Two real estate companies, Parkmerced Investors Properties LLC and Stellar Larkspur Partners LLC, sued eighteen unknown defendants for violation of the Lanham Act (15 U.S.C. § 1125(a)), libel, and tortious interference with contract.  The lawsuit, filed in federal court in California, revolves around anonymous and pseudonymous postings to Apartment Ratings, a forum site that invites discussion about residential apartment buildings in locations throughout the United States.

Parkmerced Investors Properties LLC owns Parkmerced, a community of 3000+ units in San Francisco.  Stellar Larkspur Partners LLC owns the Larkspur Shores Apartment Homes, a community of about 350 apartments in Larkspur, California. In the last couple of years, users of Apartment Ratings have posted a large number of comments, both positive and negative, about these two properties.  Some of the postings deal with issues like increasing rents and other expenses, maintenance problems, construction noise, crime, and the responsiveness of management to complaints. 

In their complaint, Parkmerced and Stellar Larkspur identify eighteen allegedly false and misleading statements, all of which purport to relate personal experiences of persons living in or visiting the Parkmerced and Larkspur Shores properties.  They maintain that these false statements not only constitute libel, but violate the Lanham Act:  "Defendants' activities constitute false or misleading descriptions of fact and false or misleading representations of fact in violation of §43(a) of the Lanham Act, 15 U.S.C. § 1125(a)[,] because Defendants misrepresent the nature, characteristics and qualities of the Apartments." Cmplt. ¶ 33.  While this looks like a false advertising claim under  15 U.S.C. § 1125(a)(1)(B), there is some indication that the plaintiffs mean to bring a "general Lanham Act claim for misuse of trademark under section 43(a)[, 15 U.S.C. § 1125(a)(1)(A)]."  Affidavit of Paul Alan Levy, ¶ 8.

Parkmerced and Stellar Larkspur have subpoenaed Apartment Ratings, asking for information identifying the authors of the critical comments made about them.  They asked for the identities of those users who wrote the eighteen statements quoted in the complaint, as well as other users who wrote things not specifically mentioned in the complaint.  One of those users contacted Paul Levy, who filed a brief asking the court for a protective order against the subpoena and moving to strike the plaintiffs' state-law claims under the California anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). 

Mr. Levy argued that the website's anonymous posters have a qualified right to engage in anonymous speech, and that the plaintiffs' facially invalid Lanham Act claim cannot justify disclosing the posters' identities.  (Without the Lanham Act claim, the federal court has no subject-matter jurisdiction over the case, so the potential merit of the libel and tortious interference claims should not matter.)  Based on the same weakness, Mr. Levy argued that the plaintiffs could not establish the probability of success required to survive his client's anti-SLAPP motion to strike.

Darrell Baylor, an Indiana insurance agent, sued two anonymous defendants who allegedly defamed him in on the Hey Martha forum, a cross-platform forum hosted by local newspaper The Herald Bulletin and other websites. Baylor alleged that forum users "Jack Deth" and "Brent Leroy" accused him of drinking alcohol, whereas he claims it is "a well known public fact that the Plaintiff has not had any type or form of alcoholic beverage since 1994."

Baylor subpoenaed The Herald Bulletin and its parent company Community Newspaper Holdings Inc., seeking the identities of the posters.  According to a Bulletin report, the paper filed a motion to quash the subpoena on the ground that it did not own or operate the forum and did not have the requested information. The paper also argued that the subpoena was invalid because it was overbroad and possibly violated the posters' privacy rights.

At a court hearing, the judge ordered the Bulletin to tell Baylor who had responsibility for the forum so that Baylor could serve a subpoena on that party.  Lawyers for the Bulletin identified Seattle-based Groupee Inc. as the operator of the forum.  The Bulletin's lawyers also argued that the court should appoint counsel to represent the anonymous posters in defending their right to remain anonymous.  

Certain Approval Programs, LLC and its CEO Jack Sternberg sued Xcentric Ventures, LLC and Edward Magedson in Arizona federal court for defamation and other torts over a user report published on the Ripoff Report website.

Ripoff Report is a website that allows users to post reports about individuals and companies that they believe have "ripped them off" or treated them unfairly.  According to Certain Approval's complaint, the website solicits and encourages third parties to submit these reports, does not attempt to verify their truth before publishing them, and refuses to remove any report on the basis that it is false and defamatory.  Cmplt. ¶¶ 16-18. Xcentric and Magedson also allegedly offer a "Corporate Advocacy Program," in which companies or individuals that have been defamed on the website can pay large sums of money to have the website investigate the defamatory posts about them.  According to the complaint, in return for these payments, the website will amend false and misleading reports to include Magedson's findings that the business or individual has excellent customer service and that the reports were false.  Id. ¶ 21.

Certain Approval and Sternberg allege that an anonymous user of the website posted a defamatory report about them in August 2007, in which the user claimed that their "Buyers First" real estate investor education program was illegal and a "scam," and that Mr. Sternberg had been arrested for fraud in the 1990s and owed millions of dollars as a result.  See id. ¶¶ 38, 51. 

In an effort to circumvent the immunity for website operators provided by section 230 of the Communications Decency Act, Certain Approval and Sternberg further allege that Xcentric and Magedson added their own defamatory content to the report by doing the following six things: 

1. adding the words "Rip-off Report:" to the title created by the site user and using it to create a "title meta tag" (which generates the url for the webpage and the title for that page that appears in search engine results);
2. using information submitted by the site user to generate a "description meta tag" (which generates the two lines of text displayed below the title in search engine results);
3. creating "keyword meta tags" for the report using the words "rip-off, ripoff, rip off, Jack Sternberg Ken Preuss Buyers First, Company, Con Artists"; 
4. providing the site user with the defamatory category "Con Artists"; 
5. designing and publishing the website's logo that appears on each report and says "for consumers, by consumers," "Ripoff Report," and "Don't let them get away with it . . . let the truth be known!"; and
6. creating and registering the domain name of the website -- www.ripoffreport.com.

Certain Approval and Sternberg allege that Ripoff Report's own content falsely suggests that they "rip off" consumers and are trying to "get away with it." Id. ¶ 51.

Xcentric Ventures and Magedson filed an answer in September 2008, and the parties are headed into the discovery phase of the lawsuit.

Update:

4/13/09 - The court dismissed Sternberg's misappropriation of name and likeness claim, holding that it failed to state a claim under Arizona law. 

5/20/09 - Defendants filed a motion for summary judgment.

6/1/09 - Plaintiffs filed a notice stating they had reached a settlement with defendants Xcentric Ventures and Edward Magedson. The plaintiffs noted they would continue to pursue their claims against John or Jane Doe.

Joseph Pilchesky, operator of the website Doherty Deceit, sued Judy Gatelli, the President of the Scranton, Pennsylvania City Council, for defamation after she canceled a city council meeting in response to what she called threats of violence posted on the website.  Gatelli filed a counterclaim for defamation, conspiracy, and intentional infliction of emotional distress against Pilchesky, his wife, and more than ninety anonymous posters to a Doherty Deceit message board.  Gatelli petitioned the Pennsylvania state court to compel Pilchesky to reveal the identities of the anonymous posters.  Mr. Pilchesky objected, indicating that he would not disclose the identities of his site users.

Paul Levy of Public Citizen appeared on behalf of seven anonymous defendants and also opposed Gatelli's petition for discovery.  The court initially ruled that Gatelli's request did not provide sufficient information to warrant disclosure.  In response, Gatelli filed an amended petition that listed forty-two posters and identified specific statements by each. She also submitted an affidavit stating that the identified statements were false and that she had suffered reputational and emotional injury as a result of their publication.

In a second ruling, the court ordered Pilchesky to reveal the identities of six of the posters, but denied disclosure as to all other posters. The court applied the standard for disclosure set forth in Polito v. AOL Time Warner, 2004 WL 3768897 (Ct. Comm. Pls. Jan. 28, 2004), which requires a plaintiff to show the following things before obtaining compelled disclosure of an anonymous commenter's identity: (1) that she satisfactorily states a cognizable claim under Pennsylvania law; (2) that the identifying information is directly related to her claim and fundamentally necessary to secure relief; (3) that she is seeking the requested information in good faith and not for some improper purpose such as harassing, intimidating, or silencing her critics; and (4) that she is unable to discover the identity of the anonymous speakers by alternative means.  Slip. op. at 4-5.  This test appears to require only valid allegations, not evidence to support each element of the underlying defamation claim.

Applying this standard, the court determined that six statements alleging "serious sexual misconduct" formed the basis of a cognizable defamation claim under Pennsylvania law, and ordered disclosure of the identities of the authors of those statements.

Pilchesky has indicated that he will appeal the judge's order.

Eric Von Kuersteiner, who owns and operates several businesses in the "Pines" beach resort community on Fire Island, New York, sued blog operator Eric Schrader and several anonymous commenters for defamation in New York state court.  Schrader ran the now-defunct pavillion.blog, named after a club owned by Von Kuersteiner.  The blog served as "an Internet discussion board/blog on which participants [could] post comments about social life in the Fire Island Pines community."

According to the court's opinion dismissing the case, anonymous and pseudonymous commenters to the blog made statements critical of Von Kuersteiner and his businesses, accusing him of watering down drinks at his bars, having a stinky septic system, being unsuccessful and losing money, treating employees badly, and not having a women's restroom, among other things.

After filing suit, Von Kuersteiner moved the court for permission to take the deposition of Blog.com, Schrader's blog hosting service, to learn the names, addresses, and IP addresses of the authors of the objectionable comments. Schrader objected to this request and moved to dismiss the complaint on grounds that the posts were not defamatory, and that section 230 of the Communications Decency Act (CDA 230) protected him from liability for the statements of third parties. 

In a decision on October 14, 2008, the court denied Von Kuersteiner's request for permission to take Blog.com's deposition and dismissed the case in its entirety.  The court first dismissed the case against Schrader, holding that he "exercised a publisher's traditional editorial function and is entitled to immunity under the CDA."  The court then denied Von Kuersteiner's discovery request and dismissed the case against the anonymous defendants, holding that the 35 statements Von Kuersteiner complained about were constitutionally protected statements of opinion when considered in context.

Donald and Janet Maxon served a pre-litigation petition for discovery on Ottawa Publishing Company, the operator of mywebtimes.com, a website for The Times, a local newspaper based in Ottawa, IL.  The Maxons sought to force The Times to provide identifying information about persons who they claim posted defamatory comments on the newspaper's website in March and April 2008, under the screen names "FabFive from Ottawa" and "Mary1955."  The petition also included a defamation count against a user identified as "Birdie1," who the Maxons allege is Susan Wren.

According to filings in the case, the Maxons alleged that users of the site posted comments suggesting that they had bribed members of the Ottawa Plan Commission. According to press accounts, the Maxons had sought approval from the Commission to add rooms to their house to accommodate a bed and breakfast. Several neighbors opposed their wish and the Maxons eventually gave up their plan after determining they were blocked by city ordinance.

On September 19, 2008, Ottawa Publishing filed a motion to dismiss the petition, arguing that the Maxons had not met their burden of showing that the  commenters' First Amendment right to anonymity should be violated by the disclosure of the information the petition sought.

At a hearing on October 2, 2008, the Maxons' withdrew their request to discover the identity of " Mary1955."  The Court, applying the test for protecting anonymous speech laid out in Dendrite International v. Doe, 775 A.2d 756 (N.J. App. Div. 2001), found that the allegedly defamatory statements attributed to "FabFive from Ottawa" were merely statements of opinion and therefore dismissed the Maxons' petition for pre-suit discovery.  The Court also ordered that the Maxons' claim against Wren be severed from the petition for pre-suit discovery. (See our related database entry, Maxon v. Susan Wren.)

On October 6, 2008, the Maxons filed a notice of appeal to the Third District Appellate Court of Illinois.

Update:

2/17/09 - Maxons filed their appeal brief.

3/24/09 - Ottawa Publishing filed its response brief.

3/24/09 - CMLP and other media organizations sought to file an amicus curiae brief in support of the lower court's imposition of the Dendrite standard.

06/01/2010 - The Illinois Appellate Court for the Third District reversed the trial court's order dismissing the Maxon's petition. 

Citadel Security Software (CDSS), a company that provides "enterprise vulnerability management solutions," sued five "John Doe" defendants who criticized CDSS on a Yahoo! Finance message board focused to the company. On March 16, 2005, CDSS sued the five anonymous posters for defamation and business disparagement and subpoenaed Yahoo! to get the identity of the posters.

On April 4, 2005, one of the users of the message board, "onlymybusiness99," filed a motion to quash the subpoena.  In his motion he argued that there is neither allegation nor evidence that the speakers committed any legal wrong, and because in any event the case was improperly filed in Texas against and he or she lives in Minnesota.

On May 3, 2005, CDSS voluntarily dismissed it's claims against "onlymybusiness99" before the court had a chance to issue a decision on the motion to quash.

As of October 17, 2008, there has been no further action in the case.

Roy Holmgren sued the Murrietta Opinion and About Murrieta blogs, as well anonymous operators and/or commenters to these blogs, for defamation in California state court in March 2008. The complaint alleged that the defendants published false statements about Holmgren on the two blogs, including statements that he was a stalker, that he was married to an illegal alien, and that he committed crimes that destroyed property. Cmplt. ¶ 9.

The case did not move forward for several months because Holmgren did not know the identities of the blog operators and commenters. Blogspot, the hosting service for the two blogs, refused to cooperate with Holmgren's request for identifying information.

After some investigation, Holmgren amended the complaint in Sepember 2008, naming Jeffrey Kleiner as the operator of the Murrieta Opinion blog. According to an affidavit, Holmgren mailed the amended complaint to Kleiner, but he has not served or identified any other defendants.

Update:

12/15/2008 - Court issued an Order to Show Cause to Holmgren requiring him to show why sanctions of $150.00 on the 1st Amended Complaint should not be ordered for failure to file proof of service of summons.

Case is ongoing: A case management hearing is scheduled for 8/07/2009.

According to a comment posted below, the plaintiff voluntarily dismissed the case after being unable to locate the defendant.

New Jersey theater group the Marlboro Community Players filed a defamation suit against 11 John Doe defendants over comments posted on NJ.com's Theater Forum. The Marlboro Players allege that the posters criticized the group with the intent to humiliate and defame the Players and its individual members.  Plaintiff's filings reportedly claim that the statements harmed the group's recruiting efforts and reduced revenue from the group's shows.

The Marlboro Players subpoenaed NJ.com for information regarding the anonymous posters.  Five of the posters hired counsel and opposed the subpoena.  The posters objected on various grounds, including that the statements were not defamatory and that Marlboro Players had included the screen names of all of the John Does in its filings.

In April 2008, the case was put on hold when 11 members of the Marlboro Players sent the judge a letter objecting to the use of the organization's funds for the lawsuit.  The Players then reportedly elected a new board of directors.  The new board dismissed the lawsuit in its entirety before the judge could rule on the subpoenas.

Steven Riddle, the principal of Leverette Junior High School, filed a defamation lawsuit against Chris Myers, the operator of SwampBubbles, a website that describes itself as " a user centered site dedicated to breaking news and political discussion of Toledo and Northwest Ohio," claiming that the site has been posting items that are "false and defamatory."

According to the complaint, defamatory postings were written by at least three unnamed people in response to a story on the site about a Leverette school employee charged with sexually assaulting a student. 

Riddle also named as a defendant "Another Leverette Teacher," which the complaint did not name.  According to the ToledoBlade.com, the complaint also requested that Myers be ordered to provide facts that would allow Riddle "to identify the persons who defamed him."

Update:

On March 3, 2008, Meyers filed a Motion For Protective Order and in the Alternative, Motion For Summary Judgment.

On September 23, 2008, the court scheduled an oral hearing on Myers' Motion for Protective Order and in the Alternative, Motion for Summary Judgment for October 30, 2008 at 11:00 a.m.

On November 14, 2008, plaintiff filed a notice of dismissal without prejudice which the Court granted.