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.
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.
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.
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.“