Tag: Sellers

UPDATE: There are a few new wrinkles in the case.

ORIGINAL ARTICLE: Let’s say you left a negative review on eBay. Maybe the seller wasn’t prompt in delivery, or maybe they weren’t completely honest about the product. Whatever. At what point would you feel like you needed to remove or edit that feedback? What if the buyer corrected their mistake – or made it up to you in some way. What then? Would you reconsider if the buyer sued you for damages?

An eBay seller is suing a buyer after she left a negative review on the site and refused to rescind it – and the buyer isn’t backing down. The negative feedback was over an unexpected $1.44 postage charge.

According to the complaint, Amy Nicholls purchased a microscope part from Med Express in February. As a result of that purchase, Nicholls incurred shipping costs ($12 on top of the $175 purchasing price).

Med Express took her payment via PayPal, and shipped out the device. When it arrived to Nicholls, there was an extra $1.44 postage due.

Who’s in the right? Is there any reason for a seller (or business) to sue over a negative review? Should a buyer ever be instructed to remove a review? Is it all about what can be proven libelous? Where do you draw the line? Let us know in the comments.

Nicholls, operating under the eBay moniker chimera_studios, posted on February 26th that the “Order arrived with postage due with no communication from seller beforehand. It was logged as a negative feedback on eBay.

Med Express quickly responded, saying that “Sorry – no idea there was postage due. This has happened alot (sp) from USPS lately.”

Over the past year, Med Express has 298 ratings, only 2 of which are considered negative. Their positive feedback percentage stands at 99.3%.

“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.”

Med Express goes on to say that Nicholls caused them irreparable harm and caused them to lose customers and income.

They seek not only an injunction to remove the negative feedback, but also damages (both punitive and reparative).

The facts of the case do not seem to be in dispute. And in a letter to Med Express, Paul Levy of the Public Citizen Litigation Group (on behalf of Nicholls) makes it clear that the feedback about them is true, and that Med Express admitted to that in communications with him. That, and the lawsuit itself is the definition of frivolous.

“In a sense, what you and your client seem to be contending is that your client’s offer to pay the $1.40 is a sufficient display of contrition that Nicholls ought to be forgiving. But the point that she made in her message to you was that the problem wasn’t the money but the hassle. she indicated that she would have been willing to pay $1.40 more in shipping up front, but that she was posting feedback because a company that ships products ought to be able to do a better job.

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,” says Levy.

“Moreover, the relief you are seeking would be injurious to consumers. Your other potential buys have an interest in knowing the history – that, for a period of time, you were repeatedly using a shipper knowing of problems that could result in user having to pay postage due.”

Remember the response Med Express had for Nicholls? “This has happened alot (sp) from USPS lately?”

Of course, Levy argues that’s not really the most important part. Summarily, Ohio law and the First Amendment prevents Med Express from suing over this type of negative review.

eBay isn’t the only place online where reviews have been an issue for the courts. A few months ago, a judge ruled that a women must edit part of her review of a contractor on Yelp and Angie’s List, after she accused the company of stealing jewelry from her home. A later decision overturned that one, ruling that her postings were free speech until proven defamatory.

There are a lot of far-reaching implications in cases like this, and the aforementioned eBay case. On one hand, courts can’t universally protect anything a reviewer ever says under the umbrella of free speech. That would open the doors to false reviews and flat-out lies directed at businesses in the attempt to smear. We know that this isn’t legal.

On the other hand, it’s dangerous to set a precedent that says businesses can successfully win suits like this. At that point, it’s a slippery slope to open season on internet users and their legitimate complaints. Do we really want the courts clogged up with lawsuits over a one-sentence blip of text like “God, worst burgers ever”?

What do you think? Where’s the line? Do you think that the eBay case we’ve discussed is pretty cut and dry? Can you foresee circumstances where this sort of thing gets more complicated, and the right decision becomes harder to discern? Let us know in the comments.

[via Ars Technica]

We recently told you about a particularly odd lawsuit in which an eBay seller was suing a buyer for feedback left on their page. The seller, Med Express, was suing the buyer, Amy Nicholls, over her complaint on the eBay feedback page that her product had arrived with an extra $1.44 postage due.

Med Express offered to correct the mistake, reimbursing Nicholls for the undue charges. But Nicholls had already posted the “negative” feedback on eBay. Med Express claimed that that feedback (which knocked their favorability rating down to 99.3%) caused them irreparable harm. They sued for an injunction to get the feedback removed and for damages from the resulting loss of business.

Nicholls, with the help of Public Citizen’s Paul Levy, lawyered up and fought back – saying that her feedback was accurate and that expressing it is not a tort, and especially no reason to seek damages. To Levy, the lawsuit was the epitome of a frivolous mess. The case saw widespread coverage across tech sites. You can read our longer breakdown of the initial lawsuit here.

Now, we have a couple of new wrinkles in the case. Med Express President Richard Radey took to Public Citizen’s site to issue an “apology” for the lawsuit in the comments.

“I hope all of you will accept this as an open letter of apology from Med Express,” he said.

He went on to explain that the lawsuit was never meant to be targeted at Nicholls, and that he had instructed his lawyer to seek $1 in damages.

“Her feedback was also never an issue. We fully support her right and all of our customers right to leave any feedback they desire – true or otherwise!” he said.

Apparently, the issue involved eBay’s “Detailed Seller Ratings.” He said the low rating caused Med Express to love their coveted “Top Rated Seller Plus” standings. He then linked this to a possible loss of tens of thousands of dollars in the future.

Also, he claims to have not read the suit:

The only way DSR’s are removed is by court order, and I was told that such court orders were not uncommon. I do deeply regret the wording of the lawsuit. I had not read it and only learned of the wording on the blogs. I too would have been outraged and for that I also sincerely apologize. It is the addendum attached ordering Ebay to remove the DSR’s that was our only goal.

The only person to blame here is me. You have spoken and I have listened. A terrible wrong needs to be righted. I am instructing our attorneys to drop the lawsuit. I want to assure everyone that you may feel free to leave any feedback on our company without fear of reprisal. I have learned my lesson.

Public Citizen’s Levy has now published a response, basically saying “I don’t believe you.”

“When I criticize somebody on this blog, I generally send a courtesy notice with an invitation to respond omnt he blog. When the target of criticism owns up to a mistake, it is also my practice to be gracious. Ordinarily, then, a profuse apology like Radey’s would be cause for admiration. Problem is, I don’t believe a word of what he says…” Levy writes.

Expect that he does believe Radey is sorry about the criticism Med Express has received through all the media coverage of the suit. But the rest, he says, is a smoke screen.

In fact, he claims that the lawsuit against Nicholls is simply one of many, and it’s not even the most ridiculous. He points to a long list of past and pending claims against eBay and eBay buyers.

“From my review of many of the cases, Med Express typically files a complaint based on extremely vague assertions of falsity, against defendants who may be too far from Medina too respond effectively, seeks a temporary restraining order without giving any notice, and hopes to get relief before the defendant knows what hit him, her or it,” says Levy.

Levy also claims that Radey’s assertion that it’s the lawyer’s fault, and that he hadn’t seen the lawsuits before they were filed is nonsense. Levy says that Radey signed a verification for the suit and signed an affidavit complaining about the negative feedback.

“Even if I were inclined to believe Radey’s assertion that all he really wanted was an injunction taking down the criticism, I would not be assuaged; in some ways, such injunctions, and the procedures for getting them, are even more of an affront to the public interest,” says Levy.

“[T]he public at large is injured by these fixes, because consumers have an interest in learning what the criticism was, and what the response. Not all rating systems are perfect; maybe there are reasons to doubt the accuracy of the “DSRs.” But they are one data point that eBay consumers can use to decide where to buy goods online. We should not forgive Radey and Med Express even if it were true that distorting his own DSR’s was the only objective of this frivolous litigation.”

Nicholls’ lawyers have filed a counterclaim, one that seeks sanctions and punitive damages from Radey and his attorneys. This will move forward, according to Levy.