Roca Labs Lawsuit Gets Even More Bizarre: Now With An 'Unauthorized' Guest Appearance By 'TV Celebrity' Alfonso Ribeiro
from the hey-everyone,-it's-carlton-from-the-fresh-prince dept
On September 22, 2014 I purchased a promoted review on pissedconsumer.com for a monthly fee of $5.99 (See Exhibit C attached).Roca Labs is using this as a (rather weak) attempt to argue that PissedConsumer is engaged in some sort of unfair practices because it (Roca claims) "will not allow positive information to come forward."
I placed an approved statement by television celebrity Alfonso Riberio [sic] who is currently a contestant on Dancing with the Stars about Roca Labs.
On September 22, 2014 I received a notice from Pissedconsumer.com that my review was canceled.... I received no explanation of why it was canceled.
This filing was quickly rejected by the court for procedural issues, focused on the failure of Roca Labs' lawyers to first confer with opposing counsel. However, before even that happened, Roca Labs filed another motion to "shorten time" for when Roca can file a motion for sanctions against PissedConsumer's lawyer, Marc Randazza. The reasoning behind the claim of sanction is not clear (it says a draft is attached, but it does not appear in PACER right now), but it seems to suggest that it's because of Randazza filing for a temporary injunction against Roca Labs threatening or suing the witnesses that have come forward on behalf of PissedConsumer and against Roca Labs. As we mentioned in our previous post, within days of PissedConsumer's legal response to Roca Labs, the company's "general counsel" had sent legal threat letters to all three former customers who had filed statements, even though Roca Labs hadn't had any dealings with two of them for over three years.
It's difficult to see how anything Randazza did was sanctionable (Roca Labs' lawyers' actions, on the other hand...). Either way, Randazza has now filed a rather revealing response, opposing the motion to shorten time, noting that it fails for the same procedural issue (and more) as the earlier filing and because there's basically no chance that the sanctions succeed. It notes that the court has reviewed his motion for the injunction and passed it along to a magistrate judge, who has asked Roca Labs to respond -- something that would be unlikely if the court felt his filing was somehow frivolous. It also fails to actually cite any legal authority for shortening the length of time.
And then there's this:
Finding its bullying tactics unsuccessful, Roca filed an unsupportable complaint, along with it, an unsupportable motion for injunctive relief. Thereafter, Roca began trying to intimidate witnesses. Then, Roca got even more desperate – submitting an affidavit... that contained demonstrable perjury – that the actor Alfonso Ribeiro (“Carlton” from “The Fresh Prince of Bel Air” and current “Dancing with the Stars” contestant) endorsed the Roca product..... See Exhibit A, a demand letter from Ribeiro’s attorneys attesting to the perjurious nature of Roca’s claims that their client approved any such statement.Whoops. As can be seen in this letter, Ribeiro's lawyers appear rather upset about his likeness being used in this way and make it clear that it's unauthorized:
Ribeiro unequivocally is not, has never been and has no intention of ever becoming a paid spokesperson of the Product [Roca Labs]. Furthermore, Ribeiro has never personally used the Product and in no manner whatsoever endorses the Product.I'm not sure that Roca Labs' usage would actually be "unfair competition" or "copyright infringement," but that might depend on other specifics. However, they make it clear that he has not and will not endorse the product, which would make this a total slam dunk publicity rights case (this is the exact type of situation that publicity rights law was designed for, even if people keep trying to stretch it). It is worth noting that the letter in question is to PissedConsumer, concerning its hosting of the review. That review -- which was up earlier this week when I saw it, has since been removed, noting the letter from Ribeiro's attorney.
The unauthorized Review and deceitful use of Ribeiro's name, image, likeness and falsely attributed quotes violates California Civil Code Section 3344, invades Ribeiro's common law rights of privacy and publicity, amounts to unfair competition, is an unfair business practices, and constitutes copyright infringement, among other causes of action.
Much more tellingly, a page that used to be on Roca Labs' own website showing the very same endorsement from Ribeiro has also disappeared from the site, though (as of this posting) it's still viewable via Google cache. Here's a screenshot to show that it absolutely existed:
And, we're not done yet. Roca Labs' lawyer, Paul Berger, also sent threatening emails to Randazza himself, suggesting that Randazza had been "making defamatory comments" to the media. The email exchange, which Randazza filed as an exhibit with his filing, shows Randazza responding to Berger asking what specific defamatory quote he's talking about. Berger instead quotes PissedConsumer's legal filing (about calling Roca Labs' product "snake oil"), which we (and, I believe) other news publications, quoted. Randazza pointed out to Berger that it was not a quote from him but rather in his pleadings, and then asked (one assumes, sarcastically) if Berger is truly asking Randazza to retract a statement from his motion for preliminary injunction. I would assume that Berger is aware of the concept of litigation privilege, so either he didn't fully read Randazza's earlier filings, he forgot about litigation privilege, or he's just blustering for the sake of blustering. Randazza's latest filing suggests the latter may be the case:
The desperation continued with Roca threatening personal claims against the Defendants’ attorney for statements made in the course of litigation.Also, for whatever it's worth, Berger accuses Randazza of distributing the filings to reporters, perhaps unaware that we reporters are also allowed access to PACER and can (and do!) download documents ourselves. Shocking, I know.
Either way, the Roca Labs case is taking on the stench of Righthaven- and Prenda-like desperation. Given what's happened so far, I imagine there are still more interesting things to come.
Update: And... just like that, the court has denied the motion to shorten time on the procedural issues around the failure to confer with opposing counsel.