Using State Law to Counter a Business Defamation Claim

October 9, 2015

by Jay Marshall Wolman

Readers of this blog know that Marc is giddy that the Federal Trade Commission has sued Roca Labs.  One of the more interesting features of the suit is that the FTC argues that legal action arising from negative reviews, which the FTC terms “gag clause practices”:

not only injure the purchasers threatened for complaining or expressing negative opinions; they adversely affect the information available to the public at large and distort the marketplace. Consumers will, because of this practice, be more likely to spend substantial sums on Roca Labs products that they would not otherwise buy. Prospective consumers searching online for information on Roca Labs products prior to purchasing likely did not see much truthful negative commentary on the price, side effects, return policy, or other aspects of Roca Labs products, because those comments were suppressed via the gag clause and related threats or enforcement.

FTC v. Roca, Motion for Temporary Restraining Order (Doc. 6 at pp. 14-15).  Pages 22 to 28 of the motion delve into this in detail, noting in part “Defendants’ use of gag clause, including notices, threats, and legal actions to prevent their customers from making truthful negative comments about them or their products, thwarts informed consumer decision making, corrodes the marketplace, and is unfair under Section 5[of the FTC Act].”  Id. at pp. 22-23.

The FTC Act, however, does not contain a private right of action.  People cannot sue a business for violating the FTC Act; only the Federal Trade Commission can.

However, many states, such as Florida, Massachusetts, and Connecticut, contain statutes that make unfair and deceptive business practices unlawful under state law.  And those statutes frequently contain what is known as a private right of action.  Many such statutes permit the recovery of punitive or double or treble damages, plus attorneys’ fees.

Conduct that constitutes a “deceptive act or practice” or an “unfair act or practice” under the FTC Act is a violation of the Florida Deceptive and Unfair Trade Practices Act (FDUPTA).  FTC v. Alcoholism Cure Corp.,  2011 U.S. Dist. LEXIS 155574, 2011 WL 8190540, at *6-7 (M.D. Fla. Dec. 5, 2011) (citing Fla. Stat. §§ 501.202-204).

The FTC Act serves as a “lodestar” for determining what is an unfair trade practice under the Connecticut Unfair Trade Practices Act (CUTPA).  Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 179, 510 A.2d 972, 976  (Conn. 1986)(citing Conn.Gen.Stat., sec. 42-110b.

Similarly, Massachusetts General Laws, Chapter 93A “defines unfair acts or practices by reference to interpretations of those terms in the Federal Trade Commission Act”. Kraft Power Corp. v. Merrill, 981 N.E.2d 671, 683, 464 Mass. 145, 156 (Mass. 2013).

The implications, then, of FTC v. Roca, are that where a business (either a company or person) sues a person or entity for defamation or on other theories to silence negative comment, in order that consumer information is suppressed, the defendant may be able to bring a claim or counterclaim that the lawsuit itself violates the state unfair trade practice statute.  This may not help the defendant facing a defamation claim for statements about an individual unrelated to trade or commerce, and it does not stop a case in its tracks like a strong Anti-SLAPP law, but it may prove to be a useful tool for the defense, before, during, and after litigation.

White People Like Yoga – No Whiteys Allowed

October 9, 2015

Everyone knows that White people love Yoga. (source) I guess.

I love yoga. Rich milfs in yoga pants. My fucking office is located next to the rich-white-lady-in-yoga-pants capitol of the Southwest – the Coffee Bean & Tea Leaf on Town Center Drive. I walk in that place and feel like a teenager on his way to the chalkboard sometimes.

But, doing yoga? I’ve tried it. I fucking hate it. But, maybe it’s that eggplant blood that Quentin Tarantino says I carry.

Oh, but wait, apparently I can be either while or black or whatever and still like yoga.

In fact, non-white people like yoga so much that there’s now a “safe space” for everyone except white people to do yoga. (source)

Rainier Beach Yoga in Seattle has a class called “yoga for people of color.” It started last week and runs once a month.

Teresa Wang, co-founder of the specialized class, said it was started by five queer people of color who came together to create a safe space for people of color who might otherwise be uncomfortable.

An email blast about the class says it’s aimed at people of color and of all sexualities, ages, body sizes, abilities, genders, and experience with yoga. It specifically identifies “lesbian, bisexual, gay, queer and trans-friendly/affirming,” plus people who self-identify as “African American/black/of the African Diaspora, Asian, South Asian, West Asian/Arab/Middle Eastern, Pacific Islander, First Nations/Alaskan Native/Native American/Indigenous, Chican/Latin, or Multiracial/Mixed-Race.” The email adds that “white friends, allies and partners are respectfully asked not to attend.” (source)

Some people say that this is just like a sign that says “blacks not welcome” or “jews and dogs need not apply.”


It is a lot more polite. See, if Jim Crow had just said “our negro friends are respectfully asked to not sit at the lunch counter” we wouldn’t have had all that talk about equality, discrimination, and such.

Besides, I can’t imagine how a gay Arab would feel “safe” if some white woman was doing yoga in the same room as him.

Mother Jones “wins” defamation suit, pays $2.5 million to get there

October 8, 2015

Do you see why we need Anti-SLAPP laws?

Mother Jones got sued by a censorious asshat. They kicked the living shit out of him. Won on everything.

Except one thing…

It cost them $2.5 million in defense costs – which they won’t get back. (source)

Will Idaho think about passing an Anti-SLAPP law now? This might be a wake up call.

Right to Be Forgotten Ruling Means that He Will Never Be Forgotten

October 8, 2015

In May 2014, the European High Court ruled that EU citizens had a right to data privacy that included a right to insist that Google de-list old or irrelevant links about them. (Case) It was mis-named a “right to be forgotten,” as there is no such right at all. While it is easy to sell the public on a newfound digital human right, what the Court really handed down was a duty on Internet search engines to de-list results.

Almost immediately, Google’s public relations team and a slew of other hysterics flew into a tizzy — the sky was, yet again, falling. The rallying cry was “this will break the Internet.” Whenever you hear someone say that something will “break the internet,” go get your bullshit detector. Put in fresh batteries, because it will go off the charts.

Repeat after me, “if someone says ‘this will break the Internet,’ there is a 99% chance that the person is either a) being paid by Google to say that, or b) simply has not thought it through.”

One of the most idiotic criticisms of the Google Spain case was the abject lie that ex-nazis could use this ruling to hide their participation in the holocaust. I wrote, at the time, that this would be impossible. (source) The Google Spain ruling ends with an admonishment. The “right to be forgotten” does not apply if it appears for “particular reasons”: if there is good cause to interfere with the citizen’s right to privacy, including “the role played by the data subject in public life,” and if a majority of the evidence shows that the general public has a right to that information.

In other words, the right to data privacy in the EU exists on a sliding scale. It has to be balanced with the right to free expression. Since the original decision came down, there have been a number of cases in which the RTBF has been very predictably narrowed. For example:

In May of 2012, a Dutch TV show titled “Crime Reporter” broadcast secretly recorded footage of the plaintiff in this case speaking with an alleged assassin. The plaintiff was subsequently convicted to six years in prison for “attempted incitement of a contract killing,” a conviction which is still under appeal. In the broadcast, the man was not identified by his full name, but it did display his first initial and his last name.

The plaintiff originally requested that Google remove links to online publications which reported the crime he had committed. Google was initially willing to comply with part of the results the plaintiff complained about, but refused to fully honor his request. The plaintiff then decided to bring a lawsuit to have other search results wiped as well.

To my knowledge, this was the first test of the “Right to Be Forgotten” since the Court of Justice of the European Union originally declared the right in the Google Spain case. However here, the Court of Amsterdam gave some clarity as to how this new right will be treated and rejected the plaintiff’s claims in favor of free speech and newsworthiness.

The Dutch Court stated that the Right to be Forgotten “judgement does not intend to protect individuals against all negative communications on the Internet, but only against being pursued for a long time by irrelevant, excessive, or unnecessarily defamatory expressions.”

The Judge further added that, “The conviction for a serious crime such as the one at issue and the negative publicity as a consequence thereof, in general provide information about an individual that will remain relevant. The negative qualifications that may be involved will only be ‘excessive’ or ‘unnecessarily defamatory’ in very exceptional cases, for instance when the offense committed is brought up again without a clear reason, apparently for no other purpose than to damage the individual involved, if reporting is not factual but rather a ‘slanging-match’.”

In addition, this case gave a bit of insight as to how Google is implementing requests for removals. Because Google partially accommodated the plaintiff’s request for removal of information, he complained that now when his name was entered into Google, the search engine displayed a disclaimer which said “Some results may have been removed on the basis of European data protection legislation.” The Court rejected the plaintiff’s complaints in this respect finding that the disclaimer Google displayed was indeed accurate and lawful information about the data subject. (source)

In another ‘RTBF’ case decided in favor of Google, The Court of Amsterdam yet again ruled in favor of free speech and newsworthiness. This time instead of a grave criminal offense, a KPMG partner tried to employ the ‘Right to be Forgotten’ as a tool to erase a personal news story. According to outlets that reported on this, the KPMG partner and his contractor got into a dispute which forced the KPMG partner to live in a container on his country estate for an extended period. After refusing to pay his contractor’s bill, the contractor changed the locks at which point local media outlets picked up on this story. The KPMG partner was not pleased by the fact this this private dispute was subject to press coverage and sought to end this by employing the Google Spain ruling.

However, the Court of Amsterdam made clear that this is not the proper use of the ‘RTBF’. It stated, “When applying the so-called ‘right of removal’ this particularly relates to – briefly put – the relevance of the search results found, rather than whether the contents of (in this case) the articles found are themselves inadequate, irrelevant or excessive”.

The KPMG contractor took the position that his dispute was no longer relevant as it was a private matter that occurred roughly two and a half years prior to the case being heard. However, the judge made note that the RTBF may not be used to suppress news articles when she stated: “The [right of removal] is not meant to remove articles which may be unpleasant, but not unlawful, from the eyes of the public via the detour of a request for removal to the operator of a search machine.”

The judge further ruled that the search results are not irrelevant as the articles were published between 2012 and 2014. However, the judge left the door open for a future, renewed request for removal and distinguished this case from Google Spain as Costeja (plaintiff) in that case was seeking removal of search results that dated back 16 years.

In addition the KPMG partner asserted that he had other serious grounds that warranted removal of the search results in that his friends and business associates were made aware of his spat in the headlines. Supporting freedom of speech over the personal embarrassment the story may cause the KPMG partner the judge ruled, “The fact that the claimant does not like it that he is still confronted by his acquaintances or business contacts with the ‘container story’ is very understandable. However, this does not outweigh the right of freedom of information of Google Inc.” (source)

However the most recent case is one that shows exactly how little the sky really is falling — and how life can be a real puta.

Mr. Costeja, the Google Spain plaintiff, came back to the Spanish authorities, seeking a de-listing of articles about him and his case against Google. The Spanish Data Protection Authority, Agencia Española de Protección de Datos (AEPD), denied his request to suppress links to comments about the Google Spain case itself. The Agency found that given the importance and widespread attention of the CJEU’s ruling, articles and commentary discussing the case and facts behind it are considered of public interest. (decision)

All of these rulings show that the “right to be forgotten” is not the end of free speech on the internet. No kittens died. No Nazis got their past removed from the Internet. And no, the Internet is not broken.

We should all thank Mr. Costeja for doing his part to bring about the right to be forgotten, and now we should thank him again for showing that the decision is probably one that strikes the right balance.

Lanham Act doesn’t get you around the First Amendment

October 2, 2015

RLG just got a summary judgment order in Tobinick v. Novella. In that case, we first got an Anti-SLAPP order against a California plaintiff who filed a SLAPP suit in Florida (perhaps hoping that Florida’s courts wouldn’t realize that a CA plaintiff can’t run away from his anti SLAPP law). (Order here)

However, the Plaintiff maintained that our client’s articles on a medical practice were actually “commercial speech.” Court slapped that down today. (Order here)

Since there is a little more to do in the case, I’m not going to comment further. But, the Order should go in any First Amendment lawyer’s files — because this isn’t the first time I’ve seen a plaintiff try and get creative with the Lanham Act in free speech cases.

And I’m certain it won’t be the last.


September 24, 2015

The Federal Trade Commission has come after the lovely Roca Labs, Don Juravin, and George C. Whiting.  Complaint here.

Entire docket here.

Denali Ain’t Just a River in Egypt

August 31, 2015

by Jay Marshall Wolman, CIPP/US

I hate to admit it, but I first learned the term “Denali” when reading the Twilight series.  My wife and I had taken a vacation to the Pacific Northwest and visited the Olympic peninsula.  Edward and Bella references were everywhere, and we had no clue what it was all about.  So, I read the books.  And I have a problem with leaving a series unfinished (I’m looking at you George R.R. Martin).

This past Friday, with formal announcement yesterday, the Secretary of the Interior renamed Mt. McKinley, “Denali”.  Apparently, we have something called a U.S. Board on Geographic Names that was asked in 1975 to rename the mountain. It is authorized to establish uniform name conventions.  43 U.S.C. sec. 364, et seq.   The whole park was already called Denali, but the mountain itself was left unchanged.  Because the question was pending perennially before Congress, in a perpetual battle between Alaskans (Republicans and Democrats), who wanted it renamed and Ohioans, who wanted it to remain named for their native son (born in Niles, Ohio), the Board deferred action.  The Secretary declared that with 40 years of inaction, he had the authority to do it himself; I will assume he does.

In looking at the law, I was first taken by the odd language, that the Board, with the Secretary,  gets to resolve questions regarding the “standard name”.  See, 43 USC 364b.  I figured it already had a standard name, promulgated when the park was created in 1917.  But, 64.Pub.L. 253 only establishes the Mt McKinley National Park and did not name the mountain itself.  Since the park was redesignated in 1980 as the Denali National Park ( Alaska National Interest Lands Conservation Act Dec. 2, 1980, P.L. 96-487, Title II, § 202(3)(a), 94 Stat. 2382), it does seem that the name of the mountain itself was non-standard.

Chalk this one up to things that you didn’t know Congress had delegated to the executive branch.


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