New York Appellate Court Endorses the Dendrite Test for Subpoenas to Identify Anonymous Speakers

In a decision issued today, New York’s Appellate Division for the First Department reversed a decision of the state supreme court that had ordered Google and GoDaddy to identify BehindMLM, the author of a blog about multilevel marketing schemes, and quashed subpoenas to Google (the host of the blog) and GoDaddy (the registrar of the domain name). Identification had been sought by a purveyor of various cryptocurrency investment schemes called GSB Gold Standard Corporation (among other names). I discussed the facts of the case last fall. As noted in our appellate briefs, GSB’s situation has grown even more dire than at the time of my initial blog posts, as a growing series of adverse rulings by state securities commissions has led it to stop doing any business in the United States.

The decision squarely embraces the Dendrite standard for evaluating subpoenas that seek to identify anonymous speakers whose speech is claimed to be actionable, for the purported purpose of suing them. In joining the several other states that have endorsed that test, the opinion is shorter than most (as Appellate Division rulings tend to be), but it covers all the bases, requiring notice to the anonymous speaker, identification of the allegedly actionable words, articulation of the legal claim based on those words, presentation of a prima facie case supporting the claim, and a balancing of the equities. What I particularly appreciate about this decision is that it expressly relies on “the weak evidentiary showing and BehindMLM’s asserted First Amendment right to speak anonymously on matters of public concern,” an express balancing of the equities.

Today’s ruling is the first decision by a state appellate court addressing the Dendrite / Cahill issue since Washington Court of Appeals decided Thomson v. Doe in 2015. We still have thirty-five states to go…..

Thanks to Ray Beckerman and to Jennifer Insley-Pruitt and Luke Reilly of Dechert LLP for their invaluable assistance in this case, and to EFF and the Juelsgaard Clinic at Stanford Law School for their excellent amicus briefs

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