Don’t let the Cloak of Anonymity Prevent You from Bringing Suit Against the Poster of Defamatory Material on the Internet

The Internet, through the hundreds, if not thousands, of complaint boards and review websites, such as ripoffreport.com, has provided an effective means to bad-mouth and degrade a company, or its principals, while reaching an audience of millions of people, and simultaneously being protected by a cloak of anonymity.  However, this cloak of anonymity is not impervious.  If defamatory or libelous material is being posted about you, or your company, then you may obtain the identity of the individual posting such material (the “Poster”) from the website providing the medium on which the material is posted.

By filing what is commonly referred to as a “John Doe suit,” you can compel a website or internet service provider to fork over the Poster’s identity.  Although often executed, this is not as simple as merely filing suit and listing John Doe and the website or posting medium as defendants, and then asking the website or posting medium to divulge the Poster’s identity through discovery requests.

Rather, as the party requesting the information/identity of the Poster, you must show that you have made reasonable efforts to inform the Poster of the pending discovery request, including the pertinent case information, and inform the Poster of the right to timely and anonymously file and serve a response to the request. You must also attempt to notify the Poster via the same medium used by that Poster.

Further, you must establish that your action would likely survive a motion for summary judgment, regardless of the Poster’s identity, and that the balancing of the interests of the parties weighs in favor of divulging the Poster’s identity.  Courts will not allow somebody to abuse the system and use a John Doe suit merely to circumvent a speaker’s First Amendment right to anonymous speech, unless the appropriate circumstances are present.

Keep in mind that the ability to discover the Poster’s identity may not always be as important as bringing an end to the Poster’s behavior and requiring the website to take down the defamatory and libelous information.  However, in some cases knowing the identity of the Poster is crucial, for example, the case of an ex-employee who is violating the terms of their non-compete agreement.

Don’t get me wrong, the prevalence and influence of these complaint boards has its advantages, as these websites have helped uncover scams and can provide the consuming public with important information.  However, inherent in such prevalence and influence is the danger of abuse and utilization for improper motives.  Bad reviews can cause serious damage to a business above and beyond a decrease in revenue, such as hindering investors and lenders who find these reviews during their due diligence process.  The good news is that there is a remedy, and it goes by the name of Doe.

Internet Crimes – Don’t Be a Victim

Have you ever received an e-mail telling you that you are about to inherit millions of dollars because your last name is similar to someone who has supposedly just passed? What about an e-mail telling you that you’ve won something that you didn’t sign up for?  Or, an e-mail requesting legal services for what seems like a legitimate business dispute?  Well, I have, and I know that I am not alone.

I used to think how could people fall for these scams.  I mean, really? How could someone possibly think they could inherit millions of dollars from someone they don’t even know just because their last name is supposedly similar to someone else’s.  Now, having seen some of these scams in action, I know just how smart these Internet terrorists can be.

Several weeks ago, I was asked to provide legal services to a “Daniel Johnson.” He claimed that he worked for Zenith Medi Equipment Co., Ltd., in the UK and that his company was owed approximately $500,000 over a contract dispute with Universal Hospital Services. He also requested the services of an attorney with a presence in Florida.  Skeptical of the request, I responded to the e-mail, requested more information, and eventually sent him a retainer agreement.

Surprisingly, Daniel signed the retainer and advised that the dispute with Universal Hospital Services had been resolved and that a check would be forwarded to my attention.  Even more surprising, I received what looked like a cashier’s check for almost the full $500,000.  The check even had a watermark.

I advised Daniel of my receipt of the check and received an e-mail the next day from him telling me to forward the money to some account in Dongguan, China. I then explained to him that no money is being forwarded to anyone until the check clears which should take 7-10 days.  Not surprisingly, the response I received was radio silence.

Of course, the check did not clear and I have heard nothing further from Daniel.  But, after having that experience, I’ve heard many similar stories.  While some were fortunate enough not to fall for the scam, others were not so lucky.

So, what can you do to avoid becoming the next victim?  Always trust your gut. If it seems too good to be true, it probably is.  Look for warning signs. In my case, the first red flag was misspelled words.  Second, the check, although it supposedly came from the US, it had a priority international sticker on the check’s envelope.  Never send any money to someone you don’t know. And, if you receive a check, remember, it takes 7-10 days to clear.  Don’t send any money or anything of value until the check clears.

One last piece of advice – if you are the victim of one of these crimes, report it to the FBI or other police agency.  If you are a victim, you still have a voice – so use it!

Enhanced Family and Medical Leave Bill Afoot in Congress

Legislation has been introduced in Congress this month that would greatly expand the federal Family and Medical Leave Act (FMLA).

H.R. 1440 — the Family and Medical Leave Enhancement Act of 2011 — was introduced on April 8, 2011 by Rep. Carolyn Maloney, a Democrat from the 14th District of New York (Manhattan and Queens).

If adopted, many more employers would face the necessity of permitting leave for employees to attend to personal family and medical matters, including things like school plays and related activities.

Now, most employers that I represent take a reasonable, common sense approach to allowing their employees to go to their kids’ school plays and such.  But mandating that employers do so as a matter of federal law? Sounds like overreaching, doesn’t it?

As most employers know, the FMLA is intended to allow employees to take unpaid leave (up to 12 weeks in most cases) for medical reasons, for the birth or adoption of a child, or for the care of a child, spouse, or parent who has a serious health condition. The so-called Family and Medical Leave Enhancement Act of 2011 (FMLEA) would amend the FMLA to allow employees to take off from work to participate in or attend their kid’s and grandkid’s school and extracurricular activities, and for other purposes.

Under the bill, employers would be required to allow an eligible employee to:

  1. participate in or attend an activity that is sponsored by a school or community organization and relates to a program of the school or organization that is attended by a son or daughter or a grandchild of the employee; or
  2. meet routine family medical care needs, including for medical and dental appointments of the employee or a son, daughter, spouse, or grandchild of the employee, or to attend to the care needs of elderly individuals who are related to the eligible employee, including visits to nursing homes and group homes.

One sign that the drafters of this bill have not completely taken leave of their senses is that the bill would limit FMLEA leave to no more than 4 hours during any 30-day period, and no more than 24 hours of leave during any 12-month period.

One other major change to existing law would be that the FMLEA would apply to all private employers with 25 or more employees (currently the FMLA applies to private employers with 50 or more employees).

From the employer’s perspective, given the Republican-controlled House, the prospects of passage of H.R. 1440 are not favorable, to say the least.  Whew….

Wal-Mart Prevails in Huge Discrimination Lawsuit

In a much-awaited decision, the U.S. Supreme Court has thrown out a huge discrimination lawsuit against Wal-Mart that had been filed as a class action by female workers.

The U.S. Supreme Court ruled that a massive lawsuit filed on behalf of 1.5 million female workers against Wal-Mart that alleged the retail giant had systematically discriminated against them in pay and promotions could not go forward as a class-action, and the decision could have far-reaching effects in employment cases.

The Court, in a closely divided 5-4 vote, held that the plaintiffs could not show that Wal-Mart had a common policy of discriminating against women. Instead, because the company allowed individual store managers to decide on pay levels and promotions, the plaintiffs could pursue individual claims if they believed they were discriminated against, but Wal-Mart could not be forced to defend against a class action.

The ruling is a huge victory for Wal-Mart, which spent millions of dollars defending the case, and it may also protect other large employers from similar claims that rely on statistics (rather than hard evidence) that may suggest discrimination based on the race or gender of employees. Had the plaintiffs’ lawyers prevailed against Wal-Mart, other large employers who allegedly relegate women or minorities to lower-paying jobs were seen as likely targets of similar class actions.

While the Court’s majority found it “quite unbelievable” that Wal-Mart managers would exercise their discretion re: pay and promotions in a common way without some common direction, dissenting Justices felt there was enough evidence of systematic sex discrimination by Wal-Mart to allow the suit to go forward. “Women fill 70% of the hourly jobs in the retailer’s stores, but make up only 33% of the management employees,” Justice Ruth Bader Ginsburg wrote. “The higher one looks in the organization, the lower the percentage of women.”

Florida’s Drug Law is Deemed Unconstitutional

Last week, a federal judge in Orlando declared Florida’s Drug Abuse Prevention and Control law unconstitutional.  The nine year old law was challenged on the grounds that it does not include an “intent” requirement, meaning that a defendant can be convicted of a drug offense, even if he or she unknowingly possesses, transports, or delivers a controlled substance.  The case involved a Florida man, Mackle Shelton, who was sentenced to 18 years in prison on a cocaine offense.

The jury that convicted Shelton in 2005 was instructed that to prove the crime of delivery, two elements must be shown: that Mackle Shelton delivered a certain substance; and that the substance was cocaine.  The jury was further instructed that the state did not have to prove that Shelton knew he was carrying or distributing a controlled substance.

According to U.S. District Judge Mary S. Scriven, the law’s fatal flaw is the lack of criminal intent requirement, which Florida’s legislature purposely removed from the books in 2002.  The Judge  noted that Florida is the only state in the nation to have expressly eliminated intent as an element of drug offenses.  Scriven concluded that Florida’s drug law is unconstitutional “on its face.”

Judge Scriven cited the example of a student who hides cocaine in a friend’s backpack without telling him.  The friend, having no idea it is there, would, under the subject drug law, be guilty of possession.  Scriven struck down Shelton’s drug conviction.

Judge Scriven’s ruling could potentially throw thousands of criminal cases into jeopardy.  The ruling’s implication is being praised as “monumental” and “courageous.”  However, its impact on past convictions and people now charged under Florida’s drug law won’t be clear until an appellate court weighs into the decision.  Florida is expected to appeal the ruling.