A Boston lawyer’s lawsuit against the Ripoff Report website over a negative posting about him has survived a dismissal motion.
In an order dated Monday and released Tuesday in Small Justice LLC v. Xcentric Ventures LLC, U.S. District Judge Denise Casper partially denied site operator Xcentric’s dismissal motion. Richard Goren’s copyright claim survived. So did part of his Massachusetts Consumer Protection Act claim, which carries the possibility of triple damages.
Goren alleges that Xcentric operates in an unfair and deceptive manner by offering—for a fee—to remove or redact negative postings. Casper concluded he had a case.
“The Plaintiffs argue that it is unfair for Xcentric to refuse to take down the defamatory Reports while simultaneously advertising services by which Goren can pay Xcentric to restore his reputation,” the judge wrote. “Here, the Plaintiffs have sufficiently alleged that Xcentric’s acts are within the ‘penumbra’ of ‘unfairness,’ or they are ‘immoral, unethical, oppressive or unscrupulous,’ or they interfered with trade or commerce.”
However, Casper dismissed Goren’s claims for libel and interference with contractual relations and denied his motion for judgment on the pleadings.
To overcome the Communications Decency Act, which grants website operators immunity from defamation claims for third-party posts, Goren traveled an unusual legal path to federal court. He first convinced the Massachusetts trial courts to assign him the copyright to the negative postings. He also won appointment as attorney-in-fact for Christian Dupont, who posted the two negative reviews of Goren’s services in January and February 2012. Those orders give Goren the power to assign the copyrights in Dupont’s postings. Name plaintiff Small Justice is an entity to which he assigned those rights.
On the copyright issue, Casper concluded a live dispute exists about whose ownership claim should prevail. Xcentric insists it holds a U.S. copyright registration that predates the state court orders and gives it the rights to its reports.
She also wrote that there’s a live dispute about whether the Ripoff Report site’s terms and conditions and language next to a check box that users must check before posting was enough to alert a user like Dupont of Xcentric’s rights to user postings. She held that the Communications Decency Act barred Goren’s libel and tortious interference claims. But she allowed Goren’s consumer claim based on Xcentric’s fee-based “Corporate Advisory Program” and “VIP Arbitration” to move forward.
Ripoff Report declined to comment on the facts or the ruling pending the litigation’s outcome, founder Ed Magedson said in an email.
But he added: “Ripoff Report is proud of the valuable service it provides to consumers and law enforcement, and will continue to champion Free Speech on the Internet and in lawsuits.” Maria Crimi Speth of Jaburg & Wilk in Phoenix represents Xcentric and Booth Sweet of Cambridge, Mass., is the company’s local counsel.
Also in an email, Goren, of The Law Office of Richard Goren, said, “I am gratified the Court understood the basic problem and the fundamental unfairness of Xcentric’s business practices as alleged in the Amended Complaint.”
Sheri Qualters can be contacted at firstname.lastname@example.org.