by Paul Alan Levy
Med Express, a Medina Ohio company that faced serious and widespread online obloquy during the spring of 2013 for filing a libel suit against two eBay users who posted mildly negative (but entirely truthful) feedback, has been ordered to pay nearly $20,000 in attorney fees and expenses for the work of Tom Haren and the Jeff Nye, the two Ohio lawyers who stepped forward to provide the users with a pro bono legal defense. Although Ohio does not have an anti-SLAPP statute, the Court of Common Pleas for Medina County held this week that the lawsuit was frivolous in several ways – (1) the choice among overall positive, negative and neutral ratings, as well as the detailed seller ratings, are so clearly matters of constitutionally protected opinion that basing a lawsuit on them was legally frivolous; (2) to the extent that the two eBay buyers had made factual statements in their prose feedback, the statements were undeniably true, and Med Express had no tenable basis for believing the statements to be false; and (3) the entire purpose of the lawsuit was improper: “to thwart eBay’s seller ranking system for financial gain by obtaining an injunction against out of state defendants unlikely to be able to defend themselves.” The Magistrate Judge made clear that Med Express owner Richard Radey had compounded the situation when he presented false testimony, gave "testimony [that] was not credible," and made "misrepresent[ations] to the court" at both sanctions trials.
During the second sanctions hearing, by which time Med Express was on its fifth lawyer in the case, testimony from both Radey and James Amodio, the lawyer who had originally filed the lawsuit on behalf of Med Express, made clear the serious impact that the reactions of the Internet community to news of the litigation had had. The criticism persuaded them to drop the litigation — they had not anticipated the Streisand Effect, they were taken aback with the harsh criticism directed at them personally, and Med Express saw its business, which was wholly dependent on eBay sales, plummet to nearly nothing. As a previous blog post noted, Med Express threw its first lawyer, the one who filed the complaint on its behalf, under the bus, blaming him for allegedly including some of the outrageous claims in the complaint, in violation of instructions and without telling Med Express. Of course, the company’s owner had verified the complaint, so either he lied about reading the complaint before he signed it, or he lied about not having seen it. Med Express changed its eBay moniker from Med Express Sales to Medical Specialists, apparently to try to avoid the negative associations caused by its lawsuit; a recent check of eBay suggests that, although Med Express was still in business as of the second sanctions trial this past spring, it has changed its selling name again.
During and after the second sanctions trial, the lawyer who had filed the suit on Med Express’ behalf made clear that he recognized that he had made mistakes, and offered to settle the sanctions motion with a payment of some attorney fees. In light of his acceptance of responsibility, we agreed to allow him to keep the monetary amount confidential. My take on the situation is that his intentions were not evil, but, rather, that he got in a bit over his head in a kind of lawsuit that he didn’t understand. It is also quite possible that Radey lied to his lawyer just as he lied to the court about what he saw on his "seller dashboard," although the attorney-client privilege was invoked to prevent us from asking questions about lawyer-client communications.
I see Med Express in a different light – Radey has made clear at every stage of the litigation that he is prepared to say whatever seems to be useful at the time, without regard for truth or falsity and regardless of whether he is signing statements under oath or making them on the witness stand. The substantial award of sanctions is a proper consequence for his refusal to accept any responsibility for how he wronged two former customers, and stands as a warning to companies that are tempted to file such lawsuits, as well as to the lawyers who consider representing them. Links to critical material appeared at the top of search engine listings for both the company and the lawyer for months and even years.
At the same time, the sanctions provide just reward for two junior Ohio lawyers who volunteered their services to the defendants. Tom Haren and Jeff Nye, and the relatively small law firms that allowed them to take the case without any likelihood of financial recompense, deserve our thanks. Thanks as well to Ken White, whose issuance of the Popehat Signal helped bring these two lawyers on board.