Judge Decides Free Speech Is Still A Right; Dumps Prior Restraint Order Against Mattress Review Site

from the hearing-from-both-sides:-it's-a-thing dept

A couple of weeks ago, a federal judge in Utah decided prior restraint was the best way to handle a recently-filed defamation suit against Honest Mattress Reviews by Purple Innovations, makers of the Purple Mattress.

Purple's lengthy filing contained numerous allegations of harm caused by Honest Mattress Reviews' extended commentary on the white plastic powder covering every mattress Purple ships. It also alleged HMR was just a front for site owner Ryan Monahan's brand management work with Purple's competitor, Ghostbed. Rather than give HMR a chance to respond, the judge decided the review site could publish nothing further about Purple or the lawsuit. It wasn't even allowed to refer to its previous rating of Purple's mattress.

Honest Mattress Review didn't care much for this decision -- one it had been given no chance to contest. It immediately posted an article about the case and offered to comply with the letter of the order, but perhaps not its spirit.

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?

Purple Innovations immediately returned to court, demanding it find HMR in contempt of its order, in particular pointing to the poo emoji and HMR's claims about the unconstitutionality of the order and Purple's alleged disingenuousness in filing the libel suit.

That review has since been reinstated and given this header image.

And HMR has published a long list of court documents it has filed in this case. This includes a motion to dissolve the restraining order and a preliminary examination of the powdery substance Purple claims is harmless and that HMR claims could be hazardous to purchasers' health.

In the motion [PDF] to dissolve the order, attorney Marc Randazza points out that fashioning a libel lawsuit as a tortious interference lawsuit doesn't change the ultimate goal of the litigation: to silence criticism.

The action is a quintessential SLAPP suit designed to suppress negative consumer journalism. Plaintiffs have cleverly attempted to disguise this defamation claim as a Lanham Act claim – presumably to ensure the availability of Federal Court jurisdiction and to try to side-step the clear case law that cuts against them in defamation actions. But, no matter how eloquently someone may call a “dog” a “chicken,” it will never lay eggs. And styling a specious defamation claim as a Lanham Act claim does not remove the underlying speech from the protections afforded by the First Amendment.

He also points out that Purple's claims that the plastic packing dust is harmless haven't been supported by anything Purple's willing to let customers and competitors view. Instead, it's only made vague assertions about its safety. And those statements are ultimately meaningless when examined closely.

Plaintiff sells mattresses that are made of a rubber honeycomb, which they then dust with a powder that they claim is made of plastic and has been shown to be polyethylene microspheres. In other words, someone who sleeps on these mattresses would be expected to inhale these microspheres. The Plaintiff claims that it is “non toxic” and “food grade” plastic – but this does not assuage the concerns. After all, a plastic fork is “food grade” and “non toxic” but you most certainly would not want to actually eat it. The same goes for what a person wants to put in their lungs. It was reasonable to be concerned about this “plastic powder” since (a) if the particles that make up this plastic “powder” are of a certain size, they will pass through the alveoli into the bloodstream; or (b) if they are a bit larger, they will simply lodge themselves inside the lungs.

To support its claims, HMR put a Harvard Professor of Pathology to work. Dr. John Godleski's report [PDF] is far from complete at this point, but what's contained in his preliminary examination of the powder doesn't appear to agree with Purple's assertions of harmlessness.

By Fourier Transformed Infrared spectroscopy (FTIR), the white powder particles were shown to be polyethylene, and the purple frame was found to be polyethylene-polypropylene copolymer. The foam portion of the mattress is still understudy, but has characteristics of butadiene, and may be a form of butadiene polymer.

Polyethylene is a common plastic formed into many structures. As inhalable microspheres, these have the potential to cause respiratory irritation especially when inhaled in large numbers as shown in my laboratory (1- 4). In addition, polyethylene has been associated with allergy in the form of either asthma or contact dermatitis in sensitized individuals (5-7). Based on this assessment, it is important for consumers to be aware of the composition of this fine particulate matter in the mattress which may be released into the air and has the potential for the development of respiratory or dermal hypersensitivity in some individuals.

Also included in the filed documents is an affidavit that undercuts Purple's claims about HMR's site owner being a competitor's "brand manager." This is central to Purple's Lanham Act claims -- the claims it's using to sidestep anti-SLAPP motions. The affidavit from the competitor (Ghostbed) notes HMR's site owner has never been directly employed by Ghostbed and that Ghostbed told him to stop referring to himself as its "brand manager" after noticing that statement on his Twitter profile.

The judge presiding over the case appears to have been overwhelmed by the pile of documents landing on his desk. A short order [PDF] issued on the 15th shows what can happen when a normally adversarial process is allowed to be, you know, adversarial.

For the reasons set forth in the parties’ briefing and at oral argument, the court finds a lack of “clear and unequivocal” support for a right to relief that is necessary for the entry of the “extraordinary remedy” of a preliminary injunction. Greater Yellowstone Coal v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003). As such, the court hereby grants Defendants’ motions to dissolve the Temporary Restraining Order (Dkt. No. 36), and denies Plaintiff’s oral Motion to convert the Temporary Restraining Order into a Preliminary Injunction. The court similarly denies Plaintiff’s Motion for Leave to Conduct Expedited Discovery (Dkt. No. 39) and Motion for Order to Show Cause Why Defendants Should not be Held in Contempt (Dkt. No. 17). The court further denies Defendants’ request for sanctions, finding that such sanctions are not warranted here.

The restraining order is lifted and HMR's turd-laced post isn't in danger of being found contemptuous. The lawsuit should continue in a more constitutional fashion from this point forward.


Reader Comments

The First Word

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  1. identicon
    Anonymous Coward, 20 Mar 2017 @ 6:29pm

    Re: Re: Re: Re: Re: judges

    Care to provide any support for that?

    So you're suggesting that

    1. First amendment violations are insignificant, and/or

    2. This judge issues orders with no prior thought involved?

    If that's the case then I feel sorry for the parties to those other 458 pending cases.

    No, District Judge Dee Benson signed this order and the previous one.

    That makes a significant difference to my opinion of the matter. I would now say that the court redeemed itself.


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