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Re: APD Law Suit
Hi guys,
I have some more info on this. Apparently PW asked/demanded that Mark
Rosenstein (actwin.com's owner and a great guy; the other "1st fish site
on the web") remove the posts in question, and Mark refused, considering
it censorship. Most likely that is why Cynthia is named as well; they
probably expected/wanted her to censor the discussion.
Another possibility I'm mulling over is that they think Cynthia is
responsible for "blocking" them from responding to complaints, not
realizing that only subscribers are allowed to post.
Dan Resler is also named in the suit. According to Tom via Michael Rubin
in an e-mail sent to me earlier this week, Mark was thinking of setting
out-of-court. (But Michael Rubin also had the impression from Tom Barr
that *I* was countersuing, so I tend to discount Michael's message. He
also urges us to give Dave Gomberg an award in Chattanooga for putting out
PAM, but that's another issue & I'll forward that message later.)
If you read yesterday's APD, it's clear that PW is trying to bully the APD
into silence. Words like "Go ahead and start a legal defense fund. It'll
cost between $130,000 and $500,000" are used. It'll cost that much for
them as well, and you KNOW that's gotta hurt their business. I think
they're bluffing.
The implications of this are staggering for website owners like me, who
rely almost entirely on posts they would like to censor. I had one person
e-mail me a month or so back asking me (for the first time in the 8-year
history of The Krib) to remove a post about brine shrimp hatching because
parts were word-for-word copied from his book. He threatened to sue at
first as well, to which I responded "NO". He calmed down, changed his
tone to a request, and explained more about the book, and I was able to
verify his credentials, and then eventually did make an exception and
removed the post (and a similar one by the same author on Daphnia, also
copied from his book). I am sure that if I had wanted to, I could have
instead added a citation, or changed words around. The point being, I
took things out because *I* thought it reasonable. I do not someone
having the power to take away others' posts just by threatening to sue me.
So in case I didn't make it clear, I totally support setting up a legal
defense fund, and I think if Steve will spearhead it we should encourage
him as much as possible. I want to know what I can legally put on my
websites to boycott these guys, and I will personally contribute a few
hundred bucks to a legal defense fund, especially if we can "nip this in
the bud" (to use PW's own words).
- Erik
On Fri, 15 Jun 2001, Karen Randall wrote:
> I belive Tom Barr was also named in the suit, so I suspect that if Steve has
> not yet seen it, he will very soon.
>
> While I was not "watching" when the discussion went on that Petswarehouse is
> sueing over, I can't believe that Cynthia did anything other than let people
> express their opinions. She typically clamps down on people getting out of
> hand quite quickly, and always has. That is why APD has remained a pleasant
> place to exchange information.
>
> I don't know what the other people said, or whether their complaints had
> merit. I do know that Petswarehouse has had a very bad reputation for a
> very long time.
>
> Once we hear from the other SC members and make sure we are all on the same
> page here, I suggest that we contact Steve and ask him to spearhead looking
> into this, and tell him that AGA will also contribute to a fund if it is
> needed and warranted.
>
> Karen
>
> ----- Original Message -----
> From: "Neil Frank" <nfrank@mindspring.com>
> To: <aga-sc@thekrib.com>
> Sent: Friday, June 15, 2001 6:57 AM
> Subject: Re: APD Law Suit
>
>
> > Karen, thanks for posting the background. VERY INTERESTING. I hope that
> > Steve or someone else gets a copy of the complaint and finds out if there
> > is any merit (ie. is APD the sole basis of their complaint or is there
> more
> > to it?) Assuming not as suggested,I then agree that we should contribute
> to
> > the defense fund. We might also get some input from Steve regarding what
> > financial resources might be needed. I have confidence in the system and
> we
> > should defend free speech in this arena.
> > --Neil
> >
> > At 10:21 PM 06/14/2001 -0400, Karen Randall wrote:
> > >Here's Steve Dixon's post on the subject from yesterday:
> > >
> > >Date: Wed, 13 Jun 2001 19:35:53 -0700
> > >From: "Dixon, Steven T. (BEn)" <stdixon@ben.bechtel.com>
> > >Subject: Pets Warehouse Lawsuit Against APD List Members
> > >
> > >I want to discuss an issue which is of concern to a number of APD list
> > >members. Apparently, Pets Warehouse (of Bohemia, New York and NOT the
> mail
> > >order catalogue firm, Pet Warehouse) has filed a lawsuit against certain
> > >members of this list as a result of discussions on the list regarding the
> > >quality of services provided by Pets Warehouse to its customers. As I
> > >understand it, Robert Novak, doing business as PetsWarehouse.com, has
> filed
> > >suit in United States District Court for the Eastern District of New
> York.
> > >The case has been designated number CV 01 3566 and at least one of the
> > >defendants has been served. Apparently our list mom, Cynthia Powers, and
> > >our own Tom Barr may also be named as defendants in the case. I have not
> > >yet seen a copy of the lawsuit, but these facts have been reported and
> > >discussed among a small group of people.
> > >
> > >Since the case was filed and served (on at least one list member) last
> week,
> > >we have not seen any discussion of the case or mention of Pets Warehouse
> on
> > >this list. My own view is that we are already seeing a chilling effect
> on
> > >the list. I suspect that folks are reluctant, or perhaps even afraid, to
> > >discuss the suit or the customer service performance of Pets Warehouse
> for
> > >fear of being targeted by Mr. Novak. I, for one, want to discuss the
> issues
> > >openly and ask the collective list what action we might wish to take. We
> > >are not powerless in a situation such as this, and I believe the power of
> > >the Internet can be used to the advantage of consumers even in the face
> of
> > >adversity.
> > >
> > >First of all, let me say that slander and libel are important doctrines
> in
> > >American law. We all benefit from truthful, open and forthright
> discussion,
> > >and in fact, the world is a better place because one person cannot
> > >maliciously impugn the reputation of another. Having said that, it is
> > >important to recall that truthfulness is an absolute defense against a
> claim
> > >of slander or libel. We are all entitled to speak the truth and an
> > >individual who attempts to stifle truthful conversation through the
> threat
> > >of lawsuits runs a significant risk of their own in my view.
> > >
> > >Now to the point: I want to recount my one attempt at purchasing plants
> > >from Pets Warehouse. I want to review Pets Warehouse record with the
> Better
> > >Business Bureau of New York; and I want to propose three possible courses
> of
> > >action for your consideration.
> > >
> > >My one experience with Pets Warehouse. About 5 years ago (before I had
> met
> > >many other hobbyists or had sources for plants) I was thrilled when I
> found
> > >PetsWarehouse.com on the Internet and discovered the many species of
> plants
> > >that they carried. I phoned Pets Warehouse and placed an order for about
> 10
> > >species of plants for about $65 and eagerly awaited the arrival of my
> order.
> > >Several weeks came and went, but no plants arrived. I phoned up Pets
> > >Warehouse and learned about how the plants arrive from Singapore on
> certain
> > >dates and are then re-packed and shipped to Pets Warehouse customers. I
> did
> > >receive one or two email notes explaining that my order was delayed, but
> > >would be sorted out shortly. I began calling Pets Warehouse weekly
> trying
> > >to expedite my order. Eventually, I was unable to obtain any further
> > >information about my order and after about three months I simply gave up.
> > >Ironically enough, I remember calling up Tom Barr and discussing my
> > >frustration with Pets Warehouse. Tom came to their defense arguing that
> if
> > >one persisted, and was patient and willing to tolerate some substitution,
> > >one could in fact get some good plants from Pets Warehouse. (Any takers
> on
> > >how Tom feels about Pets Warehouse at this juncture! :-)) I kept my own
> > >paperwork for the order in the bottom of my in-box at work for almost 4
> > >years. About 6 months ago, I found the paperwork and laughed to myself
> > >thinking that Pets Warehouse was getting its comeuppance on the APD and
> > >tossed the paperwork. True story.
> > >
> > >The Better Business Bureau of New York. This morning I went to the web
> site
> > >of the BBB of New York. You can find it at: http://newyork.bbb.org/
> > ><http://newyork.bbb.org/> . I selected the button toward the top of the
> > >page which says: "Check out a business or charity." I typed "Pets
> > >Warehouse" into the search form and obtained the following report which I
> > >reprint in its entirety:
> > >
> > >*****
> > >
> > >"According to information in the Better Business Bureau's file:
> > >
> > >This firm is a pet shop.
> > >The Bureau's file opened 02/95.
> > >This firm has an unsatisfactory rating, which is the Bureau's lowest
> rating.
> > >
> > >This firm has received 18 complaint (s) in the last 36 months. 13 of
> those
> > >18 complaint(s) were received in the last 12 months.
> > >This firm has a pattern of not responding to complaints brought to its
> > >attention by the Bureau.
> > >Better Business Bureau reports are based on our files over the past three
> > >years. The company's size, volume of business and number of transactions
> may
> > >have a bearing on the number of complaints received by the BBB. The BBB
> does
> > >not endorse or recommend any product, service, or company."
> > >
> > >*****
> > >
> > >The report speaks volumes about Pets Warehouse' customer service, don't
> you
> > >think?
> > >
> > >What should we do? Three things are on my mind.
> > >
> > >1. Boycott Pets Warehouse. I don't know how you all feel, but I for
> > >one don't want to support a business that responds to its customers in
> the
> > >manner in which Pets Warehouse has chosen. I simply do not intend to do
> > >business with them (not that I was ever able to :-)) ever again. As a
> group
> > >with around 1500 subscribers (the last time I checked), I wonder if we
> might
> > >be able to influence pet stores and other hobbyists NOT to support a
> company
> > >which pursues such tactics with its customers. I know the owners of
> several
> > >reputable local fish shops here in the San Francisco Bay Area and I
> intend
> > >to discuss the situation with them and urge them not to do business with
> > >Pets Warehouse. If we multiplied that effort a hundred-fold, perhaps we
> > >might have a perceptible effect. Perhaps, we might even encourage Pets
> > >Warehouse to reconsider its strategy of attacking its customers.
> > >
> > >2. Establish a defense fund. Many fish and plant enthusiasts are not
> > >wealthy folks. I can imagine that the prospect of defending a suit is
> quite
> > >daunting. If others thought that establishing a defense fund would be a
> > >good idea, I for one would make a sizable contribution.
> > >
> > >3. Other actions we might take. There is some talk here in San
> > >Francisco that somehow or other we should take direct action to try to
> put a
> > >stop to this. I am not sure what that might entail. Obviously, we need
> to
> > >get a copy of the complaint, read it carefully and find some of the
> lawyers
> > >among us that are still actively litigating cases and consider whether
> any
> > >claims or counterclaims might be possible. I am doubtful, but don't rule
> it
> > >out. I, too, am very upset that a retail company would pursue its
> customers
> > >in this manner. We are little guys, but if we think carefully, and act
> in
> > >concert, wonderful things might happen.
> > >
> > >So that's where I am at the moment. If our list mom can stand the
> off-topic
> > >discussion, my own view is we should hold as much of the conversation
> > >on-line as possible; if for no other reason, simply to demonstrate that
> free
> > >speech is well--free speech. Of course, if folks think the conversation
> is
> > >inappropriate for the list, that's fine too.
> > >
> > >I am quite interested to hear what you are thinking.
> > >
> > >Regards, Steve Dixon in San Francisco
> > >
> > >P.S. Someone mentioned that I should probably disclose that I am a
> > >lawyer-which is true enough; but only a poor business lawyer who wouldn't
> > >set foot in a court (unless the purpose was to defend myself vigorously)!
> > >:-) Keep the faith.
> > >
> > >
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>
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--
Erik Olson
erik at thekrib dot com
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