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.