Well, they don't call it the Carreon Effect
for nothing. The lawyer who keeps on digging has decided to... keep on digging. Last week he filed an amended complaint
pretty quickly after his original complaint -- specifically with the goal of adding California's Attorney General to the case. Why? Well, as we noted
in our original post about his lawsuit, Carreon himself donated to Inman's campaign, in what appears
to be a ridiculously weak attempt to get "standing" to sue, but he may be realizing that said "standing" is unlikely to hold up in court -- so perhaps he thinks that dragging the AG into the case will actually make the case go somewhere. Of course, it's also worth noting that Carreon finally realized that "incitement to cybervandalism" was a dead end, and dropped that charge. Of course, as with nearly all things Carreon these days, the weakness of almost everything in the case likely dooms the entire thing (and may leave Carreon wishing he had just decided to do something else).
That's because a few days later, Carreon filed for a temporary restraining order
trying to get IndieGoGo not to give the money raised to Inman (in order to fulfill his plan of taking a photo with the money before giving it to the two charities in question), but rather demanding that IndieGoGo give the money directly to the charities. Yes, his entire argument is basically that he wants to skip the part where Inman gets to take a photo with the money, which he seems to think would mock him (even though it was always designed to mock Funnyjunk, not Carreon).
Thankfully, both IndieGoGo and Inman have hit back on the whole thing pretty hard. IndieGoGo, I'm thrilled to learn, has brought on one of my favorite law firms, Durie Tangri, to represent him, and both Ragesh Tangri and Mark Lemley appear to be helping out. When those two are involved, you know the response is going to be good, and this one does not disappoint
(pdf and embedded below). Among other things, they point out that Carreon's request for a temporary restraining order is moot, because the money has already been distributed -- but also that Carreon already knew this and waited to file the TRO
Carreon did not file his papers until June 30... By the time he filed them, he had been
informed that the money already had been transferred.... At Inman’s request,
his share of the money contributed to the BearLove campaign was sent by check to the American Cancer
Society and the National Wildlife Fund, in equal amounts, on June 29.... As explained below, Carreon was aware at least as early as June 15 that the
money was liable to be transferred at any time beginning June 26 and at all events no later than Monday
July 2. He nevertheless made no effort even to file for a TRO until the close of business on June 28.
And, while he notes that the ECF system was down at that time, he offers no explanation for not having
sought to file his TRO application well before June 26 – which he knew to be the earliest date the money
could have been transferred – so that the Court could have adjudicated it before the time period during
which the money was due to be transferred began. Nor does he offer an explanation for having failed at
least to bring the application to the Court’s attention by means other than ECF on Friday June 29.
The simple reason for that is that there never was an emergency here, or any serious threat to
anyone or anything. Carreon’s application is gamesmanship. When Carreon filed his original complaint
on June 15, he knew that funds would be disbursed within five business days of the close of the
fundraising campaign, which was set for June 25. Indeed, on June 26, in conversation with Indiegogo’s
counsel, he admitted that he was aware that the funds could be disbursed at any time between the time of
that conversation and Monday July 2.... Yet Carreon waited nearly two weeks after
filing his complaint to present the court with his TRO request at the eleventh hour. Had there been any
threat of real harm, Carreon would have made this application with more than hours to spare
Furthermore, the filing rightfully points out that not only are Carreon's claims a huge miss, but the idea that there is any sort of "irreparable harm" (required for the TRO to be issued) to him is laughable. Remember, Carreon donated a grand total of $10 here. Paying that back would solve any "harm" if there were any. That's not irreparable. It's the very definition of reparable. If there were harm. Which there is not. So of the "irreparable harm," Carreon fails to show that it is irreparable (because it is not) or that there is harm (because there is not).
First, Carreon cannot demonstrate
irreparable harm to anyone, and certainly not to himself. A temporary restraining order is a drastic
remedy, intended to prevent the grave and irreversible consequences of some imminent event. Here, the
only imminent event was the disbursement of just over $95,000 to the National Wildlife Fund and the
American Cancer Society (not $200,000 as Carreon’s application mistakenly states), fulfilling Inman’s
promise to donate the money to those organizations – the very outcome that Carreon claims to desire.
Indiegogo will retain roughly $8,800 as a processing fee. Carreon’s total contribution was $10. Should
it later be determined that any harm flowed from these events, that harm would be readily compensable
with an award of monetary damages or restitution.
Second, Carreon has not demonstrated and cannot demonstrate a likelihood of success on the
merits. His claims against Indiegogo are barred by section 230(c)(1) of the Communications Decency
Act (“CDA”), which protects from liability a provider of an interactive computer service that merely
publishes information provided by another information content provider. And his claims under the
Supervision of Trustees and Fundraisers for Charitable Purposes Act, Cal. Government Code sections
12580 et seq., are likewise barred because that statute does not create a private right of action that would
afford Carreon standing to sue for its violation.
There's also the fact that IndieGoGo never touches any of the money that is paid via PayPal, meaning it couldn't have stopped it from going to Inman in the first place. The filing points out that this is clearly stated in IndieGoGo's terms of service -- something that Carreon claims to have read and which he cited in his own filing. IndieGoGo also points out that Carreon makes a bunch of crazy statements in his TRO request, including the idea that Inman might get a huge tax writeoff from all of this. As IndieGoGo's response points out, Carreon is "not remotely qualified" to make such an analysis, not the least of which because it's so obviously wrong to... well... anyone with even the slightest amount of common sense. The only way that Inman would get the writeoff is if the money was counted as income to himself, and, as the IndieGoGo filing notes, the supposed "benefit" from the writeoff "would be offset by at least an equivalent increase in income, thus leaving Inman at break-even or worse."
And then there's Inman's response
(pdf and embedded below), also discussed by the EFF
who wrote it along with (occasional Techidrt contributor) Venkat Balasubramani. It hits back equally hard (if not harder). Any filing that starts out with the following sentence is a filing you just know
is going to be good:
Plaintiff Charles Carreon’s application for a temporary restraining order... is
notable as much for its lack of context as its lack of merit.
The filing makes the basics clear: this is a "blatant -- and baseless -- attempt [by Carreon] to retaliate against a critic with whom he is
engaged in a very public dispute." It goes into lots of details, nearly all of which seem to demonstrate Carreon's grasp of the law here is weak at best (some might argue "non-existent" at times). My favorite bit:
Likewise, the First Amendment does not permit the law to hold, as Mr. Carreon claims, that
the phrase “Fuck Off” “cannot be lawfully associated with tax-exempt charitable solicitation in the
State of California.”
Following that, the filing actually cites a previous court ruling on how "one man’s vulgarity is another’s lyric."
The bigger point, is that Carreon seems to repeatedly just make stuff up. He claims that Inman misrepresented that donating to the campaign would be tax deductible, even though he did no such thing -- and, in fact, IndieGoGo is pretty clear
about when projects are not tax deducible. Yet, Carreon pretends that he expected "his" donation to be tax deductible. Separately, as Adam Steinbaugh points out
, Carreon makes this claim (that he expected his donation to be tax-deductible) in a highly questionable way -- especially since his "donation" came just hours before the lawsuit he filed -- and demonstrates pretty clearly that Carreon was already intending to file the lawsuit, and that the donation was just a weak attempt to get standing. The EFF's filing points out how courts tend to look poorly on plaintiffs who do something solely for the purpose of trying to create standing to sue -- because it pretty clearly suggests they were not wronged or deceived, but willingly partook of a situation they fully understood in order to seek standing in a lawsuit.
Basically, Carreon just seems to keep digging. He's trying to drag California's Attorney General into the matter, because he's at least realizing that his own standing is pretty weak, but this TRO request seems to just reinforce the idea that this whole thing is about Charles Carreon being petty and petulant in trying to mess up Inman's attempt to make a statement about the money. Carreon, once again, would be well-served to take some time off and think about what he's doing, rather than reacting by insisting he's going to show the world who's boss. Each move he makes just makes him look even worse.