The law firm of Stutz, Artiano, Shinoff & Holtz (SASH) sent a cease and desist letter to Maura Larkins on August 6, 2007 demanding that she remove allegedly defamatory statements she made about the firm from her website, the San Diego Education Report.

The letter claims that Larkins' website includes statements alleging that "a culture of misrepresentation and deception exists at Stutz Artiano" and "the firm clearly suffers from a lack of professionalism or lack of undersanding of the law."

Larkins refused to remove the statements from her site and on October 5, 2007, SASH filed a complaint in San Diego Superior Court, claiming defamation. ( See related CMLP entry on the lawsuit.)

On July 29, 2003, the Dallas Morning News published in print and on its website an allegedly defamatory article by financial writer Scott Burns about an accelerated mortgage program offered by Nationwide Bi-Weekly Administration, a company that provides mortgage payment services for borrowers. The article, among other things, accused Nationwide of engaging in deceptive business practices.

Nationwide filed a complaint in Ohio state court on July 28, 2004, asserting claims for defamation, tortious interference with prospective business relations, and business disparagement against the Dallas Morning News, its owner Belo Corp., and Burns. Nationwide did not, however, serve the complaint on any of the defendants until June 2005. Shortly thereafter, Defendants successfully removed the case to federal court in Ohio, whereupon the court transferred venue to the Northern District of Texas.

On May 30, 2006, Defendants filed a motion to dismiss, arguing that Nationwide had failed to state a claim upon which relief could be granted because Texas' 1 year statute of limitations for libel claims barred Nationwide's lawsuit.

On October 16, 2006, the court granted Defendants' motion, holding that Nationwide failed to exercise diligence in serving the defendants and that under the single publication rule, the limitations period expired in July 2004.

Nationwide appealed the decision and on December 21, 2007, the Fifth Circuit affirmed the dismissal, holding that

the continued availability of an article on a website should not result in republication, despite the website’s ability to remove it. Perhaps more important than the similarities between print media and the Internet, strong policy considerations support application of the single publication rule to information publicly available on the Internet. See Firth, 775 N.E.2d at 466 (discussing the “potential for endless retriggering of the statute of limitations, multiplicity of suits and harassment of defendants” and warning of a corresponding chilling effect on Internet communication). We agree that these policy considerations favor application of the single publication rule here and we note that application of the rule in this context appears consistent with the policies cited by Texas courts in adopting and applying the single publication rule to print media: to support the statute of limitations and to prevent the filing of stale claims. See Holloway, 662 S.W. 2d at 691.

As to the business disparagement and tortious interference claims, which are normally entitled to a 2 year statute of limitations under Texas law, the court stated that when allegedly defamatory statements form the sole basis for a business disparagement or tortious interference claim, defamation’s one-year statute of limitations applies.

SI03, Inc., the company that makes the "Syntrax" line of nutritional supplements, sued 31 individual John Doe defendants and 5 Doe companies over derogatory comments made about Syntrax on the BodyBuilding.com Forums.  The complaint claimed that some of the individual Doe defendants were agents of the Doe companies, believed to be Syntrax competitors.  

SIo3 alleged that the anonymous posters made defamatory statements on the forums, suggesting in numerous posts that Syntrax products caused ill-health effects and that SI03 had engaged in unethical conduct.  The complaint, filed in federal district court in Illinois, included claims of defamation, trade libel, commercial disparagement, tortious interference with prospective economic advantage, and civil conspiracy, as well as breach of the Consumer Fraud and Deceptive Business Practices Act (815 Ill. Comp. Stat. 505/1), and the Uniform Deceptive Trade Practices Act (815 Ill. Comp. Stat. 510/1).

The U.S. District Court in the Northern District of Illinois dismissed SI03's claim without prejuduce on the ground that it had not sufficiently identified the defendants to determine whether the court had personal jurisdiction over them. However, the court granted SI03 permission to conduct expedited discovery in order to ascertain the identity of the defendants for the purposes of determining jurisdiction. 

SI03 subpoenaed Bodybuilding.com for the identity of the posters, which  Bodybuilding.com resisted on the basis that a subpoena could not be issued because SI03's complaint was no longer active.  SI03 sought and obtained clarification from the court that it was permitted to use a subpoena.

When Bodybuilding.com still refused to hand over its members' information, SI03 filed a motion to compel and a motion to preserve electronic evidence in the U.S. District Court for the District of Idaho, where Bodybuilding.com is based.  The Idaho district court dismissed the motion to compel on the ground that SI03 had not provided adequate notice to the Doe defendants.  The court granted the motion to preserve evidence in part, ordering BodyBuilding.com to preserve the requested data but not requiring the site to turn it over to a court or third party.

Update:

06/27/08 - SI03 filed a renewed motion to compel.

In December 2007, Tony Parker sued X17, Inc., the operator of X17online.com, a celebrity news and gossip website, alleging libel and false light invasion of privacy. According to Parker's complaint, which was filed in California state court, X17 published a series of online articles claiming that Parker had cheated on his wife, Eva Longeria, with "supposed" French model Alexandra Paressant. Parker maintains that this information is false. The complaint seeks $20 million in damages.

Update:

4/4/2008 - X17 published a retraction and an apology to Parker. 

John Carr is the former past president of the National Air Traffic Controllers Association (NATCA). Carr operates a blog, The Main Bang, on which he often criticizes the Federal Aviation Administration (FAA). In two blog posts in July 2007, Carr wrote about an FAA employee who committed suicide and detailed the actions of the employee's supervisor, John Gilding.

On September 11, 2007, Gilding commenced a lawsuit against Carr, claiming that Carr defamed him and placed him in a false light. Gilding further claims that Carr's blog falsely accused Gilding of "lying under oath in an administrative hearing" and "harrassing and intimidating a subordinate CPC to death." The complaint outlines several other statements that plaintiff alleges Carr "falsely and maliciously" made on his blog. The complaint requests relief in the form of general and punitive damages.

On October 31, 2007, Carr filed a motion to dismiss for lack of personal jurisdiction, asserting that Arizona state courts do not have jurisdiction over him because he is a resident of Ohio and has no contacts or business with Arizona. Carr later filed motions for summary judgment based upon defenses of truth, opinion, and absence of actual malice. On April 25, 2008, the court denied Carr's motion to dismiss.

Update:

10/27/08 - Gilding filed a Third Amended Complaint that added NATCA as a defendant.

11/19/08 - The case was removed to the US District Court for the District of Arizona.

11/25/08 - NATCA filed a motion to dismiss. Gilding opposed.

04/07/09 - The court  granted Gilding's motion to remand back to state court and denied NATCA's motion to dismiss.

04/20/09 - The court granted Gilding's motion to  appoint a Special Master to referee the discovery process.

04/23/09 - NATCA filed a notice of intent to appeal to the Ninth Circuit the decision to remand. Other defendants file similar notices. 

04/24/09 - Gilding requested an award of attorney's fees. 

05/14/09 - Gilding moved to dismiss NATCA's appeal.

06/02/09 - Guilding moved for a subpoena to be issued to obtain FAA investigation records regarding  defendants Bob Marks and Jerry Johnston.

06/05/09 - The court denied Gilding's motion for an award of attorney's fees (originally made 4/24/09 and supplemented 5/21/09).

06/08/09 - NATCA moved to stay proceedings pending its appeal to the Ninth Circuit. 

06/11/09 - Gilding submitted a brief opposing NATCA's appeal.

06/12/09 - Guilding opposed NATCA motion to stay. 

 

 

In October 2005, Eagle Broadband, Inc. brought a John Doe lawsuit for defamation, trade libel, and unfair competition under California law after anonymous users posted critical statements about it on a Yahoo! Finance message board. Shortly thereafter, the court granted Eagle leave to take discovery from Yahoo! regarding the identity of the anonymous posters. Eagle determined the identity of two of the posters -- Thomas Mould (Doe 5) and Richard Williams (Doe 4).

Williams and Mould moved to strike the complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). The court granted the motion with respect to Mould and awarded him approximately $65,000 in attorney's fees. The court denied the motion with respect to Williams. On appeal, a California appellate court upheld the trial's court's rulings regarding Mould, but reversed the denial of Williams's motion and remanded the case with instructions to award attorney's fees to Williams upon proper motion.

Eagle voluntarily dismissed the action with regard to Doe 2 in October 2006. The case appears to be still pending against the remaining anonymous defendants.

43rd State Blues: Democracy for Idaho describes itself as a "website of, by and for Democrats and those who lean towards Democratic, progressive causes." The website offers what it calls a "team blog" service -- users who register for an account can maintain their own personal blog on the site. On of the site's users, going by the pseudonym "Tom Paine," published a post in April 2007 about Melaleuca, Inc. and its CEO Frank VanderSloot. VanderSloot and Melaleuca objected to the post, which, according to court documents, discussed rumors about questionable payments made to a US Senator. On April 6, counsel for Melaleuca sent a cease-and-desist letter to an individual believed to be the administrator of 43rd State Blues, claiming that the post was defamatory and demanding its removal within 24 hours. The next day, an anonymous individual with the user name "d2" posted the cease-and-desist letter on the website.

In late April, Melaleuca sent a DMCA takedown notice to the hosting provider for 43rd State Blues, demanding that the hosting provider remove the April 6 cease-and-desist letter from the website. The hosting provider complied, but Melaleuca was not content to stop there. It served administrative subpoenas issued pursuant to section 512(h) of the DMCA first on the hosting provider, and then on the "reseller" of the account associated with 43rd State Blues. These subpoenas asked for documents and information identitying "those persons who posted the infringing content identified in the Take-Down Notice [sent to the hosting provider], including but not limited to those persons using or associated with the screen names 'd2' or 'Tom Paine' as found at the website 43rdstateblues.com." The hosting provider informed Melaleuca that it had no information other than the name of the reseller of the account. When the reseller recieved a subpoena, 43SB.COM, LLC ("43SB"), the actual owner of the site, contacted Melaleuca through counsel and asked that further communications be directed to his office.

Melaleuca then obtained and served the same DMCA subpoena on 43SB. 43SB filed a motion to quash the subpoena on June 25, 2007, arguing that the subpoena did not comply with the requirements of the DMCA and violated the First Amendment. At oral argument, counsel for 43SB narrowed its objections to two points: (1) that the cease-and-desist letter lacked the originality necessary for copyright protection; and (2) that upholding the subpoena would violate Tom Paine's First Amendment right to engage in anonymous speech because there was not a sufficient connection between Paine and the posting of the cease-and-desist letter.

On December 7, the district court adopted the Report and Recommendation of the magistrate judge (to whom the motion had been referred for decision). The Report recommended that the court grant the motion to quash with respect to Tom Paine, but deny the motion with respect to d2. The magistrate judge rejected 43SB's argument that the cease-and-desist letter was insufficiently original to garner copyright protection, concluding that Melaleuca's registration of the letter with the Copyright Office was a sufficient indication of ownership of a valid copyright for a DMCA subpoena to issue. Since d2 had allegedly posted the cease-and-desist letter, the court upheld discovery of his/her identity. With regard to Tom Paine, however, the magistrate judge concluded that using a DMCA subpoena to uncover his/her identity would be improper because there was no connection between Paine and the alleged infringement (i.e., posting the cease-and-desist letter).

Neither party submitted objections to the magistrate judge's Report, thereby apparently waiving the righ to raise factual and/or legal objections to it on appeal.