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Federal Judge Recuses from Suit Over Faux Firm Gripe Site
New Jersey Law Journal
November 16, 2009
The federal judge assigned to Levinson Axelrod's suit against an ex-associate over his "Levinson Axelrod Really Sucks" gripe site decided to take herself off the case last Monday, even before the defendant asked her to do so.
Edward Heyburn sought recusal of U.S. District Judge Freda Wolfson on Tuesday, saying her husband, Douglas Wolfson, had worked as a mediator or arbitrator for the Edison, N.J.-based firm and is likely to continue to do so. Heyburn said the relationship would "place [the judge] in an awkward and questionable position" and recusal would avoid an appearance of impropriety.
The case, Levinson Axelrod v. Heyburn, 09-Civ.-5627, was transferred to Chief District Judge Garrett Brown Jr. in Trenton, N.J. Wolfson made her decision last Monday and "doesn't need to give a reason," says her clerk, Nicole Garlic.
Levinson Axelrod, which filed the action in Middlesex County Superior Court on Nov. 5 seeking a temporary restraining order but saw it removed before a scheduled hearing that same day, tried to move matters along in the federal forum Thursday, filing an amended order to show cause and two new supporting declarations.
The firm, says its lawyer, Thomas Cafferty, will not seek a remand to state court and once it has a ruling on its TRO request, it will "proceed accordingly."
Cafferty submitted a declaration Thursday that seems aimed at bolstering claims under two federal statutes that provided the basis for removal: the Lanham Act, which governs trademarks like business names, and the Anticybersquatting Consumer Protection Act, which allows suits against those whose Internet addresses have the same name as someone else's trademark or are confusingly similar.
Plaintiffs suing under either law must prove some impact on commerce, and Cafferty's declaration appears to be an attempt to show that element. It points out that Heyburn's "Levinson Axelrod Really Sucks" Facebook page lists the same e-mail address as his law office and that Heyburn posted on his gripe site letters he wrote to Cafferty and Wolfson on his firm letterhead: a Nov. 6 frivolous litigation letter to Cafferty and a Nov. 10 letter to Wolfson, asking for her recusal.
Also filed by Levinson Axelrod Thursday was a supporting declaration by Joe Devine, a search engine optimization expert. It said the court needs to do more than just order Heyburn to cease using the levinsonaxelrod.net domain name. It should also bar his use of hyperlinks to a replacement site and prevent him from misdirecting Web traffic by meta tags and other means.
As the litigation has proceeded, Heyburn has continued to used his site to insult and mock the firm, posting the litigation documents online at the www.levinsonaxelrod.net site and expanding onto Twitter and Facebook.
But on Wednesday, YouTube removed from its site two "Mock-U-Mentaries" that Heyburn created by dubbing over the audio on Levinson Axelrod's own promotional videos, after the firm claimed copyright violations. Heyburn has made the videos accessible on his site and says he will try to get YouTube to restore them.
Wolfson, a former Superior Court judge and assistant attorney general and director of the Division of Law, is now a litigation partner with Greenbaum Rowe Smith & Davis in Woodbridge, N.J., where he is part of the Alternative Dispute Resolution and Land Use practice groups. He did not return a call.
Cafferty declines to say whether Douglas Wolfson had done alternative dispute resolution work for Levinson Axelrod, terming it irrelevant now that Freda Wolfson is no longer handling the matter. He also declines to talk about the frivolous litigation letter from Heyburn, which called the case a strategic lawsuit against public participation (SLAPP).
Levinson Axelrod accuses Heyburn of a "horrendous cyber-assault" and claims his Web postings have disclosed confidential attorney-client communications and proprietary firm information. Its brief seeking a TRO states Heyburn's site "attacks the professionalism of firm attorneys, creates the false impression that the firm loses all or most of its cases, misrepresents facts, deceives the viewing public, and disparages practices, procedures, attorneys and business to the extent that those viewing the material would not, if the material were believed, want to engage the firm or continue having the firm represent them in legal matters."
For example, Heyburn has said of various firm partners that Richard Levinson is "The Hypocrite Behind the Curtain," David Wheaton is "a used car salesman with a law degree," Ronald Grayzel is "one of the most overrated human beings alive" and "looks like death," and Adam Rothenberg is a "man without friends." He has linked to court opinions in cases lost by the firm and invited visitors to file a complaint against the firm, providing a hyperlink to an ethics grievance form.
In addition to the federal law claims, Levinson Axelrod has sued Heyburn for unfair competition and breach of the duty of loyalty but not for defamation.
In Heyburn's view, that omission is a "concession that everything I said is true." But Cafferty, of Scarinci Hollenbeck in Lyndhurst, N.J., says a defamation claim is still possible. Once the Web site is gone, "we will review our options for defamation as well as other charges," which might include product disparagement and intentional interference with business relations, he says.
Heyburn was at Levinson Axelrod from 1998 until 2004, when the firm fired him on learning he was planning to leave and trying to take clients in tow.
Now a Robbinsville, N.J., solo, he says he spent the next few years litigating with the firm, and winning, on issues such as vacation pay and referral fees.
He started the blog-style site in September, more than five years after he left. He said in an interview he would have done so sooner but only recently learned how. He calls it "therapeutic," adding, "I never got to say my piece back then."
