Paul Alan Levy has two good posts on this incident (which involves the company that sells on eBay as “med_express_sales,” not the other companies that have unfortunately similar names). From the first, which describes how Med Express filed suit against a woman based on that woman’s true statement about a problem with the firm’s deliveries (“Order arrived with postage due with no communication from seller beforehand”):
Med Express, an Ohio company that sells over eBay, is trying to maintain a perfect seller rating by suing a South Carolina woman who had the audacity to describe a problem she had with one of their deliveries — a photographic accessory that arrived with $1.40 postage due. The customer found this inconvenient, and notified the company of her concern, stressing that her issue was not the money (she said she would have gladly paid the extra money for shipping up front) but the inconvenience. Med Express responded by admitting the error, and indeed said that this had been a problem with other postal shipments. The customer then posted negative feedback on eBay.
About a month later, Med Express asked the customer to revise the negative feedback, offering to reimburse the postage due — effectively ignoring the customer’s reason for complaining. When the customer failed to retract the feedback, Med Express escalated by filing a defamation complaint in state court in Medina, Ohio, and, indeed, by moving for a temporary restraining order against eBay. The trial judge denied a TRO on the ground that damages would be an adequate remedy but, interestingly, set an oral hearing on a preliminary injunction even though the same reason would be sufficient ground to deny that relief as well.
The defendant is a relative of a former Litigation Group colleague, so she came to me for help. I contacted James Amodio, Med Express’s lawyer, to explain to him the many ways in which his lawsuit is untenable. He readily admitted that, as the complaint admits, everything that the customer had posted in her feedback was true; he did not deny that a statement has to be false to be actionable as defamation; but he just plain didn’t care. To the contrary, he told me that I could come up to Medina, Ohio, and argue whatever I might like, but that the case was going to continue unless the feedback was taken down or changed to positive. And he explained why his client was insisting on this change — he said that it sells exclusively over eBay, where a sufficient level of negative feedback can increase the cost of such sales as well as possibly driving away customers….
Fortunately, and thanks to the help of Ken White (Popehat), Ohio lawyers Jeffrey M. Nye and Thomas G. Haren agreed to help the defendant, and indeed filed a counterclaim seeking sanctions. (Techdirt has the relevant documents.) Med Express also lost its motion for a TRO, and faced lots of bad online publicity (here’s a partial list). Levy now has a follow-up; read the whole thing, but here’s an excerpt:
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. [I can vouch for that, since I got the same or similar response from a query I sent to the company. -EV] …
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)…. Everything about this bullying lawsuit that could go wrong, did go wrong….
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…. 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….
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….
Might be a good case study for a business school class, or a law school class.