Today I light the Popehat Signal for an Oregon blogger threatened with a defamation lawsuit over statements on Telecom Compliance News Press, his blog about various telemarketing schemes. You know those "Rachel from Card Services" calls to your cell phone that I've written about? He writes about that sort of thing. The subjects of his posts have threatened him before.
Recently he received an email from and attorney named F. Antone Accuardi. Mr. Accuardi previously been mentioned as associated with entities accused of telemarketing abuse, and is a defendant in a proposed federal class action suit alleging telemarketing violations, which allegations he denies. In Mr. Accuardi's email to the blogger, he threatened as follows:
Pursuant to Oregon statute I am writing you to demand that you retract your defamatory statements that you have ubiquitously posted on your internet blog, telemarketerspam/wordpress.com. I do not own or control any of the businesses you falsely associate me with, do not receive a dime for CNAM, do not know or have anything to do with Louis Martinez or any company he may have an interest in, and have no offshore bank accounts where I hide my ill gotten gains. Most importantly, I am not the mastermind behind a nation wide conspiracy to violate state and federal laws by initiating, facilitating or otherwise participating in any telemarketing scheme, nor have there been any FTC complaints alleging that I did anything that might initiate such complaints. Put simply, you posted stories purporting to be facts with absolutely no proof whatsoever as to their veracity. Now you must remove it, along with a statement to the effect that you were wrong. Frankly, I could care less if you do, I am going to sue you in any event. Failure to provide this demand would eliminate my probability of getting presumed, general damages in my suit against you for, among other things, libel per se. FYI, I am fully cognisant of Oregon's SLAPP statute and have already compiled substantial evidence that I will prevail in this case, so bring it on.
This should also serve as notice to you that you are going to be sued and that you are required to preserve all of the evidence in your possession or control. Failure to do so may result in a motion for spoliation of evidence instruction to the judge and or jury that hears the case, allowing them to find that such destruction of evidence can be inferred negatively against you at trial.
See you round the courthouse…..
Thank you for your prompt attention in this matter.
I have not investigated whether the blog made the statements Mr. Accuardi attributes to it, nor do I know whether the blog has a factual basis to make those statements if it did. However, this emailed threat has many of the hallmarks of vexatious harassment. Though he specifies specific statements alleged to be false — something of a rarity — Mr. Accuardi ignorantly or deceitfully misstates Oregon law. The Oregon retraction law to which Mr. Accuardi alludes allows a demand for retraction only within 20 days of when the subject actually learns of the publication. The blog's last publication was in February 2013. Mr. Accuardi has known about the blog, and followed it, since 2012. He corresponded with the blogger in July 2012 and corresponded with me about it that same month. So: either Mr. Accuardi hasn't bothered to read the statute he is invoking, or he is hoping to deceive the blogger about its terms through bluster. The rest of the email — bumptious and unprofessional — also smacks of censorship rather than merit.
The best way to resolve such a claim is when both parties are represented by competent counsel. Unfortunately, our legal system makes it ruinously expensive to defend even a meritless claim. As a result, people are often chilled into silence about important issues — like telemarketing abuse — not justly, but out of fear of financial ruin. That's why I invoke the Popehat Signal. I make no prejudgments about whether the Telecom Compliance News Press said something about Mr. Accuardi that was incorrect. That's a question best resolved through exacting analysis of Mr. Accuardi's claims and, if appropriate, thorough discovery into his interactions with telemarketing companies. But a blog exposing telemarketing misconduct should not be shut down out of fear generated by a threat like this one. If you are admitted in Oregon, please consider contributing pro bono help to the blogger: advice at this stage, and perhaps defense if the threat becomes fact. If you know anyone admitted in Oregon who may help, please spread the word.
Edited to add: Three attorneys within a few hours. You people are awesome.
Last 5 posts by Ken White
- In Space, No One Can Hear You Threaten Lawsuits - October 4th, 2015
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- Ninth Circuit Imposes (Some) Limits On Cops Yanking Things Out of Your Ass - September 30th, 2015
- Arthur Chu Would Like To Make Lawyers Richer and You Quieter and Poorer - September 29th, 2015
- In Roca Labs Case, FTC Takes Novel Stand Against Non-Disparagement Clauses - September 29th, 2015