Utah Judge Won't Let The Constitution Get In The Way Of A Little Prior Restraint

from the another-libel-and/or-Lanham-case dept

For reasons unknown, a federal judge has said the hell with free speech and steered the court into the First Amendment-troubling waters of prior restraint.

It's another defamation lawsuit that doesn't spend too much time dealing with defamation, preferring to focus on Lanham Act violations and tortious interference. Purple Innovations, maker of a (purple) bed-in-a-box mattress, is suing the Honest Mattress Reviews website, along with Ryan Monahan, former "Chief Brand Officer" for Purple Innovations competitor, Ghostbed, and creator of the site.

Unlike other defamation suits we've covered here -- especially those attempting to dodge anti-SLAPP motions by presenting themselves as trademark suits -- Purple's complaint is long and detailed. Purple feels multiple posts at Honest Mattress Reviews have falsely disparaged the company and its products. All of the posts center on the white "powder" Purple uses to coat its mattresses during packaging to prevent it from sticking to itself.

Purple's Lanham Act claims rest on Monahan's alleged conflicted interests, even as it admits in its filing that Monahan is no longer associated with GhostBed. It points to several statements posted at Honest Mattress Reviews which infer the powder used by Purple might be dangerous or unhealthy. HMR offers no proof of these assertions, but very few of them are actual assertions. In most cases, they're merely implications, surrounded by phrasing and pull quotes that help make the patent-pending substance appear more dangerous than Purple claims it is. Purple hasn't offered too many specifics in defense of its white powder, citing its pending patent as the reason it can't be more specific about the powder's composition.

At this point, we don't know much about the merits of Purple's arguments, and nothing at all about the merits of Honest Mattress Review's defense. The defendants haven't been allowed to respond yet. The path to Purple's granted restraining order has been completely non-adversarial. Not a single document has been filed or motion entered by the defendants. [click through to enlarge]

In less than a week, Purple has:

(a) accidentally sued itself

(b) had the case transferred from a magistrate to district court judge

(c) asked for a restraining order

(d) received a restraining order

(e) asked for contempt charges to be brought against the defendants

Purple has filed a 102-page complaint [PDF] and a 174-page restraining order request [PDF], the latter of which is basically the 102-page complaint with 70 pages of website screenshots. Without seeing anything more than Purple's allegations, Judge Dee Benson has granted the request [PDF]. Not only does it require Honest Mattress Reviews to take down existing posts about Purple Innovations and its packing powder, it forbids the defendants from discussing the lawsuit in any way the court disapproves of.

Defendants shall not attempt to circumvent the intent of this Order by make new statements about Purple or its products which are false and misleading and convey the same substantive message as in the statements referenced in preceding sub-paragraphs (a)-(c), including through the “clever use of innuendo, indirect intimations, and ambiguous suggestions.”

[...]

Defendants are hereby restrained from making false, misleading, or confusing posts or discussions on social media or otherwise about the existence of this lawsuit, the Court’s temporary restraining order or other any other orders that may be issued by the Court, or about Purple’s efforts in this lawsuit to restrain Defendants from continuing to engage in the conduct at issue, in an attempt to circumvent the purpose of the injunctive relief sought by Purple.

We'll have to see if Honest Mattress Review's post about the lawsuit adheres to the confines of the restraining order. It doesn't make any false statements but does contain wording the plaintiffs are sure to find objectionable, even if the court doesn't.

This temporary order commands that we take down all reviews, and even cease rating this company with a rating of “Poor.” Yes, indeed, we are no longer even permitted to rate this company as Poor. I guess we will change its rating to “💩.”

[...]

Do you trust a company that, rather than compete in the marketplace, decides that it will just try and sue negative reviews out of existence?

The court says the 14-day (minimum) restraining order does not harm the public in any way, while continued publication of HMR's inferences and allegations would continue to do "irreparable harm" to Purple Innovations. It also says HMR is fully aware of the situation, even if it's not being allowed to participate in the process yet.

Plaintiff has provided multiple declarations, reflecting notice to the Defendants, through various means. The Court is satisfied that the Defendants have notice of these proceedings.

All well and good, but we're not talking an inordinately lengthy delay between the filing of the suit and the defendants' response. We're talking about one week from filing to prior restraint, without a single nod being given to the "adversarial" part of the process.

The defendant website is now being represented by Marc Randazza, who's collected several First Amendment-affirming wins for clients over the years. The allegations in this case may not be as baseless as in others he's handled (Tobinick v. Novella, Roca Labs v. Opinion Corp.), but he tends to find prior restraint to be rather triggering. The first move will be to put the Constitution back in play. After that, there are dozens of pages of allegations to address, so this isn't going to be resolved anywhere near as fast as it went from mere allegations to ignoring Walter Sobchak.


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  • icon
    TechDescartes (profile), 6 Mar 2017 @ 12:08pm

    When this is the first line of your publicly-filed complaint...

    Purple has recently become the target of a concerted, widespread, and public online smear campaign, which threatens to go viral if it has not already...

    ...you might want to re-think your strategy.

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

  • identicon
    Anonymous Coward, 6 Mar 2017 @ 1:33pm

    Purple hasn't offered too many specifics in defense of its white powder, citing its pending patent as the reason it can't be more specific about the powder's composition.

    This is blatantly false. By seeking a patent, Purple is agreeing that all such information about the composition of the white powder will become public knowledge. Since the patent application has already been submitted, it is guaranteed that if this powder is patentable, they will be the ones to receive said patent. If it is not patentable, then the application (which will include the composition), will become public after 18 months from the date of application. Either way, there is absolutely no reason at this point to not release details on the composition of their powder.

    Except, of course, if releasing that information would support the implications that the powder is dangerous.

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

  • icon
    DB (profile), 6 Mar 2017 @ 1:53pm

    Proper service is optional?

    Declarations that the defendants are aware of the lawsuit does not (or should not) substitute for proper service.

    Utah has a reputation, and that reputation was earned. When something sketchy happens, look for the church connection. Sure enough, we find them here.

    Dee Benson has very strong ties to the LDS church, was a missionary, and has many controversial rulings that seem heavily biased in favor of church-connected people.

    The owners of Purple Innovations were missionaries and continue to be heavily involved in the church.

    Of course they all went to BYU.

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

    • identicon
      Anonymous Coward, 6 Mar 2017 @ 2:36pm

      Re: Proper service is optional?

      This is Utah we are talking about. Most business owners meet the criteria you mention. Having an incompetent judge can happen in any state of the union. You don't have to assume conspiracy when incompetence is much more likely.

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

    • icon
      Cdaragorn (profile), 6 Mar 2017 @ 2:52pm

      Re: Proper service is optional?

      Even if what you say is true (and you provide absolutely zero evidence that it is), the assertion you're trying to make is absolutely ridiculous.

      Blaming an entire group for the actions of a few of its members is one of the oldest logical fallacies in the book. Every group has members that don't follow that groups thinking and do dumb things. I could easily counter with examples of members of that group doing really great things.

      Heck, I'll even step out there and admit that I'm a member of the LDS Church, and I've seen some members do some pretty terrible things that I abhor. I also recognize the difference between what someone chooses to do on their own and what the Church actually teaches.

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

      • icon
        DB (profile), 6 Mar 2017 @ 3:47pm

        Re: Re: Proper service is optional?

        I normally shy away from making such assertions, but the connection through the LDS church is pretty clear when it comes to technology companies, VC funding and their lawsuits (e.g. the SCO lawsuit).

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

      • identicon
        Anonymous Coward, 7 Mar 2017 @ 7:01am

        Re: Re: Proper service is optional?

        Blaming an entire group for the actions of a few of its members is one of the oldest logical fallacies in the book.

        Yep, just look what it did to the KKK.

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

    • icon
      Mitch (profile), 6 Mar 2017 @ 5:10pm

      Re: Proper service is optional?

      How is Utah and BYU and the LDS church any different than a judge in Alabama hearing a case involving frat brothers who all have Roll Tide bumper stickers?

      Not that corruption in Alabama excuses corruption in Utah, but calling it out solely on a church affiliation seems pretty narrow-minded and fraught with preconceived bias.

      And I agree with AC, I tend to default to incompetence over conspiracy.

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

  • icon
    Mononymous Tim (profile), 6 Mar 2017 @ 2:34pm

    In less than a week, Purple has:

    (a) accidentally sued itself

    Those are some crack (pot) lawyers ya got there.

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

    • identicon
      Anonymous Coward, 6 Mar 2017 @ 2:42pm

      Re:

      Well they did file suit against the party engaged in shady behavior, which is pretty reasonable. They just briefly forgot that party was the party they were representing.

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

  • identicon
    Anonymous Coward, 6 Mar 2017 @ 5:21pm

    Please do keep us up-to-date on the lawsuit of Purple v. Purple.

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

  • icon
    That One Guy (profile), 7 Mar 2017 @ 2:31am

    Think beyond the now when making legal rulings

    The court says the 14-day (minimum) restraining order does not harm the public in any way, while continued publication of HMR's inferences and allegations would continue to do "irreparable harm" to Purple Innovations. It also says HMR is fully aware of the situation, even if it's not being allowed to participate in the process yet.

    I'd say the judge is not just wrong a little with this argument, they're completely wrong when you pull back a little beyond this individual case.

    While the public may not be 'harmed' in having this specific bit of info suppressed for a while, they are most certainly harmed by the precedent that speech can be silenced and removed without the one speaking being able to contest it before the order to remove and not speak goes into place.

    The idea that you can get a legal order removing speech and prohibiting something from being said ahead of time, all without the one affected having a chance to object and potentially fight back until after the fact is most certainly harmful to the public, and is far more serious than any harm a particular company might face from having unflattering or even downright defamatory comments made against it.

    Free speech is more important than the hurt feelings or financial well-being of a company, and as such should be given far more weight in any consideration between the two, not just shrugged off as no big deal as seems to be happening here.

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

  • identicon
    jane, 7 Mar 2017 @ 3:08am

    white powder = chalk

    It's pulverized chalk. Hardly a patent-worthy substance... but baby powder will do fine as well.

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

    • identicon
      Anonymous Coward, 7 Mar 2017 @ 7:02am

      Re: white powder = chalk

      It's pulverized chalk. Hardly a patent-worthy substance...

      You can get a patent on almost anything these days.

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

      • identicon
        Geoffrey Prentice, 8 May 2017 @ 3:35pm

        Re: Re: white powder = chalk

        Powder is not chalk. It has been analyzed and is polyethelyne in a form that may be hazardous to some individuals because they are inhalable microspheres.

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

  • icon
    Monday (profile), 7 Mar 2017 @ 4:43pm

    Excuses are like assholes...

    citing its pending patent

    Sounds very much like, "[] can't release my Taxes because I am under audit" bullshit act that D.J. Trump espouses everytime he is asked for a date on when his taxes will be released. AND, don't give me some more bullshit lame-ass defence that "He doesn't have to release his taxes if he doesn't want to."

    Do you hear that??? That's HMS TRUMP getting its ass sunk by a Russian Iceberg...

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

    • identicon
      Wendy Cockcroft, 8 Mar 2017 @ 6:03am

      Re: Excuses are like assholes...

      Not relevant, Monday.

      We can rag on Trump when he does something we don't like in posts that are actually about him.

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

      • icon
        Monday (profile), 8 Mar 2017 @ 10:26am

        Re: Re: Excuses are like assholes...

        Ms. Wendy Cockcroft,

        It is a simile. Simple enough. I could also use the "Patent Applied For" on Banana boxes. But that would be slightly weaker with its intended comparison, as not alot of citizens have looked at a Banana box lately. The boxes are out there, Patent status is non sequitur...

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

  • identicon
    Just that Guy, 10 Mar 2017 @ 12:55pm

    March 9, 2017, Honest Reviews formally filed the following motion by way of our Legal Representation lead by Mr. Marc Randazza, Mr. Gill Sperlein, Mr. Andy McCullough, Mr. Jay Wolman, and Mr. Trey Rothell.

    As there is still a Federal Temporary Restraining Order in effect we are not able to answer any specific questions submitted via social media or email at this time.

    As our platform, Honest Reviews operates under full transparency we’ve elected to publish all publically available documents.

    First, you will find the active Temporary Restraining Order that’s in full effect against Honest Reviews.

    Below that you will see our motion, supporting exhibits, 3rd party articles, and most important the report prepared by world renowned leading Dr. John Godleski. We highly recommend you read his CV and as equally important his preliminary findings regarding Purple’s use of powdered Microspheres Polyethylene.

    https://www.honestmattressreviews.com/purple-mattress-vs-honest-reviews/

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

  • identicon
    It's THAT Guy ... Again, 15 Mar 2017 @ 2:39pm

    1st Amendment Rights Restored As District Judge Dee Benson Rules On The Motions

    Purple Mattress vs Honest Reviews – District Judge Dee Benson held a court hearing on March 14, 2017. After the court took the motions under advisement the court has issued the following order.

    Purple Mattress Request – For the foregoing reasons, and for those expressed in the parties’ briefing and oral arguments, Docket Numbers 17 and 39, as well as Plaintiff’s oral Motion to convert the Temporary Restraining Order into a Preliminary Injunction, are hereby DENIED.

    Honest Reviews Request – Docket Number 28 and the portion of Docket Number 36 requesting dissolution of the Temporary Restraining Order are GRANTED.

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

  • identicon
    The Guy who knows how to use google., 24 Mar 2017 @ 10:33am

    You CAN get your information stolen with patent pending.

    Anonymous Coward said that there is no reason to keep the composition a secret. Which makes total sense...if you don't really understand what patent pending means. Although he's right about being the one to receive the patent on your product if your product is patentable, he's wrong about making your formula public knowledge. When your patent is pending you can still have your formula be kept private. Now the real question. WHY?! Why would a company want to keep their patent pending formula secret until they get the patent? Simple. Because a company can steal and replicate that formula exactly without fear of being sued UNTIL you get the patent. Look at fidget cube and what happened with their Kickstarter. How many sales have they lost to this EXACT case? Millions of dollars. Anonymous Coward should do a little more anonymous research. Seriously. You could have figured this out in literally 15 minutes of googleling.

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

  • identicon
    Anonymous Coward, 9 May 2017 @ 7:10am

    Casper is also suing a number of reviewers. This is troubling:

    https://sleepopolis.com/blog/casper-sues-sleepopolis-with-federal-lawsuit/

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


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