Criticize Online, Get Fined 470
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.
harry potter (Score:4, Interesting)
I guess it's only important when the law is coming after adults. Screw helping the 12 year olds.
Re:How can you not know you have been sued? (Score:3, Interesting)
Although I'm not exactly sure about the legal implications, I hope that he is telling the truth that he did not receive the notice (rather than just ignoring it). I would imagine (and hope!) there would be some really good recourse to appeal in this case.
If not (if there is little recourse, or if he lied and should have responded), and the judgement is not overturned, I hope that it can't be used a a precedent (since it was won by default, not on the facts). Any lawyers in the room (I'm obviously not one)?
Criticize? (Score:5, Interesting)
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.
Legal Options? (Score:3, Interesting)
Obviously, IANAL
for a non usa-ian (Score:2, Interesting)
Libel and slashdot (Score:5, Interesting)
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 [lectlaw.com], 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 [cyberlibel.com]:
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 [utsystem.edu] 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...
Every one is jumping to conclusions (Score:2, Interesting)
""The postings (in question) are full of hyperbole, invective, short-hand phrases and language not generally found in fact-based documents, such as corporate press releases or SEC filings," Judge David O. Carter wrote.
That's a pretty good description of the postings Xybernaut sued Dan Whatley over, according to a copy of the suit. The suit lists posts in which Whatley berates Xybernaut chairman and CEO Edward Newman and his brother Steve Newman, who is the vice-chairman. "
Having said all that , what they seem to be suing the guy over seems to be ridiculus, basicly saying the managment of the company was incompetent and accusing the company of lying on a message board which every one knows are havens of 'truth and 'facts'.
Certified Mail... (Score:3, Interesting)
This is all speculation though, since there is a lot of information we do not know. We can only hope that this is resolved properly, on the side of justice. Besides, $450,000 is an extremely large judgement, and an appeal is still possible.
Re:for a non usa-ian (Score:1, Interesting)
Re:Certified Mail... (Score:3, Interesting)
I thought the idea behind certified mail, was that the letter must be signed for upon delivery. That means, if he sign for it, then the US Postal Service still has the letter, and probably a receipt for it, somewhere.
Re:someone's lying, but who? (Score:4, Interesting)
In Montana, and doubtless in some other states, notice of suit is considered to be LEGALLY ACCEPTED BY YOU when it is recorded as having been mailed by the court clerk. Whether it was actually mailed or not is irrelevant -- and since there is no requirement that notice be done by trackable mail, there is no way to determine if it was ever actually mailed or not. If you don't show up because someone slipped the clerk a few bucks to "lose" the letter, too damned bad. (And yes, this IS the voice of firsthand experience.)
Sounds to me like both sides here are full of a variety of crap, but be aware that failure to receive notice can and does happen, and is (literally) no defense in a lawsuit.
Even so, no way in hell would I buy products from any company that files lawsuits over message board flames. That's the equivalent of jailing a 5 year old for a "hate crime" because the kid yelled "I hate you and I'm going to kill you!"
Re:First Amendment (Score:3, Interesting)
Uh, I read the first amendment like this: "Congress shall make no law [...] [making it possible for anyone to abridge someone else's] freedom of speech, or the press [...]"
If a law enables companies to suppress free speech by allowing those companies to file SLAPP lawsuits, isn't that a law abridging the freedom of speech, even if only indirectly?
Re:Libel and slashdot (Score:2, Interesting)
You don't get sued by mail (Score:3, Interesting)
He was a short (Score:2, Interesting)
Re:Here We Go (Score:5, Interesting)
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.
Xybernaut to be used by COMDEX Chicago next week (Score:3, Interesting)
According to this story [wired.com] at Wired, Xybernaut's Mobile Assistant® V [xybernaut.com] product will be used [key3media.com] at COMDEX Chicago [key3media.com] by the event staff to reduce queues. I could envision two different ways that slashdotters could protest. If they are actually going to attend, they could wear something that states their position about the company and its practices. If they are not going to attend, but live in or near Chicago [cityofchicago.org] (big place [census.gov], should be a few around somewhere), they could do the usual protest thing on public property at the border of the convention (I'm sure the COMDEX people would never allow them in the convention area).
Re:First Amendment (Score:2, Interesting)
a^2 = ab
a^2 - b^2 = ab - b^2
(a - b)(a + b) = b(a - b)
a + b = b
2b = b
2 = 1
There's a flawed assumption in the above argument, just as there is in yours. With a flawed assumption, nearly any conclusion can be reached. In your argument, it is that "rights can't be signed away." This hasn't been true since contracts came into the picture. What would have happened if some early contractor had said "hmm... I've got a right to not work on the colliseum and it can't be signed away." Hopefully he would have gone to the lions.
Basically, a contract is the signing away of some rights by both parties. The right not to work on the colliseum is nearly as important as the right to freedom of speech.
This is fishy... (Score:1, Interesting)
First off, sending notice of a lawsuit - called "Serving Process" isn't generally done by certified mail. It can be, but isn't because a) Certified letters, are letters, and are occasionally lost by the fine folks at the USPS. When they're lost, you haven't served process on someone and they don't have to show up because they never knew... b) If you selected "return receipt requested" (and you always should), then you're supposed to get back that little green postcard as proof of delivery - sometimes you don't get the postcard back (it gets lost) and with that loss goes your proof of delivery... c) There's no disinterested third party to testify to the contents of the envelope. So all you can guarantee with certified mail is that you sent a certified envelope. There's no way to prove that ANYTHING was inside it. Even if the other side stipulates to there being SOMETHING in the envelope, there's no way to prove that it was the item which you say you sent.
To get around all that, you use PROCESS SERVERS. The Sheriff, the Police, a certified Process Server, etc... The gist being, that you hand the Notice to Appear in court to a third party who has no interest whatsoever in the case (a disinterested third party). You give them $30-$50, and they find the person in question and deliver the notice in person. They then call the lawyer or you and say "I delivered the notice to so and so...", they'll fax you, or even fax the clerk of the court. The court accepts the word of this third person without any other discussion or investigation because they have no reason to lie - it's called Prime Facia evidence. If it comes down to it, they'll appear in court and testify to the veracity of the document that you say they delivered to the person... Again, it's prime facia...
If the process server can't find the person they're to serve, they notify the client. The client then appears in Court and when the court asks if process has been served, the client says "No your honor, we've been unable to find the defendant, and want to apply for an alias summons...". The court then authorizes that, and the client has to get a process server to serve the original person, or someone with his name, or someone in his household that knows him, etc. The person who is served is then responsible for appearing in court - or at least telling the original defendant and appearing with him.
If the defendant can't be found after an alias summons, then the client can go to court and demand a default judgment which they'll usually get. Sometimes the court may also ask for a certified mailing to be sent (just for kicks) - but it's rare. More often, one sends a certified letter to the defendant, and when it gets returned as refused, or not picked up, then the client brings that to the Court - UNOPENED - and allows the judge to open it. The judge then can see for himself that you also tried the certified thing as well and usually accepts that as Prima Facie evidence as well...
All in all, this guy seems to be fucked. He's going to have to do some investigation into this and then appear before the court and motion to have the judgement set aside because of:
1) Process wasn't served...
2) Alias summons weren't served
3) The certified mailing wasn't received. If it was sent, then the records from the USPS detailing the audit trail must be requested to see if it even ever showed up at his local post office, and if so, when.
4) That the judgement is wholly unreasonable and not representative of actual damages, real or perceived, of the company. A company without any revenue whatsoever.
If he wasn't served, he ought to sue the company for wrongful and malicious prosecution. Add in perjury if they lied to the court about the process being served when it wasn't, or if a certified letter wasn't sent when they said it was.
If they did forge a certified letter receipt - he ought to call the postal inspectors, they'll be glad to check into it.... If it's perjury, he should contact his local state's attorney. If no process was actually served, and the judge was lied to, then it means that the Judge didn't actually see any documents from the process server and didn't request them - judicial misconduct - file a complaint with the judicial review board. File complaints with the state attorney review and disciplinary commission because the company's lawyers are slime (if they even had a lawyer for it).
Yes, he's going to have to work for it, but the moral, is POST ANONYMOUSLY!
Re:someone's lying, but who? (Score:1, Interesting)
Could I protect my posts with a legal clause? (Score:2, Interesting)
For example, a statement that says everything I said was just my personal opinion? I think I've seen these before but I would like to know how much legal weight they carry?
Something Like:The views and opinions, if any, expressed (or implied) by any, all, or part of are strictly opinions and not stating fact. You cannot sue me now ha ha ha.
Or something like that.
Jess
Re:How can you not know you have been sued? (Score:1, Interesting)
He's been threatening a class action suit against Xybernaut for securities violations. The notice of suit never arrived? He's a liar. But that's just my opinion.