by Paul Alan Levy
Med Express, an Ohio company that sells over eBay, is trying to maintain a perfect seller rating by suing a South Carolina woman who had the audacity to describe a problem she had with one of their deliveries — a photographic accessory that arrived with $1.40 postage due. The customer found this inconvenient, and notified the company of her concern, stressing that her issue was not the money (she said she would have gladly paid the extra money for shipping up front) but the inconvenience. Med Express responded by admitting the error, and indeed said that this had been a problem with other postal shipments. The customer then posted negative feedback on eBay.
About a month later, Med Express asked the customer to revise the negative feedback, offering to reimburse the postage due — effectively ignoring the customer’s reason for complaining. When the customer failed to retract the feedback, Med Express escalated by filing a defamation complaint in state court in Medina, Ohio, and, indeed, by moving for a temporary restraining order against eBay. The trial judge denied a TRO on the ground that damages would be an adequate remedy but, interestingly, set an oral hearing on a preliminary injunction even though the same reason would be sufficient ground to deny that relief as well.
The defendant is a relative of a former Litigation Group colleague, so she came to me for help. I contacted James Amodio, Med Express’s lawyer, to explain to him the many ways in which his lawsuit is untenable. He readily admitted that, as the complaint admits, everything that the customer had posted in her feedback was true; he did not deny that a statement has to be false to be actionable as defamation; but he just plain didn’t care. To the contrary, he told me that I could come up to Medina, Ohio, and argue whatever I might like, but that the case was going to continue unless the feedback was taken down or changed to positive. And he explained why his client was insisting on this change — he said that it sells exclusively over eBay, where a sufficient level of negative feedback can increase the cost of such sales as well as possibly driving away customers
If Ohio had an anti-SLAPP statute, a lawsuit like this would never be filed, and if it was filed, it would be quickly dispatched because the certainty of an attorney fee award in response to a special motion to strike would give local lawyers an incentive to represent the customer on a strictly contingent fee basis. In the absence of an anti-SLAPP statute, however, the plaintiff and its lawyer are counting on the inconvenience of responding to the lawsuit to induce the customer retract her criticisms, effectively helping Med Express to conceal from potential customers that, in at least one respect, Med Express may not be reliable. And yet, if the customer has to spend even a few hundred dollars to defend her right not to remove truthful criticism, she will already have lost.
We at the Litigation Group have a strict policy against handling at the trial level cases where the main issue is defamation. Indeed, paying a pro hac vice fee and travel expenses for one of us to jump into this case is more than the customer should have to do. Hopefully, however, a public spirited lawyer in that part of Ohio may be willing to stand up for free speech in this instance.
At the same time, the very fact that this retailer is willing to sue a customer over such a tiny complaint may give potential customers an even bigger reason to shy away from doing business with Med Express.