January 13th, 2015

Roca Labs, Snake Oil and Randazza

I’m on a roll lately writing about idiotic defamation cases, so I might as well do one more. I’ve ignored this one until now. And no, this isn’t about me.

It’s about irreverent First Amendment badass Marc Randazza being sued by Roca Labs.

Who/what is Roca Labs? It makes a weight loss product. And you know what that means?

It means that some folks will call it bunkum, tommyrot and malarkey, say it’s snake oil, and challenge its effectiveness. The owners will undoubtably be called frauds, con men, quacks, hustlers and charlatans, and some may even call them bad names. And that’s before knowing anything else about the product or the people peddling it.

When you combine weight loss potions, tonics, goos, mixtures and other concoctions with free speech, that kind of thing is to be expected.

Yes, my friends, I’ve whipped out that thesaurus again and I’m trying to make good use of it.

Where was I? Oh yes, snake oil. Even Dr. Oz is not immune from such attacks for pitching weight loss products. Just Google Dr. Oz snake oil weight loss and see what you get.

And so it happened that someone gave a negative review of the Roca Labs product on a gripe site called PissedConsumer. I know, I know, you are shocked! Shocked! That such a thing would happen.

But rather than take it in stride, or correct any possible mistakes, the company foolishly brought a lawsuit trying to rid the site of the bad review. The company claimed that, in exchange for a “discount,” buyers of the product agree not to make disparaging comments about it, and that this was “tortious interference.”

So they sued PissedConsumer, despite the fact it is immune from suit under Section 230 of the Communications Decency Act, which protects websites (mine included) from being accountable for the comments that are left on them.

Randazza came in to defend in his own inimitable and very colorful way.

Do I have to tell you what happened next, dear reader? Now people who had no idea that PissedConsumer or this review even existed learned about it.

When Randazza — my attorney in the Rakofsky v. Internet suit — wrote about it, Roca asked him to please stop. As you might guess, asking a First Amendment lawyer to surrender his own First Amendment rights gave Randazza a chuckle. He published the Roca missive.

And then, having not humiliated themselves enough by bringing the first suit, and by trying to get Randazza to surrender his own rights, they decided it would be wise to then sue Randazza. Really, you can’t make this stuff up.

I went through the Complaint looking for the reason for the suit — that is to say, some actual words that Randazza used that are false facts and, therefore, might be defamatory. Because that is what you need in a defamation case, false facts. Being mocked and ridiculed, it may surprise you, won’t cut it in a free speech society.

What I found was them quoting a satiric Halloween tweet from Randazza:

“Some fucker put Roca Labs’ shit in my kids candy bag!”

It took them 38 paragraphs to actually get to this. And from there went on to cite Techdirt and BoingBoing articles that Randazza didn’t write that ripped on Roca. The complaint also cites to portions of briefs Randazza wrote, which I thought was downright silly since there is a litigation privilege with respect to such legal filings. That means you can’t bring a defamation action over them. (See analysis by Adam Steinbaugh)

If there is a cognizable claim in Roca’s papers, I sure can’t find it.

This suit is destined for the trash heap of history. And you know why I know this? Because so much of this complaint is filled with crap. If you want to be amused, look at paragraph 80 where Randazza is “accused” of mocking the Roca Labs legal team.

By putting this in the Complaint Roca has shown that they don’t need Randazza to horsewhip them; they do just fine with self-flagellation.

They also spend some time discussing some of Randazza’s other First Amendment clients, including various pornographers. Apparently, giving legal counsel to those that need it is frowned upon by Roca. Go figure.

Over at Popehat, Ken White notes about the Complaint in a post titled Roca Labs, Lacking A Hornet Nest Into Which It Could Stick Its Dick, Has Sued Marc Randazza, that:

Roca Labs complains that Randazza’s purpose is to “mock, ridicule, humiliate, harm, and continue his war against ROCA,” but that’s not very specific. Roca Labs complains about statements in articles by TechDirt and tries to attribute them to Randazza, but doesn’t explain exactly what Randazza said and exactly how it was wrong. That lack of specificity is probably deliberate — if Roca Labs admitted they were mad over the term “snake oil,” they’d have to confront the fact that the phrase is obviously protected opinion. See, e.g., Phantom Touring v. Affiliated Publ’ns, 953 F.2d 724, 728, 730–31 (1st Cir.1992) (holding that description of theatre production as “a rip-off, a fraud, a scandal, a snake-oil job” was no more than “rhetorical hyperbole”).

Many others have now written about this, I’ve provided some links below, and you can Google “Roca and Randazza” to get more. That might not be as sexy as Bogey and Bacall, but it’s certainly amusing.

While others have written about this, and I hate to do “me too” postings, I write anyway because I think it’s important that when people sue with the intent of silencing their critics, that others take note and expose the attempted censure. And I think that silencing the criticisms is exactly what was intended.

This, by the way, just scratches the surface on much of the weirdness, threats and lawsuits that are going on.

Elsewhere:

Roca Labs Sues Opposing Lawyer, Marc Randazza, Because Of What We Wrote On Techdirt (Techdirt, one of 17 stories it has on this weirdness)

Roca Labs Sues Marc Randazza For Defamation (Adam Steinbaugh)

A Case That Will Want to Make You Gag (Above the Law)

Weight loss firm demands $1 million from website hosting negative reviews (Ars Technica)

January 8th, 2015

Je Suis Charlie

Translation: Mohammed overwhelmed by fundamentalists
Bubble: It’s hard to be loved by idiots

Two of the cartoons on this page are caricatures of the prophet Mohammed. Before yesterday, I couldn’t imagine circumstances where I would publish them, both because this blog doesn’t deal with religious issues and because such caricatures are offensive to Muslims.

I just don’t run around looking to insult the religious beliefs of others. To each their own, so long as it doesn’t impact others.

But I also write and publish and enjoy the magnificent freedom of speech. I’ve been discussing that subject a lot recently, though that was due to attempts to silence by force of law, not guns.

There’s no doubt that the horrific assault yesterday on the sharply satiric French political magazine Charlie Hebdo is not just an assault on all writers, but an assault on all that believe in free speech.

It doesn’t matter if we approve or not of the content of the magazine’s speech. That has nothing to do with the right to publish it.

What if we allowed ourselves to be intimidated into silence by force of guns on the subject of religion? What other subjects would be next? And who gets to make those decisions?

If we do not stand up to people now that wish to take away the fundamental right to express opinions, then when will it happen? And if not us, who then?

The answer to speech with which we disagree is more speech, not less.

Translation: “I am the prophet, asshole!” “Shut up, infidel!”

I think that the vast majority of Muslims are appalled by what has been done in their name. And now, because a small group of people have bastardized their religion, they see these depictions getting widespread dissemination.

We must, however, choose between the lesser of two evils. Do we remain silent in the face of violent attempts to censure, or do we speak out and insult perfectly innocent people in the process?

But there seems to me to be little alternative other than to stand up to evil, and the sooner the better. I suspect that those innocent Muslims know this all too well, as the militants within their religion may have killed thousands of Jews, Christians and Hindus around the world, but mostly they have killed their fellow Muslims. And done so by the millions.

The slaughter yesterday, and the need to respond, reminds me of a poem:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

Let’s hope that the pen is indeed mightier than the sword. You can see a wide selection of cartoon responses compiled here and here. But this is the one that I will close with, from Philadelphian Rob Tornoe:

January 6th, 2015

On Suing and Being Sued

A new graphic, for lawyers that bring idiotic defamation cases: The dunce cap.

So I bring lawsuits for a living. And I’ve repeatedly railed against the tort “reformers” that seek to limit suits.

But now I’ve been sued twice in idiotic defamation suits for my writings on this blog, both of which were thrown out in the pleadings stage. The first was Rakofsky v. Internet and the second was by Dr. Michael J. Katz.

It’s reasonable to ask (as Daniel Fisher did yesterday in Forbes) since I’ve now been on the other side of the “v” twice: Have my thoughts changed on the subject?

And the answer is no.

True, these were both a pain in the ass and a diversion of both time and resources for me.

But the answer to such suits is not to close the courthouse doors by offering protections and immunities against suits — for the real damage and danger there is closing the doors to legitimate issues.

No, the real solution is punishment with the proper use of sanctions. In both cases against me the judges refused to sanction, despite the fact that the cases were such dogs.

We have, I think, a judicial culture in New York against punishing frivolous and idiotic behavior in our courts. Compare, for example this federal judge in California lowering the boom on a frivolous suit against the National Law Journal that was also reporting on courthouse activities.

The laws are on the books (see CPLR 8303-a). They may not be strong, but the Legislature put them there. That is the place to seek redress for the boneheaded suit. Not closing courthouse doors.

Updated: See New York Needs More Robust Anti-SLAPP Legislation

January 5th, 2015

Things Get Worse for Dr. Michael Katz…(Updated x2)

Samson Freundlich with New York Law Journal front page story: Criticism of Doctor was Protected Speech, Judge Finds

So there’s the story, as the feature on the front page of Friday’s New York Law Journal: Justice Cynthia Kern‘s decision throwing out the defamation case Dr. Michael J. Katz stupidly started against me and my co-blogger Samson Freundlich.

I previously blogged about this dismissal, but now it’s front page news. (NYLJ: Criticism of Doctor Was Protected Speech, Judge Finds)

And if the whole legal community didn’t already know that Justice Duane Hart had eviscerated Katz by repeatedly calling him a liar, they surely know now.

The story also introduces a new term to the legal lexicon, boneheaded, as in, this was a boneheaded suit to bring. That was the quote the paper elected to use:

Turkewitz said he was disappointed of the deep reluctance of judges to find cases frivolous and impose sanctions. “This was a really bone-headed lawsuit to bring, and all it did was make Dr. Katz look even worse,” he said.

Now I think that boneheaded should be one word, and not hyphenated, but lexicography isn’t my long suit, and I suppose that is a digression for another day.

While I was disappointed that Katz and his lawyers weren’t sanctioned, it’s clear to me that rebroadcasting in this suit the lacerating remarks Justice Hart made about Katz was one of the dumber moves I’ve seen in my 28 years practicing law.

And now, due to the prominence of the story, the legal community also knows that it was the Nassau County firm of Ruskin Moscou Faltishek that led to this debacle. Well played, gentlemen, well played.

Readers are left to guess for themselves why a firm would elect to start a case it must inevitably lose that also embarrasses the client.

Update (1/5/15): Forbes now has the story also: Personal Injury Lawyer Gets Personal About Lawyers that Sue Him

Updated #2 (1/6/15 @ 12:15 pm): From Techdirt’s Tim Cushing: Hilariously Stupid Defamation Suit Against A Blogging Lawyer Tossed By New York Judge