by Paul Alan Levy
A company called “Javelin Marketing,” which in turn operates a business called “Prospect Match” that generates and sells insurance leads, recently tried to suppress criticism of its business practices on several pages of Insurance Forums web site by threatening to sue the host of the forum. Trying to get around the forum’s section 230 immunity, Javelin’s lawyer, a self-proclaimed Internet law specialist named Richard Newman, included claims for “false advertising” and “trade libel” under section 43(a) of the Lanham Act. Newman compounded his error by threatening to sue for copyright infringement if the operator of Insurance Forums posted his demand letter. That demand letter is posted here.
The threatening lawyer knew better than to put this in his own letter, but his client was not so cautious, including this choice line in his correspondence with the operator of Insurance Forums: "I really don’t care what the law allows you to do. It’s a more practical issue. Do you want to send your attorney a check every month indefinitely as I continue to pursue this? Now, we will both spend needless money and when you get sick of paying your attorney, you will take down the posts."
The reason we were particularly interested in defending this otherwise plain-vanilla section 230 immunity case is that it presents the opportunity to argue that a California libel plaintiff is still subject to California’s anti-SLAPP laws even if it sues elsewhere, because under common choice of law principles, the law of the plaintiff’s domicile applies to libel and other intentional tort claims. And because the anti-SLAPP law is substantive rather than procedural, we could file a special motion to strike and seek an award of attorney fees.
At the same time, this threatened lawsuit, like Dan Snyder’s recent trek to New York to file suit over a DC publication’s criticism of his stewardship of the Washington Redskins, is a reminder of the importance of enacting a federal anti-SLAPP statute. A strong national restriction would prevent litigants who hope to use frivolous litigation to shut down criticism without any real intention of showing that criticism is actionable – for example, by imposing the costs of litigation on the hosts for that criticism — from shopping their lawsuits to jurisdictions with the weakest anti-SLAPP statutes.
Richard Newman has withdrawn the threat of litigation.