by Paul Alan Levy
Med Express, an Ohio company that sells over eBay, is trying to maintain a perfect seller rating by suing a South Carolina woman who had the audacity to describe a problem she had with one of their deliveries — a photographic accessory that arrived with $1.40 postage due. The customer found this inconvenient, and notified the company of her concern, stressing that her issue was not the money (she said she would have gladly paid the extra money for shipping up front) but the inconvenience. Med Express responded by admitting the error, and indeed said that this had been a problem with other postal shipments. The customer then posted negative feedback on eBay.
About a month later, Med Express asked the customer to revise the negative feedback, offering to reimburse the postage due — effectively ignoring the customer’s reason for complaining. When the customer failed to retract the feedback, Med Express escalated by filing a defamation complaint in state court in Medina, Ohio, and, indeed, by moving for a temporary restraining order against eBay. The trial judge denied a TRO on the ground that damages would be an adequate remedy but, interestingly, set an oral hearing on a preliminary injunction even though the same reason would be sufficient ground to deny that relief as well.
The defendant is a relative of a former Litigation Group colleague, so she came to me for help. I contacted James Amodio, Med Express’s lawyer, to explain to him the many ways in which his lawsuit is untenable. He readily admitted that, as the complaint admits, everything that the customer had posted in her feedback was true; he did not deny that a statement has to be false to be actionable as defamation; but he just plain didn’t care. To the contrary, he told me that I could come up to Medina, Ohio, and argue whatever I might like, but that the case was going to continue unless the feedback was taken down or changed to positive. And he explained why his client was insisting on this change — he said that it sells exclusively over eBay, where a sufficient level of negative feedback can increase the cost of such sales as well as possibly driving away customers
If Ohio had an anti-SLAPP statute, a lawsuit like this would never be filed, and if it was filed, it would be quickly dispatched because the certainty of an attorney fee award in response to a special motion to strike would give local lawyers an incentive to represent the customer on a strictly contingent fee basis. In the absence of an anti-SLAPP statute, however, the plaintiff and its lawyer are counting on the inconvenience of responding to the lawsuit to induce the customer retract her criticisms, effectively helping Med Express to conceal from potential customers that, in at least one respect, Med Express may not be reliable. And yet, if the customer has to spend even a few hundred dollars to defend her right not to remove truthful criticism, she will already have lost.
We at the Litigation Group have a strict policy against handling at the trial level cases where the main issue is defamation. Indeed, paying a pro hac vice fee and travel expenses for one of us to jump into this case is more than the customer should have to do. Hopefully, however, a public spirited lawyer in that part of Ohio may be willing to stand up for free speech in this instance.
At the same time, the very fact that this retailer is willing to sue a customer over such a tiny complaint may give potential customers an even bigger reason to shy away from doing business with Med Express.
Mr. Radey, suing someone for defamation when their statement is truthful (thus not defamatory) shows your inability to recognize the truth. Claiming you “instructed our attorneys to ask for only $1.00 in damages” when the complaint you filed states: “For damages against Nicholls in the amount to be determined at trial necessary to compensate Med Express for the losses it has and will suffer as a result of Nicholls’ conduct; Because Nicholls’ conduct was intentional and malicious for an award of reasonable attorney fees and punitive damages.” — unless your attorneys disregarded their client’s instructions (which would be unusual and highly improper behavior for any attorney) — shows you not only cannot recognize the truth but can’t speak it, either.
Except you’ve done it before. Researchers on popehat point out that past suits have all resulted in default judgments well over the $1.00 you purport here have happened in the past, over and over.
Good for Public Citizen and others for bringing the character of MedExpress management to
light. It is not a company or employees I would want to do business with. The so-called apology’s sincerity is certainly questionable in light of the under-oath affidavit the company president signed to be able to file the lawsuit in contrast to his writing he had not read the complaint. .
Pathetic. Enjoy the Streisand effect MedExpress, people do not forget this type of bullying, censorship of public opinion and abuse of our legal system. It is clear that you’re only retaliating because of the attention, and would have sued her otherwise. I hope you have the a minimum of decency left to give the defendant a very large sum of money for the psychological damage you have incurred.
Mr. Radey says of his bullying lawsuit, “I do deeply regret the wording of the lawsuit. I had not read it…” (I copied that with cut-and-paste from his comment above.) However, there’s a notarized affidavit, with his signature, as affirmed by the notary, attached as an exhibit to the suit, in which he declares under oath that the feedback is “false and slanderous.”
Do I believe the comment above, or the statement made under oath? It’s a puzzle.
No, and now I am considering getting a couple of friends together to buy items from your company and giving it a poor rating as a matter of first amendment rights.
I hope all of you will accept this as an open letter of apology from Med Express.
Please understand that our customer was never the target of this lawsuit. We had instructed our attorneys to ask for only $1.00 in damages. Her feedback was also never an issue. We fully support her right and all of our customers right to leave any feedback they desire – true or otherwise!
The issue involved “Detailed Seller Ratings” or DSR’s. The low ratings caused us to lose our “Top Rated Seller Plus” standings. Based on our current volume, this was a potential fee increase of tens of thousands of dollars over the course of a year.
The only way DSR’s are removed is by court order, and I was told that such court orders were not uncommon. I do deeply regret the wording of the lawsuit. I had not read it and only learned of the wording on the blogs. I too would have been outraged and for that I also sincerely apologize. It is the addendum attached ordering Ebay to remove the DSR’s that was our only goal.
The only person to blame here is me. You have spoken and I have listened. A terrible wrong needs to be righted. I am instructing our attorneys to drop the lawsuit. I want to assure everyone that you may feel free to leave any feedback on our company without fear of reprisal. I have learned my lesson.
Richard Radey
President
Med Express Inc.