Roca Labs is the gift that keeps on giving. This time, they’re giving their attorney-antagonist Marc Randazza a bunch of free advertising: they’ve sued him for defamation in a complaint seeped with howling about how he’s an aggressive attorney. The complaint, which was filed as an exhibit in a related Florida case, is below.
Having sued consumer reviews website PissedConsumer.com for daring to post negative reviews about the company, jointly sued witnesses (in that matter) who had also criticized the company, filed suit against another critic, and threatened myriad other critics (including customers, multiple media outlets, and at least one company for hosting a critic’s website), Roca Labs has turned its attention to Randazza — the attorney who represents some of the critics.
Roca’s complaint (below) is specious. It alleges two categories of defamatory statements: those made before pleadings were filed and statements actually made in pleadings.
Hey Marc, Want Some Free Advertising?
Roca, for all its fire and brimstone about how Randazza is evil, sure seems to be doing its best to ensure that he makes money and rides their wake on the waves of the Streisand Effect. It continues with its questionable case against PissedConsumer.com (for which one can only assume Randazza is earning hourly fees) and has now filed this complaint, which contains what, in any other context, would read as great advertising for an aggressive attorney:
RANDAZZA adopted the use of the Latin term “murum aries attigit” to describe his approach to litigation. The foregoing phrase translates to “the ram has touched the wall,” and refers to the ancient Romans’ strategy of not allowing mercy and slaughtering everyone in a city if they did not surrender before the Roman battering ram touched the city’s walls. RANDAZZA adopted this term for his approach to the legal profession, and consequently, behaves as if litigation is his own war.
RANDAZZA announced his war against ROCA via a simple email to Paul Berger, counsel for ROCA, that simply read murum aries attigit. (See below, Exhibit 1 email from RANDAZZA to Paul Berger).
Fortunately, we are not the ancient Romans and do not live in fear of attacks from battering rams. […]
At least Roca has now retained counsel who knows how to turn a phrase?
But let’s move on to the substance of Roca’s complaint against Randazza.
Statements made in pleadings
In order to sue for defamation, the plaintiff has to meet a number of hurdles, showing that a statement is a false statement of fact (and not hyperbole, opinion, and so forth), that it was made with some level of fault, and that the statement was unprivileged.
Florida, like most (if not all) states, provides a privilege against statements made in the course of prosecuting or defending a lawsuit. Some privileges are qualified, meaning they don’t apply if the complaining person can show the statements were made with actual malice (meaning that they knew it was false or entertained serious doubts that the words coming out of their mouth were true.) Florida, however, provides an absolute litigation privilege: even if the speaker definitely knew that the statement was false, they can’t be sued for defamation.
The privilege predates even the First Amendment, finding its roots in a 1591 case in which a defendant filed a document falsely stating that the plaintiff hired pirates and murderers. Why would we want to protect people from being sued for defamation for falsely telling a court that the other hires pirates and murderers? Because we want people to be unafraid to speak the truth so that the court can decide — and the other party, after all, is there to contest what the witness is saying. In the same vein, we want to prevent the threat of defamation actions as a tool to intimidate witnesses into silence. That’s not to say that witnesses or parties should feel free to lie to courts. There are plenty of other ways to deal with a dishonest litigant: by proving them wrong, issuing sanctions, or by prosecuting them for perjury, which carries a much higher burden of proof than a civil action for defamation.
That brings us to the statements — statements made in pleadings – that Roca Labs says are defamatory:
- “ROCA shows little concern for what happens to its users;
- [ROCA sounds] like a disreputable company, producing tubs of snake oil (or snake oil goop, as it were);
- ROCA Labs is desperately trying to force a cone of silence over each and every customer that discovers that Roca Labs’ product is not only a specious remedy for weight issues, but a potential cause of additional health problems;
- Plaintiff [ROCA], desperate to sell as many tubs of goo to the public as it can before regulatory agencies come knocking;
- [ROCA Products may cause] a possible health crisis;
- ROCA’s product threatens the health and welfare of at least a portion (if not all) of its users;
- ROCA has threatened them [its customers]”
None of these statements is actionable because they were in pleadings. They could be actionable if they were made outside of the context of the lawsuit. But this is a distant assumption: most (if not all) of these statements are either statements of opinion (e.g., “Roca sounds like a disreputable company”) or true (e.g., “ROCA Labs is desperately rying to force a cone of silence over” its customers). The last statement (“Roca has threatened them”) appears taken out of context: in the motion, it was clear that Roca had threatened customers with litigation (which, given the odds, is probably true.) Here, it reads as if Randazza were saying that Roca’s product had threatened their health.
Statements made outside of pleadings
Roca Labs’ theory is that Randazza made defamatory statements to the media, which published them, and then proceeded to make the above statements in pleadings against the company. The litigation privilege does not extend to statements made outside the litigation — such as statements to the media.
But this position is circumspect at best: Roca Labs is vague about the statements supposedly made to the media. Roca Labs simply notes that two media outlets — Techdirt and BoingBoing — published articles before Randazza filed the pleadings, and those articles contain statements that are also critical of Roca Labs for similar reasons: that the complaint is ridiculous and that the product has the aura of being snake oil — a miracle product that will let its consumers shed weight like a snake sheds skin.
Roca Labs has pulled a bait-and-switch, essentially saying: “look, the media criticized us for similar things that Randazza criticized us, so let’s assume Randazza said those same things to the media.“ Except each of those statements are observations that anyone familiar with free speech issues would probably have made on their own. The Techdirt article doesn’t even quote or mention Randazza, and it’s not exactly surprising that either outlet would slam Roca Labs’ complaint: these types of half-baked lawsuits are something of a cause célèbre for Mike Masnick (who, himself, is not exactly a scrivener sycophant of Randazza.) As for the BoingBoing article, it did little more than quote Techdirt, adding, in total:
Roca Labs sells dubious snake-oil like a “Gastric Bypass Alternative,” and their terms of service forbid their customers from ever complaining; they say that Pissedconsumer.com committed “tortious interference” by providing a place where disgruntled buyers could air their grievances.
Calling something a “snake oil” is clearly an opinion no journalist would formulate on his own without talking to the defendants’ counsel, right? Much less BoingBoing, which never calls anything snake-oil.
In other words, Roca’s complaint boils down to a guess that maybe Randazza said something to the media. Note that Roca is only suing Randazza — not the media outlets. That speaks volumes about whether Roca actually believes any defamatory statements to have occurred — and, if the media’s statements are not themselves defamatory, the ceiling of Randazza’s liability is the depreciation in the reputation of Roca Labs in the eyes of the authors of the Techdirt and BoingBoing articles.
The Signal Goes Up
Randazza is more than capable of defending Roca’s latest foray into the land of confusion and darkness. In fact, his love of defending meritless defamation cases is such that his site’s terms of service (jokingly?) prohibit anyone who has ever been a defamation plaintiff from reading his site. Others, however, aren’t, and could use help navigating the often confusing, disillusioning, and expensive world of defending civil litigation. Ken White of Popehat.com has lit the Popehat Signal seeking pro-bono counsel to defend one of Roca Labs’ targets. If you’re licensed in Florida and can lend a shield in the good fight against censorious litigants, please step forward.