The unbearable dumbness of threatening

I’ve made a career here of tut-tutting the impolitic and brand-negating utterance of baseless cease and desist and other threatening letters based on IP infringement, including this recent post about the Louis Vuitton / University of Pennsylvania dustup.  That situation demonstrated that only lawyers who neglect to think clearly about how their actions will affect their clients’ brands will line up and march into oncoming fire, expecting to achieve victory in an IP-guerilla war solely by employment of shock and awe,  By doing so, they often achieve the very opposite of what they think they’re doing by sending out, well, dumb threats.

That phenomenon, of course, is not restricted to IP law, where the purported purpose is brand protection and where such miscalculations are only the most ironic — but not necessarily the most moronic, as I explained in this post, which in turn linked to this discussion on Patterico’s Pontifications about how to dissect, and respond to, dumb threats.

And this version of the Streisand Effect is not limited to lawyers.  The threatener or the threatened can achieve it without a single dollar in fees being expended (*sniff*).  Nope, a sharp, motivated and courageous recipient of a dumb legal threat can take care of business pretty effectively himself (if need be), and you can be a dumb threatener without a JD.  So, speaking of pontiffs, I couldn’t but link to this post, to which I linked via Twitter yesterday, by Popehat’s Ken White, my friend, colleague both legal and bloggy, and (thanks to Patterico, in fact!) co-counsel, about a chap who has done just that:

When Phil Buckley (who blogs at 1918.com) and his wife Kristen Buckley received a certified letter from a mover, perhaps they allowed themselves to hope, for a fleeting moment, that the envelope contained a check, or an apology for substandard service. It did not. It contained a very stupid and amateurish legal threat.

See, Kristen Buckley’s parents had used a company called Casey Moversto move, and Kristen posted a negative review on Yelp on their behalf. In the context of the internet, the review was rather mild.

But Matthew Overstreet, “Sales Manager” of Casey Movers, thought that the review was unacceptable. Here’s what he said in his threat letter,which you can see in Phil Buckley’s epic post about the matter . . .

Some people would have been intimidated into removing the Yelp review. Lawsuit threats — even marginally literate ones — can be scary, and nobody wants to have to interact with lawyers if they can avoid it. But Phil and Kristen Buckely aren’t so easily threatened. Phil Buckley launched a masterful investigation of the web presence of Casey Movers and Matt Overstreet. That investigation produced evidence suggesting that Casey Movers was publishing positive notes from their customers — together with their phone numbers and email addresses — on the web without their permission. Phil also dug up evidence that raises, at least, serious questions about whether Casey Movers has been faking positive reviews online. Then The Consumerist picked it up, then I did.

Then I did.

Brand is as brand does, and, as Ken’s post says in its title, stupid legal threats are an excellent way to destroy your brand.  It’s worse when your own lawyer does this to you, of course, because you paid him to do the opposite–well worse for you; the lawyer is probably going to get paid.  But there is something about dumb self-help that is special in its own right, too.

I mitre chosen a different name for the Popehat blog myself, but though he begs off heavy lifting on trademark law Ken White, whose practice focuses on criminal law, is more than qualified to dice and slice phony-baloney faux-legal bluster.  He makes a couple of good points here, not so far off from much of what was raised in the comments in that first Patterico link above, and worth repeating.  Ken notes the throat-clearing “It’s been [brought] to my attention” business in the nastygram in question by one Overstreet.  This is a device that most of us do use rather than telling the recipient straight out something that he obviously already knows (“Hey, you wrote this thing, yo!”), but, still and all:

Maybe he’s just one of those people who thinks that scary letters have to say “it has been brought to my attention that” or “please be advised that” or “please stand by whilst I demonstrate that anyone with obstructed access to a typewriter can make a legal threat.” . . .

[Moreover], remember my mantra: vagueness in a legal demand is the hallmark of frivolous legal thuggery. Mr. Overstreet does not specify exactly what part of the Yelp review is false. Bogus legal threats rarely do. He intimatesthat Casey Movers is being criticized for following “federal moving procedures,” but does not explain. If you look at Ms. Buckley’s review, and his response, you’ll see that she complained of the amount her parents were offered for compensation of damages, and Mr. Overstreet’s response explaining insurance rates — but you won’t see anything Mr. Overstreet has called out as a specific false statement of fact.

Great points for sniffing out flimsy fol-de-rol:  Affected legalese followed by lots of heat but little light about the supposed falsehood at hand.  These are common ingredients in baseless threat letters, and especially with respect to people trying to get unfavorable reviews off the Internet by claiming defamation.

That is, these days, seldom a good idea, ya know?  Because these days people have their own printing presses, for worse or for better.  Let it come to your attention.

UPDATE:  I couldn’t resist uploading this, from my own case files.  I was a younger man then, but, as they say, still:  I call it “Cease and desist: An unfinished tragedy in four acts.

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Author:Ron Coleman

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One Response to “The unbearable dumbness of threatening”

  1. Trying R Patients
    February 27, 2014 at 2:45 am #

    This is extracted from:

    TWIN CITIES BUSINESS
    The Top Lawsuits Of 2013
    by Steve Kaplan
    December 20, 2013

    Never Shout “He’s a Tool!” On a Crowded Website?

    Dr. David McKee, a Duluth neurologist, was not laughing when he saw what one former client wrote about him on a doctor-rating website. The reviewer, Dennis Laurion, complained that McKee made statements that he interpreted as rude and quoted a nurse who had called the doctor “a real tool.” As these statements echoed through the Internet, McKee felt his reputation was being tarnished. He sued, and so began a four-year journey that ended this year in the Minnesota Supreme Court.

    Laurion was unhappy with the way McKee treated his father, who was brought to the doctor after he had a stroke. Laurion went to several rate-your-doctor sites to give his opinion. That’s just free speech, isn’t it?

    It sure is, says Laurion’s attorney, John D. Kelly of the Duluth firm Hanft Fride. “The court held that what my client was quoted as saying was not defamatory,” he says. “I do think the Internet makes it much easier for persons exercising poor judgment to broadcast defamatory statements, however… a medium… doesn’t change the quality of a statement from non-defamatory to defamatory.”

    But McKee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation. “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”

    But boundaries were not on the minds of the Minnesota Supreme Court. Free speech was. Chief Justice Lorie Gildea wrote, “The point of the post is, ‘This doctor did not treat my father well.’ I can’t grasp why that wouldn’t be protected opinion.” As to referring to the doctor as “a real tool,” Justice Alan Page wrote that the insult “falls into the category of pure opinion because the term … cannot be reasonably interpreted as a fact and it cannot be proven true or false.”

    The takeaway from this case might be the knowledge that behind any rating service lie real people with real feelings. McKee spent more than $60,000 in the effort to clear his name, as he saw it. Dennis Laurion told the Star Tribune he spent the equivalent of two years’ income, some of which he had to borrow from relatives who supplied the money by raiding their retirement funds.

    See rest of article: http://tcbmag.com/Industries/Law/2013-Lawsuits-Of-The-Year

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