Celebrities, Contracts, Defamation, Fat People, Free Speech, Weirdness

A Case That Will Make You Want To Gag

Can the maker of a product use contract law to shut up its users?

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As online review sites like Yelp and social-media sites like Twitter continue to grow, free speech issues related to these online services will continue to proliferate. A contentious case currently pending in federal court down in Florida raises a host of interesting issues about the scope of online free speech.

The plaintiff company, Roca Labs, sells a product that you consume for weight-control purposes. If this makes you think of delicious almond roca, think again. Components used by Roca Labs in its diet products include “Guar Gum, Konjac, Inulin, Beta Glucan, Xanthan Gum, Maltodextrin, [and] Vitamins B6, B12, C.” If you don’t recognize most of the ingredients in something you’re consuming, that’s usually not a good sign.

Does the thought of eating that goo make you want to gag? Well, Roca Labs wants to gag you….

Here’s the background on the case, via Ars Technica:

Back in September, Roca Labs sued pissedconsumer.com, which is owned by a company called Opinion Corp., saying that the website was wrongly posting negative reviews from consumers who signed non-disparagement agreements with Roca. Roca asked a Florida federal court to award the company over $1 million and to compel pissedconusmer.com to “cease and desist their conduct against ROCA” and to “remove all negative content from their website and Twitter.” Roca Labs went so far as to ask the court to make pissedconsumer.com provide the names and addresses “of all alleged ROCA customers who have helped in posting negative content on Defendants website.”

And here’s the part about how Roca Labs wants to gag its customers (not just with its diet goo):

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[Roca] maintains that the website is facilitating a breach of contract with their diet customers. Roca’s customers consented, as part of their agreement when purchasing the Gastric Bypass Alternative, that “regardless of their outcome, they will not speak, publish, print, blog, or write negatively about Roca or its products in any forum.”

The company goes on to say that the pissedconsumer.com site and its operators “deliberately and tortuously interfere with Roca Lab’s customers by encouraging them to breach their customer agreement with Roca as Defendants author or co-author false, malicious, and negative posts about Roca that are published on their subject website and Tweeted to Twitter’s 271 million users.”

In its lawsuit, Roca notes that it provides upwards of an $800 discount to people who agree to the non-disparagement clause.

You have to wonder: would a company with confidence in its product offer such a sizable discount to customers who agree to gag themselves?

And is such a provision enforceable? Pending federal legislation would prohibit such terms:

[A] member of the House of Representatives offered legislation that would make it illegal for businesses to take action against consumers who write “honest” negative reviews online about products and services. Rep. Eric Swalwell (D-CA) said the measure would make it illegal for companies to have non-disparagement clauses in their consumer contracts.

“It’s un-American that any consumer would be penalized for writing an honest review,” Swalwell said. “I’m introducing this legislation to put a stop to this egregious behavior so people can share honest reviews without fear of litigation.”

Swalwell’s Consumer Review Freedom Act came a week after Gov. Jerry Brown signed a similar law in California that includes a $10,000 fine against companies that violate the so-called “Yelp bill.” Swalwell’s law, if passed by Congress and signed by President Barack Obama, would function nationwide.

But the current case brought by Roca Labs might not even implicate the provision. According to a filing by Marc Randazza, counsel to Pissed Consumer, the posters in the pending Roca matter didn’t even take the discount. And a host of other defenses apply to Pissed Consumer — including Section 230, one of our favorite statutes here at Above the Law, which in a nutshell provides that the operator of a website (e.g., ATL) is not legally responsible for comments posted by third parties to said website.

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We’ll continue to follow the Roca Labs litigation — not just because of the interesting legal issues, but also because of the bizarre facts. The latest twist: an allegedly fake endorsement for the Roca sludge substance by actor Alfonso Ribeiro, aka Carlton Banks from the Fresh Prince of Bel Air.

But really, who would have been taken in by a fake endorsement? Carlton hasn’t needed diet products ever since he started burning big calories by shaking his booty on Dancing With the Stars.

P.S. For another fun filing involving Marc Randazza defending Opinion Corp., see here (pp. 3-4, citing Monty Python).

(Disclosure: Opinion Corp.’s counsel, Marc Randazza, has represented and continues to represent ATL in various matters.)

Diet firm allegedly fakes endorsement from Fresh Prince’s Carlton [Ars Technica]
Weight loss firm demands $1 million from website hosting negative reviews [Ars Technica]
Roca Labs Lawsuit Gets Even More Bizarre [Techdirt]

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