Cash4Gold Threatened Jail If Negative Comments Weren't Removed
Ex-Cash4Gold employee Vielka Nephew filed a motion to vacate the default in the company's lawsuit against her this week, a lawsuit we're a party to. By getting rid of the default she would then be able to defend herself in the lawsuit and to seek to undo the default injunction which Cash4Gold had obtained against her. One highlight of Nephew's legal papers is the declaration attached as Exhibit C, in which she says Cash4Gold's lawyers told her the company would seek jail time for her and Michele Liberis if the statements Liberis posted on the internet about the company — which Cash4Gold alleged to be false and defamatory – were not removed. Here's what Vielka declared:
In our conversation, I explained to the lawyer that I was confused about the lawsuit because it was based on comments I had nothing to do with. He suggested that I should speak with Michele Liberis and urge her to remove the comments about Cash4Gold from the internet. I insisted that I was confused by the lawsuit because it had nothing to do with me. He said the best thing for me to do would be to convince Michele Liberis to remove the comments she had posted. He stated his client was willing to seek jail time for me and Michele Liberis if the internet comments were not taken down.
Likely what Cash4Gold's lawyer referred to was the potential for a contempt of court order for not complying with the directives of the injunction. While possible, it's unlikely the court would have gone along with it, but how would Nephew, who was not represented by counsel at the time, know that? Another classy move for Cash4Gold.
Read the whole motion here. (PDF) Cash4Gold will have to file their opposition to the motion shortly.
PREVIOUSLY: Cash4Gold Defendant Liberis Files To Vacate Default
The Article Cash4Gold Doesn't Want You To Read
10 Confessions Of A Cash4Gold Employee
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Comments:
Beating their chests, that is all.
Now, wouldn't it just be hilarious if 10,000 people posted all of Liberis' statements on their own blogs? Because, you know, that's exactly what's going to happen. After all, this is the internet.
And can they really spend time in litigation with each & every person who does such a thing?
Threatening criminal punishment for a civil action is a crime. That crime is extortion. Have a good day.
Now I'm confused. What did Nephew allegedly do? I just read the complaint and all I found relevant to the reason for the suit is
25. In or about 2009, Defendant NEPHEW breached the Agreement and the Separation Agreement by disclosing CASH4GOLD's confident and proprietary information to a third party.
Doesn't a complaint need more details than that? What third party? What was the nature or circumstances of the disclosure?
And is "Injuntive" even a word? I see that CASH4GOLD's lawyers have copy and paste, but do they have a spelling or grammar checker?
As an officer of the court, Cash4Gold's lawyer is forbidden to coerce Ms. Nephew in this way.
All the more reason to press "record" on your MP3 player when you have these types of conversations.
@twophrasebark: If you live in a single party recording state. In some states, you must notify the other party if you're recording the conversation.
Jail time? Where? The Fantasyland Prison?
Yes, thank you for pointing that out.
For finding out the laws in your state, see this handy guide:
Jail time for a comment on the internet...not really. They should be sued for harassment.
@Michael Belisle:
I've heard of the phrase "injunctive relief" before, so I'm guessing even if it isn't a word, it's meaning of having to do with an injunction is clear from the context.
@Michael Belisle: apparently not, it says right there in the quote you included that the information is "confident" although i can't see how the confident nature of the information relates to the proprietary nature of the information. grammar check might have exploded trying to figure that one out
@night_2004: The Internet would be barren and our jails would be overflowing if your comments on the Internet that someone else felt violated the law resulted in jailtime.
In this case, I think they're referring to their legal stuff employees have to sign.
Consumerist, you're still awesome for staying in this fight. Looking forward to the next chapter.
@Snarkysnake: A judge ordered an injunction against Liberis. Liberis and Nephew are involved in a joint lawsuit filed by C4G. Failure to adhere to a judge's order, regardless of civil or criminal, is called contempt of court, which is punishable (at the judge's discretion) by jail time. Whether the injunction applied to Nephew is up to the judge to decide. Threatening to ask the judge to impose contempt charges against Nephew for an injunction against Liberis is not extortion.
I agree that Nephew is not responsible for the statements made by Liberis, but they are joint cases and its up to a judge to sever them and/or declare deny a motion by C4G to find contempt against Nephew. Not extortion.
@catastrophegirl: right but wasn't part of this whole thing that they say she made up what she said and then they turn around and call it proprietary information? If she made it up, wouldn't it be her proprietary information and then they would file a slander suit?
Threats are part of legal proceedings. It sucks but as a defendant, you have to just tough it up and go forward with the parts of your case that have merit and ignore the kruft that the plaintiff's attorneys try to throw at you. This is where having an attorney of your own comes in really handy - they can easily tell you what threats to ignore and what to challenge. It's all part of the game.
Ben, aren't you afraid you're going to the Big House for posting all these articles???
Didn't your lawyer warned you about the, er, Court of Internet Internment? Surely the Cash4Gold lawyers must have mentioned this to you...
@twophrasebark:
See the above comment regarding contempt of court. You can be jailed for contempt. They pointed out that they would ask for them to be held in contempt, and jail imposed, for failure to comply with the injunction. Thus, it's not illegal.
@humphrmi:
Exactly. For one, judges aren't exactly loosey goosey with handing out jail as a sanction for contempt. It happens, but the contempt has to be pretty severe. The chances of these defendants going to jail for contempt? Pretty slim. However, it's a valid threat on the attorney's part.
@humphrmi: Re: "It's all part of the game." I'm sure all the lawyers involved here know this is just "a game," but laypersons don't generally know that.
As for the lawyers threatening things that they know aren't going to come to pass ... isn't that unethical?
... wait, strike that, I forgot, "ethical" and "lawyer" have nothing to do with each other, so never mind ...
@PsiCop:
The lawyer doesn't "know" that it's not going to happen. The lawyer knows the chances of it occurring are not great, but it's possible and it's a sanction the lawyer has every right to request. The defendant is free to argue against it, and the judge will then decide what's going to happen. Doesn't really have anything to do with ethics.
@PsiCop: Judges are part of that game too. And they make the decisions. Lawyers can ask judges for whatever they want. It's up to the judge to decide what's valid.
@PsiCop: And, by the way, if it isn't already clear enough - I'm clearly behind the defendant here. The threat is bs. But it's not extortion.
@Michael Belisle: (disclaimer: IANAL) We just went over both of these topics, injunctive remedy, and intro to pleadings.
Based on one civil procedure lecture on the topic: "Injunctive" is the adjective form of "injunction", used to describe the form of relief sought by the plaintiff.
I'm sure you're familiar with an injunction, where the court orders someone to stop doing something. If the court grants injunctive relief, they are ordering an injunction of some sort.
In this case, the plaintiff filed for a preliminary injunction, where they ask the court to force some party to stop doing something before court proceedings through a special hearing because some "irreparable harm" could otherwise occur, in this case, some sort of damage to their business or reputation from this information. They also have to show that they would likely "succeed on the merits", that is, demonstrate to the judge that whatever the dispute is, they would likely win it.
On the complaint, they generally need to be specific enough that you have establishes a cause of action by which the court can award some sort of remedy, and contain enough detail that the defense can prepare a response. In this case, I don't see how it matters who the 3rd party is, as long as they weren't privileged to receive the information. Other than that, complaints are supposed to be (according to the Federal Rules of Civil Procedure) "short and plain". Of course, other jurisdictions use other standards for pleadings. That claim contains a cause of action, and some conduct that led to that cause, but I have no idea if that is 'too short' or not. There are probably some other paragraphs related to the alleged conduct that flesh it out a bit.
If the complaint was indeed too short, and did not specify a cause of action, then the defense could file a "motion to dismiss for failure to state a claim", which is basically saying, "hey, they didn't actually say anything... can we all go home now?"
But to find out how any of this would really shake out, well, that's what you need lawyers for.
@Esquire99: I absolutely agree that lawyers and ethics have nothing to do with one another. Any given lawyer can always twist things just enough so that anything unethical s/he does, can always seem just fine. You just showed how it's done!
QED.
@humphrmi:
There is no injunction against Nephew. As an officer of the court, the lawyer is forbidden to threaten criminal punishment for a civil complaint. Only the judge can threaten jail time for contempt, as you correctly point out.
Not the lawyer. Your sophistry would not impress the judge, believe me. You cannot coerce someone in a civil complaint with the threat of jail time.
As there is no injunction against Nephew, the lawyer's comments would be hard to misinterpret as alluding to the extant possibility that judges sometimes find people in contempt for all sorts of stuff.
As I wrote above, I don't think the judge would be impressed by your argument.
There's a long road between advising someone that the judge may find you in contempt and coercing someone outside of the courtroom with the threat of criminal punishment in a civil case.
Besides the fact the amount of times that people are sent to jail for contempt is basically never. Only in the movies and only in unbelievably rare circumstances.
They're starting to make me legitimately sick.
Know your rights, people. Use them.
@humphrmi: So you think that when a judge issues an injunctive order against one person, it somehow magically gets to be applied to someone else? That's one of the stupidest things I've ever heard. Now if the order had been against Nephew in the first place, that would be something else and if you were competent in law you'd surely point that out first. So I'll assume it wasn't.
But does even a judge get to say "This order I issued against person X ... person Y should have understood it was their obligation, too ... so put person Y in the slammer"? I think not if there was no lawful order against person Y.
It's already clear that C4G's lawyers are playing fast and loose with proper service ... a tactic more typically seen in the collection business (especially in states like New York and Minnesota which have laws that allow improper or defective service, though that doesn't stop them from doing it in the other 48).
Anyway, unless Nephew WAS given an injunctive order to begin with, then I most certainly will call C4G's threat (not the asking for an order of content, which is merely a defective motion) to be extortion.
@PsiCop: Lawyers are actually some of the only professionals that are strictly bound to an ethical code. People mistake this in some way as meaning that lawyers should be neutral or politic in their dealings, but it does in fact require the exact opposite.
Our court system is adversarial, and the professional code of conduct for lawyers requires "zealous representation" of a client. That includes doing anything and everything allowed to win for your client. Anything less would be a failure of your duties to your client, or otherwise stated, anything less would in fact be unethical.
So, you are confusing some general, moral sense of ethics with the ethics of advocacy. And, that is exactly what a lawyer does in representing someone. If you pay someone to represent you, are they not duty-bound to perform to the fullest of their capacity on your behalf? Would you want an advocate to do anything less?
Idea: Everyone start calling Cash4Gold GoldMonster, and wait for Monster Cable to sue them even though the name is not their choice. (Do you really think that reason will stop the cable guys?)
While they are beating on each other, the rest of the world can get on with living.
@Snarkysnake:
Jail time is not necessarily criminal punishment. Jail time can be given as punishment for contempt and to coerce compliance with a civil injunction. From what Ben has posted here it's not totally clear as to whether there is an injunction that applies to Nephew.
@Skaperen:
"By getting rid of the default she would then be able to defend herself in the lawsuit and to seek to undo the default injunction which Cash4Gold had obtained against her"
It seems that there IS an injunction against Nephew at the moment.
@twophrasebark:
Whether the judge decides to impose the punishment of jail for contempt is irrelevant. What the lawyer did wasn't illegal, as they were merely pointing out that they would seek jail as a penalty for failing to comply with the injunction. That is entirely proper, given that jail is a potential sanction for contempt.
the judge doesn't care, this allegation has nothing to do with whether or not the default should be vacated.
not trying to sound mean, but it has nothing to do with the issue before the court in connection with this motion... IE it's tangential and superfluous.
@diasdiem: Actually, no real effort needs to be put into it for the news to spread.
Natural human curiosity drives people to find the comments, and there are always multiple copies on the internet that can be found, even after the original post is taken down due to the legal action. From there, the information spreads exponentially until anyone with even a remote interest in the subject has read it.
It's called the Streisand effect, after a woman's demands to have aerial photos of her house removed from the internet resulted in the very same images becoming widely known and viewed.
Civil matters are not criminal matters.
Can't we just get some/b/ tards to attack them?
Why did we expect anything less from Cash4Gold?