Receive bad service, complain, get sued for $15 Million

[Sir Lancelot]

While doing some surfing, I came across some info about an interesting lawsuit happening here in the US. While not directly related to the subject matter usually discussed here on TERB, it is directly related to what TERB is - a review board where we post our opinions. In short, a user of a mailing list for aquatic plant hobbyists mentioned a bad experience he had with a company. Others users chimed in with similar bad experiences. The company’s owner sued the users, the mail list, its volunteer moderator, and others for $15 million. It gets worse. When the online community set up a defense fund for the individuals, the company’s owner sued the defense fund itself. And if that wasn’t enough, the owner added an additional defendant… a guy who put on his website a link to the company’s “not recommended” status on the Better Business Bureau (BBB) website. (Oh yeah, he’s suing the BBB in a separate law suit for that ranking). Below are some links to sites with information on this suit.

While many people readily and quickly agree the law suit is frivolous and without substantial merit, the problem is that these individuals being sued must still spend tens of thousands of dollars to defend themselves.

I think this is an extremely important case not just relating to freedom of opinion on the Internet, but also about the practice of intimidation through the use of law suits.

Check out the links below. If you find this case as disturbing as I do, perhaps you’ll consider helping these folks out by donating to their defense fund as I have. If not, thanks for your time in reading this post.



Article about the case on salon.com - http://www.salon.com/tech/feature/2002/04/04/aquatic_plants/index.html

General Information - http://www.thedefensefund.org/

The APD Defense Fund for the Defendants - http://www.petsforum.com/psw/

Copy Of an MSNBC article - http://courses.cs.vt.edu/~cs3604/lib/Freedom.of.Speech/Web.talk.html



"In a free country, we punish men for crimes they commit, but never for the opionions they have" - Harry S. Truman

"I may not agree with what you have to say, but I will fight, to my death, for your right to say it." - Voltaire

 

[Remo]

If the this company suing all these people loses can't the defendants then counter sue for any damages including their legal fees? The US justice system is flawed but I think even Americans are getting sick of frivolous lawsuits.

 

[Paul Waters]

Uh,

This story is almost 5 months old.

Sir Lancelot, how about reseaching the current status?

 

[Sir Lancelot]

Replies - part 1

What company is the the one doing the lawsuit and where the hell is the 1st amendement if this happened in the United States?

Who's the next victim, Comsumer's Digest?

The plaintiff of the lawsuit is "Robert Novak, d/b/a Petswarehouse.com" (its important to note the s in the company name as there is another company petwarehoue.com (no s) that is a completely separate company - although they recently changed names because of the confusion and bad publicity received as a result of this case and the alleged bad service of the company that is party to the lawsuit – notice how I’m trying to watch my wording so I’m not next on this guy’s list – perhaps he’s already won…)

As for the First Amendment - here's the whole sticky point. Even is the first amendment protects the defendants in what they said (as many people believe it does) - it doesn't protect them from being sued. The individuals still must take the time and money to defend themselves. The plaintiff is suing under libel and defamation claims. There are 2-semester long law school course dealing with these tricky issues, so I won't pretend to understand or explain them fully. But based on what I've read on the case, and what some lawyers have said about the case, Mr. Novak doesn't have sufficient grounds to prove either libel and defamation. Again, that doesn't stop him from filing the lawsuit in the first place.

Also, the First Amendment (and the Bill of Rights in general) is there to protect the people from the government enacting laws that prohibit certain things (such as free speech in the case of the 1st) or from the government “going after” people for said actions - however this is a civil matter of citizen versus citizen; so that's a whole another legal level of complexity added to this.

As for the Consumer Digest, I don't know about them, but I do know many many people/companies have sued Consumer Reports after Consumer Reports gave them or their product's bad reviews. Consumer Reports has won every case brought against them. But they have the deep pockets to defend themselves. In fact, they merely consider it a cost of doing business.

 

[Sir Lancelot]

Replies - part 2

If the this company suing all these people loses can't the defendants then counter sue for any damages including their legal fees? The US justice system is flawed but I think even Americans are getting sick of frivolous lawsuits.

Yes they could sue for damages as a result of a frivolous lawsuit, but that costs yet more money for them. Some have long been proposing laws stating that in any law suits in which the defendant wins, the plaintiff automatically has to pay the defendants legal fees. The philosophy of such a law is that people would be slower to file frivolous lawsuits and some lawyers would take defendants’ cases on the contingency of winning. After reading this story, it has peeked my interest to the point that I plan to do more research on such issues. Already I have learned that California recently enacted an Anti-SLAPP law (strategic lawsuits against public participation). (http://www.casp.net/cal425.html) But these laws are new and are still going through the initial "trial-by-fire" in the court system.

Uh,

This story is almost 5 months old.

Sir Lancelot, how about reseaching the current status?

Actually, the case is still on going. While the case has been on going for quite some time, and some of the defendants, on Feb 27, 2002, settled out of court – merely to avoid any further legal fees – both the first and second lawsuits are still on going as evidenced by the official Court Docket. (1st suit: http://www.petsforum.com/psw/Docket.htm 2nd suit: http://www.petsforum.com/psw/Docket2.htm)

I wish I had learned of them earlier so as to have been able to lend my support early on in the proceedings. Nonetheless, even if both cases were over, I personally would still be mentioning it since I think they are absurd cases. They are cases representative of a larger issue. But most importantly, they are cases which should make any online community nervous.

Image if you mentioned here on TERB that an agency gave you bad service (perhaps not calling to tell you an SP couldn't make an appointment) and that agency turned around and sued you, Fred, TERB and anyone that replied to the comment. It’s a scary concept... This guy’s even named one defendant in the lawsuit (for trademark infringement) simply for using his company’s name in a link to a news article on the case. That’s the equivalent of WorldCom suing someone because they had a link “WorldCom hides assets – story at cnn.com” on their web site. And because this guy acts pro se (i.e. as his own lawyer) it costs him very little, but costs the defendants tons. (Geography plays a large part in the expense because he is suing them in his home state of New York and they all live in other sates.) He even admits that suing people is a “hobby” and he appears to relish in the fact that its costs the defendants money (see article form the long Island Business News – http://www.libn.com/Column_details.cfm?ID=1249

I grant you the laws are very different in Canada then the US; and I don't pretend to be a legal scholar in regards to US or Canadian law, but I think that our government representatives must take action to stop this type of abuse of the legal system. Who knows when someone will find a legal method for US parties to easily sue Canadian parties and/or visa-versa.

Yes the story may not be "breaking news", but I still felt it was a story that any online community would be interested in and therefore posted information about it.

Again, if it interests you as it has me, learn more, do what you can or feel you want to. If it doesn’t interest you, I simply thank you for taking the time to read my post.

 

[LL. B. (HME)]

A couple of points....

1. In Canada, succesful Defendants recoup about 60% of their legal fees in the form of court costs awards from the trial judge. This is not the situation in the USA and as a result, frivolous suits are far more frequent in the States.

In this country it's also open to the defendants to counter-sue the plaintiff for abuse of process if it's clear that the libel suit is just a way of pressuring people to refrain from raising legit concerns about the company's service. An abuse of process suit could potentially net a considerable amount in punitive damages for the claimants.

2. Is it possible that the pet company's claim is sustainable? If the discussion board and its posts were just a sneaky way for an unscrupulous competitor to nail the pet comany and destroy its rep, the company would be within its rights to sue anyone and everyone involved for libel.

 

[Sir Lancelot]

Re: A couple of points....

1. In Canada, succesful Defendants recoup about 60% of their legal fees in the form of court costs awards from the trial judge. This is not the situation in the USA and as a result, frivolous suits are far more frequent in the States.

In this country it's also open to the defendants to counter-sue the plaintiff for abuse of process if it's clear that the libel suit is just a way of pressuring people to refrain from raising legit concerns about the company's service. An abuse of process suit could potentially net a considerable amount in punitive damages for the claimants.

2. Is it possible that the pet company's claim is sustainable? If the discussion board and its posts were just a sneaky way for an unscrupulous competitor to nail the pet comany and destroy its rep, the company would be within its rights to sue anyone and everyone involved for libel.

Thanks for the insight Ll. B.

I had heard in the past that Canada had measures in place to reduce frivolous lawsuits. Thanks for the details on what those are. We can only hope that the US follows suit, and soon. It's gotten to the point in the US that even waking up in the morning requires a liability waiver.

As for point number 2, I don't believe the company's claim is sustainable. (This also appears to be the consensus of all the Layers who’s comments I have found on the case). The whole thing started when a Computer Science professor (and aquatic plant hobbyist) named Dan Resler warned his fellow hobbyist about the bad service the company provided him. The identity of the professor is not in question (i.e. a competitor masquerading as a disgruntled customer) since the professor submitted the comments using his Virginia Commonwealth University e-mail account and signed the e-mail with his full name (not an online nickname, etc). Most of the other hobbyist (that submitted additional comments) also used proper names and not online identities. (The plaintiff even tried to rattle Virginia Commonwealth University's cage since the initial e-mail post was sent using their e-mail system. However, he didn't pursue it - many think because he knew, unlike the other defendants he was suing, the University would have plenty of legal representation, and he wouldn't be able to hurt them (win or lose) as he is the average Joes.) All the suspect mails/postings can be read at either the defense fund's site (sorted for quick reference) at http://www.petsforum.com/psw/apd.htm or at the Archives of the List Service at the heart of all this (http://fins.actwin.com/aquatic-plants/index.php). In my reading of the posts, I found the majority to be well written. While some may go a little bit too far (in terms of politness, sarcasim, etc), they greatly pale in comparison to negative comments I’ve read at other online sites (including eOpinoins.com, amazon.com, TERB, and others). Lastly, the Professors receipts and e-mails with the company have been submitted as defense exhibits.

The more you read about the case, the more you realize the company owner (and plaintiff) is just sue happy. One of the defendants named in the suit was a hobbyist who had his own personal site displaying his aquariums. He also had a page with links to other hobbyists' sites, and to resources for hobbyists (incl distrbutors, e-tailers & retailers). After reading multiple complaints about this pet company, he put a note next to this company’s link indicated people should reference the comments made in the forum. But he did not say the company was bad or even that people should not do business with it. (He ended up settling his portion of the suit out of court by agreeing to place a banner ad for the company on his site for 145 days, and he is not allowed to remove the link to the company in his list of resources). Another lady -- who's "offense" was placing a banner ad to the defense fund on her site -- settled out of court by relinquishing her domain name to the plantiff. Again, all this information is readily available in the court documents which are available at the APD Defense fund site (http://www.petsforum.com/psw/)

It really bothers me that this lawsuit (which isn't even near the trial phase) is costing these people tens of thousands of dollars; and just about any sensible person thinks it's frivolous. BUT, what bothers me the most is that you or I could be next! I want to see this case go to trial (and thus am lending what financial support I can) so the defendants can win this case, and then there will be some case law in the favor of us consumers. (And the case can hopefully become a rallying point for measures to be put in place here in the US to reduce (if not eliminate) frivolous lawsuits (…yeah I know… I live in a fantasy world).

Sorry for all the long posts, but as you can obviously tell, this issue has me a bit riled.