Criticize Online, Get Fined

maxpublic writes "Yet another outspoken critic of corporate America has been SLAPP'ed - only this time, Dan Whatley didn't even know he'd been sued until he was presented with a $450,000 judgement. For those who don't know, SLAPP stands for 'Strategic Lawsuits Against Public Participation' and is used to silence people who openly criticize thin-skinned corporations." In this case the company doing to suing is Xybernaut, the makers of wearable computers mentioned here many times in the past. This article is a must read. And now Xybernaut has joined Amazon and others on my list of Must-Avoid companies. This is a creepy run around the 1st Ammendment, and you should be aware.

Comments

Another SLAPP.

[dotderf]

Mattel has been trying to kill this site. Now the guy turned around and is suing Mattel for $48 million for violating the ADA and some other laws. Glad to see the censorship by litigation people getting slapped back.

bullshit taco

[Anonymous Coward]

So this company is now on your list of "must avoid" companies? You mean, like the RIAA, MPAA and all the other products and companies you've encouraged everyone to avoid but then turn around and buy from and hand your cash to the instant they have something like an Akira DVD or an X-Box you want to buy?

someone's lying, but who?

[dirk]

I think it's pretty obvious someone is lying, but I wonder who it is. They claim he got a letter by registered mail, which means he had to sign for it. He claims he never got it. Seems like a simple thing to go back and check the receipt of the letter (if there was one) and see if he signed for it. I have a feeling he really did get the letter, since even the dumbest lawyer would be smart enough not to lie about something that easily checked in court, especially when you know the guy will challenge it when he gets the judgment (of course I could be wrong and the lawyer really is that dumb). I think finding out about the registered letter will clear up pretty much the whole case.

Re:someone's lying, but who?

[davecb]

... the Xybernaut lawyer handling the case against Whatley, said Whatley had been served notice of the lawsuit by certified mail. Note that he said certified mail, not registered mail. That means different things in different jurisdictions: I once used (Canadian) certified mail to put my landlord on notice, only to find that it didn't guarantee delivery, or provide me notification of non-delivery. If the same is true in Virginia, the lawyer could technically be telling the truth, while actually telling what logicians consider a "lie of omission".

Re:someone's lying, but who?

[zmooc]

Does it even matter at all if he got the letter, if he lied about it or even if he told the truth about this company? It's very VERY clear he's telling his opinion and the moment people get fined for telling their opinion is the moment the US can be considerd on par with China and many other countries they can't stand. Emigrate while you can!

Re:someone's lying, but who?

[Jay L]

Does it even matter at all if he got the letter, if he lied about it or even if he told the truth about this company? It's very VERY clear he's telling his opinion and the moment people get fined for telling their opinion is the moment the US can be considerd on par with China and many other countries they can't stand. Emigrate while you can!

To sum up: Do the facts even matter? PANIC!

Re:someone's lying, but who?

[ShaunC]

>To sum up: Do the facts even matter? PANIC!

A perfect candidate for "New Slashdot Motto" if I ever saw one!

-s

Re:someone's lying, but who?

[Reziac]

Due Process per the 5th amendment applies ONLY to CRIMINAL prosecution; it has absolutely nothing to do with CIVIL suits. In civil suits, you are effectively deemed guilty by the accusation itself, and it is up to YOU to prove your innocence. If you don't show up to defend yourself, regardless of the reason why -- tough shit, you lose.

BTW, under some child welfare and animal abuse statutes, there is also no due process -- you are presumed guilty until proven innocent. This is why in some states (California for one), children are sometimes removed from a home based entirely on unfounded, *anonymous* "tips" alleging abuse. In those cases, you also have no right to face your accuser.

Yes, THAT is probably unconstitutional, but look how far anyone gets fighting other legislative or judicial stupidity committed in the name of "for the children".

Must-Avoid ... what?

[Bowfinger]

And now Xybernaut has joined Amazon and others on my list of Must-Avoid companies.

Does Xybernaut even have any products that I can avoid? Will they ever have any products, or are they going into the revenue-by-lawsuit business?

Sounds like someone needs to spend less time in chat rooms, more time at the drawing board.

too many lawyers

[estes_grover]

* Lawyers as a group are no more dedicated to justice or public service than a private public utility is dedicated to giving light.
--David Melinkoff, Professor of Law, UCLA

Here We Go

[ScumBiker]

Yet another symptom of the corporatizing of America. If you have money, you win. Isn't this country "by the people, for the people"? Obviously, Xybernaut is a company losing money. Trying to "protect" your companies interests by suing potential customers is a *real* good way to piss off most of the rest. Personally, I will never, ever buy anything from this company. I will also never recommend it's products to anyone I know. Hey Newman (I'm sure you or one of your storm troopers, er, lawyers will be reading this). I have people asking me every single day about what tech items to buy. From corporate upper management to home owners. I'd say if your weren't percieved as being so incompetent, you wouldn't draw comments like the ones you sued Whatley over. Comments like this:

"If Steve Newman was not a relative his job would consist of ... 'Would you like fries with that?'"

heh. Now, you are a big item here and I'm sure a bunch of other forums and blogs. Good luck trying to sell anything at all.

Re:Here We Go

[NearlyHeadless]

Yet another symptom of the corporatizing of America. If you have money, you win.

Ummm...no. He lost because he didn't show up. That's true in any civil trial, no matter who has money.

Instead of just whining about "corporate America", we could talk about reforms that might make a difference. For example, if it's true that he didn't know about the lawsuit, we could require that a process server deliver the notice in person, or that the notice be sent by the clerk of the court with a return receipt required.

Or, in general, we could look at reforms that discourage meritless lawsuits. Most other countries have limits on judgments, rules where the loser pays the legal costs, or other rules. Of course, millionaire lawyers like Ralph Nader are against these rules. We won't mention how much money the trial lawyers give to the Democratic Party, because they're not big corporations, so they must be okay.

This is not a new problem. In ancient Athens, there would be a large jury for a trial. If the plaintiff got over half the votes, he won. But, if he didn't get at least 10% (I think that was the percent) of the votes, he would have to pay the defendant.

But, go on, whine about "corporatizing of America", whatever that means.

First Amendment

[GMontag]

This is a creepy run around the 1st Ammendment, and you should be aware.

The First Amendment is a restriction on government, not on you, your neighbor or a business.

This was a civil judgement not a criminal conviction, the First Amendment does not apply AT ALL.

Re:First Amendment

[coyote-san]

Let's think this through....

If Congress can make no such law, the courts will not enforce such laws.

Rights can't be signed away. That's part of their definition. Therefore contracts can't place any restriction on a person's speech either.

Therefore you can't have NDAs, even when legitimate. You can't have trade secrets, even when legitimate. You can't have out-of-court settlements with a confidentiality clause.

Taken to an extreme, you can't even assert doctor-patient or lawyer-client privilege. If your doctor wants to make you the butt of a joke he can.

Maybe you're comfortable with this, but this is *far* from where the law is today.

Criticize?

[Ivan Raikov]

Well, the article said that the guy who got the $450,000 fine claimed that one of the company's senior executives (and brother of the CEO), "if [...] was not a relative his job would consist of ... 'Would you like fries with that?'" He also called them liars.

Normally, I'm all for the little guy, but in this case, seems like the poster was a troll, not an "outspoken critic of corporate America."

Now, if he had provided a deep insight into the company's workings, and if he had some facts to prove that the company management is incompetent, that would've been a questionable case. On top of that, he claimed he never received a certified letter, when it's very, very easy to have USPS check whether such letter was delivered or not. I don't think we're getting the whole story here.

Re:Criticize?

[Performer Guy]

1) It's not a fine, it's a judgement, the money goes to the plaintif.

2) If he had provided deep insight they might have had a real case against him, as the article indicates, simple troll is not actionable in many states. The other issue here is living in a state where the law protects you vs an action in another state where there is no statutory protection. Online flames aside there are individual protections to protect individuals against getting sued remotely like this.

3) As for the letter, it's too late, he'll have to hire a lawyer to even raise the issue, but now he has no opportunity for a pretrial dismissal, this will get really expensive. He has to appeal this. If he ignored the letter it was the dumbest thing he ever did.

Libel and slashdot

[image]

[Apologies for the slightly off-topic nature of this post. But it appears highly relevant because of the thread.]

How long before Taco or one of the other Slashdot editors is accused of and sued for libel by one of the individuals or corporations that is commented on (and perhaps defamed) on the site?

By the Lectric Law Library's definition, libel is:

Published material meeting three conditions: The material is defamatory either on its face or indirectly; The defamatory statement is about someone who is identifiable to one or more persons; and, The material must be distributed to someone other than the offended party; i.e. published; distinguished from slander. [The 'Lectric Law Library]

By the CyberLibel definition:

A publication without justification or lawful excuse which is calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule. [CyberLibel]

I tried out the Libel Checklist over at UTexas, and found that a good number of posts by slashdot editor's could at least be considered suspect of libel claims. However, I am anything but a lawyer, and would love to hear a lawyer comment on this.

For example, if an editor posts a comment in response to an article saying something to the effect of "so-and-so's marketing practices are highly suspect and should be avoided by all good slashdotters." If the statement is not provably true, is not a fair report of an official and public record, is not a matter of public concern, is not merely abusive, is not consentual, and is not clearly an opinion, then such statements could, I believe, be intrepreted as libel.

Furthermore, could the users of Slashdot also be sued for libel due to their comments?

Or worse, could I be sued for libel for raising this very question about Rob and Slashdot? Uh-oh. Nevermind...

Re:harry potter

[wurp]

No, Rowling will lose her trademark if she doesn't protect it. I'm pretty sure that doesn't apply to copyright or patents, just trademarks.

This Judgment is Easily Undone

[Compulawyer]

Contrary to popular beilef, judges LOATHE default judgments. They would much rather have the parties settle or decide the case on its merits. As an attorney, I can tell you that convincing a judge to let you win by default because of the other side's procedural slip-up is one of the hardest arguments to make.

In this case, it is easy for the judge to allow the default because apparently Mr. Whatley never responded to the complaint. That is understandable because if he is correct, he never received notice. The whole lack of notice argument brings the whole realm of Due Process under the United States Constitution into play. Judges tend to be VERY sensitive to notice problems. Virtually every state's Rules of Civil Procedure have clear guidelines for how to handle these not-uncommon scenarios.

It should be relatively easy for Mr. Whatley to get this undone. Then the battle really begins.

not exactly correct.

[www.sorehands.com]

Mattel had tried to kill http://www.sorehands.com/mattel. When the judge asked Mattel's lawyer what was libelous, Mattel's lawyer asked that their libel claim be dismissed. This was after having to file a 5 inche stack of legal briefs with the court.

Since their libel claim was that they were libeled because I said that they violated the FMLA, ADA, MGL c.151B (the Mass. version of the ADA), I was able to bring this under those laws. Those laws specifically allow for punitive damages, where simple abuse of process does not.