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Accuardi v. Fredericks

United States District Court, D. Oregon, Portland Division

March 4, 2014

F. ANTONE ACCUARDI, Plaintiff,
v.
BRAD FREDERICKS, Defendant.

OPINION AND ORDER

JANICE M. STEWART, Magistrate Judge.

INTRODUCTION

Plaintiff, F. Antone Accuardi ("Accuardi"), an Oregon attorney, filed this action against defendant, Brad Fredericks ("Fredericks") and several unidentified Internet users, based on statements made about Accuardi on Fredericks's Blog, The Telecom Compliance News Press, and other websites. The Blog is dedicated to informing the public about the illegal telemarketing industry. Accuardi alleges that Fredericks posted false statements about Accuardi's involvement in illegal telemarketing schemes that cast him as a dishonest, serial violator of state and federal law with questionable professional ethics. Based on those false statements, he alleges three claims under Oregon law for placing him in a false light, intentionally inflicting emotional distress, and intentionally interfering with economic relations.

Based on the filing of the First Amended Complaint (docket #38), which deleted the unidentified Internet users, this court has jurisdiction pursuant to 28 USC § 1332 based on complete diversity between the parties and an amount in controversy which exceeds $75, 000.00. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c) (docket #39).

Fredericks has filed an Amended Special Motion to Strike (docket #10) all claims pursuant to Oregon's Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, ORS 31.150 et seq. Although this motion was filed against the initial Complaint, this court deems it also as filed against the First Amended Complaint. For the reasons that follow, Fredericks's motion is granted.

STANDARDS

"A SLAPP suit is one in which the plaintiff's alleged injury results from petitioning or free speech activities by a defendant that are protected by the federal or state constitutions." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir 2003). In response, a defendant in federal court may file a motion to strike under an applicable Anti-SLAPP statute. Vineyard v. Soto, 10-CV-1481-SI, 2011 WL 5358659, at *2 (D Or Nov. 7, 2011); see also Thomas v. Fry's Elecs., Inc., 400 F.3d 1206, 1206-07 (9th Cir 2005).

Oregon's Anti-SLAPP provisions "permit a defendant who is sued over certain actions taken in the public arena to have a questionable case dismissed at an early stage." Staten v. Steel, 222 Or.App. 17, 27, 191 P.3d 778, 786 (2008). Pursuant to ORS 31.150, a defendant filing a special motion to strike against a claim:

has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection (2) of this section. If the defendant meets this burden, the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case. If the plaintiff meets this burden, the court shall deny the motion.

A special motion to strike is treated "as a motion to dismiss under Or. R. Civ. P. 21 A and requires the court to enter a judgment of dismissal without prejudice.'" Gardner v. Martino, 563 F.3d 981, 986 (9th Cir 2009) (applying Oregon law).[1]

Analysis of a special motion to strike is a two-step process. "First, the defendant has the initial burden to show that the challenged statement is within one of the categories of civil actions described in [ORS] 31.150(2)." Gardner, 563 F.3d at 986. "[T]he critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech." Mann v. Quality Old Time Serv., Inc., 120 Cal.App.4th 90, 102, 15 Cal.Rptr.3d 215, 220 (2004) (referring to the California Anti-SLAPP statute).[2] The required showing may be made on the basis of the pleadings alone. Staten, 222 Or.App. at 31, 191 P.3d at 788.

If the defendant meets the initial burden, then "the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case." ORS 31.150(3). In making this determination, "the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based." ORS 31.150(4). The court must deny the motion "[i]f the plaintiff meets this burden." ORS 31.150(3).

The parties dispute whether Fredericks has the additional burden of showing that Accuardi's intent in bringing the action was to chill protected speech. Accuardi argues that his claims survive an Anti-SLAPP motion because he did not intend to stifle Fredericks's First Amendment rights, but seeks only to remedy the harm suffered from allegedly malicious conduct. However, "[t]he defendant need not show that the plaintiff's suit was brought with the intention to chill the defendant's speech." Vess, 317 F.3d at 1110 (internal quotation and citation omitted). Thus, Accuardi's "intentions are ultimately beside the point." Id.

DISCUSSION

I. Fredericks's Burden

A. Public Issue

Fredericks argues that his statements fall into two of the four categories of civil actions described in ORS 31.150(2):

(c) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Fredericks's Blog clearly consists of statements made either "in a place open to the public or a public forum" or "in furtherance of the exercise of... the constitutional right of free speech." Id. First, Accuardi admits Fredericks's Blog is a public forum. Response (docket #19), p. 7. Moreover, courts applying the similar California Anti-SLAPP statute have found the Internet is accessible to anyone who chooses to visit the hosting website and "hardly could be more public." Wilbanks v. Wolk, 121 Cal.App.4th 883, 895, 17 Cal.Rptr.3d 497, 503 (2004). Particularly, "[w]ebsite forum pages allowing users to read and post comments free of charge constitute a public forum under the anti-SLAPP statute." Higher Balance, LLC v. Quantum Future Grp., Inc., CIV. 08-233-HA, 2008 WL 5281487, at *3 (D Or Dec. 18, 2008), citing ComputerXpress, Inc. v. Jackson, 93 Cal.App.4th 993, 1006, 113 Cal.Rptr.2d 625, 638 (2001). Second, "online speech stands on the same footing as other speech - there is no basis for qualifying the level of First Amendment scrutiny that should be applied' to online speech." In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir 2011), quoting Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997). The Internet "provides relatively unlimited, low-cost capacity for communication of all kinds" and through its use "any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox." Reno, 521 U.S. at 870.

However, to meet his burden under ORS 31.150(2)(c) or (d), Fredericks also must show his statements were made "in connection with a public issue or an issue of public interest." The statute does not define the terms "public issue" and "public interest." As a general rule, Oregon federal courts broadly interpret the terms in state statutes. See, e.g., Higher Balance, 2008 WL 5281487, at *4; Gardner, 2005 WL 3465349, at *5.

Abuses within the telemarketing industry have garnered national attention and are regulated by the Federal Trade Commission ("FTC") and other federal agencies under the Telephone Consumer Protection Act, 47 USC § 227 et seq, enacted to regulate "commercial telemarketing solicitations" using "automatic telephone dialing systems." 47 CFR § 64.1200(a)(2). Between January 1 and October 22, 2012, Americans filed more than 3 million consumer complaints about violations of the National Do-Not-Call Registry, a clearinghouse maintained by the FTC of households that do not wish to receive telemarketing calls. Fredericks Decl. (docket #12), ¶ 7. In fact, Accuardi does not contest that the topic of illegal telemarketing is an issue of public interest but argues that his alleged professional association with telemarketing companies (whom and what he counsels) is not a matter of public concern.

Fredericks started his Blog in May 2012 out of frustration with receiving frequent unsolicited, prerecorded telemarketing calls ("robocalls"), despite having his name on the National Do-Not-Call Registry. Id., ¶ 3. The purpose of his Blog is "to disclose how illegal telemarketing is accomplished, how the companies and people involved make their money, and to encourage the public to report unsolicited telemarketing calls to regulatory agencies so that they can be properly investigated." Id. The Blog has received over 350 comments from Internet readers and tens of thousands of "views." Id., ¶ 5. The FTC granted Fredericks news media status in connection with his requests for documents related to Pacific Telecom Communications Group ("Pacific Telecom"). Id., ¶ 6 & Ex. 3.

Accuardi argues that the Blog is not about the telemarketing industry because it does not mention a single telemarketing company but instead discusses a telephone company, consulting firm, Calling Name (CNAM) company, enhanced service providers, and himself. Fredericks responds that those entities - International Telephone, Pacific Telecom, Telephone Management Corporation ("TMC"), and CallerId4U (collectively "Telemarketing Entities") - are of public interest because they facilitate an illegal scheme to enable others to conduct telemarketing calls and share the CNAM revenue generated through those calls. Fredericks's Decl., Ex. 1 (Blog), pp. 110, 180. To that extent, the Blog clearly concerns the public interest.

Accuardi also argues that even if his clients were associated with the Telemarketing Entities, his status as their attorney is not a topic of public interest because he has no control over their decisions. He claims that the Blog exaggerates his involvement with these clients, as he only represents them in legal matters. In support, he points to several pieces of evidence. First, the state corporate filings for Pacific Telecom and TMC do not list him as an officer. Sexton Decl. (docket #13), Exs. 1 & 4. Second, his father, Fred Accuardi, the president of Pacific Telecom and principal shareholder of International Telephone, states that Accuardi "has never owned directly or indirectly any interest" in and "has never been and is not currently employed by" Pacific Telecom and "has never received compensation" from either company. Response (docket # 19), Ex. 25 (Fred Accuardi Aff.), ¶¶ 3, 5, 6, 8-11. Third, a shareholder of CallerID4U, Luis Martinez, states that he has never done business with Pacific Telecom and that Accuardi, whom he has never met, has never owned, been employed by, or received compensation from CallerID4U. Id., Ex. 27 (Martinez Decl.), ¶¶ 3-8. Fourth, on September 6, 2013, Tonya Hetzler, Investigator for North Dakota's Consumer Protection & Antitrust Division, whose affidavit Fredericks references in his Blog, retracted her opinion that Accuardi was the "principal owner" of International Telephone. Response, Ex. 5. Finally, Accuardi swore in an affidavit dated April 8, 2013, and filed in a case in New York state court, that he was never "an officer, director, shareholder, principal, agent, employee, member or manager of" Pacific Telecom or International Telephone. Second Sexton Decl. (docket #29), Ex. 2, ¶ 5.

However, Fredericks points to other evidence that Accuardi is affiliated with the Telemarketing Entities. Accuardi states in his own declaration, as confirmed by his father, that although he received no compensation, he signed contracts as the Vice President and General Legal Counsel of International Telephone. Motion (docket #18), Ex. 2 (Accuardi Decl.), ¶ i; Fred Accuardi Aff., ¶ 10. In fact, International Telephone's form revenue-sharing agreement lists Accuardi as Vice President and General Counsel. Fredericks Decl., ¶ 15 & Ex. 6. He has corresponded with governmental units and third parties regarding the Telemarketing Entities without any indicia of his nonemployee affiliation and with the purported authority to act on their behalf. Accuardi Decl., Exs. 2, 3, & 26. Finally, several pieces of evidence suggest joint control of TMC, International Telephone, and Pacific Telecom: (1) for both TMC and International Telephone, Accuardi uses the same email address (interlaw@justice.com) (Fredericks Decl., Ex. 6, p. 3; Accuardi Decl., Ex. 2, p. 8); (2) the Sheriff's office in Hernando County, Florida, discovered that the domain for Pacific ...


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