Four days after filing a federal court complaint alleging defamation and related claims, Lewis & Lin obtained a consent order for a preliminary injunction requiring the defendant to remove a defamatory blog post about our client, a respected clinical psychiatrist with a private medical practice in Manhattan.
As alleged in the complaint, the defendant, a self-described psychotherapist, “wellness expert” and spiritual guru with a worldwide following, perpetrated an online attack campaign against our client by publishing and communicating false, defamatory and completely fabricated statements on his blog.
Lewis & Lin filed a complaint in the U.S. District Court for the Eastern District of New York, asserting claims for false advertising under the Lanham Act; trade libel and commercial disparagement; common law unfair competition; intentional infliction of emotional distress; tortious interference with contractual relations; breach of contract; unjust enrichment and fraud.
We concurrently sought an Order to Show Cause for a preliminary injunction and temporary restraining order. Upon being served with the initiating papers, counsel for the defendant contacted Lewis & Lin, agreeing to remove the blog post. Accordingly, the court issued a consent order for preliminary injunction enjoining defendants and their agents from publishing the blog post, or continuing to make certain defamatory statements about our client pending the resolution of the litigation.
Lewis & Lin successfully argued for the return of over 200 valuable domain names that were hijacked out of our client’s account. We represented a Hong Kong-based domain name investor whose 224 valuable domain names were stolen from his registrar GoDaddy’s account after the Defendants hacked into his Hotmail email account to steal and intercept his personal information.
The unknown defendants appeared to be sophisticated Chinese-based hackers. After gaining control of our client’s domain names, they transferred them to various other domain name registrars, including one in Germany.
Upon our engagement, Lewis & Lin immediately filed suit in U.S. District Court in Arizona – where GoDaddy is based – seeking a temporary restraining order requiring the defendants to return the domain names to our client’s account. The suit asserted causes of action for violation of the Wiretap Act, the Stored Communications Act, and the Computer Fraud and Abuse Act, as well as common law claims of conversion and trespass to chattels.
We sought a TRO requiring the defendants and their domain name registrars and domain name registry to immediately record the registration of record for the domain names to our client’s name and into an account under our client’s control; change the DNS and MX servers to those of our client’s choosing; and place a lock on the domains to prevent further unauthorized access. Despite questions the court initially had about jurisdiction over unknown Chinese defendants in an Arizona court, and the court’s power to require GoDaddy, the German registrar, and Verisign (the domain name registry) to act, the court granted our TRO in its entirety. Three weeks later, upon the defendants’ default, the TRO has matured into a preliminary injunction.
The case is No. 17-CV-03294 in U.S. District Court in Arizona.
In a case of first impression in the Eastern District of New York, Lewis & Lin obtained a judgment against an anonymous, unidentified blogger in a defamation case brought by our client, a real estate investment company and its founder and CEO.
Our complaint asserted claims for trademark infringement, unfair competition, defamation, trade libel and tortious interference based on the unknown defendant’s anonymous emails and blog posts.
Upon filing the complaint, Lewis & Lin sought and was granted an order for expedited discovery to identify the John Doe defendant. After our extensive efforts to identify the defendant, we sought permission from the court to serve defendant via email. The motion was granted, and the defendant, after being served, failed to answer the complaint. Accordingly, we sought a default motion for damages and injuctive relief against the unknown blogger.
As the Eastern District of New York had never issued a judgment against an unidentified party, the Court directed our firm to provide authority supporting its power to do so. Citing cases from other judicial districts, we argued that the fact that defendant had not been identified was not fatal to a request for default judgment as long as it was properly served with process. In a 56-page report and recommendation, Magistrate Judge Cheryl L. Pollak agreed with our reasoning:
Where an unidentified defendant has been properly served with a complaint and has nevertheless failed to answer or otherwise respond, the fact that the defendant cannot be physically identified does not impede a court’s ability to enter judgment against it. To hold otherwise in a situation such as the one presented in the instant case would permit individuals who have violated federal law to continue to do so without redress for the harmed parties solely due to the fact that the wrongful party has successfully concealed himself or herself from identification.
Accordingly, Judge Pollak recommended judgment against the defendant for $225,000 in damages, along with attorneys fees and costs. Importantly, Judge Pollak also recommended that the offending blog be taken down and the email address be disabled. Chief Judge Dora Lizette Irizarry adopted the R&R in its entirety and issued an order to its effect. Upon receiving the court order, Google has carried out its terms and disabled both the blog and the email address. The case is 1:14-cv-05968-DLI-CLP in the Eastern District of New York. Please contact us if you have any questions regarding Lewis & Lin’s defamation law practice.
Lewis & Lin recently won a motion for summary judgment in our case against a domain name cybersquatter. We represented plaintiff Alpha Recycling, Inc. a New York company that recycles catalytic converters and scrap metal. The defendant was a precious metal broker who sold several million dollars’ worth of catalytic converters to our client before their business relationship soured. During the course of their dealings, defendant registered a number of domain names that used the term “alpha” in relation to recycling services, including
Lewis & Lin filed a complaint in Federal Court in New York asserting claims for cybersquatting under the Anticybersquatting Consumer Protection Act (“ACPA”), as well as common law claims for defamation and trade libel, unfair competition, and trademark infringement. We also filed a motion seeking summary judgment on our cybersquatting claim.
Under the ACPA, to successfully assert a claim for cybersquatting, a plaintiff must demonstrate that (1) its marks were distinctive at the time the domain name was registered; (2) the domain names complained of are identical to or confusingly similar to plaintiff’s mark; and (3) the infringer had a bad faith intent to profit from that mark. The defendant opposed summary judgment on two grounds: that the ALPHA mark was not distinctive, and that defendant lacked the requisite bad faith.
We argued that the term ALPHA, when used in connection with plaintiff’s goods and services, is arbitrary and therefore inherently distinctive and entitled to trademark protection. As to the defendant’s bad faith, we pointed out that visitors to the domains at issue were directed to defendant’s own website. The defendant testified that he redirected the traffic in order to “get back at [Alpha]” because “they had taken away a very large portion of [his] business.” He also posted a video to YouTube with the title “Alpha Catalytic Converter Recycling Experts” that was actually a commercial for defendant’s own business. Finally, we submitted evidence to show that defendant is a repeat cybersquatter who had registered domain names incorporating the marks of other firms.
Judge J. Paul Oetken of the Southern District of New York agreed with us on both points and ruled in our favor. The case is Alpha Recycling, Inc. v. Crosby, No. 14-CV-5015 (JPO), S.D.N.Y.
Lewis & Lin recently won a dismissal of a lawsuit filed against our client, the founder and CEO of a Nevada ticketing company.
Plaintiff, a major online secondary marketplace for entertainment and sporting tickets, sued our client for alleged violation of a ticket data sharing agreement. Plaintiff alleged that the agreement provided defendant’s company access to plaintiff’s online database of tickets offered by ticket brokers, which defendant’s company could access for its customers. In exchange for the access, defendant’s company was to pay plaintiff the amount sought by the broker for any tickets purchased, plus an additional 3% fee. Plaintiff claimed that defendant owed over $2 million for unpaid fees. An arbitration was filed in Connecticut to enforce the terms of the agreement, which contained an arbitration clause and was signed by the defendant. In addition, plaintiff filed an action in Connecticut state court seeking a prejudgment remedy.
Both Plaintiff’s arbitration and court complaints named our client individually, but not the corporate entity. After removing the state court action to federal court, Lewis & Lin immediately filed a motion to dismiss for two reasons: (1) the fiduciary shield doctrine prevented a Connecticut court from exercising personal jurisdiction over the individual defendant for actions he took in Connecticut solely as an agent of the corporate entity, and (2) plaintiff failed to state a claim against the individual defendant because he did not sign the agreement that formed the basis for the parties’ dispute in his individual capacity.
The court agreed with our position, resolving both issues in our favor based on its determination that the defendant signed the contract only as a representative of a corporate entity. Analyzing the case under Connecticut law, the court ruled that in order to avoid personal liability on a contract on another’s behalf, an agent must disclose both the fact that he is acting in a representative capacity, and the identity of the principal. In this case, the legal name of the corporate entity was not disclosed in the contract; listed instead was its trade name (a “dba”), which was registered in New York. The issue thus turned on whether registering a trade name in New York provides constructive notice of that name’s user as a matter of Connecticut law—an issue of first impression.
After reviewing the purposes behind Connecticut’s and New York’s parallel statutes governing the registration of assumed business names, the court concluded that plaintiff had constructive notice that defendant was acting in a representative capacity on behalf of a known principal based in New York. Accordingly, the individual defendant, our client, “cannot be held personally liable on the contract he signed, because he contracted on behalf of a disclosed corporation.”
Shortly after the case was dismissed against our client, the parties resolved their differences amicably. The full decision is available here.