoring for those businesses that desire to be notified when reviews are posted about the business.

For these reasons, in addition to standing being problematic, Plaintiff has failed to prove a sufficient causal nexus between the deceptive actions alleged and any harm it has suffered, as the loss of business and reputation suffered by Plaintiff stems from the content of the reviews rather than any deceptive actions alleged by Plaintiff
How about those tortious interference claims? Yeah, Judge Jenkins isn't buying those either.
Although Plaintiff contends its customers are encouraged to post negative comments in exchange for Defendants' representation that Defendants will resolve the customers’ problems with Plaintiff, Plaintiff has not offered any evidence to show that its customers actually posted negative comments in reliance on Defendants’ representations of problem resolution. As with the FDUTPA claims, Plaintiff’s evidence shows only that any harm suffered by Plaintiff stems from the content of the reviews rather than from misrepresentations made by Defendants about their services. Without more, Plaintiff has failed to satisfy its burden of proof on the issue of causation and is not likely to succeed on the merits of its claims for tortious interference.
There's a bit more in the recommendations, but the short version is that (as we suggested from the very beginning) the magistrate judge just doesn't see how Roca's arguments are going to work in court. It's possible the judge overseeing the case will see something different and rule differently than the magistrate judge's recommendations, but that would be a surprise.

The real question is what will happen next? Roca Labs has continued to shift lawyers, as the company seems to have some significant trouble keeping any outside lawyers on the case. If you view the docket in the case, in just the past month, Roca has brought on three separate lawyers to represent them, with two of the lawyers (both from outside firms) asking to be let off the case, with at least one citing "irreconcilable differences have occurred between plaintiff and counsel." What are the chances that Roca Labs, now represented by another "independent outside counsel" will have the good sense to recognize that this case is a trainwreck in action?
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Filed Under: paul berger, section 230, tortious interference
Companies: consumer opinion corp., pissedconsumer.com, roca labs


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    Nigel (profile), 28 Oct 2014 @ 9:57pm

    "Continues to shift lawyers" was pretty gracious of you.

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