Wednesday, October 29, 2008

Understanding SLAPP


Strategic Laws Against Public Participation
California Code of Civil Procedure, Section 425.16

Heidi Diaz, owner of the fraudulent diet website, Kimkins.con, has chosen to employ a legal tactic known as a SLAPP suit in an effort to intimidate those of us who are committed to seeing her held accountable for the fraud, lies and manipulations she has perpetrated on the Low Carb diet community for several years now. As the date approaches for the filing of the class certification brief and subsequent hearings she is frantically attempting to not only delay the court proceedings, but to silence her critics and detractors as well.

In light of that, I thought it would be beneficial for us to get a better understanding of what a SLAPP actually is, what it entails, who is targeted and how we defend against it. As you all know, the matter is presently in the very capable hands of John Tiedt, of the Law Offices of Tiedt & Hurd. If I may take just a moment, John, I know that I speak for us all when I say how grateful we are that you have taken up our cause. You are proving to be not only incredibly competent, but equally compassionate and understanding of our concerns and indignities. Jeanessa used incredibly wise judgment in choosing you!

Heidi is not breaking any legal ground in her filing of this counter suit. Others before us have been sued for speaking up on internet forums and blogs against those accused of business misconduct.

Read this information found on the California Anti-SLAPP Project website:
“SLAPPS are civil complaints or counterclaims (against either an individual or an organization) in which the alleged injury was the result of petitioning or free speech activities protected by the First Amendment of the U.S. Constitution. SLAPPs are often brought by corporations, real estate developers, or government officials and entities against individuals who oppose them on public issues. Typically, SLAPPs are based on ordinary civil tort claims such as defamation, conspiracy, and interference with prospective economic advantage.”

If you have read the court documents, which can be found at Riverside Courts Online, you will recognize that those claims are included in the litigation that Heidi is bringing against us.

The principal purpose in this case (this is true in the case of most SLAPP’s, btw) is to chill our debate on the matter of the fraudulent activities of Heidi Diaz and the Kimkins.con website. By chill, I mean she is trying to make us shut up. She wants us to become intimdated by the idea of being sued, and/or the idea of the cost of defending against being sued, to the point that we stop speaking in public about her and the lawsuit. It is through the public debate and criticism that multitudes of people are being spared the experience of being her victim, or from her way thinking, her clients. We are interfering with her ability to continue to perpetuate her fraud, and she wants us to stop.

As important as getting us to stop speaking out, is preventing others from joining their voices with ours. Our tendency in this country is to avoid controversy. We don’t want to be sued, and we particularly don’t want to be sued publically, for fear of the damage that we think might be done to our reputations and the reputations of our families. She is counting on that reaction.
We aren’t alone, btw. According to the California Anti-SLAPP Project website,” “Every year thousands of people are hit with SLAPPs for such activities as writing a letter to a newspaper, reporting misconduct by public officals, speaking at public meetings, filing complaints with officials over violations of labor laws or health and safety laws, "whistleblowing" in corporations, or organizing tenants.”
CyberSLAPPS, as they are called, are also becoming quite common. That is when members of message boards or blogs are SLAPPed. Read what the California Anti-SLAPP Project website has to say about CyberSLAPPs. It is quite interesting!
“Characteristics of Message Board SLAPPs
If a company is suing you for your online speech, you may have been SLAPPed. A message board SLAPP shares characteristics typical of SLAPPs:
• Defendants' Speech. The SLAPP is based on the defendants' free speech activity — online speech, in this case. The statement posted on the message board is generally the sole basis for the lawsuit.
• No Legal Merit. As a lawsuit, the SLAPP has no legal merit. It masquerades as an ordinary civil lawsuit, frequently based on claims such as defamation, breach of contract, and/or trade secret violations.
• Chilling Effect. The SLAPP has a "chilling effect." Rather than spend money on legal fees to fight the SLAPP, the defendants may find it easier to remain silent. The free give-and-take of discussion on the boards is also affected. Because users may fear being sued if they criticize the company, they may tone down their criticism or say nothing at all.
A message board SLAPP also has some characteristics that are not common to other SLAPPs:
• "Doe" Defendants. The lawsuit usually names the defendants as "John Does" or "Jane Does." Sometimes the complaint names the defendants by their screen names. While many other lawsuits include Does among the defendants, message boards SLAPPs generally name only Doe defendants.
• Destroying Anonymity. One of the first steps the plaintiff takes is the attempt to discover the identity of the Internet posters. Sometimes, that is the only step the plaintiff takes. The SLAPP complaint is often vague, and may not even quote the defendants' online statements, or even identify these statements by date or by post number.
Typically, the plaintiff attempts to subpoena records from the Internet service provider. Yahoo! has an enlightened policy regarding the privacy of its registered users: Yahoo! e-mails a notice to a user informing him or her that someone is seeking, through the courts, to discover the user's identity, and that Yahoo! will not act for 15 days, during which time the user may take legal action to try preserve his or her anonymity. Other service providers may not have such policies.
See the case of Doe v. Cahill in which the Supreme Court of Delaware on Oct. 5, 2005 reversed a lower court decision requiring an Internet service provider to disclose the identity of an anonymous blogger who targeted a local elected official. (News report: Court Rules in Favor of Anonymous Blogger)”

So, where does this leave all of us? Well, being sued, for one. We don’t have to be listed as one of the named defendants to be included in this. I’ve talked with John about this matter a couple of times now. We are at a wait and see point. California law is VERY specific about these particular points of law. I’m going to be blogging shortly (later tonight, hopefully) about the specifics of the statutes as well as the consequences for Heidi and her attorney when the court finds against them. If we get that far, that is. Her lawyer may well decide that he wishes to “take that back” while he still can.

John has repeatedly said that we are acting within our rights under the First Amendment of the United States Constitution. So long as we speak the truth, our speech is protected. So we don’t stop blogging. We don’t stop posting. We don’t stop digging to find where Heidi is promoting her diet, either directly or with the assistance of others. We keep contacting site owners, asking them to pull all ads that promote this scam, advising them that she is the current subject in a class action lawsuit. We keep sending information in to the Kimkins Case email account as we find new things.

We continue to ferret out and expose attempts by Heidi or others to intimidate or disparage those of us active in the fight against Heidi. If you receive any sort of contact from an unknown or anonymous person that seems “off” to you, please speak up! To date we have had one person receive a book based on inflammatory statements that had been made against her in a blog, others have been disparaged on another blog by comments from an anonymous poster, and one of those persons has been contacted via telephone attempting to arrange a face to face meeting with an unknown person. Please, please, please – do NOT destroy what could be evidence or ignore such actions taken against you. If we act quickly we increase our chances of determining who is behind these things. If they are simply innocent parties who wandered into all of this unsuspecting, then they can be wished well and sent on their way. But, if they are further attempts to intimidate the people in this case, those acts would be illegal.
(All quotes from the California Anti-SLAPP Project used with permission.)

For the time being, this blog, the Prudentia Blog, is going to be dedicated to the matter of the SLAPP suit and it’s progress. We will be looking at other cases that we may glean information and encouragement from.

If there are specific questions you would like to see addressed, please send them to and I will be happy to do the research, posting the answers for all of us to see. There will be no disclosing of strategic “secrets” here, but what information can be made public here will be.

Next Scheduled Topic: Our Right to Speak - Even Anonymously


Anonymous said...

Excellent post

maybe you could also do one on Back SLAPPING so Kimmer et al realize what is going to happen to them when the ROE DUCKS counter counter sue.

Prudentia said...

I did! Keep reading, my friend :)