DDI v. Barrett Dies With Laughter, Pt. 2: Doctor's Data ADMITS to "SLAPP" action

[David Brown]

It was always a foregone conclusion that Doctor's Data, Inc. would
lose their suit v. Stephen Barrett, and nearly certain that it would
be through pre-trial dismissal. After Barrett filed his actual motion
to dismiss late last month, things looked even worse for DDI than
might be expected. Then, on March 4, there came the last straw: DDI
actually responded to Barrett's motion. I had seriously wondered
whether, as a matter of convenience and perhaps some legal advantage,
DDI would simply let Barrett's motion through uncontested. My mistake
for once again crediting them with good sense and decency. No, rather
than let their suit slide into merciful oblivion, they have come
forward to defend even its most brazenly idiotic counts, in newspeak
truly worthy of MST3K treatment:


“(Algis Augustine's and Jeffrey Levens') first encounter with
Defendant Stephen Barrett was in 2004, when his name appeared on a
witness list in a disciplinary complaint... against Dr. Joseph
Mercola... AKL learned the disciplinary action had been based on a
letter... by Barrett... It became apparent to AKL that Barrett's modus
operandi was to accuse doctors of wrongdoing, then offer his testimony
as an expert witness for a fee. Meanwhile, he reported all this on
his website... where he would solicit donations and sell
advertising... Since then... AKL has encountered Barrett on several
occasions... (and) formulated its belief that Barrett makes his living
generating conflict on the internet...” (p. 3-4)

How's this for a paraphrase? DDI's LAWYERS admit to having a history
of professional if not interpersonal conflicts with Barrett, quite
independent of the immediate causes of the action they are currently
pursuing against him, in light of which it might reasonably be
questioned whether they were well-suited for leading a case against
him. They admit to harboring hostility toward Barrett for actions (or
alleged actions) which were ENTIRELY legal, including merely
testifying publicly against one of their clients. They indicate that
they formed a highly negative opinion of Barrett's actions and motives
very early, yet make no mention of using perfectly good opportunities
(esp. when Barrett, as a witness, would have been theirs to question)
to air any concerns. They also admit to a keen interest in Barrett's
writings throughout the time when they did NOT take action against him
for the articles they sued him for last year. All of which would
greatly STRENGTHEN Barrett's contention that this is a “SLAPP” suit,
designed to harass or harm him for merely exercising his rights of
free speech and public petition.

“Defendants insists DDI fails to state a claim for false
advertising... because A) they are not DDI's commercial competitor and
B) the false or misleading statements were not made in commercial
advertising or promotion... However, a Lanham Act violation does not
require direct competition; nor is it restricted by such a simplistic
view of what constitutes commercial advertising or promotion.” (6-7)

Translation: According to the lawyers, very specific language in a
law about “commercial competition” doesn't prove it should only apply
to commercial competitors, and the lawyers get to decide what
“commercial advertising or promotion” is.

“Defendants' websites have hot links to companies, many of which have
little to do with health or medicine. These links benefit Defendants
not only from the referral fees paid by Netflix or Amazon, but because
the more links on a website, the higher to the top it appears on
Google searches...The articles on Defendants' website are promotional,
and DDI need not be a direct commercial competitor to claim that it
has been damaged by the fallout from Barrett's writings.” (p. 10)

Now, this is where a reasonable possum could agree that DDI might have
a reasonable point- IF Barrett's advertisers DID offer medical
products or services. That could easily be argued as at least a
potential “conflict of interest”, comparable to if a network news
report about dead rats in Coke bottles were sponsored by Pepsi.
Instead, DDI freely admits that “many” quackwatch.org sponsors do
not meet even a GENEROUS definition of a financial interest in
Barrett's content. But, rather than conceding the point or at least
admitting a weakness in their claim, DDI and their lawyers go on to
vague complaints about Netflix, Amazon and Google. Such griping over
these PARTICULAR businesses add to an obviously laughable argument
more than a hint of possible SNOBBERY- that, for example, DDI might
not be making such a show of outrage if the ads were for Sprouts,
Sephora and Neiman Marcus!

“The Illinois Code of Civil Procedure defines a `reporter' as one
`regularly engaged in the business of writing, collecting or editing
news for publication in a news medium...defined as a `newspaper or
other periodical issued at regular intervals... and having a general
circulation... a news service... a radio (or) television station...
Clearly, Barrett is not a reporter, and Defendants' websites are no
more `media' than any organization's PR department, issuing
promotional materials which are updated when they feel like it, and
chock full of self-sustaining filler, and links to companies that pay
the Defendant for every hit...” (p. 11-12)
It is very striking that, at this point, DDI and their liars- er,
lawyers try to DENY that Barrett has the same rights under the law as
a “reporter”. The offer two lines of argument. One is that Barrett's
website can be excluded from legal protections and even the definition
of “media” simply on technical considerations such as circulation and
the frequency at which new material is issued. This is, on
consideration, an issue of complexity and importance (though bald
statements about a website not being “true” media do not make good
impressions!) However, if anything is clear, it is that the
principles of free speech are best upheld by GENEROUS definitions, so
that no group is arbitrarily or maliciously abused.

The other line of argument is that Barrett has somehow forfeited
protection by featuring advertising, and this is just plain STUPID.
To start by understating the obvious, saying legitimate “media” must
NOT contain advertising is about as reasonable and useful as swinging
a twenty-pound sledge in a glass house. Even if one charitably
supposes that DDI only meant to say something more along the lines
that “reporting” and “advertising” are separate things and
quackwatch.org falls in the latter category, there is STILL no way to
get a workable principle out of their argument. The fundamental and
reasonably self-evident problem is that in the real world, any
distinction between “informational” and “promotional” is going to be
blurry at best. For example, notwithstanding DDI's gratuitous slam,
releases by “public relations” personnel could EASILY argued as
“reporting” rather than solely “promotional” material. Even material
that IS unambiguously a product promotion could be defended with some
plausibility as “informational”. And those would be the difficulties
of pursuing the accusations and arguments DDI makes even against those
who unquestionably DID work for commercial corporations. Against
Barrett, the odds against making even an unambiguous allegation of
legal wrongdoing are so small that actual action would hardly be worth
discussing, let alone pursuing.

“DDI submits that... while true media which are truly reporting are
exempted, Defendants are not true media and they are not producing
`non-commercial commentary'... All the elements of a violation of
ITRPA have been alleged.” (p. 13)

First, let's review DDI's “logic” as far as whether quackwatch.org is
“commercial”. A newspaper has ads, and DDI acknowledges it is
exempted from the laws. A magazine has ads, and it is also exempted.
A television news broadcast is 30% ads, and it is still exempted. But
quackwatch.org is NOT exempted BECAUSE it has ads??!!

Now let's consider DDI's claim that they have properly claimed
trademark dilution. As I pointed out in my earliest appraisals, the
legal definition of “trademark dilution” suggests a need to test, not
just whether a defendant's activities are commercial, but whether he
has created the possibility that his product or other material could
be MISTAKEN for the plaintiff's. Obviously, even if DDI had a
legitimate point about Barrett's site being commercial, it would still
be ABSURD to claim that it could be mistaken for DDI's own creation. I
will add that, on further reflection, I am struck by a major irony: If
DDI wished to argue that Barrett inappropriately used one of their
“trademarks”, all they NEEDED to do was argue copyright INFRINGEMENT.
That would not only have gotten around the “confusion” question, but
would also have made whether quackwatch.org is “commercial” beside the
point. Indeed, as someone with substantial “experience” with
borderline copyright infringement, I can see how DDI could have built
up what a court might consider (as such VERY murky matters go) a
fairly STRONG claim. (I won't go into details, but it will suffice to
say Barrett did something EVEN I would have thought twice about.) What
this means is that, given a choice between an ABSURD claim which
necessarily accused Barrett of being “for profit” and a SOUND one that
could have been pursued while leaving the “commercial” question
alone, Doctor's Data chose the former.

“...DDI has already discussed why Defendants' websites... are not non-
commercial and are not `news media' at all... Defendants' specious
insistence on exemption as news media ought to have been alleged as an
affirmative defense, but wasn't... (Defendants) should be required to
prove it, not merely declare it to be true and demand dismissal.” (p.
14)
Translation: According to DDI's liars, they don't have to prove
allegations about Barrett to file an expensive and highly intrusive
lawsuit founded on same, but Barrett cannot deny their allegations as
a means to have it dismissed.

“...Defendants' websites are sophisticated commercial websites...
Defendants' motion to dismiss Count III is disingenuous, for they do
little that is not somehow connected to receiving financial
remuneration.” (p. 16)
At this point, DDI and ESPECIALLY their lawyers seems to be in a
contest with themselves to determine in what area they can display the
most laughable and inexcusable (if not unbelievable) clueless. Let's
see if we can briefly cover the major areas. First, technology: If
anyone in DDI's camp actually believes that the “ads” at
quackwatch.org are “sophisticated”, it can only be because he has
NEVER SEEN ANY OTHER WEBSITE. Second, economics: Advertising income
from quackwatch.org is NOT a mystery, as a number of sites track such
things free to the public (curious that, for all DDI's professed
interests), and judging from these estimates compared to Barrett's
stated expenses, net income from the site would come out and something
like $10K per year, which wouldn't pay for one person's “living wage”,
never mind a “sophisticated commercial” enterprise. Third, law: “Non-
profit” websites DO carry advertising, commonly far more prominent and
“sophisticated” than anything to be seen at quackwatch.org, including
ADS FOR DOCTOR'S DATA, and this has NEVER been raised as an objection
to “non-profit” status, so DDI doing so now is flying in the face of
overwhelming precedent and practice, and fully equivalent to A SKUNK
CALLING A FERRET “STINKY”.

“There may be an issue of fact as to whether Defendants are legitimate
media news media or phillistines who do very little that is not
somehow connected to being paid, but that issue is best resolved after
discovery and a trial, if its use as a defense is not sooner barred by
this court.” (p. 16-17)
Translation: DDI wants a judge to force Barrett through invasive
discovery and an expensive trial based solely on their expressed
beliefs about his personal affairs and motives. They also expect a
judge to accept said beliefs, minus evidence, as somehow NOT a matter
of opinion.

“As for the statute of limitations, Defendants have ignored the
republication dates, which have been alleged in the complaint, and
which restart the running of the statute of limitations... In in re
Davis... the court held that `where substantive material is added to a
website, and that material is related to material that is already
published, republication has occurred'.” (p. 17)
DDI and lawyers try to ignore the obvious, but instead highlight it:
It is hard to imagine- and DDI has certainly NOT alleged- that any
change made by Barrett was “substantive” enough to express or
elaborate on the stated cause of action, that DDI's practices are
described as “fraud”. In fact, Barrett can readily be seen to give
the same descriptions of the same practices in articles going back to
the LAST CENTURY. And, even if DDI is technically granted a point
about the statute of limitations, the fact that they waited up to SIX
YEARS to take action over the articles identified in the suit would be
perfectly relevant to Barrett's motion for “SLAPP” dismissal.

“Exhibit A is in article in which Barrett accuses DDI of committing
fraud and lying to its patients... In fact, DDI is a laboratory, not a
healthcare practitioner. DDI has no patients, and has no contact with
physicians' patients.” (p. 22)
Uuummm... I read Barrett's articles, and I found them perfectly clear
on distinctions between DDI and its clients. So, what this basically
looks like is that DDI is suing Barrett for libel on the allegation
that he didn't stop them from being STUPID enough to interpret his
words as saying something STUPID.

“...discovery, if allowed to proceed, will show Barrett or his minions
helped to planor prepare the Coman lawsuit.” (p. 23)
Actually, Barrett already acknowledges having given Coman some
assistance. By any reasonable understanding of relevant laws, he
would be ALLOWED to do so. And, if there were any questions about
Barrett's actions and their appropriateness, DDI and/or their lawyers
could always depose him in the case already in progress. Much the
same way, in fact, that it Augustine and/or Levens could have
questioned Barrett, made complaints to the court or otherwise aired
any concerns about him on previous occasions when they acknowledge he
appeared as a witness against their clients. Curious, with all the
concerns that they now claim to have had, that they didn't...

“Defendants insist `Plaintiff has failed to plead any element of this
(tortious interference) tort'. DDI alleges it had contractual
relationships with physicians...” (p. 29)
Yes, but unfortunately, as the Defendants' reply points out, DDI
neglected to name even ONE such physician. Also, as I pointed out
very early, anyone that Doctor's Data DID name would be sought for
testimony, and a presumably less-than-satisfied ex-client obviously is
NOT going to be anyone's choice for a favorable witness. Thus, even
if DDI has the elements of a sound claim somewhere in here, there are
clearly non-trivial risks to pursuing it in court. So, why didn't
they use their ample opportunities to drop this count?

“(Defendants) argue DDI's only allegations of conspiracy are that they
`published accurate information about two lawsuits being filed'. Of
course, truth is not necessarily a defense in this count, and the
problem with the reporting of the lawsuits is not the fact that they
were filed, but how they reported what the lawsuits were about,
intentionally making it sound as though guilty verdicts were foregone
conclusions, when in reality, nothing could be further from the
truth.” (p. 34)
This passage would be priceless just for that one, passing comment:
TRUTH IS NOT A DEFENSE. But apparently, even that brilliant nugget of
“newspeak” wasn't enough for DDI and liars, as they bore their way
through a motherlode of piteous protest of how unfair Barrett's
writings were. Well, I can only say, why haven't THEY showed the same
concern about TIM BOLEN's “reporting” about THEIR suit? At least
Barrett never claimed that THEY were about to be bankrupted by debts
they never owed, or reported that THEY had already lost by default, or
claimed that THEIR former partners were testifying against them, or
claimed that any number of THEIR allies were going to be added as
defendants merely for being publicly supportive. And another thing:
At THIS point, there is no “they” when it comes to the defendants.
BARRETT wrote the words, and he published them, which would seem to
make it very hard to argue “conspiracy”!

I could press still further on, but even I am losing the taste for
sarcastic criticism. All that matters is this: This was DDI's LAST
chance to offer some reasonable justification for their actions. They
instead made their malice and ineptitude all the more apparent. It is
to be hoped that this offensive carcass of a case won't be allowed to
tie up time and money for another month before a judge renders the
only reasonable verdict: Dismissed. WITH SANCTIONS.

[David Brown]