Could this be true ? defamation lawsuit ?

[MattM]

<BLOCKQUOTE><font size="1" face="Verdana, Helvetica, sans-serif">quote:</font><HR>Originally posted by Tom:
<STRONG>Seems to me that "PetWarehouse" should be greatly concerned about this too</STRONG><HR></BLOCKQUOTE>

I'm sure they are, but if you check the legal filings you'll find that Novak filed suit against them in March of this year for trademark infringment. This guy is a poster boy for tort reform!

 

[wwinters]

I don't believe that this is the first of this type of lawsuit. I remember a few people on another board being sued for defamation over things they said on a message board.

[ July 31, 2001: Message edited by: wwinters ]

 

[RichMacys]

My opinion is my opinion! It cant be held against me!!!!! I think the lawsuit is bull!!
I live about 20 mins away from both stores and would not spend a dime in either one!! Thats because they charge more for goods for local customers. Doesnt make a lot of sense to me. Plus, Ive seen better holding facilities and stores in small towns. I tried to buy a couple of frags from them and they wanted a mint for them. I wont pay $40 for a 1" frag of green montipora. But thats just my opinion.

[ July 31, 2001: Message edited by: RichMacys ]

 

[oohnoo]

Hey guys I think this whole thing is a disgrace. Who does this guy think he is. I live near his store in NY and let me tell you it's not all that g.....t! Would there be any repercussions if I were to go to his store and ask him about it. I would love to hear what his opinion is, not to mention he attitude. BTW his brother is his partner.

 

[Nathan1]

How can you sue an individual on a BB?! How does he get their name, address, contact information etc. I'm still a little skeptical about all this. Is it really true? And if so, how did he find out who the people who posted on the BB are in real life?

-Nathan

 

[Modo]

I would imagine a simple court order would have the Site turnover the names of the individuals.

 

[Lark]

Not for nothing, but do all the people posting here really know the facts of the case? If you do, then my apologies. If people were posting only opinions, then sure, it's a bad lawsuit. But the question of the difference between opinion and fact is often a difficult one in defamation cases. If a guy posts, "don't trust x pet store, because they didn't give me good service and they frequently delay shipping stuff." Is that fact or opinion? Who knows. I'd say that, quite literally, thousands and thousands of examples of defamation/libel are posted on message boards every day, maybe every hour. Thankfully, most people do not bother to sue. If it makes you mad, petition your legislator to change the law of defamation.

I know it's shocking that crap you say on an internet message board can be libel, but it's true. Should this guy have sued? Of course not. But you're deluding yourself if you think you're free to say anything you want on a message board. It's not not defamation just because it's electronic. Your also deluding yourself if you think you can protect your identity from someone who is gung ho to get it. Some ISPs are more vigorous in fighting subpoenas than others. But once a guy files a lawsuit, he gets to use the process of the court to subpoena records and many ISPs will give up the information. Unless your an expert hacker, you can be traced. I guess all I'm doing is using this thread as an excuse to remind you of what you already know: The internet is not a shield. Be careful.

Disclaimer in an overly litigous world: Free legal opinion on the interent is worth zilch. This is all not legal opinion, but friendly community spirited ruminations. Don't rely on any of it, any more than you would rely on some posting on a message board from someone you don't know for medical advice.

 

[MattM]

Lark -

I am not a laywer. I did however, read the entire lawsuit, the opinions of the attorney who is organizing the defense fund, and the responses of several of those named in the suit.

Have I posted my opinions about the case here? Absolutely.

But here are some of the facts so you can judge for yourself.

I believe the legal standard for defamation is: 1) the defamatory statement must be a statement of fact that is knowingly false, 2) statement must be made with malicious intent, and 3) statement must cause irreparable harm.

The statements in question were made by various different posters over the course of a week in May. The statements, copied directly from the claim section of the lawsuit are:

<BLOCKQUOTE><font size="1" face="Verdana, Helvetica, sans-serif">quote:</font><HR>
"Thinking of buying plants from Pet Warehouse? Don't. What is crappy is their service!"

"as a source for purchasing plants, they do not have a good reputation"

"But you don't have to take my word as the last word on their horrible service. Feeling lucky? Go ahead - try them out yourselves. After all, it's only your time and money, right?"

"They claim to fill 90% of the orders. Well I can tell everyone it's more like 20%. Or less. If at all."

"Given the continual flow of negative comments about PetSwarehouse that I've read for nearly two years on this list, I've decided to add a warning (and figure this is better than simply removing them."

"Remember petSWEARhouse, buy their plants and you'll be swearing!"

"I believe they call that deceptive advertising. Or bait-and-switch. Take your pick."
<HR></BLOCKQUOTE>

These are all of the statements listed in the lawsuit. For this, every one of the posters, the board owner, and the forum moderator are being sued for $15 million dollars.

Now you can form your own opinion on the merits of the case.

[ August 01, 2001: Message edited by: MattM ]

 

[Lark]

Excellent - real facts. Well done Matt.

Seems in my lay opinion like virtually all of it is opinion, except maybe for the 20 percent and bait and switch stuff, which is also probably opinion and probably not defamatory anyway. But that's just my opinion.

 

[Anonymous]

What happens if, say, one of the defendants doesn't show up to defend his/herself? Does he automatically lose?

 

[MattM]

<BLOCKQUOTE><font size="1" face="Verdana, Helvetica, sans-serif">quote:</font><HR>Originally posted by Cheese Sandwich:
<STRONG>What happens if, say, one of the defendants doesn't show up to defend his/herself? Does he automatically lose?</STRONG><HR></BLOCKQUOTE>

Several assumptions here, but if it does go to trial, and all the defendants are represented by a single council, then it's not clear that any of them would have to be there in person. Several other cases involving cross-jurisdiction internet issues have happened this way - council is present, but the defendant is not - after all, it's not a criminal case.

I beleive at this point only one or two of the defendants have been served. All must be served within 120 days of the filing date or the case against that particular defendant is dismissed. I think it was filed sometime in May.

[ August 01, 2001: Message edited by: MattM ]

 

[Anonymous]

Right, but what if a defendant doesn't bother to defend himself? I.e. gets served, then does nothing.

I'm asking because of the discussion regarding the cost of having to defend oneself, regardless of how bogus the suit is...

 

[Anonymous]

Originally posted by Cheese Sandwich:
Right, but what if a defendant doesn't bother to defend himself? I.e. gets served, then does nothing.

I'm asking because of the discussion regarding the cost of having to defend oneself, regardless of how bogus the suit is..

If a person is served and does nothing i.e. they don't show up or have a representative show up they *technically* can be found in contempt of court, which in that case, the sherrifs dept in that district *may/can* have the right to pick him up and throw him in jail before he appears before a judge to state why he didn't appear.
Sounds terrible but thats the law.

Regards,
David Mohr

 

[Anonymous]

Penalties for FTA vary. Usually in a civil suit if you FTA you automatically forfeit and the plaintiff wins the judgement (at least this is the most common outcome with small claims). In a case, like this one, filed in a major court a fine, loss of judgement or bench warrant may be issued (having never been involved with such a case I have no idea what the actual penalty is).

So you can't just play ostrich and stick your head in the sand, which is why this suit is so egregious. Mr Novak is basically saying, don't badmouth my store, if you do I'm gonna make you pay. Lawyers have offered to help pro bono but I don't think any of them practice in NY state and thus counsel will need to be hired to actually represent the defendants.

 

[jdeets]

Disclaimer--Not legal advice.

Now that that is out of the way... If you're properly served and don't make an appearance in the case (i.e., don't file an answer to the complaint), then you're not in contempt of court, but the plaintiff CAN take a default judgment against you. That means the plaintiff gets a judgment for basically whatever damages he or she can prove up to the court. There are limited grounds upon which a default judgment can be overturned. Some of these grounds would be lack of subject matter or personal jurisdiction, improper service, etc.

If the case was filed in Federal court, then typically the plaintiff will start out by sending a request for waiver of citation pursuant to Fed. Rule of Civ. Pro. 4. If you don't waive service (you'd generally have 60 days to do so), then the P can have you served in a traditional fashion. The Court can also approve alternative methods of service. (In some internet-related actions, the Court has actually approved service of process via email!)

The procedural rules of the various states will vary somewhat from the Federal rules, but I'm aware of no states where failure to appear upon being served with process will result in a finding of contempt. Service of process is simply a procedural method to ensure you have adequate notice of the case, and is not an order to appear.

On the other hand, if you're served with a subpoena to testify, either for a deposition or in court, and fail to appear, then you can be found in contempt and you can be fined, thrown in jail, or have your pleadings stricken, etc., within the court's discretion. Unlike service of process, a subpoena IS an order of the court to appear, and you can be in contempt for not complying with it.

Hope that helps.

P.S. This is not legal advice and there is no attorney-client relationship by reason of this post, AND this post is made on the express understanding that no one reading this thread will be relying on anything contained herein!

[ August 01, 2001: Message edited by: jdeets ]

 

[Anonymous]

<BLOCKQUOTE><font size="1" face="Verdana, Helvetica, sans-serif">quote:</font><HR>Originally posted by jdeets:
<STRONG>
P.S. This is not legal advice and there is no attorney-client relationship by reason of this post, AND this post is made on the express understanding that no one reading this thread will be relying on anything contained herein!

</STRONG><HR></BLOCKQUOTE>

Spoken like a true lawyer!

 

[Anonymous]

Heh

You assume people actually have used real names when they register. Anyone with any creativity at all can register and use false information or simply not submit information. Thus at best you may have an email address or just an IP address. Which would then have to be traced back to the user, this amount of legwork is expensive and more than likely beyond the scope of Mr Novak. The mere fact that he has filed the case himself and not through an attorney shows that this case really does have no merit since it seems that no attorney, not even an ambulance chaser was willing to touch it.

Tom O'Toole

 

[Nathan1]

MickAv8r,

EXACTLY!

-Nathan

 

[White-Queen]

And the worst thing is that if these are serious aquarium hobbyists they probably don't have any money either. I mean honestly, if I had $20,000 to blow in legal fees and stupid lawsuits I would already have my 500 gallon dream aquarium! (and then I wouldn't have the money to blow on legal fees and stupid lawsuits)

 

[Sidewinder]

jdeets, I luv 'ya... When in doubt appeal, appeal, appeal... You'll run 'em "outta" bread... Ed
P.S. If 'ya got a Comm'L Gen'L Liab policy floatin' around, 'ya got coverage for libel, slander, false arrest, etc... "But I said that in the Business Name"...