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Old 04-16-2013, 02:55 PM   #1
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eBay seller sues buyer over negative feedback

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New anti-speech low: buyer sued over negative eBay feedback | Ars Technica

Ratings are important on eBay. Lots of buyers use them to assess the quality and reliability of particular sellers, and lots of sellers will go to great lengths to keep perfect or near-perfect ratings.

But an Ohio company named Med Express has shown it's willing to go further than other sellers: it's willing to litigate. When Med Express got its first piece of negative feedback, it filed a lawsuit, insisting that the feedback be removed from eBay.

Amy Nicholls paid $175 for a microscope light, as well as $12 for shipping. She was annoyed when she had to pay an extra $1.44 in postage due and left feedback complaining about that inconvenience. Med Express asked her to remove the feedback and she refused. The company complained that because it offered to refund her the $1.44, she should have taken down the feedback, which had the potential to hurt its business. (In the past six months, Med Express has 142 pieces of positive feedback and only one negative review.)

Med Express sued, but the company may regret its decision. Nicholls hasn't let the issue drop, and she is being helped by Public Citizen's litigation group. Public Citizen's Paul Levy wrote a letter explaining why the lawsuit is "completely frivolous" and suggesting he may seek attorneys' fees if it isn't dropped immediately. Levy went on to explain that the $1.44 wasn't the issue:

The point she made in her message to you was that the problem wasn't the money but the hassle... That opinion might be right, or it might be wrong, but harboring it and expressing it is not a tort. And it is certainly no reason to seek damages, attorney fees, and an injunction. Consumers might well take this sort of bullying into account when they are thinking about whether to do business with Med Express.

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For all we know, the reason your client has so little negative feedback might be that it bullies critics by filing or threatening to file frivolous lawsuits every time negative feedback appears, thus inflating its seller rating.

It looks like Med Express picked the wrong fight. Levy heard about the case because the defendant in this case, Amy Nicholls, is a relative of an attorney who used to work at Public Citizen.
Yesterday, legal blog Popehat put out a call for an attorney in Medina County, Ohio who would be willing to work on the case pro bono. "Mr. Levy will be coordinating assistance, and I can tell you from personal experience that it is a privilege to work with him," wrote blog author Ken White. "Help give Med Express and James Amodio the legal curb-stomping they so richly deserve."

Their eBay must be flooded with negatives now. Streisand Effect is an unforgiving bitch.



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Popehat to the rescue!
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It's time for the Popehat Signal: a call for lawyers and citizens to assist a litigant in standing up against unprincipled censorship.

My friend and colleague Paul Alan Levy of Public Citizen — fresh off a free speech victory against the infamous Charles Carreon — has asked for assistance in Medina County, Ohio. This is a classic case where pro bono assistance can help thwart an unprincipled and censorious plaintiff's manipulation of the flaws in our judicial system.

The plaintiff in question is Med Express, a company that sells refurbished medical equipment on Ebay. They have sued Ebay and a South Carolina resident named Amy Nicholls. I will let Med Express' complaint speak for itself:

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6. On February 12, lOB, Nicholls paid for the item and shipping via Pay Pal. Promptly after receiving Nicholls' payment, Med Express took the equipment to the Valley City post office. where it was weighed and shipped to Nicholls. Med Express paid the full amount of the shipping cost, but for some reason unknown to Med Express, the equipment was received by Nichols with $1.44 postage due.

7. When notified of the problem, Med Express immediately offered to reimburse Nicholls for the postage due amount. Despite this offer, and before giving Med Express a chance to reimburse her, Nicholls on February 26, 2013, apparently as a result of the $1.44 postage due, posted negative feedback and comments for the transaction on Ebay's website and gave Med Express low ratings in the Detailed Seller Ratings section of Ebay's Feedback Forum, resulting in an unfavorable feedback profile for Med Express. In so doing, Nicholls falsely and deliberately slandered the good name and reputation of Med Express.
You read that right — Med Express admits that Nicholls received a package from them postage due, and is suing her for complaining about it, suggesting that she should have just taken reimbursement and shut up. Med Express is seeking damages and an injunction forcing the removal of Nicholls' feedback. That feedback was, by Med Express' own description, true:

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Order arrived with postage due with no communication from seller beforehand
When Mr. Levy pointed out to James Amodio, attorney for Med Express, that true statements are protected by the First Amendment, Mr. Amodio responded with an open, contemptuous, and contemptible threat to abuse the legal system:

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I contacted James Amodio, Med Express’s lawyer, to explain to him the many ways in which his lawsuit is untenable. He readily admitted that, as the complaint admits, everything that the customer had posted in her feedback was true; he did not deny that a statement has to be false to be actionable as defamation; but he just plain didn’t care. To the contrary, he told me that I could come up to Medina, Ohio, and argue whatever I might like, but that the case was going to continue unless the feedback was taken down or changed to positive. And he explained why his client was insisting on this change — he said that it sells exclusively over eBay, where a sufficient level of negative feedback can increase the cost of such sales as well as possibly driving away customers.
This is the ugly truth of the legal system: litigants and lawyers can manipulate it to impose huge expense on defendants no matter what the merits of their complaint. Censors can abuse the system to make true speech so expensive and risky that citizens will be silenced. Regrettably, Ohio does not have an anti-SLAPP statute, so Med Express and James Amodio can behave in this matter with relative impunity. If Ms. Nicholls has to incur ruinous legal expenses to vindicate her rights, the bad guys win, whatever the ultimate outcome of the case.

Unless, that is, you will help Amy Nicholls stand up — not for $1.44, but for the freedom to speak the truth without being abused by a broken legal system.

If you are an attorney practicing in Medina County, Ohio, please consider offering pro bono assistance. Mr. Levy will be coordinating assistance, and I can tell you from personal experience that it is a privilege to work with him. Help give Med Express and James Amodio the legal curb-stomping they so richly deserve. Justice, karma, and the esteem of free speech supporters everywhere will be your reward.

If you aren't an attorney, you can help, too. Med Express should not be permitted to act in this manner without consequence. The natural and probable consequence is widespread publication of their conduct. Help by publicizing the case on Facebook, Twitter, on your blog, on forums, and on every other venue available to you. Ask yourself — would you want to do business with a company that abuses the legal system to extract revenge against customers who leave truthful negative feedback?

Stand up for free speech.

Thanks.

Edited to add: "Med Express" is a mundane name; make sure you refer to and link to the correct one — this one, med_express_sales.

Edited again to add: Thanks to Prof. Reynolds of Instapundit for the link to this. It's possible Med Express didn't think this plan all the way through.

UPDATE WITH AWESOMENESS: I offer my profound respect and appreciation to Jeffrey M. Nye and Thomas G. Haren, who have answered the call. If their names sound familiar, it may be because they stepped up and represented a blogger pro bono just a few months ago. I understand that they will be stepping in to assist Ms. Nicholls pro bono. Moreover, I understand that multiple attorneys are now investigating whether Med Express has filed other defamation suits to silence negative feedback. I'll report when I hear more.

I've said this before: free speech depends on people like Jeff and Tom. Anti-SLAPP statutes are slowly proliferating across the country and more people are becoming educated about First Amendment rights. Ultimately, though, our broken legal system allows bullies to extort silence through the credible threat of stressful, expensive, uncertain litigation even when they have no valid claim. It takes lawyers like Jeff and Tom — and like a number of other good people who wrote me in response to the Popehat Signal — to push back against that problem. I'm just sitting on my ass blogging; Jeff and Tom are putting their skills and many hours of their valuable time on the line during a bad economy. I salute them, and if I ever have to recommend lawyers in Ohio, they will be at the top of my list.
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Old 04-16-2013, 03:06 PM   #2
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first thing that came to mind for that seller...

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Old 04-16-2013, 03:50 PM   #3
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because 99.3% rating is going to hurt your business?
I didn't read part 2 but ratings are subjective so I can't see how the company will win. They should've dropped it
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Old 04-16-2013, 04:19 PM   #4
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because 99.3% rating is going to hurt your business?
I didn't read part 2 but ratings are subjective so I can't see how the company will win. They should've dropped it
This is their MO. They've taken eBay and buyers to court before, and had judgments awarded (neg fb removed) to them, by default, because the buyer is out of state and doesn't bother to show up.



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Old 04-16-2013, 04:23 PM   #5
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when buying from a seller with negative feedback i usually look through and read what the complaints are exactly before deciding to go through with the purchase

I can't see that negative feedback really hindering their business but the news of them suing a customer over feedback probably will hurt them
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Old 04-16-2013, 04:39 PM   #6
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This is a common misconception with eBay. The sellers don't really care about negative feedback in the sense they people will not buy from them. Let's be honest, do buyers care if you have 100% vs 99% vs 90% feedback? No, at least I don't, Paypal and eBay have you covered for any damages or loses.

The issue is with the seller fees. If you can maintain positive feedback with five star ratings, you are entitled to discounted seller fees. This is HUGE as this can save you quite a bit in fees. This is the main reason why sellers will do anything to maintain this rating/score. I think this is the real reason, at least it would be for me.
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Old 04-16-2013, 04:45 PM   #7
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^^^ that's interesting didn't know that
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Old 04-16-2013, 04:47 PM   #8
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people are lazy and take this feedback very seriously. most businesses will have multiple ebay accounts because of this. so a rotation of 5 accounts. if one account gets negatives, use a different one. after a year the negatives remain but don't count in the percentage (back when I sold). every percentage drops business exponentially. lots of customers held me for 'feedback ransom' saying they want a refund because they're not happy or else they will give negative feedback... but of course they want to keep the item (even though I said fine ship it back, I give 100% refund and pay to ship it back) then they go ape shit and leave negative feedback. so out of 100 transactions, 2 would be refunds and they keep the item.
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Old 04-16-2013, 04:52 PM   #9
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This is a common misconception with eBay. The sellers don't really care about negative feedback in the sense they people will not buy from them. Let's be honest, do buyers care if you have 100% vs 99% vs 90% feedback? No, at least I don't, Paypal and eBay have you covered for any damages or loses.

The issue is with the seller fees. If you can maintain positive feedback with five star ratings, you are entitled to discounted seller fees. This is HUGE as this can save you quite a bit in fees. This is the main reason why sellers will do anything to maintain this rating/score. I think this is the real reason, at least it would be for me.
ebay makes you keep 95% or higher or else they kick you off. because of this, all buyers can hold their sellers at 'feedback ransom'

they need to be power seller for the discounted fees. instead of 8-12%, we get it cheaper up to 5%. but it always has to be 98% and always 90+% for the five 'dsr's'
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Old 04-16-2013, 05:03 PM   #10
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This is a common misconception with eBay. The sellers don't really care about negative feedback in the sense they people will not buy from them. Let's be honest, do buyers care if you have 100% vs 99% vs 90% feedback? No, at least I don't, Paypal and eBay have you covered for any damages or loses.
It's probably just you, that 10% means a lot to most buyers. It could shitty customer service on the sellers end. Not shipping the item out on time or not communicating properly with their customers. It could even mean that 10% of all their products are not as described. There's tons of things that could be the reason for that 10% loss. I rather not take my chance and instead buy from someone who has 99-100% with at least a couple of hundred people leaving feedback.
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Old 04-16-2013, 05:04 PM   #11
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ebay makes you keep 95% or higher or else they kick you off. because of this, all buyers can hold their sellers at 'feedback ransom'

they need to be power seller for the discounted fees. instead of 8-12%, we get it cheaper up to 5%. but it always has to be 98% and always 90+% for the five 'dsr's'
Ahh yes, they need to be powersellers. But, it seems like more sellers are these days. Which is why the feedback is so important.

I completely agree. eBay isn't fair to the sellers at all.

In my opinion, just because you do not get a product, that doesn't entitle the seller to a refund or a reshipment. We as the buyers did not buy the appropriate shipping method. ie. shipping with tracking/insurance.

As far as I'm concerned, once the buyer ships the product, it isn't their responsibility anymore.

But, like 99.9% of all buyers, we assume it's the sellers responsibility. It's like when I order a $1 iPhone cable and it does not make it to me from China. The first thing I do is message the seller and they will either refund/resend another one.
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Old 04-17-2013, 08:52 AM   #12
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But, like 99.9% of all buyers, we assume it's the sellers responsibility. It's like when I order a $1 iPhone cable and it does not make it to me from China. The first thing I do is message the seller and they will either refund/resend another one.

I ordered a $1 cable for my phone back on the first week of March...
I'm still waiting

I emailed the seller and he told me to just keep waiting.
It kind of sucks, cause if I haven't received it by now,
it most likely got lost in the mail.

Hard for me to blame the seller, as I know it got shipped the very next day.
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Old 04-17-2013, 09:55 AM   #13
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It sucks when you get neg feedback for no reason.. I have 2 right now, one from a guy who wanted a refund before I shipped... so I gave him a refund, but not before he left a negative feedback. He posted an ammendment, but the negative stays.

The other guy was one who tried to scam me unsuccessfully by saying he didn't receive the item... ebay ruled in my favor, but he negged me anyway, the cunt. I see that he has done it before too.

I have 2 open cases right now, from people in Russia and Bosnia who haven't received their item in almost a month... this is going to be a rough few weeks depending on how everything goes...

I see that the Bosnian guy has left negative feedback to sellers for not receiving items before.... so that is DEFINITELY something I have to look at more in the future.
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Old 04-17-2013, 10:38 AM   #14
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"It's possible Med Express didn't think this plan all the way through."

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Old 04-17-2013, 10:56 AM   #15
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cliffs please.
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Old 04-17-2013, 11:31 AM   #16
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Customer is forced to pay extra on shipping for eBay package.
Customer leaves review stating as such.
Vendor threatens suit to get negative review removed.
Internet responds; several lawyers offer to defend customer pro bono.
Other lawyers now investigating whether vendor's otherwise-perfect review record is also due to bad reviewers being threatened with legal action.
Vendor now feeling full weight of the Streisand Effect.
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Old 04-17-2013, 07:10 PM   #17
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I can't believe that a company would stoop to this low level. eBay is becoming more of a hassle than worth as of late - seems to breed and protect the scammers of the world
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Old 04-17-2013, 07:20 PM   #18
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I guess all those Chinese sellers with 387845 transactions with a 99.8% rating are going to sue the 0.2% as well
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