Roca Labs Sues Blogger; Faces Legal Challenges In NY & Florida

from the slow-down-guys dept

Keeping up with the ongoing Roca Labs saga appears to require full-time effort, as there are a bunch of updates. First up, though, is that Roca Labs has decided to sue blogger Tracy Coenen for the articles she published about Roca Labs. Earlier this month, we wrote about Roca Labs' threats against Tracy Coenen, a fraud investigator, who wrote about Roca Labs on her Fraud Files blog. As in the past, it appears that Roca Labs believes statements that are clearly opinions or hyperbole are somehow defamatory if they reflect negatively on Roca Labs. Before filing the lawsuit, Roca sent a second threat letter with a very brief deadline, complaining that she "publicly mocked" them. Coenen's response was to publish a new blog post explaining why she believes "Roca Labs Must Be Mocked."

In the actual lawsuit, Roca also claims that because Coenen sent us Roca's threat letter and we published it, that she was using Roca's letter to "harass and mock" the company. Who knew that merely publishing the threat Roca Labs sent is harassment of Roca Labs? And, of course, mocking Roca Labs is not against the law, no matter how much the company might wish it were so.

In the meantime, it appears that Coenen actually did -- at least temporarily -- give in to Roca's demands and removed the blog post in question -- but Roca Labs claimed it was not enough because she "did not retract [her] Defamatory Statements or otherwise comment publically [sic] concerning the defamatory Statements' lack of fact and merit." Further, the lawsuit accuses her of trying to "conceal the truth and cover-up [her] bad acts."

So, to keep this straight: Roca Labs sent her threat letters claiming what she wrote was defamatory, and after she removed the post (temporarily), the company is using that as evidence that she's trying to conceal the truth? Really? Good luck with that one. Oh, and also, it appears that Roca's attorney in this case, John DeGirolamo, is still somewhat confused about what defamation per se means. Hopefully, the court will sort it out for him.

In the meantime, some other things have been happening in various other Roca Labs court proceedings. Up in New York, where PissedConsumer (Consumer Opinion Corp.) had originally sued Roca Labs for declaratory judgment of non-infringement, Roca Labs had been trying to get out of the case arguing that the jurisdiction is improper. But, as you may recall, Roca also recently sent a questionable DMCA takedown letter to Google, claiming that content on PissedConsumer was infringing (something we find unlikely to be true... but...). However, as PissedConsumers' lawyers in New York note, in filing that takedown, Roca Labs has effectively made itself subject to PissedConsumer's local court's jurisdiction. This is based on a ruling in another nutty case we covered for a while, the effort by Gina Crosley-Corcoran to use the DMCA to silence a critic. In that case, the court noted that, in serving a DMCA takedown notice, the sender "purposefully and voluntarily directed [its] activities toward the forum so that [it] should have expected, by virtue of the benefit [it] received, to be subject to [this] court's jurisdiction based on these contacts."

When PissedConsumer's lawyers notified Roca Labs' lawyers of this, Roca Labs stood by its argument that the court has no jurisdiction, but Roca Labs' lawyers didn't seem to understand the significance of this. In response, PissedConsumer is now seeking to go after Roca Labs for DMCA 512(f) penalties, for misrepresentations in filing a DMCA takedown.

And, finally, just to complete this trio of stories, we'll also note that, down in the Florida case, PissedConsumer has filed a humdinger of a motion for summary judgment, laying out why Roca Labs has no chance in its case, and why the case should be put to rest quickly. Given everything else going on, we won't go into a more detailed analysis of that motion, other than to suggest you read it, and note that, as we predicted, it relies heavily on Section 230. It's written by Marc Randazza, so it's got that readable style he's become known for.






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Filed Under: copyright, defamation, dmca, john degirolamo, jurisdiction, lawsuits, marc randazza, paul berger, takedowns, tracy coenen
Companies: consumer opinion corp., pissedconsumer, roca labs


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  • icon
    S. T. Stone (profile), 19 Nov 2014 @ 1:56pm

    Roca Labs: when we fuck up, at least we follow the Rule of Threes!

    reply to this | link to this | view in chronology ]

  • identicon
    Baron von Robber, 19 Nov 2014 @ 2:00pm

    " Who knew that merely publishing the threat Roca Labs sent is harassment of Roca Labs?"

    It's a trap. You see the court system in which they filed their threat, likely, also published their threat. Now they will sue the court system which they file at.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Nov 2014 @ 2:35pm

    The many sins of Roca Labs: a partial indictment

    Roca Labs blew up the Hindenburg.
    Roca Labs created Jar Jar Binks.
    Roca Labs designed the Tacoma Narrows Bridge.
    Roca Labs took Firefly off the air.
    Roca Labs broke up the Beatles.
    Roca Labs opened Pandora's Box.
    Roca Labs was driving a white Ford Bronco.
    Roca Labs revealed the back way to Thermopylae.
    Roca Labs imported stinkbugs to Pennsylvania.
    Roca Labs formulated New Coke.
    Roca Labs co-wrote "Having My Baby".
    Roca Labs designed the Maginot Line.
    Roca Labs created the San Andreas Fault.
    Roca Labs genetically engineered Justin Bieber.
    Roca Labs built the Corvair.
    Roca Labs burned the Library of Alexandria.
    Roca Labs lost the proof of Fermat's Last Theorem.
    Roca Labs crossed the streams.
    Roca Labs tripped Mrs. O'Leary's cow.
    Roca Labs caused The Day The Music Died.

    This, dear astute Roca Labs legal counsel, is called hyperbole and satire. I make a present of it to you in order to assist you in litigious endeavors, in the hope that you will learn from it and thus won't waste precious billable hours attempting to convince a judge, a jury, or anyone else that it's not entitled to First Amendment protection.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Nov 2014 @ 3:42pm

      Re: The many sins of Roca Labs: a partial indictment

      Um, maybe Roca Labs and their legal council should increase billable hours so that both will either go bankrupt and/or increase the payment to their defendants and their attorneys.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Nov 2014 @ 2:37pm

    Marc must not have much of a liver anymore, if he accepts the drinks we all want to buy him for these kind of filings.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 19 Nov 2014 @ 2:48pm

    Oh my this just keeps getting better.
    All for the magical belief sold by some lawyers that you can sue people if they think your product sucks and tell others.
    The truly sad thing is, how many of these cases never make it to actual court or the accused can't afford a protracted legal battle over what some crap boiler plate says.

    Someone should really start a tumblr of companies using wording like this to alert the public of who not to do business with. It is time companies remember that you have to earn a good reputation not just use threats to appear to have one.

    reply to this | link to this | view in chronology ]

  • identicon
    Raul, 19 Nov 2014 @ 2:49pm

    Today Opinion Corp.'s attorneys filed a 26 page Memorandum in opposition to Roca's motion to dismiss for lack of jurisdiction with a 123 Page Exhibit which I guess is the proposed amended complaint.

    reply to this | link to this | view in chronology ]

  • identicon
    Kronomex, 19 Nov 2014 @ 3:05pm

    This lot is beginning to pull ahead of Prenda in the ludicrous and cretins race. I think I know what "Labs" means: Largely about bull shit.

    reply to this | link to this | view in chronology ]

  • identicon
    bubba, 19 Nov 2014 @ 5:08pm

    Even the BBB questions Roca (which is saying something), from BBB website:


    It has come to BBB's attention that in September 2014, Roca Labs filed a lawsuit against one of its customers resulting from her filing a BBB complaint. BBB also has received information that other customers have received demands from Roca Labs that litigation will be filed against them if they do not remove their complaints.

    Roca Labs has a non-disparagement clause in its consumer contract that prohibits customers from disparaging the business as a result of a marketplace interaction. BBB does not withdraw complaints under these circumstances. Consent to post the text of a complaint is solely at the discretion of the customer.

    As of 9/29/2014 the business' clause, which is found in its website's terms and conditions at https://rocalabs.com/terms, states:

    "Discount & Endorsement Agreement: In exchange for a discounted price on your custom order (a savings of at least $800.00), you agree to all of the following:

    (5) You agree that regardless of your outcome, you will not disparage RLN and/or any of our employees, products or services. This means that you will not speak, publish, cause to be published, print, tweet, review, blog or write negatively about RLN, or our products or employees in any way. You further agree that in an effort to prevent the publishing of libelous or slanderous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts RLN, its reputation, products, services, management or employees."
    - See more at: http://www.bbb.org/west-florida/business-reviews/weight-control-services/roca-labs-nutraceutical-usa -in-sarasota-fl-90092885#sthash.TDLzCEDc.dpuf

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Nov 2014 @ 9:18pm

    Page 8 of summary judgement motion

    "Simply providing a mechanism for third party users to post their reviews, including categories and forms to complete, does negate 47 U.S.C. § 230 immunity."

    Uh, I think you meant "does not", Mr. Randazza.

    reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 19 Nov 2014 @ 11:48pm

    If it's good enough for the feds, it's good enough for Roca apparently

    After all, isn't that argument that complying with a takedown notice equals hiding evidence pretty much the sort of logic the feds are applying in the MegaUpload case?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Nov 2014 @ 7:41am

    That's it, Roca Labs lawyers, I'm cutting you off. You're obviously drunk.

    reply to this | link to this | view in chronology ]

  • icon
    RonKaminsky (profile), 22 Nov 2014 @ 3:30am

    Randazza style

    > It's written by Marc Randazza, so it's got that readable style he's become known for.

    I especially enjoyed this from page 21:
    If we must have factual development on this, then Defendants may be forced to call an expert on existential philosophy and another on quantum physics, or the court could simply realize what any sensible person would recognize, and that is that this is a statement of hyperbole, and protected opinion.
    and this from page 24:
    A reasonable reader would not reasonably believe that a suggestion to swallow cement in lieu of the Roca Labs product is a statement of fact. If this is not rhetorical hyperbole, then one would presume that the only discovery we could engage in to prove it true or false would be to find an unfortunate test subject, force them to drink a glass of liquid cement, and leave them sitting on the witness stand until they report to us whether they feel full or not. Such mockery is not offered to be irreverent toward the Court ...
    Hilarious, yet prudent... scrumptious (no, not the cement, or Roca Labs' product)...

    reply to this | link to this | view in chronology ]


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