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eBay seller who sued over negative feedback dinged $19k in legal fees | Ars Technica
Judge didn't find Med Express founder's testimony credible.
by Joe Mullin - Sep 3, 2015 1:40pm EDT
When Med Express sued Amy Nicholls for giving negative feedback on eBay, she didn't back down and remove the feedback. Instead, she lawyered up, acquiring pro bono counsel with help from Paul Levy at Public Citizen, who's been called "the Web Bully's worst enemy."
Med Express founder Richard Radey quickly backed down and apologized, but it didn't sit well. "Problem is, I don't believe a word of what he says," Levy told Ars in 2013. Radey had a history of such lawsuits. Levy sought sanctions and attorneys' fees.
That battle has, at long last, been won. A Medina County, Ohio, judge ruled (PDF) this week that Med Express and Radey must pay $19,250 to Tom Haren and Jeffrey Nye, the two Ohio lawyers who represented Nicholls and one other defendant. Levy worked on the case pro bono and sought no fees.
"This is an important win for consumers," Levy said in a statement about the ruling. "It shows that consumers have recourse when companies such as Med Express try to bully and silence consumers from telling other potential customers about their bad experiences."
Tale of two trials
The road to the sanctions was a long and winding one. The original sanctions motion was tried in January 2014. According to Public Citizen, that resulted in a deal, expressed orally in court, in which Med Express would agree to pay $5,500 in attorneys' fees. However, Med Express wouldn't sign the agreement or make payments. With the two sides disagreeing, Judge James Leaver scheduled a second sanctions trial.
During the second trial, Radey's testimony "varied from the first hearing," the judge noted in his order. "The testimony wasn't credible."
Originally, Radey said he watched feedback from the two users come "all 1's" in the detailed seller ratings. He also said that eBay had given him the idea to file suit against the buyers.
In fact, Nicholls had given various ratings to Med Express, including a "5" for item description, a "3" for shipping and handling charges, and a "1" for seller communication.
In any case, an eBay representative later testified that Radey wouldn't have even been able to see the detailed seller ratings, which are anonymous.
The judge also found that the speech by Nicholls was partly opinion, which is protected speech, but that some of their narrative feedback could be seen as statements of fact. However, those factual statements were "undeniably true and Mr. Radey had no objective reason whatsoever to question their veracity," the judge wrote.
In Nicholls' case, the poor feedback she gave stemmed from having to pay an extra $1.44 in postage due after paying $175 for a microscope light and a $12 shipping fee.
Following the second trial, Radey's original lawyer James Amodio agreed to pay part of the attorneys' fees, and Public Citizen dropped him from their motion for sanctions.
Radey had two different lawyers during the sanctions proceedings, and the second lawyer stopped representing him in July 2015. The sanctions order notes that Radey is currently not represented by counsel, and he did not submit a post-trial brief.
Judge didn't find Med Express founder's testimony credible.
by Joe Mullin - Sep 3, 2015 1:40pm EDT
When Med Express sued Amy Nicholls for giving negative feedback on eBay, she didn't back down and remove the feedback. Instead, she lawyered up, acquiring pro bono counsel with help from Paul Levy at Public Citizen, who's been called "the Web Bully's worst enemy."
Med Express founder Richard Radey quickly backed down and apologized, but it didn't sit well. "Problem is, I don't believe a word of what he says," Levy told Ars in 2013. Radey had a history of such lawsuits. Levy sought sanctions and attorneys' fees.
That battle has, at long last, been won. A Medina County, Ohio, judge ruled (PDF) this week that Med Express and Radey must pay $19,250 to Tom Haren and Jeffrey Nye, the two Ohio lawyers who represented Nicholls and one other defendant. Levy worked on the case pro bono and sought no fees.
"This is an important win for consumers," Levy said in a statement about the ruling. "It shows that consumers have recourse when companies such as Med Express try to bully and silence consumers from telling other potential customers about their bad experiences."
Tale of two trials
The road to the sanctions was a long and winding one. The original sanctions motion was tried in January 2014. According to Public Citizen, that resulted in a deal, expressed orally in court, in which Med Express would agree to pay $5,500 in attorneys' fees. However, Med Express wouldn't sign the agreement or make payments. With the two sides disagreeing, Judge James Leaver scheduled a second sanctions trial.
During the second trial, Radey's testimony "varied from the first hearing," the judge noted in his order. "The testimony wasn't credible."
Originally, Radey said he watched feedback from the two users come "all 1's" in the detailed seller ratings. He also said that eBay had given him the idea to file suit against the buyers.
In fact, Nicholls had given various ratings to Med Express, including a "5" for item description, a "3" for shipping and handling charges, and a "1" for seller communication.
In any case, an eBay representative later testified that Radey wouldn't have even been able to see the detailed seller ratings, which are anonymous.
The judge also found that the speech by Nicholls was partly opinion, which is protected speech, but that some of their narrative feedback could be seen as statements of fact. However, those factual statements were "undeniably true and Mr. Radey had no objective reason whatsoever to question their veracity," the judge wrote.
In Nicholls' case, the poor feedback she gave stemmed from having to pay an extra $1.44 in postage due after paying $175 for a microscope light and a $12 shipping fee.
Following the second trial, Radey's original lawyer James Amodio agreed to pay part of the attorneys' fees, and Public Citizen dropped him from their motion for sanctions.
Radey had two different lawyers during the sanctions proceedings, and the second lawyer stopped representing him in July 2015. The sanctions order notes that Radey is currently not represented by counsel, and he did not submit a post-trial brief.
