Popehat Signal Update: Awesome Team Gets Great Appellate Result in Frivolous Case By AIDS Denier

Way back in 2013 I lit the Popehat Signal to get pro bono help for J. Todd Deshong, a blogger and HIV-positive AIDS activist. Woo merchant and AIDS denialist Clark Barker filed a frivolous lawsuit against Deshong, claiming that Deshong's critical web sites defamed him and infringed his trademark. A legal Dream Team assembled swiftly and formidably, and in 2014 that Dream Team got the frivolous complaint dismissed.

So far so good. But you can't fight vexatious litigants just by winning motions; you have to inflict upon them the costs of their actions. The Dream Team sought attorney fees under the Lanham Act, which allows a prevailing party to get fees in an "exceptional" case. The federal district court denied the request, saying that there wasn't enough evidence that the plaintiff acted in bad faith.

But that's not the right question, the Dream Team asserted. Today, the United States Court of Appeals for the Fifth Circuit agreed. They reversed the refusal to award fees and sent it back for the trial court to decide under the right standard:

We merge Octane Fitness’s definition of “exceptional” into our interpretation of § 1117(a) and construe its meaning as follows: an exceptional case is one where (1) in considering both governing law and the facts of the case, the case stands out from others with respect to the substantive strength of a party’s litigating position; or (2) the unsuccessful party has litigated the case in an “unreasonable manner.” See Octane Fitness, 134 S. Ct. at 1756. The district court must address this issue “in the case-by-case exercise of their discretion, considering the totality of the circumstances.” See id.

This standard is much friendlier to the targets of frivolous lawsuits. It doesn't require an inquiry into subjective bad faith (which judges are often loath to find) and allows consideration of both the objectively meritless nature of the claims and the methods used to litigate. That will make it easier for other Dream Teams to get attorney fees when censorious plaintiffs abuse the legal system to suppress speech.

Congrats to Paul Alan Levy and Gill Sperlein for this appellate win.

Popehat Signal: Please Help Mandy Nagy And Her Family

It's time for the Popehat Signal. I failed last time I lit it in this case, but I'm lighting it again, hoping that the community of civic-minded, speech-cherishing, evil-fighting lawyers will respond.

I need your help defending a stroke victim and her family against a domestic terrorist who has replaced his bombs with ongoing vexatious litigation.

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Popehat Signal: Help Fight the Censorious Villainy Of Roca Labs

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

It's time to light the Popehat Signal to find pro bono assistance for citizens threatened with a bogus and censorious lawsuit.

The cartoonish villain of this story is Roca Labs, whose belligerent attempts to silence critics inspired my post last month. Roca Labs, you may recall, produces a pink slime that one is supposed to eat to suppress the appetite. Roca Labs is pathologically adverse to criticism, and therefore has hit upon an increasingly familiar tactic — they require at least some of their customers to sign contracts promising not to criticize them at all. Based on those contracts, they filed a lawsuit against Pissed Consumer.com, a gripe site that printed complaints by their customers. Their quasi-legal flailing became more desperate when First Amendment heavyweight Marc Randazza took up PissedConsumer.com's defense.

Now Roca Labs has crossed the Rubicon from mildly entertaining legal buffoonery to outright despicable abuse of the system calculated to suppress not only the right to free speech but the right to petition the government. As TechDirt first reported, Roca Labs has now sued — in Florida — three of its customers from other states. What's notable about these three customers? One of them provided witness testimony in Roca Labs' lawsuit against PissedConsumer.com. Roca Labs has previously complained about many different customers exercising free speech, but now wantonly targets just these three consumers, one of whom just happened to be a witness against them.1 Roca Labs is demanding damages, attorney fees, and an injunction prohibiting these consumers from criticizing Roca Labs. As Techdirt points out, Roca Labs' attorneys rather comically assert that the defendants' criticisms are "defamation per se" because they agreed in advance contractually that they would be. That's not how it works, dipshits.

Roca Labs isn't a full Prenda yet, but by God, it's trying.

Those three defendants need help. Even when a suit is patently frivolous and vexatious, defending it — particularly in a distant state — is ruinously expensive. That's Roca Labs's purpose — not to win on the merits, but to silence critics through cynical abuse of the legal system. These three defendants can't afford to hire lawyers in Florida. If they don't get help, Roca Labs wins through manipulation of a broken system.

You can help. If you are a lawyer admitted in Florida, you can act, at least, as local counsel. If you are a lawyer in another state, you can help Florida counsel. If you're just someone with a voice on the internet, you can help get the word out about Roca Labs and its contemptible behavior, and help these people find pro bono legal assistance. (Some sort of fundraising campaign, at least for costs, is also a possibility, though the defendants should get independent legal advice about that.) You can also get the word out about the unethical and repulsive behavior of the attorneys who filed this suit, Nicole Freedlander and Paul Berger of the "Hurricane Law Group." Berger has also been involved in threatening bloggers and witnesses.

And finally, please help circulate and promote this question: why would any sensible person consume a weight-loss product from a company that sues customers who criticize its safety, value, or efficacy? Does that sound safe to you?

By the way, this is not the end of Roca Labs' bizarre behavior — stay tuned for more.

Fight evil.

Colorado ISP Peak Internet Sues Customer For Bad Online Reviews [Updated With Popehat Signal, Resolution]]

[Update: see resolution at end of post]

Peak Internet of Colorado offers ISP services to the Pikes Peak region. Russell Petrick tried their services and was disappointed. He says that their speed was consistently below the benchmark they advertised. When Petrick complained, he says that Peak Internet told him he was getting above their stated minimum speed, so he should be happy with the 12 Mbps he was getting, even if it didn't reach the advertised 20 Mbps top speed.

Petrick complained online on Yelp and elsewhere. Peak Internet, an American company that values American ideals like freedom of speech, recognized Petrick's right to complain and responded forthrightly to the complaint. No, wait, Peak Internet strongly disagreed with Petrick's complaints so it responded online with specific facts and circumstances showing how particular elements of Petrick's complaints were untrue.

Wait, no. I forgot. This is America. So Peak Internet sued. They hired attorney Ryan J. Klein of Sherman & Howard and filed a complaint against Petrick in Teller County District Court for defamation and defamation per se. The complaint is here.

Peak Internet's complaint is bare-bones and notably vague and ambiguous. This is how it explains the basis for accusing Petrick of defamation:

The defamatory statements made by Petrick about Peak Internet include, but are not limited to, false statements about the speed of services provided by Peak Internet and responses to complaints about alleged issues with the speed of services provided by Peak Internet.

Notably, Peak Internet does not specify exactly what part of what Petrick said that was false, or exactly how it was false. Remember what I always say: vagueness in defamation claims is a hallmark of meritless thuggery. Here, Peak Internet has used vagueness as a strategy to (1) obscure whether it is suing based in part of protected statements of opinion, (2) hide exactly which statements it contends to be false, avoiding early proof that the challenged statements are true, and (3) increase the costs and pressures of litigation on Petrick to shut him up and deter others from criticizing Peak Internet. You can't tell from the complaint, for instance, whether Peak Internet's argument is "our speeds were never that slow that often, he's lying" (which might be a valid defamation claim) or "his arguments are unfair because these speeds are above the guaranteed minimum speed and we don't promise the top speed all the time" (which would be an invalid attack on a protected opinion).

Peak Internet's ploy may not play out the way they hoped. Already a local news station ran with the story, allowing Petrick to highlight what appears to be well-documented evidence supporting his complaints about the speed.

I wonder: did attorney Ryan J. Klein explain the Streisand Effect to his client Peak Internet before filing the lawsuit?

It's not clear to me whether Petrick has counsel. If he wishes, I would be pleased to light the Popehat Signal to find pro bono counsel. Meanwhile, I think the story of an ISP that sues its customers over criticism is one that needs a little more attention. Do you agree? Have at it.

Thanks to tipster Carl.

Updated to add: commenters here and on Twitter point out that Peak Internet has gotten four abrupt good reviews on July 30 (the day after the local news story), all from first-time reviewers, all praising Peak Internet. No doubt a coincidence.

Second Update:

Mr. Petrick has sought my help. I am lighting the Popehat Signal.

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

Mr. Petrick is disabled and does not have funds to hire an attorney to defend his free speech rights. Is there a lawyer out there who can help him in Teller County, Colorado?

We have the right to free speech — in theory. In practice, companies like Peak Internet, and lawyers like Mr. Klein, can trammel that right because the system lets them. It can be ruinously expensive to defend even the most transparently bogus and censorious case. To fight this trend of companies suing to remove bad reviews, we need people to step up. Might it be you? If not, will you help spread the word?

Good Update: I am reliably informed that Peak Internet and Mr. Petrick have resolved the case satisfactorily and Peak will be dismissing its case with prejudice — meaning permanently. Congrats to Mr. Petrick, a nod to Peak Internet for making the right decision after the wrong one, and thanks to several Colorado lawyers who offered to help.

Popehat Signal Update: Dream Team Victory In Texas

I bring good news: top-notch work by generous and dedicated lawyers has produced a free speech victory in Texas.

Last year I lit the Popehat Signal seeking help for J. Todd DeShong, a blogger and AIDS activist. DeShong, a longtime critic of the nutty and conspiratorial junk science occasionally directed at AIDS issues, ran afoul of Clark Baker, an ex-cop and full-blown AIDS denialist who offers "expert" "witness" services. You may recall my description of Baker's phone call to DeShong's mother:

I interviewed Mr. DeShong's mother, a sweet lady with a spine of Texas steel. She told me about how Mr. Baker called her out of the blue and ranted at her. Mr. Baker angrily denounced her son, and told her that, as a police officer, he knew about dangerous people, and that Ms. DeShong should fear that her son would kill her in her sleep. He also threatened that he was arranging for doctors Mr. DeShong had criticized to sue him for defamation. Ms. Deshong pointed out that such a suit would bring no joy; Todd DeShong is not a rich man. "But you have money, right? You have a house, right?" responded Mr. Baker, implying that he might put her assets at risk. "He thought he could intimidate me. He didn't know who he was dealing with," said Ms. DeShong, who sounds like a good person to have at your back.

Baker sued DeShong in federal court in Texas over DeShong's criticism of Baker's AIDS-denialist rhetoric and his "expert" "witness" service the HIV Innocence Group. Baker claimed that DeShong's criticism was not only defamation, but violation of the HIV Innocence Group's trademark rights in its name. Baker's motive may have been mixed: he may have wanted to silence DeShong, but he may also have wanted to use the federal suit to pursue his conspiracy theories about AIDS researchers. I cannot say what his lawyer was thinking, if he was.

Such federal litigation is ruinously expensive to defend; DeShong couldn't afford a defense and Baker might have succeeded in silencing critics through abuse of the legal system. Fortunately, lawyers who care about free speech rode into the breach: D. Gill Sperlein, Paul Alan Levy of Public Citizen, Gary P. Krupkin, and Neal A. Hoffman filed motions to dismiss (attacking the thoroughly specious trademark claims) and a strong motion under Texas' relatively new anti-SLAPP statute.

Last week the dream team won. United States District Judge Sam R. Cummings granted DeShong's motion to dismiss the trademark claims, and then refused to hear the state law claims and dismissed them. The court's ruling held the line on a key free speech concept: using a company's name to criticize it does not violate the company's trademark in the name. Baker had claimed that sites like "HIV Innocence Group Truth" violated trademark rights and were part of an effort to destroy him by discrediting him. But Judge Cummings pointed out "[n]o reasonable person would take one look at DeShong's website and believe that Baker authorized its content." Moreover, the court explained, trademark law doesn't protect a company from criticism. The Lanham Act protects a competitor from profiting from the misuse of another company's trademark; it does not protect a company from vigorous and even ruinous criticism employing its name. Judge Cummings also rejected Baker's argument that DeShong violated trademark rights by using a URL likely to dominate search results for "HIV Innocence Group." That theory, too, would have allowed the Bakers of the world to abuse the Lanham Act to prevent criticism.

I suspect Paul Alan Levy, who has done a lot of important work protecting "gripe sites" and critics from bogus trademark claims, had a strong hand in winning this issue.

Having dismissed the federal trademark claim, Judge Cummings declined to exercise supplemental jurisdiction over the state claims like defamation, finding that state issues (like application of Texas' anti-SLAPP statute) would predominate over federal issues. Therefore he didn't reach the anti-SLAPP motion. That's an increasingly common approach by federal judges in such cases; it's what the judge did in the censorious Naffe case in which I was co-counsel.

Baker has appealed, and could conceivably re-file his censorious screed in Texas state court. If he does, the dream team's work on the anti-SLAPP motion is already done, and I suspect Baker will find no joy before a Texas state judge. I'd lay very good odds that Baker will lose his appeal. Meanwhile, I hope that DeShong's legal team seeks and recovers legal fees from Baker based on winning the Lanham Act claim. The suit was contemptible and represents exactly the sort of case in which federal courts should use their statutory power to award attorney fees to deter such abuse of the system.

Please join me in expressing admiration and thanks to Gil, Paul, Neal, and Gary. Their generosity with their time and talents didn't just help DeShong's free speech: it helped yours. Contributions like theirs are essential to defending free speech principles in a broken system that allows unscrupulous clients and lawyers to silence dissent by inflicting ruinous defense costs. They are heroes.

Anti-SLAPP Victory In Oregon: Anti-Telemarketing Blog Wins Big With Pro Bono Help

Here's a hard fact about free speech: vindicating it in American courts takes either money (and lots of it), or lawyers willing to provide pro bono help. Right is right, and law is law, but court is court — and winning in court generally requires competent representation, which is ruinously expensive for normal people. It's not fair, it's not right, but it's true.

Therefore the vitality of the First Amendment depends not just on the law, but on the service of lawyers like Troy Sexton of Motschenbacher & Blattner LLP in Portland, Oregon.

Last August I put up the Popehat Signal seeking pro bono help for an anti-telemarketing blogger who writes at the Telecom Compliance News Press. The blogger was sued by an attorney named F. Antone Accuardi, who claimed that the blog falsely associated him with companies involved with robocalling and other telemarketing violations.

Troy Sexton stepped up. He filed a motion under Oregon's anti-SLAPP statute in response to Accuardi's complaint, and this March, he prevailed. Accuardi's complaint is here, Sexton's anti-SLAPP motion is here, and the Magistrate Judge's lengthy and detailed order granting the anti-SLAPP motion is here. Sexton's work was absolutely top-notch. The main basis of the judge's order is that the blog's comments of Accuardi were statements of opinion based on disclosed and linked facts about the companies and Accuardi's connections to them, and therefore protected by the First Amendment. It's a very thorough opinion and worth a read if you're interested in First Amendment and anti-SLAPP issues.

This is a tremendous victory for the blog, and for Troy Sexton and his firm. Sexton has a motion for fees pending; though he stepped in pro bono, I hope that he winds up collecting at his full rate from Accuardi. I am more free, and so are you, because people like Troy Sexton are willing to step up and contribute their time and skill. Please join me in congratulating him.

Popehat Signal: Help An Oregon Blogger Exposing Telemarketing Violations

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

New Popehat Signal courtesy of Nigel Lew. Thanks, Nigel!

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.

Popehat Signal Update: Dream Team Takes On Litigious AIDS Denier In Texas

Sure, the Popehat Signal is fun to light up, but whether it does anything is entirely out of my hands. The signal depends on dedicated lawyers willing to devote valuable time and effort to protect freedom of speech. Without them I'm just a guy with a weird searchlight cartoon who likes to say "taint" a lot.

That's why I am thrilled — and thankful — to report on the response to last month's Popehat Signal seeking help for a blogger sued in Texas by an AIDS denialist.

You might recall from that post that Clark Baker is suing Todd Deshong for trademark violations and defamation because Deshong has been challenging and criticizing Baker's junk-science rap. Baker even asserts that it is defamatory to say that his bogus scientific theories are a hoax:

They allege that Plaintiff Baker is incompetent, that he knowingly makes false and misleading representations to the public, that his legal and scientific theories with regard to HIV are a hoax, that Baker’s reputation as a former LAPD police officer is misleading, and other personally disparaging remarks.

The response to the signal was nothing short of spectacular. Today a team of four lawyers representing Todd Deshong pro bono filed two motions: a motion to dismiss the trademark claims and a a motion to strike the defamation claims under Texas' robust anti-SLAPP statute. The exhibits in support of the motions are here.

This is top-notch legal work that would cost you tens of thousands of dollars if you were paying for it. Deshong is getting it for free because the lawyers on this team believe in free speech and oppose abuse of the legal system to suppress it. Here's the team, in no particular order:

D. Gill Sperlein, a veteran First Amendment litigator well known to my colleagues in the First Amendment Lawyers Association, who is generous with pro bono work. Gill stepped in early and took the lead in Deshong's defense.

Paul Alan Levy of Public Citizen, whose exploits are well known to Popehat readers. Paul is one of the foremost lawyers in the country on the issue presented in the motion to dismiss: the abuse of trademark to suppress criticism.

Gary P. Krupkin, an experienced defense attorney, litigator, and free speech defender who has previously come to the aid of bloggers in Texas, and whose formidable skills have been sufficient to talk sense into me on more than one occasion.

Neal A. Hoffman, an up-and-coming litigator at the Houston firm Bush & Ramirez P.L.L.C. It's no easy task to get a firm to sign on for a pro bono project like this; Hoffman and his firm are to be commended, and his dedication and skill here predict a successful career.

[I'd like to point out that Leif Olson, who wrote a memorably awesome letter to a threatening dentist, also offered to help. But only so much badass can fit on a team at one time.]

The motion to dismiss establishes conclusively that Deshong's use of Baker's "HIV Innocence Project" on his critical blog "HIV Innocence Group Truth" is not a trademark violation, but rather classic criticism protected by the First Amendment. You can read Paul Alan Levy's explanation in his blog post. The anti-SLAPP motion demonstrates that Baker cannot prevail on his defamation or business disparagement claims because they are barred by the statute of limitations, because they improperly attack statements of opinion, and because Baker can't prove falsity or malice, as required.

I never predict the outcome of litigation. But Todd Deshong has a hell of a team, and they have the right of it, and I like their chances.

People get threatened with bogus defamation suits, or even sued vexatiously, all the time. One in a hundred gets this type of representation. Too many can't afford it, and too many are intimidated by the prospect of financial ruin into silence. Their free speech rights are quelled by bad actors willing to abuse the legal system. That's why public service like this is so important, particularly when the case involves such a crucial issue — the right of citizens freely to critique the propagation of junk science. Please join me in applauding these lawyers and their firms. Please consider a donation to the legal defense fund, which will cover hard expenses. And please keep doing what you can to promote freedom of expression in the face of legal threats.

Popehat Signal: Vengeful AIDS Denialist Sues Critic In Texas

It's time for the Popehat Signal.

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

New Popehat Signal courtesy of Nigel Lew. Thanks, Nigel!

Today I light the signal to ask for help for a blogger who is being sued in federal court in Fort Worth for writing about and criticizing a thoroughly creepy AIDS denialist. By AIDS denialist, I mean someone who promotes the belief that HIV does not cause or lead to AIDS. The lawsuit is contemptible. The defendant needs help. Can you step up?

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