We recently wrote about a very questionable lawsuit filed by, Roca Labs, a "dietary supplement" company (it apparently prefers "nutraceutical") with a claimed "alternative" to gastric bypass surgery made up of some ingredients that they claim will expand and fill up your stomach so you're not hungry. When you buy, the company "offers" a "discount"
if you agree to never, ever say anything bad about the company, ever:
You agree that regardless of your outcome, you will not disparage RLN and/or any of our employees, products or services. This means that you will not speak, publish, cause to be published, print, tweet, review, blog or write negatively about RLN, or our products or employees in any way. You further agree that in an effort to prevent the publishing of libelous or slanderous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts RLN, its reputation, products, services, management or employees.
There's also the flip side in that to get the discount, you also
are expected to share the details of your results with the company, and they will promote them publicly (assuming they make the company look good):
You will help promote RLN and our products by sharing your weight loss success with us. You agree to like us on Facebook and follow us on Twitter. You agree that from time to time we may contact you via electronic mail or telephone to learn about your success.
You agree that we can use any and all information that you provide about your weight loss success in RLN marketing efforts.
Oh, and Roca Labs is so sure that you'll like its product that the company won't take it back. Ever. Under any circumstances. At all. You know the idea of a money back guarantee? Roca Labs doesn't do that -- even while admitting the product doesn't always work (more on that in a second). Bizarrely, Roca Labs argues that because it doesn't always work, you can't return it:
An order is considered “shipped” once a USPS tracking number has been assigned. There are NO returns once the product has been shipped. DO NOT PURCHASE any product from us unless you agree to this no return policy. Your order is your acceptance of this NO RETURN policy.
Your RLN order is a special order and is non-refundable. We do not guarantee any results for the use of our product and individual results may vary. There are many factors that may prevent you from achieving your weight loss goal. Thus, our product cannot be returned
Also, while the company appears to have updated its terms and conditions, in its own filing
, it included the earlier terms, which includes the claim that Roca Labs "ALWAYS WORKS." And also highlights the points made above:
Either way, plenty of people have still been complaining. As we'd mentioned previously, the local Better Business Bureau gives the company an F rating
, noting 73 complaints in the last three years. And, yes, PissedConsumer has a bunch of complaints as well
Roca Labs is taking a somewhat unique view of the law that PissedConsumer is somehow "tortiously interfering" with Roca's business, by encouraging people to post reviews
. In the world of Roca Labs, merely encouraging people to post reviews is tortious interference with the bogus gag clause in the company's terms of service.
PissedConsumer has now struck back with quite the opposition to Roca Lab's request for a temporary injunction
. Written by lawyer Marc Randazza, it doesn't mince many words. Noting that Roca Labs really
seems to want to avoid criticism, the filing includes (among other things) depositions by a doctor who looks into the ingredients in Roca Labs' product and comes away less-than-impressed, as well as the details of one of the people who filed a BBB complaint and... received a legal threat from Roca Labs in response. As the opposition filing notes, the questionable terms from Roca should already raise some questions:
A critical reader would likely presume that something is amiss upon reading the key
clause in Roca Labs’ purchase terms.... “In exchange for a significant discount… customers
contractually agree that, regardless of their outcome, they will not speak, publish, print, blog or write negatively
about ROCA or its products in any forum.” .... However, these same terms fail to
disclose the amount of this “discount” or “subsidy.” .... Roca
then requires its customers to agree inter alia that they “consent to and agree to entry of an injunction…
in enforcement of your violation of this term and condition,” and that the customer will then pay an
elevated price for the product.... This is alongside the company’s “no
refunds” and “no returns” policies, and a waiver of any chargeback rights even if the product
never arrives.... Roca Labs tries to
scare its customers with clauses that provide it with a unilateral right to recoup not only an
elevated price for the product, but “any expenses we incur in resolving the issue”, and that if any of
them make a negative comment, it will (apparently even if true) “constitute defamation per se, entitling
[Roca Labs] to injunctive relief and damages.”.... The coup de grace is a section providing
for a one-sided attorneys’ fees provision, if a user dares to utter a negative word in public.
As the filing questions, all of these should raise red flags about the company and its products:
Does that sound like an upstanding company that stands behind its safe and reliable
product? Or does that sound like a disreputable company, producing tubs of snake oil (or snake
goop, as it were), and which knows that too much truth will hurt its fly-by-night bottom line?
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.
To support its position that Roca Labs' products are of dubious benefit and
that the company is a legal bully, PissedConsumer's filing includes some interesting related declarations. First up a declaration from Dr. Thomas Parisi
on the nature of Roca Labs' product and whether or not it is likely to be an effective weight loss tool. Parisi notes that Roca's offering, "which consists primarily of industrial food thickening agents," does not seem likely to live up to its claims of helping people lose weight by causing the mixture "to expand in the user's stomach, leaving her with no room or desire for anything else, thus prompting weight loss...." In fact, Dr. Parisi suggests, in actuality "it could lead to health problems in some individuals, including gastrointestinal distress. Moreover, based upon the ingredients contained in the Product, it could also cause additional unintended side effects in a large number of users, including diarrhea, bloating, intestinal discomfort, gas, constipation, intestinal blockage, dehydration, headaches, and dizziness."
Dr. Parisi goes through each named ingredient and notes why each is unlikely to aid in weight loss or why there is no evidence to suggest it aids in weight loss. In some cases, such as with Konjac, he notes that it's a Chinese laxative, and that "no competent medical physician would recommend regular use of it (or any laxative) as a treatment plan for weight loss." He further notes that with Maltodextrine, the product may be counterproductive:
Maltodextrin is often used in commercially available
protein shakes and similar products. However, because it contains
high-glycemic carbohydrates, intake of maltodextrin would typically
be avoided in individuals trying to achieve weight loss.
Dr. Parisi also notes how typical
health products rely on clinical tests and consumer feedback, and thus Roca Labs' attempts to force silence on those for whom the product doesn't work seems out of step with any trustworthy health product. He specifically notes that "it is unethical for a health care professional to take steps to hide the side effects of any mediation or treatment from a patient." (I'm guessing that "mediation" is supposed to be "medication").
Then there's the declaration from Jennifer Schaive
, detailing how she was not happy with the product, sought a refund, and complained to the BBB -- only to be threatened with a lawsuit from Roca Labs. She received a letter from Sharon King, who describes herself as a paralegal for Roca Labs, and the letter has some interesting claims as well, including that "Roca Labs does everything it promises to its customers." Of course, as you read the details, you realize the company means everything it promises... in its terms
concerning not providing refunds and threatening to go after you should you say something negative about the company.
Back to Randazza's response. He notes that Roca Labs is trying to get around the fact that it can't use defamation law to get an injunction by pretending that this is a different issue altogether:
Temporary injunctive relief is not available to plaintiffs seeking to suppress allegedly
defamatory speech.... Presumably for
that reason, Roca Labs has attempted to disguise this defamation claim as a Florida Deceptive
and Unfair Trade Practices Act (FDUTPA) and tortious interference claim in order to try to
side-step the clear case law that cuts against it in defamation actions. But, no matter many times
you call a “dog” a “duck,” it will neither lay eggs nor quack. Styling a baseless defamation
claim as something else does not shield it from First Amendment scrutiny and render palatable
the most odiferous and despised remedy known to our courts – the prior restraint. This
exceptional relief is impermissible under Florida law and the First Amendment.
It goes on to explain the basic's of prior restraint and how the First Amendment forbids such an injunction. And then gets to the Section 230 defense for PissedConsumer, noting that the service provider is not responsible for any speech by its users, even if that speech was defamatory. Roca Labs tries to get around Section 230 by arguing that because PissedConsumer tweets out comments based on reviews on the site, that it is not protected by 230, but that's not how other courts have ruled. Previous 230 cases
have found that reposting content -- even hand selected content -- still protects the service provider.
The Pissed Consumer website only hosts third-party produced content appearing on
and is neither the author nor the editor of the reviews.... Because it is a service provider, and not a publisher, Defendants are immune from liability
under 47 U.S.C. § 230 (the “Communications Decency Act” or “CDA”). “The purpose of the
CDA is to establish ‘federal immunity to any cause of action that would make service providers
liable for information originating with a third-party user of the service.’” ... While Plaintiff wants to hold Defendants liable as the “publisher” of the
Tweets that are generated from reviews posted on , the Tweets are
automatically broadcast third party statements, and are not written by the Defense.... Accordingly, even this creative argument fails as a matter of law.
“[L]awsuits seeking to hold a service provider liable for its exercise of a publisher’s
traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter
content-are barred by the CDA.” ... Reviews posted on Pissed Consumer are automatically disseminated on Twitter, but that
does not make Defendants “publishers” under the CDA, but instead falls within the purview of
immunity. Defendants’ users authored the statements. Dissemination of them does not trigger
a § 230 exception. Disseminating the content to the public is not enough. “A ‘provider’ of an
interactive computer service includes websites that host third-party generated content.”
The filing also takes down the claim that PissedConsumer is somehow engaged in "tortious interference" by merely asking people to post reviews. First off, for it to be tortious interference, Roca Labs would have to show that PissedConsumer was engaged in intentional and unjustified interference
. It seems unlikely that anyone at PissedConsumer had any clue about the dubious gag clause pushed by Roca Labs, and even if they did, asking people to post their opinions is hardly unjustified interference.
Even if Defendants had knowledge of Roca Labs’ customers beforehand, they
would have been entirely justified warn them about the questionable product and unethical
business practices, (as evidenced by the gag clause of the terms and conditions). “This cause of
action requires a business relationship evidenced by an actual and identifiable understanding or
agreement which in all probability would have been completed if the defendant had not
Plaintiff’s tortious interference claim swings on the notion that the Defendants
“tortiously interfere[d] with Roca Lab’s customers by encouraging them to breach their
customer agreement with Roca” by posting reviews on the Defendants’ website. ECF 5 at 2.
While Defendants assert, infra, that this does not constitute tortious interference, neither
Defendant denies that the Pissed Consumer website wishes for consumers to review products or
services they have tried. But, this does not support liability, as there is no tort in allowing
consumers to review products.
It goes on to note that even if Roca's questionable legal terms are somehow enforceable against customers, they can only apply to current customers, not past customers.
Even if these facts could support a tortious interference claim, a relationship with a past
customer does not provide a basis for the claim.... While Roca Labs
has burdensome terms and conditions, we can find nowhere among those burdens any
obligation to be a repeat customer.... “The mere hope that some of its past customers may
choose to buy again cannot be the basis for a tortious interference claim.” ... Therefore, Roca
has no substantial likelihood of prevailing on the merits of its tortious interference claim,
because the claim fails as a matter of law.
Not surprisingly, the filing also notes that Roca Lab's gag clause is almost certainly not legal in the first place:
Roca Labs complains that it put the
Defendants on notice of the unconscionable contract, and on that basis claims that it compelled
them to respect its outrageous (and unlawful) terms....
Roca Labs cannot
use the gag clauses as the basis for seeking injunctive relief, even as it applies to its customers
who wrote the reviews on the Defendants’ website, because Roca Labs has presented no
legitimate business reason to support the gag clause....
Preventing customers from providing their opinion of Roca Labs’ product is
not a legitimate business interest, but instead is itself a deceptive trade practice. Any act “which
unfairly takes advantage of the lack of knowledge, ability, experience or capacity of a consumer;
or results in a gross disparity between the value received by a consumer and the price paid, to
the consumer’s detriment” constitutes an unconscionable trade practice.
Finally, the filing attacks the idea that there's been a violation of Florida's unfair trade practices dispute, noting that the intent of that law seems ironically at odds with Roca Labs' attempted use of it. That is, the stated purpose of the law is to "protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce." And, since Roca is not a customer of Pissed Consumer and thus has no standing under the law. But again, even if it could, it's pretty clear there's no violation here:
Plaintiff says that a “practice is unfair when it offends established public policy and when
the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious.” ... Defendants agree. The suppression of consumer reviews, some of which warn consumers
of negative health consequences, fits that description. Meanwhile, no reasonable person could contort that definition into “allowing consumers to share their experiences to the benefit of
Let us presume, arguendo, that Defendants are the evil conspiracy that Roca paints them
to be; even reprehensible conduct is not actionable under FDUTPA absent loss or damage to a
consumer.... There is
no identifiable loss or damage to a consumer here, and unless Roca is a consumer of the
Defendants’ services or products, it lacks standing to bring such a claim on behalf of other
consumers who have no quarrel with the Defendants. Roca Labs calling this business
“immoral,” is not enough to give it standing under FDUTPA19 (although it is ironic).
And that's not even getting into the fact that the law requires everything to have happened in Florida (PissedConsumer is a NY-based operation) or the fact that you have to prove damages, and Roca Labs (conveniently) doesn't even bother to present any evidence of damages.
In the end, the filing is fairly damning across the board. It seems likely that Roca Labs went through its usual paces in trying to intimidate PissedConsumer over the negative reviews, not realizing that it might have competent legal help who could actually respond to the questionable legal theories that Roca Labs was using in trying to have negative reviews blocked and censored.