Thursday, October 15, 2009

Defamation Lawyer: Traverse Internet Law on Defamation. September, 2009.

Defamation Lawyer Disclaimer

The facts are unproven allegations of the Plaintiff and all commentary is based upon the allegations, the truthfulness and accuracy of which are likely in dispute.


CHANNELADVISOR CORP. v. KERRI VAN VEENENDAAL
NORTHERN DISTRICT OF GEORGIA (ATLANTA)
1:09-CV-02702
FILED: 9/30/2009

Many companies issue laptops and do not allow any business to be conducted on other computers. There are numerous benefits to this approach. One such benefit is that upon termination of an employee the retrieval of the laptop is an effective retrieval of important company information. If you allow employees to retrieve, maintain, and store valuable trade secret information and even standard business contact information on their own computers the risk of misconduct increases substantially.

ChannelAdvisor is a Delaware corporation with customers and clients worldwide. It provides numerous products and services to assist its clients in diverse aspects of online business and e-commerce. The Defendant is a former disgruntled employee of the Plaintiff. On August 11 and 12, 2009, the Plaintiff alleges that the Defendant created and used multiple email accounts to send out false and defamatory messages to customers and clients of ChannelAdvisor in the United States and all around the world. The Defendant resides in Victoria, Australia. She is alleged to have improperly retained confidential and proprietary company information in the form of client and customer lists as well as contact information and used that information to target her defamatory email messages.

The Plaintiff has sued for libel per se, intentional interference with contract, intentional interference with business relations, misappropriation of confidential business information and trade secrets, violation of the Computer Fraud and Abuse Act, and false designation of origin under the Lanham Act. Prayer for relief includes preliminary and permanent injunctive relief, special and general damages to be proven at trial, punitive and exemplary damages, and reasonable attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1362.


NUTRAMEDICS, INC. v. BLACKSTONE NUTRITION, INC.
SOUTHERN DISTRICT OF FLORIDA (WEST PALM BEACH)
9:09-CV-81458
FILED: 9/30/2009

There is an entire chapter in “Google Bomb”, my new book, about these review sites themselves. The Federal Trade Commission has recently passed a new set of rules which more clearly define the obligations of parties promoting products or services to disclose economic interests. This is a huge and pervasive problem and if your company, products, or services are the subject of “product reviews” you should consider reviewing those sites for misconduct.

NutraMedics is a Florida corporation operating out of Palm Beach County, Florida. The company is involved in the online sale of various nutraceutical products. Defendants are alleged to have launched “product review” websites that contain false information, are fictitious and biased, and nothing more than unlawful competition by the Defendant to sell its own products. In addition, ads have been allegedly purchased by the Defendants with terms such as “warning” and “scam” prominently displayed in the ad when people are searching for various products of the Plaintiff. Those ads divert the traffic to the false “product review” sites.

The lawsuit alleges initial interest confusion under the Lanham Act, federal and common law trade libel, defamation per se, commercial disparagement, tortious interference with prospective business, and civil conspiracy. The Plaintiff requests preliminary and permanent injunctive relief as well as any further relief the court deems just and proper. Traverse Internet Law Cross-Reference Number 1363.


MERRILL LYNCH & CO., INC. v. MICHAEL LENNING, ET AL.
NORTHERN DISTRICT OF CALIFORNIA (SAN FRANCISCO)
3:09-CV-04220
FILED: 9/11/2009

In effect, Merrill Lynch is claiming that the Defendant impersonated a Merrill Lynch employee and his false attribution is business defamation. There are plenty of legal bases for dealing with a problem like this, and defamation is likely not the strongest argument in this case. It’s interesting to see the evolution of the definition of defamation moving ever so slowly from a requirement of the publication of an untrue factual statement to defamation based upon statements by implication. In other words, the law is very much a living and breathing thing and it evolves over time. The question any business will want to ask itself when faced with a potential impersonation situation, and there are plenty of these types of problems online today, is whether the business has been damaged. Then leave it up to the attorneys to figure out the legal angles of attack since most non-lawyers would not see this as a potential defamation situation.

Merrill Lynch is a Delaware corporation and leading global financial management and advisory company. Defendant Lenning is alleged to have registered the domain name “merrilllynchcareers.com”, created an account on CareerBuilder.com, and enticed applicants to enter into an alleged paid training program for a job at Merrill Lynch. All of the communications aimed at this “phishing” operation appear to be coming from Merrill Lynch.

The lawsuit alleges trademark infringement under section 32 of the Lanham Act, unfair competition, false designation of origin, and false representation under section 43 of the Lanham Act, fraud, business defamation, unfair business practices under California Business and Professions Code, and violation of the California Anti-Phishing Act of 2005. The Plaintiff has requested that the court enter preliminary and permanent injunctive relief, order the transfer of the infringing domain name to Plaintiff, and award actual damages, treble damages, statutory damages, punitive, and exemplary damages plus interest, and attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1364.


RESERVATROL PARTNERS LLC v. JON MAYNE AND DOES 1-10
CENTRAL DISTRICT OF CALIFORNIA (LOS ANGELES)
2:09-CV-06536
FILED: 9/09/2009

Once again a “product review” website is alleged to in reality be a competitor-funded attack mechanism. Considering the fact that there are thousands of these types of sites online it’s not surprising to see a couple of federal lawsuits each month. If your business is involved in cooperating with, condoning, or assisting these types of sites in any way your liability and legal exposure is very significant. Affiliates running “product review” websites marketing your products could also be creating liability and exposure for your business.

Plaintiff is the sole developer, manufacturer, and seller of Longevinex, the leading Resveratrol dietary supplement sold in the United States. The Defendant allegedly operates a product review and evaluation service that contains false and misleading statements about the Plaintiff’s products. The Defendant is alleged to be funded by competitors.

The lawsuit alleges libel, disparagement, trademark infringement and unfair competition under the Lanham Act, and unfair competition under California Business and Professions Code. The Plaintiff has requested that the court enter temporary, preliminary, and permanent injunctive relief, award compensatory damages, exemplary damages, and reasonable attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1365.

4 comments:

on behalf of kerri van veenendaal said...

Australian ex-employee defends ChannelAdvisor legal action in Atlanta

The ex-employee being sued* in Atlanta by ChannelAdvisor has lodged a defense, denying all allegations in the civil action. Kerri Van Veenendaal who is being sued by the North Carolina based company has issued the defense in reply to the litigation issued by her ex-employer.

Ms. Van Veenendaal has stated to us “I feel that this action is a smoke screen for the real issues that ChannelAdvisor are facing”. Van Veenendaal further states, “It is a pity that ChannelAdvisor has spent time and money on a frivolous action which is incorrectly aimed at me when they would be better concentrating more on their own product development and customer service. ChannelAdvisor does not have a claim against me”. At the time of the alleged emails Van Veenendaal was with her husband of 30 years whilst he was in recovery from major life threatening open heart surgery.

Ms. Van Veenendaal was instrumental in launching ChannelAdvisor in Australia, exceeding all expectations whilst the company was under her management in that country. “Indeed the growth in the country and region was phenomenal” states Van Veenendaal. “We exceeded our budget every quarter for four quarters and the first year of operation we were above on all expected budget requirements which was totally unexpected by Head Office in North Carolina”. “The Australian business sector here was enthusiastic and embraced the belief that ChannelAdvisor was committed to putting a team on the ground in Australia and to have real time customer support in this country”.

ChannelAdvisor Australia Pty. Ltd., has been downsized since the unexpected termination of Ms. Van Veenendaal in June 2008. There are now two employees out of the 12 that were in the office at June 2008 remaining. Whilst this legal action is certainly interesting Van Veenendaal states that all property owned by the company were handed to her legal counsel shortly after she was terminated by a surprise email from the CEO, Scot Wingo and the then Vice President International, Jennifer Gibson. “I had no idea that I was going to be terminated in such a manner after surpassing all budget expectations and also securing the company a lucrative contract in Australia. The termination email, stated that ChannelAdvisor would pay all my contractual entitlements and termination salary but 18 months later I am still waiting to receive a reasonable payment. This recent action in the USA appears to be an attempt to add to my costs and plicate the legal action in Australia for my employment entitlements which has been ongoing since July 2008.”

In the Atlanta proceedings, it will be interesting to observe if ChannelAdvisor can actually establish and prove that it suffered losses by any purported breach of copyright from the sending of the email. Further ChannelAdvisor will also have to establish and prove that the statements in the email are in fact not true.

Van Veenendaal clearly states that she has not issued any public statements, press releases to customers since her termination in respect to ChannelAdvisor. She has been attempting to negotiate with ChannelAdvisor for her termination salary however to date she has been presented with many obstacles.

With all this Van Veenendaal remains positive on the future of ChannelAdvisor and their products “you can't head up a company without believing in the product.”

Van Veenendaal hopes that the false accusations will be seen as such and by defending the action in Atlanta certainly anticipates that her innocence will prevail.

Kerri Van Veenendaal said...

ChannelAdvisor facing a fight to determine losses from defamation claims

ChannelAdvisor is now facing a battle to prove the losses and suffering that they say was due to a floating email said to be despatched by an ex-employee. The ex-employee being sued in Atlanta by ChannelAdvisor has lodged a defense, denying all allegations in the civil action. Kerri Van Veenendaal previously the Regional Managing Director Asia Pacific for ChannelAdvisor is being sued by the North Carolina based company and has issued the defense. In her defense Ms.Van Veenendaal has record of handing over all company material within one month of her termination in June 2008.

If ChannelAdvisor establishes that it suffered losses due to the refunds that they say they had to pay their customers due to the alleged incorrect accounting practices, then the offending email was therefore true and correct and ChannelAdvisor has no claim against the ex-employee. Clearly all that has happened is that ChannelAdvisor has made the required corrections pursuant to its contractual obligations to customers. Scot Wingo in his announcement to customers has assured them of the protection of the customer records.

Alternatively, if the email was not true then ChannelAdvisor did not refund customers any money and therefore could not have suffered losses. ChannelAdvisor still has no claim against the ex-employee. The real question ChannelAdvisor will have to consider is 'does a rightful refund to a customer equate to a loss'?

In any event ChannelAdvisor will have to open up all of the customer records, billings, charges and the like via the court proceedings to prove their case which is exactly what ChannelAdvisor is purporting to protect. Many of the ChannelAdvisor secrets are likely then to surface such as the past company acquisitions and treatment of past staff.

What is the true incentive behind the ChannelAvisor litigation in Atlanta? Is it creating an scape goat for the failure to protect vital company information(s) or is it simply revenge against an ex-employee adding to her legal costs given the drawn out litigation already in Australia since July 2008 where she is simply seeking her statutory entitlements. It is obvious while the Australian operation was under Kerri Van Veenendaal's management it was extremely successful with a staff of 12 and a growth rate of over 100% per quarter. It would appear that ChannelAdvisor is somewhat in a quandary. If any customers past or present would like to contact Ms. Van Veenendaal with further information her email address is Kerri@vanveenendaal.com.au

kerri van veenendaal said...

A judgement has been made in this matter in favour of the defendant Kerri Van Veenendaal, the Australian ex-employee.

ChannelAdvisor was completely unsuccessful in its action.

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