Counter Cease & Desist Letter, by Charles Carreon -- Rapeutation

“the oatmeal wants to sue funnyjunk and shut it down! he thinks we’re nothing more than dirty content thieves. that fj doesn’t have any real members, it’s just a bot that steals content. contact oatmeal anyway you can!” — funnyjunk admin

“dear funnyjunk users: your mass of comments on my facebook page has made me realize a few things: 1. you don’t know the difference between suing someone and sending them a cease and desist.” — matthew inman of theoatmeal.com

“funnyjunk is threatening to file a federal lawsuit against me unless i pay $20,000 in damages.” — matthew inman of theoatmeal.com

“i got sued, you idiot. my fundraiser against carreon was an act of self defense, not some orchestrated stunt to gloat about a bunch of money that didn’t belong to me.” — matthew inman of theoatmeal.com

June 2, 2012
Via Personal Service
Matthew Inman
3638 Palatine Avenue N # B
Seattle, WA 98103

Re: False Advertising Regarding FunnyJunk.com

Dear Mr. Inman:

I represent FunnyJunk, LLC. (“FunnyJunk”), a competitor of TheOatmeal.com in the field of online humor. I write to demand immediate removal of false statements about FunnyJunk from TheOatmeal.com, where you posted the following:

“Here’s how FunnyJunk.com’s business operates:

1. Gather funny pictures from around the internet
2. Host them on FunnyJunk.com
3. Slather them in advertising
4. If someone claims copyright infringement, throw your hands up in the air and exclaim “It was our users who uploaded your photos! We had nothing to do with it! We’re innocent!”
5. Cash six figure advertising checks from other artist’s stolen material”
(Attachment A.)

This is a false accusation of willful copyright infringement. FunnyJunk hosts only use-uploaded content pursuant to a rigorous DMCA policy that includes termination as a sanction for repeat abusers. FunnyJunk takes immediate action on any DMCA notice it receives in the proper form. In addition to the above-quoted false statements, on the same webpage you say that FunnyJunk has “practically stolen my entire website and mirrored it on FunnyJunk.” You illustrate this present-tense statement with a screencap that purports to current, but in fact was taken long ago, before FunnyJunk received your takedown demand. (Attachment A.)

Below this barrage of false statements, you have posted a series of hyperlinks that you say show that “There’s still hundreds of C&H comics hosted on FunnyJunk.com, as well as thousands from other artists….” Clicking on those hyperlinks turns up a null result in every case. (Attachment B.)

However, that string of apparently useless hyperlinks put the phrase “funnyjunk” into the source code for the page twenty-eight (28) times (Attachment C), thus causing TheOatmeal.com to come up whenever “funnyjunk” is punched into the Google search engine. (Attachment D.) The Alexa stats for TheOatmeal.com are equally revealing, showing that the “Query Popularity” of “funnyjunk” is 42, nearly as popular “oatmeal” itself, at 44. (Attachment E.) Given your background in SEO, you clearly intended this result. (Attachment F.)

Because the quoted statements tend to injure FunnyJunk in its trade, business or profession, and accuse it of the crime of willful copyright infringement, they lay the basis for a defamation claim actionable in damages. You declared your unequivocal malicious intent in the source code screencaptured on page 2 of Attachment B and reproduced below:

By engaging in malicious defamatory conduct, you lost any privilege you might have enjoyed. Albert v. Loksen, 239 F.3d 256, 272 (2nd Cir. 2001). Because your malicious statements were made with the intent to gain publicity and popularize TheOatmeal.com in search engine rankings, they are also a form of false advertising in violation of Section 43(a) of the Lanham Act, 15 U.S.C. §1125(a). “[L]iterally false” advertisements are enjoinable “without reference to the advertisement’s impact on the buying public. McNeil-PCC, Inc. v. Bristol-Meyers Squibb Co., 938 F.2d 1544, 1549 (2nd Cir., 1991).

Accordingly, demand is hereby made upon you to perform the following remedial acts on or before June 12, 2012:

(1) Remove all mention of FunnyJunk and FunnyJunk.com from TheOatmeal.com from your website and any other website over which you have control.

(2) Deliver to me a check in the amount of $20,000 payable to the order of FunnyJunk, LLC.

I look forward to your prompt response.

Very truly yours,

Charles Carreon

cc: Via Email: oatmeal@gmail.com
Client

______________________________

Original Cease & Desist Letter of Matthew Inman

What should I do about FunnyJunk.com?

Here’s how FunnyJunk.com’s business operates:

Gather funny pictures from around the internet

Host them on FunnyJunk.com

Slather them in advertising

If someone claims copyright infringement, throw your hands up in the air and exclaim “It was our users who uploaded your photos! We had nothing to do with it! We’re innocent!”

Cash six figure advertising checks from other artist’s stolen material

I first contacted them about a year ago after I found a handful of my comics uploaded on their site with no credit or link back to me. They took down the offending images, but since then they’ve practically stolen my entire website and mirrored it on FunnyJunk:

Most of the comics they’ve stolen look like this — no credit or link back to me. Even withproper attribution, no one clicks through and FunnyJunk still earns a huge pile of cash from all the ad revenue.

Should I send them a cease and desist? One of my readers wrote in and mentioned that Cyanide and Happiness did that very thing, but from what I can tell it hasn’t had much effect. There’s still hundreds of C&H comics hosted on FunnyJunk.com, as well as thousands from other artists:

The Oatmeal (926 stolen images found)

Cyanide & Happiness (1000+ stolen images found)

David Thorne (27blash6) (554 stolen images found)

Calvin and Hobbes (1000+ stolen images found)

XKCD (1000+ stolen images found)

The Far Side (474 stolen images found)

Amazing Superpowers (12 stolen images found)

Saturday Morning Breakfast Cereal (78 stolen images found)

Dinosaur Comics (42 stolen images found)

Dilbert (64 stolen images found)

Married to the Sea (24 stolen images found)

Natalie Dee (58 stolen images found)

Toothpaste for Dinner (17 stolen images found)

FoxTrot (197 stolen images found)

Hyperbole and a half (186 stolen images found)

Perry Bible Fellowship (106 stolen images found)

Here’s their only attempt at original humor:

“copyright 2010 funnyjunk, llc – privacy policy.” what are they copyrighting, exactly? a green and purple color scheme that makes my eyeballs want to vomit into the back of my skull?

And it’s not just FunnyJunk.com, there’s a small army of sites out there like this whose business model runs this way. Another one is DamnLOL.com, who managed to rack up 670,000 likes on Facebook by hosting stolen content and covering their website with “like this on Facebook” buttons. It seems like this “Host-stolen-content-until-someone-complains-meanwhile-earning-ad-revenue” business model is booming right now. It’s basically the new Ebaumsworld.

I realize that trying to police copyright infringement on the internet is like strolling into the Vietnamese jungle circa 1964 and politely asking everyone to use squirt guns. I know that if FunnyJunk disappeared fifty other clones would pop up to take its place overnight, but I felt I had to say something about what they’re doing. Perhaps you should too.

An Update on the FunnyJunk situation

A few days ago I posted about FunnyJunk.com stealing my comics and asked my readers for advice. The owner of the site responded in two ways:

1. He sent this mass message to every member of his site:

the oatmeal wants to sue funnyjunk and shut it down! he thinks we’re nothing more than dirty content thieves. that fj doesn’t have any real members, it’s just a bot that steals content. go here:http ://funnyjunk.com/funny_pictures/2156824/the+oatmeal+hates+us! contact oatmeal anyway you can! here: http://theoatmeal.com/pages/contact and here:http ://www.facebook.com/theoatmeal show him these links!

As you can imagine, my inbox and Facebook page were slammed with thousands of messages from FunnyJunk users who believed that I was trying to get their community shut down. I think they set the land speed record for the highest number of “OMG ur a gayfagness!!!11″ Facebook comments in a single day.

I politely responded with this letter:

dear funnyjunk users,

your mass of comments on my facebook page has made me realize a few things:

1. you don’t know the difference between suing someone and sending them a cease and desist

2. you think that calling someone a faggot is the same as arguing.

dylan theflash kraenzlein: faggot don’t sue funnyjunk!
sam kean: yo fag. we are more than you think. we are many. we are strong. we are witty, funny, and awesome. we are fj and we will not take your shit.
aric travieso: why dont you take up your female highschool drama shit with faggit (previously reddit_ tumblr and etc before you give the good sites like funnyjunk flak.

3. you honestly believe that the guy who owns funnyjunk (a website which gets millions of unique visitors every month) is broke and “barely making it”

4. when puberty started last year it was a really tough, confusing time for you.

2. He removed all the stolen material.

This includes all the content from David Thorne, Perry Bible Fellowship, Hyperbole and a Half, and so on. Unfortunately, he only deleted posts which have “The Oatmeal” in the title. This means that all the content which was properly attributed got wiped out and all the comics that have no mention of me are still there, which is basically my entire website.

To the admin of FunnyJunk: I put together a list of all my comics which you can download here and use to remove the remainder of the stolen material.

To the users of FunnyJunk: I never had plans to sue FunnyJunk and get it shut down; I just wanted my stolen comics removed — your admin is a moron who chooses his words about as carefully as a mule chooses where to take a shit.

Hugs and kisses,

-The Oatmeal

*Update 2*

FunnyJunk is threatening to file a federal lawsuit against me unless I pay $20,000 in damages

Remember FunnyJunk? Almost exactly a year ago I published a blog post about my comics being stolen, re-hosted, and monetized on FunnyJunk’s website. The owner of the site responded and some of the comics were taken down, He still had a ton of my comics hosted without credit, but the energy it would take to get him to take them down wasn’t worth it. I thought the issue was done and over with so I let him be.

A few days ago I was served papers informing me that the owner of FunnyJunk is going to file a federal lawsuit against me unless I pay him $20,000 in damages. You can read the full letter here.

The owner of FunnyJunk hired Charles Carreon, a lawyer who became famous in the 90s after successfully litigating sex.com.
Charles does a bit of modeling too, apparently.

I don’t want to get tied up in courtroom nonsense. I don’t want to pay more money to my lawyer. Don’t you miss the days when I posted 2 comics a week, instead of writing rebuttals to Forbes and dealing with bullshit like this?

So do I.

I’ve annotated the letter below as well as outlned how I’m going to deal with this.

oh really now? what an adorable little fiction. here’s a list of hundreds of my comics that are still hosted on funnyjunk.com: (and have been for years)

Update: FunnyJunk removed all these links since I posted this list.

you realize that’s how the editorial process works, right? bloggers and journalists write down words and ideas. when the world changes, writers aren’t required to go back and edit all those words and ideas. don’t you think it’d be a bit odd if we edited newspapers from 1763 to read: [abraham lincoln] president obama signs the emancipation proclamation. the internet is an archive, idiot.

do you actually believe that if i repeat a word a bunch of times on a web page it’ll show up first in google’s search results?

so if i put “porn porn porn porn porn porn porn porn porn” in my website i would rank number one for “porn” at google? shit yes! i’m switching careers. coming soon: thepornmeal.com!

rankings in google are determined by the amount of activity and links a page receives on the internet. i rank highly for “funnyjunk” because a bunch of news sources wrote about my blog post after i published it. this is not a factor i can control. maybe you should go file lawsuits against everyone on reddit who upvoted the post, or everyone on facebook who clicked “like this.”

seriously?! you’re suggesting that a picture of a dinosaur which is inside every page of the oatmeal and has been since 2009 is proof that i’m attacking funnyjunk? was the pterodactyl comic which i published two years before i wrote about you part of the attack as well? and the music video? nice evidence, jackass. your lawyer = a+

this is a joke, right? you want me to pay you $20,000 for hosting my unlicensed comics on your shitty website for the past three years?

no, i’ve got a better idea.

1. i’m going to try and raise $20,000 in donations.

2. i’m going to take a photo of the raised money

3. i’m going to mail you that photo, along with this drawing of your mom seducing a kodiak bear.

4. i’m going to take the money and donate one half to the national wildlife federation and the other half to the american cancer society.

funnyjunk:

i don’t want to write retorts like this anymore. i don’t want to spend the next year tied up in legal bullshit with you. i just want to make comics.

consider this my philanthropic, kind-spirited way of saying: fuck off.

operation bearlove good. cancer bad. now commencing!

click on this giant donate button
think of the sexy bears!
think of the shitty cancer!

______________________________________________

Other Counter Cease & Desist Letters and Original Cease and Desist Letters

PUBLIC CITIZEN LITIGATION GROUP
1600 20TH STREET. N.W.
WASHINGTON, D.C. 20009-1001
(202) 588·1000

BY TELECOPIER: (804) 346-0800

October 5, 2007

Donald Morris, Esquire
Dozier Internet Law
West Shore III, Suite 300
30 I Concourse Boulevard
Glen Allen, Virginia 23059

Re: How not to write a cease and desist letter — an open letter in response to your September 21 threat

Dear Mr. Morris:

Here at Public Citizen, we frequently receive requests for assistance from prospective clients who have received cease and desist letters from lawyers whose clients have asked them to try to quash criticism by threatening litigation over some form of defamation, trademark, or copyright infringement. And we can understand why a client that has been criticized online might want to find some way to avoid the criticism, rather than having to speak publicly to respond to critics. But sometimes we receive demand letters that go over the top, making foolish legal assertions and seeing violations where a more detached, objective response might be to tell the client that this is a criticism that will have to be met – or ignored. Indeed, sometimes we wonder whether the lawyer sending the letter has thought to tell his client that the result of sending a demand letter might bring attention to criticisms that otherwise might have received less attention.

On September 21,2007, you sent a letter to Justin Leonard, complaining about criticisms of DirectBuy on the web sites www.infomercialblog.com, www.infomercialratings.com, and www.infomercialseams.com. These web sites give users of infomercial products the ability to post either criticisms of infomercial products or sales practices that they consider to be “scams,” or defenses of such products or processes. The letter begins by claiming that the words “scam” and “nightmare” on the web sites, in addition to the word “defense,” defame DirectBuy by endorsing the posters’ opinions. Of course, words like “scam” and “nightmare” are statements of rhetorical opinion that do not support a claim for defamation. McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir.1987). Moreover, the words fairly characterize the bulk of the opinions of former customers who have sent their accounts of their experiences with DirectBuy to Leonard’s web sites. Even worse is the claim that Leonard defames DirectBuy by pointing out that there had been a sudden influx of similarly worded favorable ratings from DirectBuy on his web site, all posted from the “same location” – and wondering whether DirectBuy might be “behind this.” This is a plain example of opinion based on disclosed facts – unless you have some information suggesting that the stated facts are false.

Next, you assert that, by creating a category of report called “scam,” and allowing members of the public to complete reports within that category if the posting person believes that the company being criticized has misbehaved in the marketplace, Leonard becomes responsible for whatever falsity may exist in the posted reports. In fact, there is a long line of decisions in state and federal courts that recognize that providers of interactive computer services like Leonard’s are immune from liability, and even from suit, under the Communications Decency Act, 47 U.S.C. § 230. E.g., Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003). You point to the Ninth Circuit’s recent decision in Fair Housing Council v. Roommates.com, 489 F.3d 921 (2007), which allowed a claim to go forward under the Fair Housing Act on the theory that the creation of questionnaire categories for gender preference, sexual preference, and family status is itself inherently unlawful under the federal Fair Housing Act. But of course there is nothing inherently unlawful about allowing consumers to characterize infomercial offers as “scams.”

You make the point that DirectBuy has operations in Canada, where it allegedly suffers injury. You told my colleague Greg Beck that you might bring suit in Canada, and you made a point of referring to operations in Canada when I called you. 1gather that you hope to take advantage of the fact that there is no CDA and no First Amendment in Canada. Before you spend your client’s money on suing in Canada, you might consider whether Leonard has any assets there, and whether an injunction obtained in Canada would be worth the paper it is written on. Moreover, Canada does provide some protections for fair comment. Instead of suing in Canada, why not bring suit in Tashkent? At least you’d get an exotic trip out of it, and litigation in a totalitarian state would be more consistent with the view that the Internet makes it too easy for consumer criticisms to be heard. But Leonard won’t bother to defend a lawsuit in either location.

But the worst thing about your letter is the end: “Please be aware that this letter is copyrighted by our law firm, and you are not authorized to republish this in any manner. Use of this letter in a posting, in full or in part, will subject you to further legal causes of action.” Such a posting would be fair use. Moreover, inquiry by my colleague Greg Beck produced the interesting information that the copyright in the letter has not been registered. Sadly, according to what you told him, you have been successful in this intimidation because none of your cease and desist letters has ever been posted.

There is always a first time. We are posting the letter on the Public Citizen web site (the letter can be found at http://www.citizen.org/documents/directbuycd.pdf) so the public can assess our differences by comparing your contentions with our responses. By this letter, we are inviting you to test the validity of your theory that the writer of a cease and desist letter can avoid public scrutiny by threatening to file a copyright law suit if his letter is disclosed publicly on the Internet.

Sincerely yours,

Paul Alan Levy

Original Cease & Desist Letter of Donald E. Morris, Dozier Internet Law, P.C.

Dozier Internet Law, P.C.
301 Concourse Blvd.
West Shore Ill, Suite 300
Glen Allen, VA 23059
Phone: (804) 346-9770
Fax: (804) 346-0800
www.cybertriallawyer.com

Dozier Internet Law, P.C.

September 21, 2007

VIA FEDERAL EXPRESS

FOR NEGOTIATION AND SETTLEMENT PURPOSES ONLY

Mr. Justin E. Leonard
4400 N. Scottsdale Rd.
Suite 9
Scottsdale. AZ 85251

Re: Notice to Cease and Desist Internet Defamation

Dear Mr. Leonard:

Please be advised that our firm has been retained by DirectBuy, Inc. to investigate and take legal action against you for the series of unwarranted and defamatory attacks against it made by you and your visitors on your various websites. Specifically, these websites are www.infomercialblog.com, www.infomercialratings.com, and www.infomercialscams.com.

DirectBuy, Inc. has been in business for over 35 years and has provided consumers with the opportunity to save on products for their homes through its members only program. Our client provides its members with access to thousands of products and provides a high level of customer service. DirectBuy has established a well founded reputation for the quality of its services and customer satisfaction and your unwarranted actions and baseless accusations have damaged that reputation and adversely affected our client’s business.

You have personally posted many willfully false and misleading comments about our client.

Examples of your defamatory statements include:

“Direct Buy Nightmare” – www.infomercialscams.com;

“all scams are posted uncensored!” www.infomercialscams.com;

“You are reporting the following SCAM” – www.infomercialscams.com; and

“Recently, we noticed a sudden influx of 4 and 5 star ratings for the Direct Buy program ….

We don’t know if Direct Buy is behind this or not. But we do have our suspicions given the

fact that the reviews came from the SAME LOCATION, say the same thing, and highlight

points that most customers wouldn’t be concerned with.” – www.infomercialblog.com

The above statements made in reference to DirectBuy, Inc. are utterly false and without merit and they are defamation per se in that they depict our client as engaging in fraudulent activity that violates civil and criminal law.

Additionally, you actively encourage and solicit defamatory statements from customers on your www.infomercialratings.com and www.infomercialscams.com websites. According to a recent decision from the United States Court of Appeals for the Ninth Circuit [Fair Housing Council of San Fernando Valley v. Roommates, com, LLC ,489 F.3d 921 (9th Cir. 2007)] you likely have serious financial exposure to DirectBuy for each and every one of the defamatory statements made by your visitors. Furthermore, your actions have also resulted in damages to our client and its franchisees in Canada, subjecting you to claims in that country as well.

Your attempts to spread libelous and defamatory material about our client have caused serious and irreparable injury to it, its reputation, and its business. Our client will not stand by and allow this misconduct to continue.

We hereby demand that you:

1. Immediately remove from all of your websites all defamatory and disparaging remarks regarding our client made by you and your visitors, and

2. Immediately cease and desist in publishing defamatory statements about our client. whether the statements are made by you or third parties, and

3. Compensate our client for its attorney fees and costs.

Please note that this law firm does not attempt to restrict legitimate free speech, and we believe that the Internet is an important medium for dissemination of accurate and truthfulinformation and for fair comment on issues of interest. Your activities, however, unlawfully encroach upon our client’s rights.

This letter puts you on notice that should you refuse to comply with our demands by September 28, 2007, we will have no choice but to recommend that our client pursue all legal causes of action, including the filing of a lawsuit, to protect its interests. We will pursue both damages and attorneys’ fees and costs incurred by our client as a result of your actions.

This is a very serious matter that requires your immediate attention. We therefore strongly

recommend that you contact us immediately to address and resolve this situation. This letter is your one and only chance to resolve this matter amicably.

Please be aware that this letter is copyrighted by our law firm, and you are not authorized to republish this in any manner. Use of this letter in a posting, in full or in part, will subject you to further legal causes of action.

Sincerely,

Donald E. Morris, Esq.

DEM/jc

cc: DirectBuy, Inc.

______________________________________________

Counter Cease & Desist Letter of Kenneth Paul White, Brown White & Newhouse LLP

Brown White & Newhouse LLP
Attorneys

333 South Hope Street, 40th Floor
Los Angeles, California 90071
Telephone 213.613.0500
Facsimile 213.613.0550
www.brownwhitelaw.com

Thomas M. Brown
Kenneth P. White
George B. Newhouse, Jr. (Admitted in CA and NY)
Alfredo X. Jarrin
Nannina L. Angioni (Admitted in CA and NV)
Hon. George P. Schiavelli (Ret.)
____________
Michael P. McGory
Jack B. Osborn
E. Joan Nelms (Certified Specialist Estate Planning, Trust & Probate Law, State Bar of California, Board of Legal Specialization)

April 25, 2012

VIA EMAIL AND U.S. MAIL

Howard Ray Schechter
Schechter Attorney at Law
PO Box 1121
Malibu, CA 90265

Re: Your Legal Threats Regarding Ecologica Furniture

Dear Mr. Schechter:

This firm represents [deleted] [April Winchell, Regretsy] and its principal. I write in response to your email of April 23, 2012. Please stop all direct contact with our client immediately.

Your email threatens to report our clients to the “Los Angeles Police Department and the District Attorney’s Office” based on the proposition that internet comments questioning the bona fides of Ecologica Furniture are a crime. In my seventeen years practicing criminal law, I have only seen such preposterous accusations of crime from pro se litigants and the intractably mentally ill. In addition to being ridiculous on its face, your threat is a direct violation of California Rule of Professional Conduct 5-100(A), which provides that a member of the California bar “shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.” Cease your unethical and unprofessional threats immediately.

The rest of your letter relies on vague and bumptious legal threats buried among misspellings, bizarre malapropisms, misstatements of law, and gibberish. I note that your letter does not specify even a single false statement of fact you accuse our clients of making. In my experience, vague legal threats are a hallmark of empty thuggery. If you believe that you can demonstrate that any specific statement of fact our clients made was false, I challenge you to identify that particular statement, point to where it was made, and explain your basis for saying that it is false.

Your letter threatens suit for slander (despite the fact that no verbal statements are at issue), liable [sic], unfair competition, assault, and “intentional infliction of emotional injury.” If your client files suit on those theories, your client will be paying our attorney fees. We will respond to any lawsuit with an anti-SLAPP motion under California Code of Civil Procedure section 425.16.

We will have no difficulty carrying our initial burden of demonstrating that your lawsuit is directed at protected speech. (Code Civ. Proc., Section 425.16, subd. (d).) California courts have repeatedly extended the anti-SLAPP statute to protect comments by consumers and about goods and services, including comments on the internet. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883 [web comments accusing broker of being unethical fell under anti-SLAPP statute as issue of public concern]; Carver v. Bonds (2005) 135 Cal.App.4th 328 [comments denigrating podiatrist were matter of public concern under anti-SLAPP statute]; Gilbert v. Sykes (2007) 147 Cal.App.4th 13 [internet comments about plastic surgeon were matter of public concern protected by anti-SLAPP statute]; Wong v. Tai Jing (2010) 189 Cal.App.4th 1354 [internet comments about dentist were matter of public concern protected by anti-SLAPP statute]). It does not matter how you style your causes of action — the anti-SLAPP statute will apply. (Martinez v. Metabolife Intern, Inc. (2003) 113 Cal.App.4th 181, 187 ["Our Supreme Court has recognized that the anti-SLAPP statute should be broadly construed [citation] and a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a ‘garden variety breach of contract [or] fraud claim’ when in fact the liability claim is based on protected speech or conduct”].)

Once we demonstrate that your suit is premised on our clients’ protected speech, the burden will shift to you to show a likelihood of prevailing on the merits. Contrary to your incorrect statement of law in your email, you will bear the burden of proving that the statements are false. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 747 [when "speech involves a matter of public concern, a private-figure plaintiff has the burden of proving the falsity of the defamation."].) Moreover, you will bear the burden of proving that they are false statements of fact, as opposed to statements of opinion. Milkovitch v. Lorain Journal (1990) 497 U.S. 1. It is clear from the facts — and from your client’s own admissions in its press release — that you will not be able to carry this burden. Therefore, we will be entitled to attorney fees from your client. (Code Civ. Proc., Section 425.16, subd. (c)(1).) In addition, we reserve the right to seek sanctions against you personally under California Code of Civil Procedure section 128.7.

Persisting in your meritless threats, or acting upon them, can only lead to disaster for your client. As anyone familiar with the Streisand Effect could have predicted, your freakishly unprofessional email has already drawn much more attention to your client’s conduct. Further threats, or any legal action, will increase that attention by orders of magnitude.

I urge you to reconsider your course of action.

Sincerely,

Kenneth P. White
for BROWN WHITE & NEWHOUSE LLP

Original Cease & Desist Letter of Howard Roy Schechter

[Ms. Schechter informed Above the Law that she wrote the letter on her iPhone as her lawyer husband dictated it to her]

From the Office of:
Howard Roy Schechter Attorneys
State Bar of California #58828
10866 Wilshire Blvd, Los Angeles, CA, 90024

Ref.: Ecologica Furniture Mariana C. Schechter

We have discovered that you are source of the negative comments posted on etsy.com and on your personal Facebook account. You understand that you may think reflect a true state of facts. We further understand that you may think that some sort of privilege may exist to comments made on the internet that you are somehow protected against slander liable and unfair competition as well as other torts. Be advised that the allegations that you and other have made are completely false. All Ecologica’s products are handmade and all other miscellaneous charges are equally false.

It goes without saying that is obvious from your comments that your intention is harm us in a trade or business. There’s no privilege to utter falsehoods on the internet.

Were one of the statements to be true, truth would be absolute defense. Many of the people making these comments are wreck less fools but the burden of proof is on the person making the comment each of which may be sued individually requiring separate counsel or at our election in such group as we decide. Obviously jurisdiction will lie in California with venue in Los Angeles. There is a requirement under California law that a retraction filled immediately upon request may mitigate damages. So you are hereby notified, and I failure to retract under certain circumstances allows for allegations of punitive damage which will certainly be our intention.

Those of you who have business or business contact with etsy.com are also committing the TORT OF UNFAIR COMPETITION. Some of the egregious comments may also be considered ASSAULT or INTENTIONAL INFLICTION OF EMOTIONAL INJURY which always carry punitive damage some of the direct treats are also crimes under California law, and if they are repeated we shall immediately contact the Los Angeles Police Department and the District Attorney’s Office.

If you are currently represented by an attorney, request hereby made for his name address and telephone number. If you fail to provide this information we will be forced to conclude that you are unrepresented by an attorney and serve you personally should any litigation and sue.

If any of you communicate and assist each other this may well constitute the crime of conspiracy under CA and Federal Law.

If you hold any state license in any state you reside or do business these comments may be grounds from discipline, be further advised that the law is most state is that “a tale bearer has the same responsibility as the a tale maker”, so there’s no defense that you are only repeating something you heard elsewhere.

I am hopeful that your comments were an inadvertent error and will be retracted as this might be better for everyone.

Govern yourself accordingly.

Howard Roy Schechter
State Bar of California #58828
Attorney for Ecologica Furniture