EventHorizon1984 Log

Corri McFadden v. Midley, And The Winner Is ...

Corri McFadden v. Midley, And The Winner Is ...
EventHorizon1984
20 December 2013

 

“Well, frankly I told you guys at the start of this matter that it's going to be an expensive case and that's the reason why the parties should resolve it earlier rather than later. And the problem with SLAPP motions in general is that I don't find in my personal experience that SLAPP motions help the situation. SLAPP motions wind up making things more expensive in the long run for litigation. It is a statute which is ill thought out, ill advised, and I understand why Kazinski wants to get rid of it in federal court.”
United States District Court Judge George H. Wu, 20 May 2013

In the matter of eDrop-Off Chicago LLC and Corri McFadden v. Nancy R. Burke; Midley, INC. dba Pursebloge.com; and Does 1 through 10, inclusive, Case No. 2:12-cv-04095-GW

<pause>

and eDrop-Off Chicago LC, et al. v. Midley, Inc., et al., Case No. 1:12-cv-03632

<pause>

Merry Christmas

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to Edwards Wildman Palmer LLP and Greenberg Traurig LLP.  

As by our humble estimates, the total legal bill for both (May 2012 to December 2013) cases, is between $1,000,000 and $2,000,000.

Oh.

The cases were settled.

United States District Court
Central District of California
Document 145
Filed 12/18/13

“TO THE COURT AND ALL PARTIES IN THIS ACTION:
PLEASE TAKE NOTICE that the parties have reached a settlement of the above-captioned matter and are currently in the process of executing the agreement. The parties anticipate that a stipulation of dismissal will be filed within 15 days.”

United States District Court
Central District of California
Document 146
Filed 12/19/13

“Pursuant to Federal Rule of Civil Procedure a1(a)(1)(AXii), Plaintiffs eDROP-OFF CHICAGO LLC and CORRI MCFADDEN (collectively, "eDropoff' or "Plaintiffs") and Defendant MIDLEY, INC. dbc PURSEBLOG.COM ("Purseblog" or "Defendant"), by and through their respective counsel of record, hereby stipulate and agree that this action, including all claims asserted by Plaintiffs against Defendant in the complaint and first amended complaint, are hereby dismissed with prejudice as Plaintiffs and Defendant, by confidential settlement agreement, have reached an acceptable resolution of all matters related to this action. Plaintiffs and Defendant are to bear their own costs and attorneys' fees in connection with this action.”

United States District Court
Northern District of Illinois
Document 77
Filed 12/19/13

“MINUTE entry before the Honorable Matthew F. Kennelly: Telephone status
hearing held on 12/19/2013 with attorneys for both sides. Pursuant to settlement, the case is dismissed with prejudice and without costs. Civil case terminated.”

Documents obtained through the services of PACER, Public Access To Court Electronic Records.

For the moment, publishing protections under Section 230 of the Communications Decency Act remain intact.

“the Court is no party’s advocate”
United States District Court Judge George H. Wu, 19 September 2013

On a final note, eBay INC’s involvement was solely a matter of past history.

Greenberg Traurig LLP

Ian C. Ballon

• "Lead counsel for eBay, Inc. in Inman v. Technicolor USA, Inc., 2011 WL 5829024 (W.D. Pa. 2011) in obtaining judgment in a toxic tort and product liability case brought in the Western District of Pennsylvania based on federal preemption under the Communications Decency Act (CDA)."
• "Lead counsel to eBay, Inc. in copyright infringement, DMCA, and Lanham Act cases in the Central District of California."

And here is the opinion of Tabberone about Greenberg Traurig.  Tabberone having won "80%" of their Federal cases.  Abet the opinion is directed toward an attorney who no longer works for the firm.

Edwards Wildman Palmer LLP

The sister company Edwards Wildman Palmer UK LLP had represented eBay INC.

• "Acting for eBay in eBay v L’Oreal Trade mark litigation matter before the High Court of London"

That's All Folks.

/*

“Court would make several observations designed to advance the parties' discussion at the status conference. Due in no small part to the added procedural complexities impacting an anti-SLAPP motion filed in federal court (and the parties' strategic calculations and miscalculations in the opening weeks of this litigation), the Court is utterly convinced that the parties have already spent far more time and money on this case (and this motion) than warranted. To the extent a limited amount of further briefing on this motion could avoid an exponential increase in the devotion of time and resources that would be necessary on an appeal, the option is inherently attractive.”
United States District Court Judge George H. Wu, 10 October 2013

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The Corri McFadden eDrop-Off Chicago LLC Lawsuits Drag On

The Corri McFadden eDrop-Off Chicago LLC Lawsuits Drag On
EventHorizon1984
8 August 2013

 

There have been topics of greater interest to write about.  For example the new Doctor for the science fiction television series Doctor Who.  Or the fascinating article Space-Time Loops May Explain Black Holes.  Or the latest reveal by Sony Online Entertainment about the EverQuest Next project, and the beta sign-up.

Alas we're goofing off playing the Dragon's Prophet open beta, so please excuse the following reheated leftover.  And yes, "Drag On", pun intended.

A few things have happened with the two Corri McFadden lawsuits:

• eDrop Off Chicago LLC et al v. Nancy R Burke et al
  • United States District Court for the Central District of California
  • Case 2:12-cv-04095-GW-FMO
  • Date Filed 05/10/2012
  • PDF Copy Civil Docket 05/10/2012-06/26/2013
• eDrop-Off Chicago LLC et al v. Burke et al
  • United States District Court - Northern District of Illinois
  • Case 1:12-cv-03632
  • Date Filed 05/11/2012
  • PDF Copy Civil Docket 05/11/2012-08/05/2013

The case in Illinois is stayed, pending resolution of the California case.

On 20 May 2013 there was "Dominique R. Shelton's -- lead counsel for Plaintiffs eDrop-Off Chicago LLC and Corri McFadden (collectively, "Plaintiffs") -- departure from Edwards Wildman Palmer LLP".  And the 14 June 2013 declarations:

"WHEREAS, the other primary partner representing Plaintiffs, Mark Durbin, announced his departure from Edwards Wildman Palmer LLP last week;

WHEREAS, the issue of Plaintiffs' representation going forward has yet to be resolved and Plaintiffs need additional time to consider their options."

There was a proceeding held on 29 July 2013, but those contents are not available to the public until later this year.

"TRANSCRIPT for proceedings held on Monday, July 29, 2013; 9:57 A.M. Court Reporter: Wil S. Wilcox, phone number 213-290-2849. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/26/2013. Redacted Transcript Deadline set for 9/5/2013. Release of Transcript Restriction set for 11/3/2013. (Wilcox, Wil) (Entered: 08/05/2013)"

We're taking a leap of faith that Corri McFadden will have legal representation before that transcript is released.

The departure of both Corri McFadden's attorneys is curious ...

FIVE DAYS EARLIER

15 May 2013

Judge George H. Wu opened the "Initial Tentative Ruling" with:

"This case has been a case study in strategic procedural maneuvers – some shrewd and some, perhaps, ill-advised. The present proceeding maintains that hallmark."

To recap, the Plaintiffs Corri McFadden and eDrop-Off Chicago LLC cause of actions are:

• First Cause of Action - Violation of the Lanham Act - Federal false Advertising, Unfair Competition, and False Designation of Origin
• Second Cause of Action - Illinois Unfair Trade Practices
• Third Cause of Action - Illinois Consumer Fraud and Deceptive Business Practices
• Fourth Cause of Action - Defamation
• Fifth Cause of Action - Trade Libel
• Sixth Cause of Action - Intentional Interference With Contractual Relations
• Seventh Cause of Action - Intentional Interference With Prospective Economic Advantage
• Eighth Cause of Action - Breach of Contract
• Ninth Cause of Action - Promissory Estoppel
• Tenth Cause of Action - Intentional Infliction of Emotional Distress
• Eleventh Cause of Action -Declaratory Relief

Judge George H. Wu proceeded to the Anti-SLAPP issue:

"A. Anti-SLAPP as to the Now-Superseded Original Complaint"
"Of course, this entire question of whether Midley should be awarded fees under California Code of Civil Procedure § 425.16(c) with respect to the initial complaint would be pointless in any respect if Midley is able to successfully demonstrate an entitlement to fees in connection with the FAC. It is to that analysis, therefore, that the Court now turns.

B. Anti-SLAPP Directed at the FAC
The first question that must be answered is whether California’s anti-SLAPP law (the only one Midley has attempted to use in its motion) would even apply to Plaintiffs’ claims. Plaintiffs argue that California’s anti-SLAPP statute does not apply to claims under federal law or to the two claims they have specifically asserted under Illinois statutory law. They also allege that the remaining state law claims – at least claims 4 through 10 – should be interpreted under Illinois law because of choice of law principles."

The abbreviation "FAC" stands for "First Amended Complaint."

The abbreviation "SLAPP" stands for "Strategic Lawsuit Against Public Participation."

Judge George H. Wu ruled:

"1. Lanham Act"
"The answer is simplest with respect to Plaintiffs’ one (or two ¹¹) federal claim(s). Midley could not prevail on its anti-SLAPP motion insofar as Plaintiffs’ Lanham Act claim is concerned because “the anti-SLAPP statute does not apply to federal law causes of action."

"11  Claim 11 is a claim for declaratory relief in which Plaintiffs invoke the Declaratory Judgment Act, 28 U.S.C. §2201."

"2. Illinois Statutory Claims"
"the Court will not apply California’s anti-SLAPP statute to Plaintiffs’ second and third claims."

"3. Common Law Claims"
"at this point in time, the Court concludes California’s anti-SLAPP statute would apply to the common law claims Plaintiffs have advanced in the FAC."

We have a PDF copy of the 14 May 2013 Initial Tentative Ruling here.

We're loosely interpreting this ruling as, First, Second, Third Cause of Action are not subject to the California anti-SLAPP statute.  Three for the Plaintiff, Corri McFadden and eDrop-Off Chicago LLC.  While all other Cause of Actions are subject to the California anti-SLAPP statute.  Eight for the Defendant, Midley INC.

What does this mean?  According to the writers of the California anti-SLAPP statute:

"This bill states that a cause of action against a person arising out of the person's exercise of his or her constitutional rights of petition and free speech "in connection with a public issue shall be subject to a special motion to strike," unless the court determines that the plaintiff has established that there is a "probability" that the plaintiff will prevail on the claim.

Defendants who prevail on the motion to strike are entitled to attorney fees and costs. This provision does not apply to "enforcement actions" brought by public prosecutors. Plaintiffs may be awarded attorney fees if the court determines that the special motion to strike was "frivolous" or "solely intended to cause unnecessary delay."

Upon the filing of a special motion to strike, discovery shall be stayed, unless authorized by the court."

The rough translation, Plaintiffs Corri McFadden and eDrop-Off Chicago LLC will be facing California's anti-SLAPP statute for eight cause of actions, and not the Illinois anti-SLAPP statute.

"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."
Electronic Frontier Foundation, 29 May 2012

Or the Ken White of Popehat loose translation, as applicable to California:

"you've sued me for defamation and BIFD. I file an anti-SLAPP motion. First, that stays discovery in the case — no more bleeding me dry or harassing me with depositions and document demands and third-party subpoenas. Second, once I file the motion, your die is cast as a plaintiff — even if you drop your suit at this point, I can insist on pressing forward, getting a ruling, and seeking the fees ..."

20 May 2013

FIVE DAYS LATER ...

Following this 15 May 2013 Initial Tentative Ruling, on 20 May 2013 and 14 June 2013 Corri McFadden's principle lawyers left Edwards Wildman Palmer LLP.

To be continued ...

/*

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"I thought you said this was gonna be easy."
Snails, Dungeons & Dragons (2000)

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Corri McFadden eDrop Off v. Midley Cases 2:12-cv-04095-GW-FMO and 1:12-cv-03632

Corri McFadden eDrop Off v. Midley Cases 2:12-cv-04095-GW-FMO and 1:12-cv-03632
EventHorizon1984
24 March 2013

This month we received a flurry of new hits ¹ referencing these two lawsuits:

• eDrop Off Chicago LLC et al v. Nancy R Burke et al
  • United States District Court for the Central District of California
  • Case 2:12-cv-04095-GW-FMO
  • Date Filed 05/10/2012
  • PDF Copy Civil Docket 05/10/2012-02/12/2013
• eDrop-Off Chicago LLC et al v. Burke et al
  • United States District Court - Northern District of Illinois
  • Case 1:12-cv-03632
  • Date Filed 05/11/2012
  • PDF Copy Civil Docket 05/11/2012-01/09/2013

Curious about the hits, we looked up the cases on PACER.  As expected, the cases remain ongoing. 

• Illinois
  
  • "MOTION by Defendant Midley, Inc. to vacate And Reschedule Status Hearing
    (Unopposed) (Citera, Francis) (Entered: 10/09/2012)"
  • "MINUTE entry before Honorable Matthew F. Kennelly:Status hearing held on and
    continued to 4/3/2013 at 09:30 AM. (or, ) (Entered: 01/09/2013)"
• California
  • "Motion Hearing held before Judge George H Wu: Settlement is not reached." 10/29/2012
  • "FIRST AMENDED COMPLAINT against Defendants Midley Inc, Does 1-10
    inclusive (Discovery) 1 ,filed by Plaintiffs eDrop Off Chicago LLC, Corri McFadden
    (pj) (pj). (Additional attachment(s) added on 11/26/2012: # 1 Exhibit A, # 2 Exhibit B,
    # 3 Declaration C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) (pj). (Additional
    attachment(s) added on 12/4/2012: # 7 Exhibit G Part 1, # 8 Exhibit G Part 2, # 9
    Exhibit G Part 3, # 10 Exhibit G Part 4, # 11 Exhibit G Part 5) (pj). (Additional
    attachment(s) added on 12/4/2012: # 12 Exhibit G Part 6, # 13 Exhibit G Part 8, # 14
    Exhibit G Part 8, # 15 Exhibit G Part 9, # 16 Declaration G Part 10) (pj). (Additional
    attachment(s) added on 12/4/2012: # 17 Exhibit G Part 11, # 18 Exhibit G Part 12, #
    19 Exhibit G Part 13 1 of 2, # 20 Exhibit G Part 13 2 of 2, # 21 Exhibit G Part 14, # 22
    Exhibit G Part 15) (pj). (Additional attachment(s) added on 12/4/2012: # 23 Exhibit G
    Part 16, # 24 Exhibit G Part 17 1 of 2, # 25 Exhibit G Part 17 2 of 2, # 26 Exhibit G
    Part 18 1 of 2, # 27 Exhibit G Part 18 2 of 2, # 28 Exhibit G Part 19, # 29 Exhibit G
    Part 20, # 30 Declaration G Part 21) (pj). (Additional attachment(s) added on
    12/4/2012: # 31 Exhibit G-1 PART 1, # 32 Exhibit G-1 PART 2, # 33 Declaration G-1
    PART 3, # 34 Exhibit G-1 PART 4) (pj). (Additional attachment(s) added on
    12/4/2012: # 35 Exhibit H, # 36 Exhibit I, # 37 Exhibit J) (pj). (Entered: 11/08/2012)" (Ed. The Amended Complaint was included, but not the Exhibits.)
  • "TRANSCRIPT for proceedings held on Monday, October 29, 2012; 9:11 A.M.." 11/08/2012
  • "Plaintiffs' Opposition to Electronic Frontier Foundation's Application for Leave to File
    Brief Amicus Curiae Brief Opposition" 11/08/2012
  • "The Amicus Curiae's application is DENIED." 12/03/2012

Regardless that the cases remain ongoing, there are interesting tidbits in the November "First Amended Complaint", and in the October 29, 2012 transcript.

"Anyone care to guess who is included in Does 1-10?"
24 July 2012 03:02 PM
Exhibit G-1

Dominque R. Shelton and Erin L. Pfaff, "Attorneys for Plaintiff, Edrop-Off Chicago LLC and Corri McFadden", dropped Nancy R. Burke, but have not dropped the "DOES 1-10 inclusive" from the case.  As they have stated:

• "6. The true names and capacities, whether individual, corporate, associate, partnership, limited liability company, or otherwise, of Doe Defendants 1-10, are unknown to Plaintiffs, who therefore sues said Defendants by such fictitious names and will ask leave to amend this Complaint to show their true names and capacities when the same have been ascertained. Plaintiffs allege on information and belief that each of the fictitiously-named Defendants are responsible in some manner for the wrongful conduct herein alleged, and that such wrongful conduct caused harm to Plaintiffs."
• "many others who Plaintiffs do not know their true identities, but will amend the complaint to include them once the identities are known"

When the "individual, corporate, associate, partnership, limited liability company" etal described elsewhere in various legal documents are excluded, we're left with some names.

Just the Amended Complaint document contains the "names" of:

• Four (4) Edrop Off customers
• Six (6) posters to Plaintiff exhibited thread(s)
• One (1) poster to Plaintiff exhibited thread(s), named in Exhibit G

And the attached Exhibits contain many many more "names".

• "evidenced by over 1,000 (and counting) responsive comments"
• "spawned hundreds of additional defamatory comments"

At this moment the answer to 'who is a Doe?' is pure speculation.  Only the Plaintiff (Corri McFadden, "Edrop-Off Chicago LLC") attorneys know if any or none of the names in the Amended Complaint and Exhibits are potential "Does", or merely witnesses.

Should the California case reach the discovery phase, then expect real names on the complaint.

"As for that PurseBlog link that Ina published, It's still active."
18 May 2012

Then there's the matter of mentioning the specific web addresses of the threads known as "First Defamatory Thread" and the "Second Defamatory Thread."  (Ed. The Plaintiff presents those addresses in available to public court documents.)

The Plaintiff Attorneys link those threads to this statement, "as well as false and defamatory comments posted on other online discussion forums that hyperlink to the defamatory thread."  Which presents the possibility of posters "on other online discussion forums" being flagged as potential "Does."  Not to mention the possibility of "other online discussion forums" being tagged as "Does."

There are a few "other" websites that have posted those thread addresses.  Our unofficial survey indicates most of those "other" websites and threads have vanished. The ones that remain ... we'll see what happens at discovery.

"you might really still want to settle this case.  In the end this is just going to go on and on.  And there is going to be a huge bill at the end."
Judge George H. Wu, 29 October 2012

The transcript of the forty page 29 October 2012 Court proceeding provides a bit of insight into the settlement process.  And costs.

• Dominque R. Shelton, for Plaintiffs:
  • "we wrote in our confidential brief to Magistrate Olguin that we would be willing to walk away.  And it's also a statement that PurseBlog sent us letters saying we understand that in putting your demand you are trying to get to a walk-away which is unacceptable to them."

• Ian C. Ballon, for Defendants:
  • "my client doesn't want to accept the walk-away at this point.  Because while we had proposed it many times and we had several runs of settlement negotiations, the walk-away proposal came once the legal fees exceeded $300,000.  At that point my client wanted some compensation."
  • "the reason we didn't have the mediation -- we were going to mediate even knowing that the plaintiff wanted a walk-away.  When the plaintiff changed their position and sent us a letter saying that our position now is we want you to pay $500,000"

Taking an overly simplistic view, over a period of five months at two venues the Defendants legal fees were "$300,000."  Or $60,000 a month.  While the Plaintiffs legal fees might be "$500,000", or $100,000 a month.

With the case at the ten month mark, imagine what the legal fees are now.

As Judge George H. Wu put it:

• "After this point in time it's going to get even more expensive, because you are talking about two litigations, one here and one in Illinois."  29 October 2012

THE COURT: Before I do that, what's the status at this point in time of the Illinois litigation, anything, or is it still stayed or what?
Ms. Shelton: It's stayed pending resolution of this action, Your Honor.
Mr. Ballon: Your Honor, it's not actually stayed. The plaintiffs' have agreed to continue the hearing in that case after this hearing.
THE COURT: Okay. But what's the pending hearing there?
Mr. Ballon: No pending hearing.
THE COURT: There is no pending hearing.
Mr. Ballon: There is no pending hearing.

Incidentally the transcript contains mentions of actions involving SLAPP and Anti-SLAPP, Communications Decency Act, discovery, case dismissal, case amendment posts, related cases, fascinating discourse, and a good sprinkling of common sense.  Far too much to give a good summary.  If you want a "feeling" of the case, we recommend reading this document.

We'll close this article, with Judge George H. Wu's closing words:

"The mere fact that some party is unreasonable in their settlement doesn't necessarily mean that there is going to be an adverse consequence because they may ultimately prevail.  So that's just what happens in a settlement.  And sometimes one party that has the better case decides not to settle and they lose.

That's not uncommon too.  So all that being said, the parties should seriously talk about trying to resolve the case.  And if you want to I can get involved.  I don't mind getting involved but you have to have a written permission from your clients.

Okay.  So we have future dates now.  We have everything.  So go ahead and try to settle.  But if not, then there is the dates that we have."

The cases continue.

Stay.

Continue.

/*

(1)  See:

1. eDrop-Off Corri McFadden California and Illinois Lawsuit Dockets
2. Corri McFadden eDrop-Off Chicago LLC California Lawsuit Motion To Dismiss DENIED

/*

"Stop. Stop. Stop. Don't keep on saying "with all due respect." It's really kind of insulting."
George H. Wu, United States District Judge
Case 2:12-cv-04095-GW-FMO Document 97 Filed 11/08/12
eDrop Off Chicago LLC and Corri McFadden vs. Nancy R. Burke, Midley, Inc. d/b/a Purseblog.com, and Does 1-10 inclusive

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eDrop-Off Corri McFadden California and Illinois Lawsuit Dockets

eDrop-Off Corri McFadden California and Illinois Lawsuit Dockets
EventHorizon1984
10 September 2012

Over the past months we've noticed an unusually large number of hits regarding two lawsuits:

• eDrop Off Chicago LLC et al v. Nancy R Burke et al
  • United States District Court for the Central District of California
  • Plaintiff
    • eDrop Off Chicago LLC
    • Corri McFadden
  • Defendant
    • Nancy R Burke
    • "Midley Inc, doing business as Purseblogcom"
    • "Does 1-10 inclusive"
• eDrop-Off Chicago LLC et al v. Burke et al
  • United States District Court - Northern District of Illinois
  • Plaintiff
    • eDrop-Off Chicago LLC
    • Corri McFadden
  • Defendant
    • Nancy R Burke
    • Midley, Inc. doing business as PurseBlog.com

Hits happen when various articles ¹ are written about eBay INC sellers and their legal proceedings.

Yesterday we looked up the cases on PACER to check their progress  The brief version:  The cases are ongoing. 

The short non-lawyer version:

• Illinois
  • "Action is stayed pending resolution of the Los Angeles case." 07/24/2012
  • "Claims against Nancy Burke are dismissed." 07/10/2012
  • "Ms. Burke is dismissed with prejudice." 07/24/2012
• California
  • Plaintiff (eDrop-Off, Corri McFadden) is maneuvering to block Defendant's (Midley, Inc.) anti-SLAPP move, and reverse the drop case denial.
  • "APPLICATION for Leave to File Amicus Curiae Brief In Support Of Defendant
    Midley's Special Motion to Strike the Plaintiffs' Complaint filed by Amicus Curiae
    Electronic Frontier Foundation." 07/16/2012
  • Discovery motions filed.
  • The case has moved to the settlement phase; "Parties are referred to Magistrate Judge
    Fernando M. Olguin for settlement."  Note this discussion is part of the legal process, and does not mean a settlement has been reached.
  • Dismissed without prejudice; "NOTICE OF DISMISSAL filed by Plaintiff eDrop Off Chicago LLC, Corri McFadden pursuant to FRCP 41a(1) as to Nancy R Burke, Does." 05/12/2012

For the longer version of the legal proceedings, here are PDF copies of the court dockets:

California (05/10/2012-08/21/2012) - Civil Docket For Case #: 2:12-cv-04095-GW-FMO

Illinois (05/11/2012-08/20/2012) - Civil Docket For Case #: 1:12-cv-03632

Carry on.

/*

(1)  See also:

Corri McFadden eDrop-Off Chicago LLC California Lawsuit Motion To Dismiss DENIED

Internet Hacking, Legal, and CrazeeNYDriver 4, YouTube Haters 0.

Reality TV Star's Lawsuit Flouts Laws Protecting Internet Speech
Electronic Frontier Foundation

eBay Account Rep Defends Reality TV Star Accused of Shill Bidding
eCommerceBytes

Reality TV Star Accused of eBay Shill Bidding Sues Her Accuser
eCommerceBytes

Judge Grants Restraining Order against eBay Seller's Critic
eCommerceBytes

/*

"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."
George H. Wu, United States District Judge
Case 2:12-cv-04095-GW-FMO Document 42-1 Filed 06/12/12
eDrop Off Chicago LLC et al v. Nancy R Burke et al

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Corri McFadden eDrop-Off Chicago LLC California Lawsuit Motion To Dismiss DENIED

Corri McFadden eDrop-Off Chicago LLC California Lawsuit Motion To Dismiss DENIED
16 June 2012
EventHorizon1984

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.

The eDrop-Off news first stated, we think, on EcommerceBytes.com.

eBay Account Rep Defends Reality TV Star Accused of Shill Bidding
Ina Steiner
Thu May 17 2012 22:30:48

Reality TV Star Accused of eBay Shill Bidding Sues Her Accuser
Ina Steiner
May 18, 2012

Judge Grants Restraining Order against eBay Seller's Critic
Ina Steiner
May 18, 2012

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
Eastern Division
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.

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"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)

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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.

If you feel the need to make a public comment, please do so.

Thank you for your time.

/*

"The first thing we do, let's kill all the lawyers."
Dick the Butcher
William Shakespeare, King Henry VI

http://www.nytimes.com/1990/06/17/nyregion/l-kill-the-lawyers-a-line-misinterpreted-599990.html
"Shakespeare meant it as a compliment to attorneys and judges who instill justice in society."
Debbie Vogel, The New York Times, 17 June 1990

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Internet Hacking, Legal, and CrazeeNYDriver 4, YouTube Haters 0.

Internet Hacking, Legal, and CrazeeNYDriver 4, YouTube Haters 0.
6 June 2012
EventHorizon1984

 

It was a busy two months, and unintentionally we left this online tome fallow.  Now that we're back, the plan was to post backlogged articles.  But a few important items of note came up.

Readers not affected by these three types of situations should consider themselves lucky.

3.  More than 6 million Linkedln passwords stolen, 6 June 2012

Do you have an account on Linkedln?  Change your password.

• "Russian hackers released a giant list of passwords this week, and on Wednesday security researchers identified their likely source: business social networking site LinkedIn. LinkedIn confirmed in a blog post late Wednesday afternoon that some of the stolen passwords correspond to LinkedIn accounts."

Years ago some voiced the opinion that Linkedln was the eBay elephant graveyard.  The joke being that over the years eBay employees gravitated, or "GRAVetated"*, to being Linkedln employees.

* Yes, don't quit our night job.

This incident brings back un-fond memories of Vlad Duiculesco.  Best known as Vlad, during the 2005 to 2007 hackfest of eBay.

2.  Reality TV Star's Lawsuit Flouts Laws Protecting Internet Speech, 29 May 2012

Here lies the theme, 'suing you because I don't like what you say', brought to life.

The above article states:

• "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"

It is one thing to sue an individual for defamation.  It is another thing to sue a "provider or user of an interactive computer service" for content created by another party.  Specifically comments.

In our opinion, and similar to U.S. Court opinion, the provider has Federal legal protections.

As put by the Electronic Frontier Foundation:

• "Additionally, the federal Communications Decency Act (CDA), as interpreted by the Ninth U.S. Circuit Court of Appeals, contains uniquely strong protections for free speech online, shielding hosts of online forums from liability for the speech of their users."

The California case, EDROP-OFF CHICAGO LLC, et al., v. NANCY R. BURKE, et al. (2:120cv-04095-GW-FMOx) bears watching.  Because if you post anything online, the outcome might cost you dearly.

1. The CrazeeNYDriver Show, 5 June 2012

Speaking of individual defamation.

A YouTube show we enjoy watching is (Joe of) the CrazeeNYDriver show.

CrazeeNYDriver has been making YouTube videos since 30 May 2007.  Some cover New York.  But he is best known for his eBay and PayPal videos.

Joe/CrazeeNYDriver is an eBay seller.  He is informative, to the point (East Cost blunt), and civil.  We highly recommend his show to anyone with an interest in eBay and/or PayPal.

Sadly, due in small part to his YouTube (eBay) videos, Joe because an Internet target.

"Well, this is one time when they just got a little out of hand."
"I went to the New York City Police Department"
"As it happens I went to school with one of the people who is now an Assistant Procecutor in Manhattan."
Joe of the CrazeeNYDriver show

Youtube Haters Unmasked, 5 June 2012

Watch the video.  Thumbs up CrazeeNYDriver.

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"Everybody's entitled to an opinion." Montgomery Scott
"That's right, and if I think that Kirk is a Denebian slime devil, well that's my opinion too."  Korax

"You hit the Klingons because they insulted the Enterprise, not because they ..." James Kirk
"Well, sir, this was a matter of pride." Montgomery Scott
Star Trek, The Trouble With Tribbles

"That's all I can stands, I can't stands no more."
Popeye

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