Ubervita v. John Does: Another Case of a Bullying Business, or a Legitimate Effort to Protect One’s Reputation?

Screen Shot 2014-07-21 at 1.45.11 PMBy Max Burke

Nutritional supplement company Ubervita filed a lawsuit this month against John Does, claiming the “unknown defendants have conspired to disrupt Ubervita’s business through a campaign of dirty tricks.” This included, among other things, posting fraudulent negative reviews of the company on Amazon.com. Recently, Chief Judge Marsha Pechman of the Western District of Washington granted Ubervita’s request to subpoena Amazon and Craigslist for the purpose of discovering the defendants’ identities.

A few months ago, we wrote about a similar case from Virginia in which Hadeed Carpet Cleaning subpoenaed Yelp (a business review website) in order to identify seven individuals who had left negative reviews of the business on Yelp. The Virginia Court of Appeals affirmed the trial court’s order that held Yelp in civil contempt for not complying with the subpoena. The Virginia Supreme Court recently accepted review of this case.

The subpoena tactic used by Ubervita and Hadeed has both supporters and detractors. On the one hand, businesses and individuals have a right to be free from tortious and defamatory speech. And given that Section 230 of the Communications Decency Act of 1996 shields websites from liability for third party postings, and that many of these third party posters are anonymous, businesses must resort to filing John Doe lawsuits and subpoenaing websites like Amazon and Yelp. On the other hand, consumers have rights to both privacy and free speech. Public Citizen attorney Paul Allen Levy argues that Judge Pechman’s early discovery order—which allows Ubervita to request, among other things, credit card and bank account information of anonymous reviewers—is overly broad: “[W]hy on earth was that sort of private financial information justified by the need to obtain information permitting service [of a complaint]?”

Many states have laws that are designed to protect law-abiding consumers and critics from frivolous defamation and libel lawsuits, also known as “strategic lawsuits against public participation,” or SLAPPs. (Washington’s anti-SLAPP law is codified in RCW 4.42.500, et seq.) But anti-SLAPP laws typically come into play after defendants have been named. That is not the case here.

In addition to claiming the defendants posted false and defamatory reviews on Amazon, Ubervita alleges that the Does fraudulently impersonated Ubervita in their communications with Amazon, and that they manipulated Amazon’s ordering system into showing that Ubervita’s products were not available for purchase. Ubervita believes the unknown defendants are associated with a competitor.

If Ubervita’s allegations are true, then its lawsuit is understandable. But the company’s actions in the wake of Pechman’s order reveal an irascible and retaliatory side to the company—a side that causes one to question the believability of their claims. As Ars Technica reports, Ubervita has been responding to Amazon reviewers by threatening “legal trouble,” stating, “We will issue subpoena’s to learn the identities of those behind this campaign of dirty tricks against Ubervita.” Considering that the company says on its website, “Physical competition is the most magnificent activity in which a human being can indulge,” maybe this type of bullying should be expected. And maybe a predilection for bullying explains the impetus behind Ubervita’s lawsuit.    

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