Search Results for: randazza

Roca Labs, Lacking A Hornet Nest Into Which It Could Stick Its Dick, Has Sued Marc Randazza

This crazy litigant goes to 11.

Roca Labs, you may recall, is the weight-loss-goo purveyor that is belligerent, litigious, and sensitive to criticism to a pathological degree. Last month I wrote about how they require their customers to sign no-criticism contracts, and had sued for carrying negative reviews. Yesterday I lit the Popehat Signal to seek help for customers Roca Labs has targeted with vexatious litigation — including, in what no doubt is just a big coincidence, one of the witnesses against them in their first litigation.

Can Roca Labs push the envelope more? Yes they can.

Today Marc Randazza — counsel for in Roca Labs' frivolous suit — filed an updated notice of related cases in the PissedConsumer case. That updated notice revealed that Roca Labs has now sued Randazza himself for his activities defending

The complaint itself — which I have uploaded here — brings the crazy and brings it good and hard. It was penned by Roca Labs' latest attorney, one Johnny G. DeGirolamo, a 2009 law school graduate and 2011 bar admittee, whose website is No, really. His site offers a flattering headshot of a smiling advocate, and it was a very good choice to use that picture rather than, say, his booking photo.

Roca Labs, through Johnny G., accuses Marc of interference with economic advantage and defamation per se1, demands a declaration that Randazza is wrong and he is libel, and moves for an injuction telling Marc to shut up. Yeah, good luck with that.

But that ain't all. The complaint is a model of prissy pearl-clutching. Johnny G. is aghast that Randazza has provided legal services to adult entertainment companies. Goodness gracious! Johnny G. is horrified that Randazza has been "an outspoken advocate for Phillip Greaves, the author of 'The Pedophiles Guide to Love and Pleasure.'" To be more accurate, Randazza has been an outspoken advocate for the First Amendment issues presented by Greaves' case, but it's not surprising that a First Amendment distinction is lost on the sort of attorney who wold represent Roca Labs. Johnny G. is cheesed off at Randazza's catchphrase murum aries attigit, which apparently suggests a level of aggression that is upsetting to a company that flails around suing its customers for criticizing it. In short, Johnny G. — bless his heart — does his best to make Marc Randazza sound terrible, and only wind up making him sound knowledgeable about free speech.

On to the substance of the claim, if I may use the term very generously. Roca — through Johnny G. — asserts that Marc has been defaming Roca Labs during this litigation by making statements to the press (or, as Johnny G. puts it, to "webzines") and then putting those same statements in court pleadings. They imply he's trying to cloak his statements to the media with litigation privilege by repeating them in court filings. This theory is . . . odd.

Moreover, Johnny G. and Roca Labs are conspicuously vague about exactly what statements are defamatory, and exactly how. Other than complaining that Randazza defamed Roca Labs through a very clearly satirical tweet on Halloween, there are few specifics. 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”). Moreover, in some parts of the complaint Roca Labs is attacking statements that are clearly, objectively true based on Roca Labs' own court documents. For instance, Roca Labs angrily quotes a paragraph in which TechDirt accused them of trying to silence customers. Which is what they are doing.

Finally, the complaint attaches a motion for a temporary injunction, in which Johnny G. demands that Randazza cease and desist saying mean things about Roca Labs, retract prior mean things, and remove any online content about Roca Labs. At this point I have to admit that I don't know whether Roca Labs and Johnny G. are powerfully stupid, breathtakingly cynical, unapologetically unethical, or all three. Despite the fact that they are suing a renowned First Amendment lawyer, despite the fact that they are demanding an injunction silencing him, despite the fact that they have lost a similar injunction request in which Randazza schooled them on the First Amendment and prior restraint issues, and despite the fact that it is clear those issues will arise again, their motion makes no mention whatsoever of the overwhelming First Amendment and prior restraint issues presented by their demand.

Roca Labs is mistaking aggression for strategy. Randazza, by filing his notice of related case, has alerted the federal court hearing the case that Roca Labs is flailing around suing opposing lawyers, which will not go over well. Roca Labs has hired what appears to be an improbably matriculated Muppet to champion their case, despite a patent lack of qualifications. Roca Labs thinks that suing Marc Randazza to shut him up is going to end well. They should have asked Raanan Katz or Crystal Cox how that would turn out.

I'm calling it: Roca Labs has achieved Prenda status.

Edited to add: Adam Steinbaugh explains why Roca Labs' attempt to evade the litigation privilege is so frivolous.

Marc Randazza Defeats The Very Sensitive Raanan Katz On Prior Restraint Issue

Remember Miami Heat owner Ranaan Katz? He's the easily offended fellow who goes around suing people because there's a mildly unflattering picture of him on the internet. Previously I wrote about how he sued a blogger who was relentlessly critical of him, threatened to sue the blogger's lawyers — including First Amendment badass Marc Randazza — for representing her, and eventually convinced a Florida judge of questionable judgment to issue a broad, unprincipled, and unconstitutional prior restraint against blogging negatively about Katz.

Sometimes the bad guys win, I said after that ludicrous injunction. But there's another apt cliche — it ain't over 'till it's over.

Yesterday the blogger, represented on appeal by Marc Randazza and Jeffrey Crockett, won on appeal. Their victory was won in part by the hard work of Darren Spielman and Robert Kain in the trial court. The Third District Court of Appeal for Florida issued a broad and helpful opinion soundly rebuking the trial court for its prior restraint injunction.

I've been talking about prior restraint in the context of the Roger Shuler story. The concept, at its heart, is that the law (both constitutional doctrine and the common law of most states) allows a court to punish some speech after it happens, but with very few exceptions doesn't allow injunctions prohibiting speech in advance. The Florida court was blunt about the impact of Florida law:

Injunctive relief is not available to prohibit the making of defamatory or libelous statements. See, e.g., Vrasic v. Leibel, 106 So. 3d 485, 486 (Fla. 4th DCA 2013). A temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns. Id.

The court noted a Florida exception — prior restraint might be permitted when the speech at issue is not just defamatory, but also constitutes a business tort like interference with business relationships. You can see how that could become the exception that swallows the prior restraint rule when the censorious plaintiff is a businessperson like Raanan Katz. Fortunately the court here demanded more than allegations; it demanded proof of interference with business relationships from the blogger's insults, and found that Katz had provided none:

However, as in Murtagh, the record before us fails to support an inference that Ms. Chevaldina’s blogs are having a deleterious effect upon prospective tenants. The temporary injunction should have been denied for a failure to show with reasonable certainty the elements of tortious interference, as there was no evidence of unjustified interactions with specific parties known to be involved, or likely to be involved, in an advantageous business or contractual relationship with the appellees.

(By the way, it's not clear to me at all that this Florida doctrine of "prior restraint is acceptable if you associate it with another tort in addition to defamation" meets constitutional muster, but this decision shows a court requiring actual proof of harm, which is a good thing.)

Moreover, the Florida court also found that the injunction below was overbroad — that is, it swept far more speech than what could be arguably defamatory, and prohibited far more than the rare cases permitting prior restraint have allowed:

The injunction under review prohibits Ms. Chevaldina from: “directly or indirectly interfering in person, orally, in written form or via any blogs or other material posted on the internet or in any media with Plaintiffs’ advantageous or contractual business relationships”; and “directly or indirectly publishing any blogs or any other written or spoken matter calculated to defame, tortuously interfere with, invade the privacy of, or otherwise cause harm to Plaintiffs.” This injunction improperly burdens Ms. Chevaldina’s speech more than necessary, attempts to enjoin future defamation, and fails to put Ms. Chevaldina on notice as to what she may or may not do under the injunction.

That language is key. As I said before, one of the main flaws with the unprincipled prior restraint order the trial court issued was that it was impossible for the blogger to determine what speech was prohibited, and the order effectively prohibited even truthful negative speech about Katz.

The court also overturned the injunction against trespass and stalking, finding that Katz had not submitted evidence of such activities, and rejecting the notion that blogging is "cyberstalking":

The appellees argue that Ms. Chevaldina’s blog posts constituted “cyberstalking” and therefore provided “incidents of violence,” i.e., stalking, as to justify an injunction pursuant to section 784.046. However, the appellees failed to introduce evidence that specific blog posts were being used “to communicate, or to cause to be communicated, words, images, or language . . . directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.”

This part of the ruling is important because overbroad notions of "cyberstalking" and "cyberbullying" are now a primary front in the war between free speech and censorship; it's common for censors to argue that unwelcome online speech about someone should be treated like repeated unwelcome communications to the person.

Finally, the Florida court ended with a helpful flourish, putting blogging into the the context of classic rhetorical tropes of free speech analysis:

Angry social media postings are now common. Jilted lovers, jilted tenants, and attention-seeking bloggers spew their anger into fiber-optic cables and cyberspace. But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk in front of an auto dealer that proclaimed, “DON’T BUY HERE! ONLY LEMONS FROM THESE CROOKS!” Existing and prospective customers of the auto dealership considering such a poster made up their minds based on their own experience and research. If and when a hypothetical complainant with the poster walked into the showroom and harangued individual customers, or threatened violence, however, the previously-protected opinion crossed the border into the land of trespass, business interference, and amenability to tailored injunctive relief. The same well-developed body of law allows the complaining blogger to complain, with liability for money damages for defamation if the complaints are untruthful and satisfy the elements of that cause of action. Injunctive relief to prohibit such complaints is another matter altogether.

This is exactly right. Censors attempt to treat blogging as something substantively different that takes it outside classic free speech protections, but there is nothing new under the sun, and blogging gets the same protection as other speech.

This is a huge and embarrassing defeat for the thin-skinned and entitled Raanan Katz and his aggressively censorious lawyers, and a huge victory for Marc, Jeffrey, Darren, Robert, and free speech. Well done. DON'T SUE ME RAANAN.

"The Takedown Lawyer": Let's Help Marc Randazza Investigate A Scammer, Shall We?

I've been out of sorts of late, riven with the suburban fin de siècle, plagued with ennui, angst, weltschmertz. You know — moping.

There's only so many free speech cases I can write about in a week. Nobody pony-worthy is writing to me. I'm waiting for a couple of shoes to drop on the UST Development fraud investigation.

If only there were a nice juicy scam out there to chase . . .

Marc Randazza to the rescue!

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Marc Randazza, Whose Side Are You On?

In the great Man-Ape war, Marc Randazza was once once of humanity's most trusted leaders. Hell, like I said before, he declared the War on Apes.

So why is he now fighting for the intellectual property rights of the ape-kin, rights that will only be used to weaken humanity's will with the apes' seductive wildlife photography and reality television programming? Has he faltered? Has he weakened? Has he changed sides and betrayed us? Or, giddy with victories over copyright trolls and dog-shooting SLAPP-suiters, does he imagine that he has transcended right and wrong, friend and foe, Man and Ape?

Don't forget where you came from, Marc Randazza. Those apes may groom you, they may pound their chests and roar in a manner that appeals to your litigation style, and they may even display a better grasp of the First Amendment than the average state legislator. But always remember that you are not one of them. You're one of us, God help you.

Marc Randazza, My Weird, Scary Hero

We'd have covered the lawsuit filed by University of Miami law professor Donald Jones against the legal gossip site Above the Law yesterday, except that we were busy.  And everyone else got to it first.

Suffice it to say that the lawsuit was ridiculous.  It betrayed fundamental misunderstandings of law, and the nature of the internet on the part of its author. The best blogposts on the matter were written by Ben Sheffner, analyzing the demerits of the suit, and Eric Turkewitz, who played against type and provided wise, conciliatory counsel to the plaintiff, the sort of advice one might expect from, oh I dunno, a law professor.

(And by, "against type" I don't mean Turkewitz isn't wise.  I mean that his conciliatory advice doesn't play into the stereotype of a plaintiff's personal injury attorney, but I digress…)

The suit was dismissed, voluntarily and without prejudice, one day after news of it broke on the web.  We're pleased to note that Above the Law was represented by longtime Popehat friend Marc Randazza, who blogs on the First Amendment among other things at the Legal Satyricon.  Randazza got the case dismissed with one letter.

Randazza, an "adjunct" professor himself (meaning he actually practices law) has long maintained that the legal academy does a poor job of educating its students.  Non-adjunct, "academic" professors, tenured or not, are often so removed from the practice of law (at least as it relates to litigation) that they have little of practical benefit to offer the eager young minds who pay their exorbitant salaries.

I think this case proves Randazza's point.

In Roca Labs Case, FTC Takes Novel Stand Against Non-Disparagement Clauses

Last week Adam ably covered the Big Bad News for our old customer-threatening lawyer-suing pink-paste-purveyor Roca Lab: the Federal Trade Commission has sued it for unfair trade practices in violation of the FTC Act.

Most of the FTC's complaint is routine and can be summarized as "Roca Labs sells crap and lies about it." One part, though, seems novel: the attack on Roca's habit of using non-disparagement clauses to threaten customers who give it bad reviews. The FTC's third claim directly addresses that:

64. As described in paragraphs 12-42 and 44-52, in numerous instances, Defendants have used in the sale of their products, and purported to bind purchasers to, contractual provisions that prohibit purchasers from speaking or publishing truthful or nondefamatory negative comments or reviews about the Defendants, their products, or their employees.

65. Defendants’ practices as described in paragraph 64 have caused or are likely to cause substantial injury to consumers that is not reasonably avoidable by consumers and that is not outweighed by countervailing benefits to consumers or competition.

66. Defendants’ practices as described in paragraph 64 therefore constitute unfair acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45(a) and (n).

This sounded novel to me, so I reached out to the FTC for comment. On Monday, one of the FTC attorneys on the case confirmed "[t]his is the FTC’s first case alleging that a seller’s use of non-disparagement provisions is unfair under Section 5 of the FTC Act." The FTC's press release on the case also mentions that theory.

The FTC's aggressive move reflects continuing nationwide pushback against companies that use nondisparagement clauses as a method of deterring negative consumer feedback. California recently banned such clauses in consumer contracts, and Congress considered, but as convention requires did nothing about, a nationwide ban.

Why the interest? Probably because of the Streisand Effect. Roca Labs isn't the only company that's made headlines with splashy and foolish non-disparagement bullying against customers. Internet bauble-seller KlearGear flamed out in 2015, and the bumptious MedExpress hit the pavement hard and wound up paying attorney fees. Even obscure small businesses have found themselves thoroughly media-stomped when they've tried to invoke such non-disparagement clauses.

A non-disparagement clause in a consumer contract reflects a business you can't trust. But if you've signed one unknowingly, now you have more leverage — if you're threatened, the FTC's suit against Roca suggests that the FTC may view the enforcement of such clauses (at least in extreme cases) as an unfair business practice.

Meanwhile, Roca Labs has entered a stipulated temporary restraining order with the FTC. This stage — preliminary relief — is often where the FTC kills your company dead by convincing a federal judge to issue an order freezing all operations and assets. By stipulating, Roca Labs' attorneys may have been able to negotiate the terms of the order to be a little less onerous. But the order is still a grave development for Roca. It prohibits Roca Labs from making many of their core marketing allegations about their product, prohibits them from invoking their non-disparagement clauses or threatening customers who complain about the product, freezes all corporate assets except for use in normal business expenses, gives them 10 days to provide an accounting of assets, and allows the FTC to take expedited depositions about their products and assets. The order permits Roca Labs to continue to pursue its previously-filed frivolous defamation lawsuits, but with this FTC case those suits have become unwinnable. This is a devastating order.

FTC Sues Weight Loss Company Roca Labs Over Gagging Customers

You may recall Roca Labs, the "no surgery" weight-loss food supplement company that really hates being criticized — so much so that they entice their consumers2 to agree to a clause that prohibits them from saying anything negative about the company.  Roca Labs is serious about this clause, using it as a basis to sue (or threaten to sue) a number of critics.

Well, for Roca Labs, things just went from bad to the FTC is suing us in the middle of Florida bad.

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L.A. Court Prohibits Center for Medical Progress From Publishing Some Undercover Materials About Abortion

My co-blogger Adam Steinbaugh contributed to the factual and legal research of this post.

A group called the Center for Medical Progress ("CMP") has been releasing a series of "undercover" videos as part of a campaign against Planned Parenthood and abortion. This week, a judge of the Los Angeles County Superior Court issued an order prohibiting them from publishing a narrow range of materials on that subject.

This post addresses the First Amendment implications of that order, not the legal, political, and social issue of abortion and/or Planned Parenthood's practices.

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Why Are Nevada State Senators Trying To Eviscerate The State's Anti-SLAPP Statute?

In 2013 Nevada passed the strongest anti-SLAPP statutes in the United States. This statute was muscular. Not only did it cover a wide array of speech, and require substantial proof of the potential validity of a claim, it had frills like a potential $10,000 penalty on top of attorney fees for SLAPPers and a private cause of action so targets of SLAPP suits could sue their tormentors. My friend and colleague Marc Randazza, First Amendment badass, helped frame it, which is why it was so strong. It's already proven effective in Nevada's courts. It's an excellent tool to protect free speech from meritless lawsuits.

So who in the Nevada Senate Judiciary Committee is trying to kill it, and why?

The Nevada Senate Judiciary Committee proposed Senate Bill 444, and the senate just voted unanimously to approve it. Now it's up to the Assembly, and the Governor. I hope they stop it, because it's a complete disaster. Senate Bill 444 takes Nevada's superior anti-SLAPP statute and renders it very substantially less effective:

  • The statute previously applied to the broadest possible array of speech, meaning it could be used to defend all sorts of defamation (and other speech-targeted) claims on matters of public interest.  SB 444 narrows the protection to speech on an "issue of public concern," meaning "any topic that concerns not only the speaker and the speaker's audience, but the general public, and is not merely a subject of curiosity or general interest."  If you have no idea what that actually means, you're not alone.  There's a real danger it will deprive defendants of anti-SLAPP protection when they've written about some relatively obscure hobby or issue or concern.  There's also a danger that it will be used to exclude consumer reviews on Yelp and similar sites from the protection of the statute.
  • SB 444 dramatically changes the deadlines for an anti-SLAPP motion.  The existing law — as in most states — allows a motion within 60 days of service of the SLAPP suit.  SB 444 reduces that to 20 days — a very short period to find a lawyer and have that lawyer brief a potentially complex issue.
  • Under the existing statute, if a defendant shows that a lawsuit is aimed at speech covered by the statute, the burden shifts to the plaintiff to establish that they can prevail on the claim by submitting evidence.  Though the statute refers to "clear and convincing" evidence, cases have interpreted it to mean only specific and non-speculative evidence.   SB 444 changes the language, requiring the plaintiff to make only a "prima facie case."  To non-lawyers, that means simply offering any evidence which, if accepted at face value, could support a claim.  It's not clear how the Nevada courts will interpret the meaning of that change, and how a plaintiff's burden will be reduced.  Moreover, SB 444 specifically excuses the plaintiff from offering any evidence of "subjective intent or knowledge of the defendant."  In other words, the plaintiff doesn't have to have any evidence suggesting that the defendant knew or should have known a statement was false.  This dramatically reduces the plaintiff's burden in opposing an anti-SLAPP motion.
  • Under existing law, a prevailing defendant is entitled to fees.  If the motion is denied, the plaintiff is entitled to fees if the court finds that the motion is frivolous or vexatious.  SB 444 changes that to require a fee award to a plaintiff who defeats an anti-SLAPP motion if the court finds that the motion was filed "in bad faith" or without "reasonable basis."  That inquiry is much cloudier and unpredictable than an inquiry into frivolousness, and will deter defendants from filing close-call motions.
  •   SB 444 eliminates the court's ability to award up to $10,000 penalty on top of attorney fees, and eliminates the cause of action against someone who files a SLAPP suit.  That substantially reduces the deterrent effect of the statute.

If you were a lawyer representing defamation plaintiffs — from businesses suing Yelp reviewers to aggrieved subjects of social criticism — this would be the bill you'd draft to undermine Nevada's anti-SLAPP statute. Is that what happened? Which specific Nevada State Senator introduced the bill, and whose water was that senator carrying? Why are the senators trying to reduce free speech protections so dramatically in Nevada?

I don't know. But if anyone knows Nevada politics and politicians, I'd like to find out, so I can write about it. If you care about effective anti-SLAPP statutes, you might write to Nevada State Senators asking why they killed the anti-SLAPP statute, or write to the Assembly members asking them to stop it.