Corri McFadden eDrop-Off Chicago LLC California Lawsuit Motion To Dismiss DENIED
16 June 2012
We've been watching the recent action by eDrop-Off to bypass the Federal Communications Decency Act (CDA) with some interest. If you have an Internet site that allows comments, you should be mildly interested too.
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Public figure Corri McFadden, the owner of eDrop-Off, filed two lawsuits, California suit 10 May 2012 eDrop-Off Chicago LLC, et al. v. Nancy R Burke, et al. 2:12-cv-04095-GW-FMO, and Illinois suit 11 May 2012 eDrop-Off Chicago LLC et al v. Burke et al 1:12-cv-03632. Both take action against individuals. A common legal occurence.
However both lawsuits also take action against a CDA protected "provider or user of an interactive computer service". Again CDA, the subject of our interest.
While the CDA does not provide protection against malicious first person defamatory online speech, it does provide this protection for providers:
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided
by another information content provider.
As put by the Electronic Frontier Foundation (EFF):
"Your readers' comments, entries written by guest bloggers, tips sent by email, and information provided to you through an RSS feed would all likely be considered information provided by another content provider. This would mean that you would not be held liable for defamatory statements contained in it."
On 13 May 2012 things got interesting. There was an "EX PARTE APPLICATION to Dismiss Defendant Midley Inc d/b/a PurseBlog.com filed by Plaintiffs eDrop Off Chicago LLC, Corri McFadden" in California. In other words "eDrop Off Chicago LLC, Corri McFadden" wanted to drop the California lawsuit.
Good for defendants right?
On 24 May 2012, "Defendant Midley Inc" opposed the dismissal.
On 25 May 2012, the Electronic Frontier Foundation filed an Amicus Curiae Brief.
Good for defendants?? According to EFF, Wrong.
Reality TV Star's Lawsuit Flouts Laws Protecting Internet Speech
Electronic Frontier Foundation
May 29, 2012
- "Corri McFadden, star of the VH1 show "House of Consignment," filed suit against Purseblog.com in a California federal court after a commenter accused McFadden's company, eDrop-Off, of "shill bidding" – making bogus bids to inflate the prices of designer goods the company sells in online auctions. But California has strong legal protections against lawsuits filed to chill participation in publicly significant discussions, and now McFadden is asking the court in California to let her dismiss the lawsuit without any penalty so that she can pursue it in a state with more favorable law. In a friend-of-the-court brief filed Friday, EFF urged the court in California not to let McFadden off the hook."
- ""This is a classic SLAPP suit – strategic litigation against public participation – and McFadden should have to face California's tough anti-SLAPP law, which lets defendants move to strike frivolous lawsuits and recover costs and fees if they win," said EFF Senior Staff Attorney Marcia Hofmann. "The plaintiffs set the stage by choosing to file their suit in California. The court should finish the case there as well, protecting Purseblog.com's speech rights by applying California law.""
On 1 June 2012, Judge George H. Wu ruled, "Amicus Curiae Electronic Frontier Foundation's Application to File Amicus Brief, is DENIED."
Given laws are words subject to interpretation, as are all writings, we did not take the CDA protection as a given in these cases. Especially after the Amicus Curiae denial.
But while provider protection remains in flux, as of 12 June 2012 it's not dead either.
Below are excerpts, with Court bolding and italics, of U.S. District Judge George H. Wu's 12 June 2012 United States District Court Central District of California Court Order. The two links are complete PDF copies (fingers crossed) of the Court Order.
United States District Court
Central District of California
Case 2:12-cv-04095-GW-FMO Document 42 Filed 06/12/12
"Attached hereto is the Court's Ruling Re: Ex Parte Application to Dismiss Defendant Midley, Inc. d/b/a Purseblog.com. The ex parte application is DENIED."
United States District Court
Central District of California
Case 2:12-cv-04095-GW-FMO Document 42-1 Filed 06/12/12
"For the reasons expressed in the tentative ruling issued in this case on June 1, 2012, see Docket No. 36 1, as supplemented herein, the Court denies the motion to voluntarily dismiss this action."
"2 At best, the Court invited a submission bearing upon whether the parties would stipulate that California’s anti-SLAPP law would be used in the Illinois action, not that the CPA would be an available avenue for Midley. See June 1, 2012, Transcript at 24:8-25:13. Obviously, the Court had its doubts about whether such a stipulation would even be effective.
3 Remarkably, on June 7, two days after they filed their initial improper “Stipulation,” Plaintiffs filed yet another uninvited submission: a “Supplement to Plaintiffs’ Stipulation that Illinois’ Citizen Participation Act Applies to the Allegations of Plaintiffs’ Complaint.” Docket No. 39. That filing seeks to inject into this Court’s consideration a whole new “thread” of comments on Midley’s blog that are not part of the Complaint on file in this action. That new thread has apparently now been injected into the Illinois litigation proceeding between these parties. See Footnote 5, infra . Even if the Court were to consider that thread, it would not change the analysis that follows."
"4 Plaintiffs’ counsel has repeatedly ignored normal practice and procedure in federal court in favor of filing either emergency ex parte proceedings and/or motions or uninvited briefs disguised as one side’s “stipulation.”"
"It is not for this Court (at least not at this stage) to definitively rule on the applicability of the CPA to the allegations pled against Midley. Instead, the Court essentially must predict what it thinks would likely happen in the Illinois case if the Court were to grant voluntary dismissal here and if the anti-SLAPP applied in Illinois to this case would be the CPA, not California’s anti-SLAPP law."
"5 On June 8, 2012, Plaintiffs filed a “Notice of Filing First Amended Complaint in Chicago Action,” Docket No. 41, along with an attachment of (part of) that pleading, see Docket No. 41-1. None of the exhibits referenced in that First Amended Complaint were provided to the Court. However, in their Notice of Filing First Amended Complaint in Chicago Action, Plaintiffs asserted that the new Illinois filing “makes clear that the false and defamatory comments about Plaintiffs, specifically calling for governmental action…are part of, and at issue in, the Chicago action,” particularly calling the Court’s attention to paragraphs 18, 31, 32 and 49 of the First Amended Complaint. What those paragraphs actually make clear – notwithstanding Plaintiffs’ failure to attach to their filing here any of the exhibits to that First Amended Complaint – is that Plaintiffs are referring to some of the same comments Plaintiffs’ counsel emphasized in advance of this Court’s June 1 hearing."
"This raises the question, if an accusation is lodged in the blogosphere, does the U.S. Attorney's Office/Attorney General's Office hear it?"
"Complaining or gossiping amongst a group of people on the Internet does not remotely amount to petitioning the government, in at least this Court’s view. Short of one of the blog’s posters bearing the handle “USAtty” or “FBIguy,” the Court has no confidence that this activity could be reasonably viewed as petitioning the government. If indeed these commenters or posters were actually hoping to initiate or incite a governmental investigation of Plaintiffs, posting on Midley’s blog would be like releasing a captive butterfly in Alaska in the hopes that the beat of its wings would cause a hurricane in the Gulf of Mexico."
"As at least originally pled, Plaintiffs' litigation was not about Plaintiffs' dismay about comments anywhere - let alone on a blog"
"To the extent Plaintiffs complain about the risk of inconsistent judgments and duplicative litigation, they have only themselves (and, perhaps, a fast-acting defendant) to blame. It is up to Plaintiffs to determine how to smooth out the creases in the bed they made.
The Court denies Plaintiffs’ motion for a voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(2)."
On 13 June 2012 a "STATUS Report by Midley, Inc.", defendant, was filed with the United States District Court Northern District of Illinois.
United States District Court
Northern District of Illinois
Case 1:12-cv-03632 Document 37 Filed 06/13/12
- "On June 5, 2012, this Court scheduled a telephonic status conference for June 18, 2012 at 9:00 a.m. In advance of that telephonic status conference, Midley, Inc. ("Purseblog") wishes to apprise the Court of a recent order in the California action brought by Plaintiffs against Purseblog."
- "On June 12, 2012, Judge Wu denied Plaintiffs' motion for a voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(2)."
- "Following the entry of Judge Wu's order denying Plaintiffs' motion for a voluntary dismisal, Purseblog requested that Plaintiffs dismiss it from the Illinois action. Plaintiffs have so far not done so."
Case To Be Continued Monday 18 June 2012.
"Plato once said that for everything that exists, there is a perfect form of it somewhere. A perfect Human being, a perfect chair, a perfect stick; so that everything is a Shadow of that one perfect form. Now, if we follow that train of thought, that means that somewhere in the universe there exists the perfect form of an absolute and complete idiot. And he left here an hour ago."
CAPT Matthew Gideon, Crusade (1999)
27 June 2012 Adendum
To Certain IP-Address identified Individuals and organizations from Illinois and California,
Interpretation is everything.
You probably located this article using a Google search of 'subject' and "court" or "lawsuit." Yes we're number one, for now. Do notice we do not show up on page one when the particulars of your lawsuit, which will not be mentioned, are searched for on Google. Excluding the Communications Decency Act.
Those particulars are not the focus of this article. Our focus is the same as the Electronic Frontier Foundation; the Communications Decency Act.
This and the previous article present available to the public facts and writings. There is no malicious intent nor actual malice. Commentary is protected by the 1st Amendment and The New York Times Company v. L. B. Sullivan.
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Thank you for your time.
"The first thing we do, let's kill all the lawyers."
Dick the Butcher
William Shakespeare, King Henry VI
"Shakespeare meant it as a compliment to attorneys and judges who instill justice in society."
Debbie Vogel, The New York Times, 17 June 1990