by Paul Alan Levy
Late last month, we went to trial on a motion for sanctions against Med Express, the company that received widespread condemnation last year for suing two eBay customers who had the temerity to leave truthful but negative or even neutral feedback. You may recall that, after two Ohio lawyers stepped forward and sent in a counterclaim for abusive litigation, Med Express eventually withdrew its lawsuit with an apology from its owner, Richard Radey, who blamed the lawsuit in large part on a lawyer who, allegedly, failed to follow the company’s instructions by filing a lawsuit which Radey had verified as true but, he claimed, “not read.” As I explained here, the apology lacked credibility.
To ensure that the Ohio lawyers got paid to their work for the customers, I entered an appearance in the case to pursue sanctions (Ohio does not have an anti-SLAPP statute). We finally went to trial on the sanctions motion, and Med Express was represented by a new lawyer, not the lawyer whom its owner had thrown under the bus. The new lawyer adduced testimony from Radey to the effect that what he really wanted to sue about was not the language of the feedback but, rather, the individual “detailed seller ratings” (“DSR’s”) that the two customers had left for him. These DSR’s, Radey testified, identify specific aspects of his conduct such as whether the item he had sent was as described, whether he communicated well, and whether the shipping time and shipping charges were proper. He claimed that he was able to tell what ratings the customers had left for him by seeing the changes in rating from just before to just after they left feedback, and that each customer had left ratings of “1,” the lowest on a one-to-five scale, for each of the four categories. These ratings, he testified, were false factual statements.
It was an interesting argument, but what Radey might not have taken into account, in presenting this testimony, was that although eBay does not allow buyers (or sellers) to see the individual ratings that buyers leave for them, eBay does keep electronic track of each individual DSR. And, when our clients checked with eBay customer service to determine what individual DSR’s they had left, they were told that eBay’s records contradicted Radey’s testimony – one customer left a range of ratings from 1 to 5 for different categories, while the other had left only a 5 rating for the one category he entered.
The judge has set a schedule for post-trial briefs, which will be due after the transcript is ready. We have sought leave to reopen the record to obtain evidence directly from eBay on this issue; I’ll report on further developments here.
One more update: in the wake of last year’s bad publicity, Med Express changed the name under which it trades on eBay from med_express_sales to medical_specialists_inc. eBay customers beware – the seller that sues its critics for truthful feedback has a new name.