Robbins wrote a blog post that criticized a group of abutters for their actions in delaying the implementation of a dredging project through their appeals and interventions in numerous fora. The lead abutter, Joe Dugas, and his lawyer, Paul Revere, sued Robbins for defamation, alleging that his criticism of them for delaying the dredging was false and defamatory.

Robbins has filed a special motion to dismiss under the MA anti-SLAPP law. The special motion is scheduled for hearing on September 16, 2008.

(Portion above submitted by blogger's counsel Peter Morin.)

Added by CMLP Staff: 

The dispute arose over a March 11 post by Robbins entitled Barnstable Harbor: Filling in and falling in, in which he criticized a number of individuals, including Joseph Dugas and his lawyer Paul Revere III, who had challenged orders issued by the Town of Barnstable Conservation Commission and Massachusetts Department of Environmental Protection that authorized dredging in Barnstable Harbor. 

Robbins' original post -- which has since been edited  -- lamented the poor condition of Barnstable Harbor and its bulkhead, asserting that much of the blame for the town's failure to fix the problems was due to legal challenges filed by local residents. Robbins wrote:

In my opinion this, NIMBY, frivolous, malicious action is doing nothing but stalling the inevitable and costing us the taxpayers unnecessary time and money. . . . So when you run aground this summer, or bend that prop trying to get in or out of Barnstable Harbor at low tide, these are the people who are costing you . . . ." 

Robbins went on to name the people he claimed had challenged and thereby delayed the dredging, including Dugas and his lawyer, who Robbins described as "Paul (the dredge isn't coming) Revere III."

On July 7, 2008, Dugas and Revere filed a defamation lawsuit against Robbins and "John Doe," an anonymous commenter on the site who posted under the pseudonym "Noggin."  Plaintiffs' complaint alleges that the following statements by Robbins were false and defamatory:

• A reference to Dugas as “the infamous sh*t stirring Joe Dugas."
• A description of Revere as “Paul ‘the dredge isn’t coming’ Revere.”
• The assertion that the "actions of Dugas and others represented by Revere with regard to the 'litigation' were malicious and not brought in good faith."
• The claim that the reason the harbor wasn’t being dredged was because of the plaintiffs’ legal challenges.

Dugas and Revere also alleged in their complaint that a pseudonymous user named "Noggin" posted the following defamatory comments on Robbins' blog:

• "In the Town of Barnstable, 'if you don't genuflect and pay off Joe Dugas, you may as well forget whatever you want to do."
• "There are plenty of shysters like Revere to climb aboard . . ."

Update:

9/8/2008 - Robbins filed an emergency motion for leave to file supplemental affidavits, addressing, among other things, his personal interest in the navigability of the harbor.

9/16/2008 - The court held a hearing.  The judge allowed both parties to take depositions of the other side prior to the upcoming hearing on Robbins's special motion to dismiss on November 13th.  According to Peter Morin, the anti-SLAPP argument will come down to the question: "Does an individual blogger's commentary on a matter of personal interest qualify as petitioning activity when the blogger is also a paid correspondent of the website-host?"

11/6/2008 - According to Defendant's counsel, the court has ordered that depositions of both plaintiffs and the defendant will take place prior to a hearing on the special motion to dismiss scheduled for November 13th.

11/7/08 -  Citizen Media Law Project, Globe Newspaper Company, Media Bloggers Association, New England Press Association, and Online News Association filed a motion for leave to file an amici curiae brief in suppport of application of the Masschusetts anti-SLAPP law.

11/13/08 - Court heard oral argument on Defendant's special motion to dismiss; court denied motion for leave to file amici curiae brief.

11/17/08 - Court denied defendant's special motion to dismiss.

1/5/11 - Robbins moved that the Court reconsider its special motion to dismiss due to newly discovered evidence and changes of law.

ViroLogic, a biotechnology company, sued ten anonymous users of the Yahoo! Finance forum dedicated to it, after they allegedly posted internal ViroLogic information and made statements critical of the company and its officers. The original complaint included claims for defamation, trade libel, misappropriation of trade secrets, unfair competition, and intentional interference with prospective economic advantage. ViroLogic subsequently amended its complaint, limiting its claims to misappropriation of trade secrets and unfair competition. 

ViroLogic subpoenaed Yahoo! to uncover the identity of the Doe defendants. Yahoo! notified the Does of the subpoena, and one of them (Doe 1) filed a motion to quash.  Doe 1 also filed a motion to strike the complaint under California's anti-SLAPP statute, arguing that the lawsuit was an attempt to stifle his right to free speech. 

Meanwhile, ViroLogic moved for permission to take limited discovery regarding Doe 1.  The court granted the company permission to take his deposition, with the proviso that ViroLogic's attorneys could not reveal Doe 1's identity to ViroLogic employees. In the deposition, ViroLogic's lawyers discovered that Doe 1 had previously been a consultant for the company, and that he was closely related to a current company employee. The lawyers asked the court for permission to reveal this information, including Doe 1's identity, to ViroLogic, so that it could make a case in opposition to Doe 1's anti-SLAPP motion to strike.

In a subsequent hearing, the court granted Doe 1's motion to strike under the anti-SLAPP statute and denied ViroLogic's motion to permit its lawyers to disclose Doe 1's identity to it. The court ruled that the Doe 1's posts were an exercise of his protected right to free speech, and that ViroLogic had failed to show a sufficient likelihood of success should the case proceed.  The court dismissed the case and awarded attorneys' fees to Doe 1. It denied Doe 1's motion to quash the Yahoo! subpoena because dismissing the case mooted the issue.

ViroLogic appealed the decision and argued that the lower court had violated its due process rights by granting the anti-SLAPP motion to strike without permitting it to fully prepare a defense to that motion through access to Doe 1's identity. The California appeals court held that ruling on the anti-SLAPP motion to strike without giving ViroLogic access to Doe 1's identity deprived the company of a meaningful opportunity to oppose the motion. It recognized that Doe 1 has a right to anonymous speech, but reasoned that this right had to be balanced against ViroLogic's due process rights. See ViroLogic, Inc. v. Doe, 2004 WL 1941335, at *1, 5-7 (Cal. Ct. App. Sept. 1, 2004).

The appeals court set out a standard for lower courts to consider when deciding whether a plaintiff has shown "good cause" to discover a defendant's identity after an anti-SLAPP motion has been filed. Under this standard, the plaintiff seeking discovery must show: (1) the plaintiff's claims describe actionable conduct by the defendant; and (2) discovery of the defendant's identity is necessary for the plaintiff to present evidence in opposition to the special motion to strike. The court also indicated that, given the early stage when anti-SLAPP motions are usually litigated, it is not appropriate to impose upon the plaintiff a burden of supporting its claims with evidence.  See ViroLogic, Inc., 2004 WL 1941335, at *6. Applying this standard to the facts of the case, the appeals court determined that ViroLogic had shown "good cause" to uncover Doe 1's identity. It therefore reversed the lower court's grant of the anti-SLAPP motion to strike and its award of attorneys' fees to Doe 1, and directed the trial court to enter an order permitting disclosure of Doe 1's identity to ViroLogic.

UPDATE:

On 3/15/2005, the trial court permitted the disclosure of the identity of Doe. A series of case management conferences followed this disclosure. These conferences appear to have produced a settlement.

On 11/28/2005, ViroLogic filed a notice of settlement and dismissed the complaint with prejudice.

Los Angeles citizen James Perry sued Tom Topping for libel and invasion of privacy after Topping published an article stating that the Los Angeles City Attorney had determined that Perry had violated various conflict of interest laws while serving as a member of the Eagle Rock Neighborhood Council. Topping publishes the Boulevard Sentinel newsletter and website.

Soon after filing his complaint in California state court, Perry moved to withdraw his claims because he was too ill to litigate his own case.  A few days later, Topping moved to strike Perry's claims under California's anti-SLAPP laws.  The court granted Perry's motion to withdraw his claims, rendering Topping's motion moot. 

Topping then moved for an award of attorney's fees, claiming that he was entitled to them as a prevailing party under the anti-SLAPP statute.  The court denied Topping's motion, ruling that because Perry voluntarily withdrew the suit before Topping's motion to strike, Topping did not prevail as required by the statute. 

Topping appealed, but the California Court of Appeals affirmed the lower court's ruling.  Topping then appealed to the California Supreme Court, but the Court declined to consider the case.

On June 17, 2008, Barry Shy, a Los Angeles real estate developer, and his development company, 5th St Loft, sued Jessica Jordan and Alan Dylan, who reside in a building developed by Shy and allegedly run the website Truedowntown, the "unofficial" site for the Shybary Grand Loft in Los Angeles.  The lawsuit claims that Jordan and Dylan libeled Shy and damaged his businesses by making disparaging comments about him.

Jordan and Dylan are both owners of units in the SB Grand, a prominent development in downtown Los Angeles.  Jordan also runs the website  Truedowntown, which she created to "inspire positive change at the Shybary Grand by identifying issues that need to be dealt with by the board and management company, especially if those issues have ignored California Law." (The suit claims that Dylan also is connected with the website, but Jordan has stated that is incorrect).

According to plaintiffs' complaint, Jordan and Dylan made the following disparaging statements about Shy:

a) Barry Shy is a criminal
b) Barry Shy is a "slum lord"
c) Barry Shy is "dishonest" and only cares about "making a profit"
d) "Do Not Buy or Rent from Barry Shy you will regret it"
e) Barry Shy has broken Federal Laws
f) Barry Shy is a horrible business man with no principals

Although the complaint does not identify where the statements appeared, Blogdowntown, a site that describes itself as a "central point for news and discussion of Downtown Los Angeles," noted that all of the statements were drawn from comments on that site's March of 2006 story about Shy's purchase of buildings in Los Angeles' historic core.  Some of these statements were posted psuedonymously, which likely explains why Shy also named "Does 1-100" as defendants in the suit.

Update:

A case management conference has been schedule for 11/04/2008 at 08:45 am in department 28 at 111 North Hill Street, Los Angeles, CA 90012. 

Pet shop owner Robert Novak, operator of Petswarehouse.com, sued Active Window Productions ("AWP"), host of the Aquatic Plants Digest ("APD"), a forum and email list for aquatic plant gardeners and hobbyists, and several individuals who criticized Pets Warehouse.  Novak added further claims against the individuals after they organized to protest Novak's lawsuit.  Novak sued in New York federal court on claims of cybersquatting, defamation, trademark dilution and infringement, trade libel, tortious interference with business, false light, unfair competition, and intentional infliction of emotional distress.

According to court documents, Dan Resler, a computer scientist, posted a message in May 2001 that warned: "Thinking of buying plants from Pet Warehouse? Don't." He went on to detail his gripes about the company's customer service, based on what he said was a delayed shipment of plants he'd ordered.  Resler later followed up with this post amending his previous warning: "to clarify: Pet Warehouse OK, Pets Warehouse NOT." 

Other members of the list soon added their own complaints, including the following alleged statements recounted in the plaintiff's complaint:

• [a]s a source for purchasing plants, they do not have a good reputation (Defendant Jared Weinberger - May 21, 2001)
• 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? (Defendant Dan Resler - May 18, 2001)
• They claim to fill 90% of the orders. Well I can tell everyone it’s more like 20%. Or less. If at all. (Defendant Thomas Barr - May 17, 2001)
• 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. (Defendant Weinberger - May 18, 2001)
• Remember petSWEARhouse, buy their plants and you’ll be swearing! (May 22, 2001)
• I believe they call that deceptive advertising. Or bait-and-switch. Take your pick. (Defendant Sean Carney - May 16, 2001)

After seeing the criticism, Novak filed suit against the posters for libel and defamation seeking damages of $1 million, and for intentional infliction of emotional distress seeking damages of $15 million.

The defendants began to organize against the lawsuit via online forums and the APD list, and sought donations to their legal defense fund.  In organizing and promoting their legal defense, the defendants referenced Pets Warehouse.  In response, Novak brought additional claims against the defendants, including trademark violations and business torts. 

As a result, several defendants settled with Novak in December 2001 and agreed to remove any posts or messages "concerning or referring to" Novak. According to the "stipulation of settlement" posted on the defendants' information site, Dan Resler also agreed to pay $4,150.

In 2007, Novak amended his complaint against AWP, AWP's editor Mark Rosenstein, and AWP poster Robert Hudson. AWP and  Mark Rosenstein answered, denying Novak's claims and invoking section 230 of the Communications Decency Act as granting them immunity from any defamation or infringement stemming from APD posters' comments. They also brought counterclaims against Novak for violations of New York Civil Rights Law.

Update:

8/7/2008 - Court ordered that a status conference will be held in Courtroom 820 of the Federal Courthouse in Central Islip on September 5, 2008 at 11:30 a.m 

9/19/2008 - Status conference held. Court ordered a pretrial conference for May 29, 2009.