DDI v. Barrett dies with laughter, Part 1: Motion to dismiss plus Levens' misconduct leaves DDI ddefenseless

[David Brown]

While there is still no formal verdict in the case of DDI v. Barrett,
as of March 4, it is clear that DDI is completely incapable of giving
a good reason why the judge should not grant Barrett's motion to
dismiss. This means, apart from any other concerns, that the case
which Tim Bolen has spent nine months claiming that Barrett and
supporters are in terror of (even while mocking us for not believing
any of his “predictions” about actions by DDI against third parties)
is about to be defeated.

DDI's final humiliation began when Barrett's representatives filed
their motion to dismiss on February 22. Highlights of this
deconstruction of DDI's suit include the following comments on various
counts:

Count I: “As stated in the Lanham Act, `the intent of this chapter
is... protect(ing) against unfair competition... Plaintiff cannot
allege commercial competition because there is no
competition...Plaintiff is a testing lab and the defendants are
not....”

Count II (Trademark Dilution): “The ITRPA antidilution statute is not
applicable to the facts because this case involves non-commercial news
and commentary which merely refer to the defendant... Plaintiff fails
to plead the elements of a cause of action for trademark dilution and,
in fact, pleads facts establishing that the Defendant's use of
Plaintiff's trademark is exempt under (ITRPA).”

Count III (Illinois Consumer Fraud Act): “As Defendants understand the
allegation under Count III, the alleged violation is premised on the
following reading of Section 2: `Unfair competition and unfair or
deceptive acts or practices, including but not limited to the use or
employment of any... misrepresentation... in the conduct of any trade
or commerce.' Plaintiff... fails to plead that the statements with
the alleged `misrepresentations' were made `in the conduct of trade or
commerce'...”

Count IV (Illinois Deceptive Trade Practices Act): “Plaintiff fails to
plead that the statements were made as part of Defendants' `trade
practice' and `in the course of (their) business or occupation'..”

Count V (Business libel per se): “First, Defendants and this court
have to decipher what statements are being alleged as per se. .. The
alleged defamatory statements... are very poorly drafted. (N)early
all are merely summaries of what the Plaintiff claims was stated,
rather than what Dr. Barrett's writings actual(ly) said...”

Count VI (Libel per quad): “Plaintiff fails to plead the basic
elements of a claim... to plead extrinsic facts explaining the
defamatory meaning of the alleged defamation that was not defamatory
on its face... There is no allegation in the per quod Count to
`itemize his losses or plead specific damages...' Essentially,
Plaintiff fails to allege any statement as libel per quod... leading
the defendants to wonder whether the Plaintiff even understands the
meaning of per quod.”

Count VII (Tortious interference): “The recognized elements of a tort
of intentional interference (are)... the existence of a valid and
enforceable contract... defendant's awareness of contractual
relations... the defendant's intentional and unjustified inducement of
breach... the subsequent breach of the contract by the other
contracting party... damages resulting from the breach... Plaintiff
has failed to plead any of the elements of this tort... Plaintiff
merely pleads a vague allegation of the loss of future contracts...
that customers are choosing not to use Plaintiff's services for new
tests, not that there was, already in existence, a valid and
enforceable contract to do new tests... Plaintiff also fails to plead
damages resulting from the breach, because Plaintiff fails to plead
that there is a breach...”

Count VIII (Fraud or intentional misrepresentation): “The elements to
plead common law fraud in Illinois (include) an intent to induce the
plaintiff to act (and) action by the Plaintiff in justifiable reliance
on the (Defendant's) statement...Plaintiff does not and cannot allege
that Defendants' actions stopped it from doing business with itself.
Plaintiff clearly pleads that Defendants' actions were directed toward
others, therefore the Plaintiff is not a proper party to allege the
fraud complaint...”

Count IX (Civil Conspiracy): “The only factual allegations of
conspiracy are that Defendants published accurate information about
two lawsuits being filed. These allegations utterly fail to plead
`either an unlawful purpose or a lawful purpose by unlawful means'...”

Count X (Corporate Officer and Board Member Personal Liability):
“Plaintiff alleges ultra vires liability against officers and
directors of Quackwatch, Inc under the following statute... the
statute applies just to Directors, not, as alleged, to Officers.
Plaintiff fails to allege any specific business that was carried on by
Quackwatch, Inc. after it was dissolved... Plaintiff fails to allege
any specific act by Quackwatch, Inc. that would expose it to
liability, even if the act were found to have damaged the Plaintiff.
Similarly, Plaintiff fails to allege any specific damages attributable
to action by a director of Quackwatch, Inc. after it filed its
articles of dissolution.”

All of this is bad enough for DDI. As I pointed out for all
interested parties last July, DDI relied pervasively on the premise
that Barrett, et al were subject to laws clearly designed primarily to
regulate commercial competitors, even though though it would clearly
be disputable at best whether Quackwatch even constitutes a commercial
enterprise. Now, more than half of DDI's counts are threatened with
dismissal for this weakness alone. Count VII is formally challenged
on the formal definition of tortious interference, a problem I pointed
out 7 months ago. Even Count VIII, one claim I might have given a
chance of escaping dismissal, is met with a strong argument for
dismissal, simply on the grounds that DDI's CUSTOMERS, not DDI, are
the ones entitled to make a claim. Perhaps most significantly, the
challenges to counts IX and X effectively challenge DDI's ability to
hold anyone except Barrett responsible for his criticisms of DDI (the
same issue which Bolen extrapolated preposterously into threats
against third parties who merely wrote ABOUT the case). If this
challenge ALONE were successful, then DDI might as well drop their
suit, because, even if by some virtually unthinkable development they
managed to win, there would be nobody to pay their ludicrous $10M
damage claim.

So, how could it be worse? In the course of the motion, Barrett's
report of utterly bizarre actions by DDI and their counsel, especially
Jeffrey Levens, is introduced into court record. The motion offers in
summary and comment, “Plaintiff's actions in initiating this suit also
reveal its intentions that it was more important to file the suit than
to resolve its issues. From the beginning, the Plaintiff ignored and
rebuked reasonable offers by the Defendants to resolve the purported
dispute...Plaintiff's attorneys sent a letter to Dr. Barrett that...
made only broad sweeping allegations of defamation, with no
specifics... Neither it nor any other correspondence was sent to any
other named defendant prior to their being named in this suit...
Plaintiff failed to identify any factually incorrect statement in
reply to Dr. Barrett's June 10th letter request. Instead, they
responded, `...Because you have responded, you have until Thursday,
June 17th, to post your retraction...'” It is striking that Barrett
waited until now to introduce this in court. What I believe it means
is that, up until now, DDI was being given a chance to back out of the
suit without having these allegations become a matter of legal
record. Now that that has come to pass, there would appear to be a
clear and present danger not just that the case will be dismissed for
this reason alone, but that there could be some kind of disciplinary
action against DDI's counsel, especially Jeffrey Levens. I must add
that, on rereading the the particular passage I repeat here, the whole
thing sounds even more distasteful. In fact, it reminds me very much
of a shakedown I ran into a few years back, where a company
“preordered” magazines I hadn't asked for and claimed I owed them
money for it. By comparison, Levens' phrase “BECAUSE you responded”
could easily be regarded as an attempt to draw Barrett to the
conclusion that he had somehow ALREADY made an admission of guilt. I
won't presume to say what Levens actually DID intend to say or
accomplish, but I must say, I would take it as a rule of thumb that,
when a lawyer starts to sound like a high-pressure telemarketer, it is
not going to put him on a judge's good side.

So, how could it be worse? In the course of the motion, Barrett's
report of utterly bizarre actions by DDI and their counsel, especially
Jeffrey Levens, is introduced into court record. The motion offers in
summary and comment, “Plaintiff's actions in initiating this suit also
reveal its intentions that it was more important to file the suit than
to resolve its issues. From the beginning, the Plaintiff ignored and
rebuked reasonable offers by the Defendants to resolve the purported
dispute...Plaintiff's attorneys sent a letter to Dr. Barrett that...
made only broad sweeping allegations of defamation, with no
specifics... Neither it nor any other correspondence was sent to any
other named defendant prior to their being named in this suit...
Plaintiff failed to identify any factually incorrect statement in
reply to Dr. Barrett's June 10th letter request. Instead, they
responded, `...Because you have responded, you have until Thursday,
June 17th, to post your retraction...'” It is striking that Barrett
waited until now to introduce this in court. What I believe it means
is that, up until now, DDI was being given a chance to back out of the
suit without having these allegations become a matter of legal
record. Now that that has come to pass, there would appear to be a
clear and present danger not just that the case will be dismissed for
this reason alone, but that there could be some kind of disciplinary
action against DDI's counsel, especially Jeffrey Levens. I must add
that, on rereading the the particular passage I repeat here, the whole
thing sounds even more distasteful. In fact, it reminds me very much
of a shakedown I ran into a few years back, where a company
“preordered” magazines I hadn't asked for and claimed I owed them
money for it. By comparison, Levens' phrase “BECAUSE you responded”
could easily be regarded as an attempt to draw Barrett to the
conclusion that he had somehow ALREADY made an admission of guilt. I
won't presume to say what Levens actually DID intend to say or
accomplish, but I must say, I would take it as a rule of thumb that,
when a lawyer starts to sound like a high-pressure telemarketer, it is
not going to put him on a judge's good side.

Next: DDI's lawyers ADMIT to a SLAPP action!