by Paul Alan Levy
Richard Radey, the President of Med Express, has published a comment on my previous article about his company, apologizing for the lawsuit filed against Amy Nicholls, claiming that the wording of the lawsuit violated his express instructions to his lawyer, James Amodio, and promising that he had instructed his lawyer to dismiss the lawsuit. He has sent the same apology to several others.
When I criticize somebody on this blog, I generally send a courtesy notice with an invitation to respond on the blog. When the target of criticism owns up to a mistake, it is also my practice to be gracious. Ordinarily, then, a profuse apology like Radey’s would be cause for admiration.
Problem is, I don’t believe a word of what he says, with one exception – I do believe that he is now sorry that he and his company have been engulfed by a wave of public criticism (for example, here, here, and here). A network television news reporter contacted Radey for comment Wednesday morning. And two excellent Ohio lawyers, Tom Haren and Jeffrey Nye, who last teamed up to defend the crime blogger who criticized the possible coverup of a rape by high school football players in Steubenville Ohio, volunteered to represent Nicholls pro bono. Those lawyers have filed a counterclaim, seeking sanctions and punitive damages from Amodio and Radey as well as from his company—I do not expect that it is a coincidence that it was one hour after this counterclaim was served that Radey issued his public apology.
Everything about this bullying lawsuit that could go wrong, did go wrong. It remains to be seen whether Radey will be able to get out of this mess that he and his lawyer have created for themselves, and on what terms. But some of the important lessons from the litigation are already becoming clear.
Pattern of Abusive Lawsuits
The main reason why I find Radey’s apology and explanation incredible is that the lawsuit against Nicholls is just one of several cases that Med Express has filed in Medina, Ohio, against its eBay critics. When I published my article about the defamation filed by Med Express against a South Carolina woman who posted negative feedback, truthfully recounting that its package arrived postage due, the online docket for the Medina County court where the lawsuit was pending was functioning poorly, so I was unable to examine the papers in a series of other cases filed by Med Express in that court, two of which were filed on the same day as the suit against Nicholls. Once the electronic dust had cleared, however, we were able to determine that the lawsuit against Nicholls is not an isolated incident, but rather is part of a pattern that goes back several years, involving not just his current lawyer, James Amodio, but a previous lawyer named Daniel Walker.
From my review of many of the cases, Med Express typically files a complaint based on extremely vague assertions of falsity, against defendants who may be too far from Medina to respond effectively, seeks a temporary restraining order without giving any notice, and hopes to get relief before the defendant knows what hit him, her or it. (Perhaps Ohio should consider adopting the rule that many other jurisdictions follow, requiring that written statements alleged to be defamatory be pleaded verbatim, with specification of which part is false and why). The TRO motion itself is contrary to all precedent on the merits, as I explained in my earlier post, but it presents serious procedural problems as well. The failure to make any effort to give notice not only runs afoul of Rule 65(a) of the Ohio Rules of Procedure, but of the special First Amendment rule, first adopted by the Supreme Court in Carroll v. President and Commissioners of Princess Anne, that forbids ex parte injunctions against protected speech. The motion fails to notify the trial judge of contrary authority, which is actually a serious ethical violation because a lawyer in a proceeding that he has reason to expect will be ex parte has a special obligation to inform the judge of both facts and authority that are adverse to his client’s position.
A Suit Even Worse Than Nicholls
Of the current crop of lawsuits, the suit against Nicholls isn’t even the worst. I haven’t yet been able to see the original documents from the transaction on which Med Express’ lawsuit against Guam resident Tan Jan Chen is based, but the lawsuit against Scranton-area resident Dennis Rogan is over a two-word “neutral” buyer feedback stating “Order retracted.” Apparently, Rogan bought a piece of equipment on eBay but Med Express had to refund his money because, as it explained in a message accompanying the PayPal refund, “This should not have been still listed—we removed this item a few weeks back-it broke.” As in Nicholls’ case, the statement over which Med Express sued for libel was true, but even worse than in Nicholls’ case, Rogan had not even left “negative” feedback.
Rogan could have suggested that the advertising and sale of an item that the seller knew it could not deliver violated FTC rules for mail-order merchants, but he gave the company the benefit of the doubt while concluding, at the same time, that other customers ought to learn that Med Express cannot always be trusted to have the goods that it is advertising. His generosity did not prevent Radey from signing an affidavit averring that the neutral feedback and negative statement were “false,” attempting to get an injunction requiring that the feedback be taken down, and demanding an award of compensatory and punitive damages as well as attorney fees—not the $1.00 in nominal damages that Radey claims are all that he wanted his lawyer to seek against Nicholls.
I don’t vouch for accounts of the intricacies of eBay, but a comment by Terry Gibbs on Popehat seems to suggest that a single instance of negative feedback may not be enough to bring a major seller’s rating down far enough to increase its selling costs. Thus, had Rogan made his feedback negative, that could have been enough to cost Med Express money. It was Rogan’s act of kindness to make his feedback “neutral”—but Med Express sued him anyway. Apparently, nothing but praise is enough where this company is concerned.
Radey’s Affidavits Contradict His Apology
Another reason to doubt Radey’s apology is that, contrary to his statement in his comment that he never read what the lawsuits said until he heard about the actual contents in blog reports, he signed a verification of each and every lawsuit, averring he had read the complaint. Moreover, in each case he signed an affidavit that complained about the content of the feedback. So it is hard to see how he can complain that his lawyer pulled the wool over his eyes.
Indeed, it more than a little sleazy for Radey to try to throw his lawyer under the bus in trying to save his own reputation, and his company’s reputation, by suggesting that the flaws in his lawsuit represented the lawyer acting contrary to instruction. At the same time, I don’t consider lawyer James Amodio to be in any way blameless in this situation—he filed a frivolous lawsuit and an even more frivolous TRO motion; he maintained it hoping that the expense and inconvenience of defending far from home would bludgeon Nicholls into submission; his brief withheld relevant authority from the court in an ex parte proceeding; and, quite possibly, he failed to give his client sound advice about the law or about the practical consequences of bringing such a proceeding. We may get the opportunity to find out what really happened because the counterclaim served yesterday seeks attorney fees and damages as well as Rule 11 sanctions from both Amodio and Radey, thus giving each of them every incentive to testify against each other. And by posting public comments about what he told his lawyer, Radey may well have waived the attorney-client privilege that would otherwise bar discovery into their communications with each other.
Wanting “Just an Injunction” Is No Excuse
Even if I were inclined to believe Radey’s assertion that all he really wanted was an injunction taking down the criticism, I would not be assuaged; in some ways, such injunctions, and the procedures for getting them, are even more of an affront to the public interest. We do see this sort of effort to obtain an early injunction happening more often, despite the strict rule against prior restraints. Some hosts of online criticism will, in fact, respond to preliminary injunctions even though section 230 of the Communications Decency Act would allow them not to, without investigating whether the injunction was obtained over real opposition. The defendant has less incentive to oppose the early injunction, because hiring a lawyer is expensive and no money is at stake; and we have even seen cases where the plaintiff goes so far as to assure the critic that he won’t seek damages if the critic will refrain from opposing the injunction – thus the injunction isn’t the result of a fair adjudication, but of a “fix.”
But the public at large is injured by these fixes, because consumers have an interest in learning what the criticism was, and what the response. Not all rating systems are perfect; maybe there are reasons to doubt the accuracy of the “DSRs.” But they are one data point that eBay consumers can use to decide where to buy goods online. We should not forgive Radey and Med Express even if it were true that distorting his own DSR’s was the only objective of this frivolous litigation.
Radey tells us that he “was told that such court orders were not uncommon.” I do think that there is a myth out there that such orders can be easy to get. It is a myth that is worth exploding; and there is some value to increasing the cost of seeking such orders, both by consumers not buying from businesses that seek them and by courts giving lawyers who file such motions more reason to think twice.