PissedConsumer Defeats Preliminary Injunction--Roca v. Consumer Opinion Corp.

PissedConsumer Defeats Preliminary Injunction–Roca v. Consumer Opinion Corp.

Roca makes and sells dietary supplements. They’ve made a series of legally dubious choices, but I think their problems start with their desire to suppress negative consumer reviews. The court describes that:

[Roca’s] Purchase Agreement requires customers to agree that, unless they pay the full purchase price without conditions, they “WILL NOT speak, publish, print, blog or write negatively about The Product or The Company in any way.”

(Techdirt has been covering Roca Labs’ legal meltdowns in some detail).

As I’ve repeatedly blogged, contractually suppressing consumer reviews is an ill-advised concept that will not survive judicial scrutiny. Knowing that, the few users of anti-review clauses generally try to avoid testing the provision in court.

Roca hasn’t been so gun-shy. PissedConsumer runs a gripes-only consumer review website. Several unhappy Roca customers posted negative reviews there. Roca sued PissedConsumer. The court rejects Roca’s request for a preliminary injunction.

For reasons not clear to me, the court sidesteps PissedConsumer’s obvious Section 230 defense. Instead, it says Roca’s claims fail on their merits. The state deceptive trade practices claim fails because Roca lacks the requisite standing. Invoking Section 230 without citing to it, the court also says that the real problem are the user reviews, not PissedConsumer’s conduct:

Plaintiff has failed to prove a sufficient causal nexus between the deceptive actions alleged and any harm it has suffered, as the loss of business and reputation suffered by Plaintiff stems from the content of the reviews rather than any deceptive actions alleged by Plaintiff.

The tortious interference claim similarly fails because Florida limits plead-arounds when the underlying facts are based on defamation, and Roca is really complaining about the users’ alleged defamation (the court implies that a direct defamation claim against PissedConsumer would be squarely covered by Section 230).

It’s nice to see this result, especially as a supplement to Section 230 jurisprudence. Still, it’s too bad the court didn’t punish Roca for its efforts to suppress negative consumer reviews in the first place. Had the lawsuit been in California, it would have almost certainly triggered anti-SLAPP protection and probably would have run afoul of California’s new law banning anti-review clauses. The fact that Florida law lacks those legal protections provides a good reminder why we should support a federal anti-SLAPP law and a federal ban on anti-review clauses so that consumers across the country can remain free to share their opinions about marketplace goods and services.

Case citation: Roca Labs, Inc. v. Consumer Opinion Corp., 2014 WL 6389657 (M.D. Fla. Nov. 16, 2014)