Executive summary: Tony Mitchell threatened to sue me for exposing his company’s slimy telemarketing practices on my blog. I had to pay a lawyer to defend myself against his threats. See below for his letter and the one my lawyer sent in response. If you hate slimy telemarketers and opponents of free speech as much as I do, please consider clicking the “Donate” button to the right and kicking in a few bucks toward my legal defense. (Note: The previous sentence will be removed if/when I’ve recouped my legal expenses.)
I have written before about Mitchell Communications Group, a.k.a. Faithful Marketing, a.k.a. Vandell Communications, all different names for the same telemarketing firm owned and operated by one Tony Mitchell. Hereafter I will refer to them as “Vandell”, since that’s the name they’re using as I write this.
I won’t rehash here everything I’ve written about Vandell, but here are the high points:
- Vandell’s one and only line of business appears to be calling people on the phone, telling them that they’ve won a fabulous prize, and convincing them to attend a 90-minute sales pitch for a vacation club / timeshare rental club / whatever to claim it.
- Vandell claims that they only call people who have entered contests, but there are many testimonials on my blog and all over the internet from people who say they entered no contests and yet were called anyway.
- Vandell claims in their scripted sales pitch that they are not a telemarketing company, and yet they describe themselves as a marketing company on their web site, and their main business is making telephone calls; if they’re not a “telemarketing company,” then I don’t know what is.
- In a misguided effort to respond to the material I’ve posted about them, Vandell has posted numerous forged comments on my blog, including one comment purporting to be from a police officer.
As if all this wasn’t bad enough, Vandell has decided that the best way to silence their critics is to threaten lawsuits against any web site which criticizes them. Such sites are easy to find by searching for “Vandell Communications” or “Mitchell Communications”, or searching for the caller ID of the number from which they call you.
I’m an easy target for such chicanery, since I blog under my own name and my contact information is readily available. A couple of months ago, I received the following letter.
3114 West Irving Park Road
Chicago, Illinois 60618
6 June 2011
BY ELECTRONIC AND FIRST CLASS MAIL
|Mr. Jonathan Kamens
[city, state zip elided]
Re: Vandell Communications, LLC
Dear Mr. Kamens:
I represent Vandell Communications, LLC. Your blog, located at blog.kamens.us, contains false statements about my client (“Defamatory Posts”). Specifically, you characterize my client’s business operations as a scam. Additionally, you encourage people to avoid my client. These statements give rise to claims for defamation and tortious interference with prospective business relations. Consequently, my client has authorized my firm to pursue litigation against you on its behalf. However, prior to doing so, my client agreed to provide you with an opportunity to amicably resolve the matter by meeting specific non-monetary demands articulated below. Absent an immediate agreement on or before end of business June 13, 2011, my client intends to pursue litigation and all rights available to it.
Background on Vandell Communications, LLC
Vandell Communications provides marketing services to third parties. Specifically, its customers will send it leads obtained from consumers or other sources for purposes of calling the consumers to invite them to attend a marketing event. The consumers identified in such leads have consented to receiving communications regarding solicitations from my client’s customers.
My client does not sell any products to consumers. My client does not accept any payments from consumers. Rather, my client merely communicates with consumers that have expressed interest in participating in promotional events.
Upon calling a consumer, my client identifies itself as required by applicable law. It then explains the nature of its call and offers to schedule an appointment between the consumer and its customer. Upon scheduling the appointment, my client sends a letter to the consumer explaining in detail the aspects of the promotion. Beyond this, my client has no further content with the consumer.
It should be emphasized that the individuals who receive telephone calls from my client have provided consent to receive promotional communications.
Tortious Nature of Statements
Given the foregoing, your statements characterizing my client’s business operations as a scam are false. My client is not a scam. My client does not operate a scam. Given the false nature of the statement in relation to the connotation of a “scam,” the statement constitutes defamation per se because it imputes the commission of a crime as well as prejudices my client in its profession and trade. See Kumaran v. Brotman, 247 Ill. App. 3d 216, 227, 617 N.E.2d 191 (1993). As defamation per se, my client need not plead or prove any specific actual damages arising from the statement.
Assuming, arguendo, the statement did not rise to the level of defamation per se, the statement certainly constitutes defamation per quod. And, though damages must be plead and demonstrated for a claim of defamation per quod, my client can clearly articulate and demonstrate direct financial harm arising from your false statements.
In addition to the claims for defamation, the false statements give rise to claims for trade libel as to Vandell Communications. Moreover, given that you implicate Tony Mitchell directly, the false statements also give rise to claims for defamation and false light as to Mr. Mitchell in his individual capacity.
By encouraging others to refrain from doing business with my client, you also have tortiously interfered with Vandell Communications’ prospective business relations.
Each of the foregoing claims provides for the recovery of compensatory and punitive damages.
The foregoing being said, my client’s primary goal has been and remains the removal of the Defamatory Posts. Consequently, should you agree to (a) permanently remove the Defamatory Posts; (b) permanently remove the blog page on which the Defamatory Posts are located at http://blog.kamens.us/2010/08/06/scam-call-from-mitchell-communications-group/; and (c) refrain from future communications about my client, my client will consider the matter resolved. However, I must receive an affirmative response that you will immediately agree to the foregoing on or before end of business June 13, 2011.
Absent immediate agreement to the foregoing, my client intends to pursue litigation against you and others who have contributed to additional false statements on your blog. We hope this will not be necessary.
Obligation to Preserve Information
Regardless of how you chose to proceed, you have been advised that the Defamatory Posts and your blog page at http://blog.kamens.us/2010/08/06/scam-call-from-mitchell-communications-group/ may become the subject of litigation. Consequently, this letter also serves to advise you of your affirmative duty to preserve any and all information related to the Defamatory Posts and the blog page referenced above including, but not limited to, any Internet Protocol (“IP”) addresses associated with the individual comments posted thereon.
Again, my client would prefer to resolve this amicably. To that end, I respectfully request an affirmative response on or before end of business June 13, 2011. Should you fail to respond by end of business on June 13, 2011, I shall presume that you do not intend to cooperate and prefer to have the matter litigated.
Charles Lee Mudd, Jr.
After gnashing my teeth and panicking briefly, I sat down and wrote a long, detailed response to Mudd in which I made it clear that his threat of a lawsuit was asinine; I would vigorously defend myself against any such lawsuit; Tony Mitchell would be made to look very bad if there were a trial; and I would counter-sue for damages and certainly win. I did not, however, mail this letter.
Instead, I spoke with Andrew Fischer, a friend of mine who is an attorney (and, by the way, a prominent civil rights activist and currently the president of the Jewish Alliance for Law & Social Action, although to be clear JALSA has nothing to do with his efforts on my behalf in this situation), and retained him to represent me in this matter. Using my letter as a starting point, Andrew wrote his own letter and sent it to Mudd on his letterhead. This was advantageous to me for two reasons:
- Andrew’s experience as a litigator makes him more qualified to write a good “lawyer letter” than I am.
- By retaining an attorney, I made it clear that I was serious about defending myself should he choose to pursue this any further.
The biggest way in which Andrew’s letter differed from mine is that he removed a lot of text. My thought, in writing my letter, was to make it clear to Mudd how foolish it would be for him to sue, by explaining in detail exactly how I would respond to such a suit and making it clear that my response would win the day. Andrew explained to me that showing your entire hand like that is bad strategy; it’s better to hint at the details without actually spelling them out.
Here’s Andrew’s response, posted with his permission:
June 24, 2011
BY EMAIL AND UNITED STATES MAIL
Charles Lee Mudd, Jr.,
Mudd Law Offices
3114 West Irving Park Road, Ste. 1W
Chicago, Illinois, 60618
RE: Jonathan Kamens
Dear Mr. Mudd:
Please be advised that this office represents Jonathan Kamens, who has retained me with regard to threats of SLAPP litigation you have made in your letter of June 6, 2011 on behalf of Vandell Communications, LLC, a/k/a. Mitchell Communications Group, a/k/a Faithful Marketing (hereinafter, “Vandell”).
Vandell’s claims against Mr. Kamens blog and Mr. Kamens are wholly without merit, and he will defend himself vigorously against them. Mr. Kamen’s activities, about which you complain, are free speech, protected under the First Amendment to the United States Constitution and Articles XIV and XXI of the Massachusetts Declaration of Rights. Likewise, the Illinois Citizen Participation Act also protects Mr. Kamens’ right to free speech. Such rights are absolute, unless Mr. Kamens makes false or defamatory statements, which is not the case.
Mr. Kamens’ blog calls upon readers who have been telephoned by your client to file complaints with the appropriate government agencies if they are on the federal do-not-call list and do not believe they have given your client permission to telephone them. To the extent that Vandell does, as you say in your June 6, 2011 letter, only contact those who have asked to be contacted, Mr. Kamens’ blog is inapplicable and to the extent that you claim Vandell does not sell any products to any consumers, Mr. Kamens’ blog posts cannot be interference with any relationship business relationship for you are claiming that Vandell has no such relationship. [That last bit is a great point which Andrew, not me, came up with. This is why he’s the laywer and I’m not! – jik]
In any event, Mr. Kamens’ blog postings concerning Vandell are speech aimed at procuring favorable action from the government, and thus protected by the First Amendment and comparable state laws. Any lawsuit filed with the intent of interfering with Mr. Kamens’ exercise of free speech will be treated as a violation of his civil rights. CPA therefore immunizes him from liability for these postings.
Please take note that Mr. Kamens’ posted comments on his blog clearly and obviously represent statements of opinion rather than fact. Furthermore, he clearly and explicitly articulates all of the facts supporting his opinion. Readers of the blog are therefore free to draw their own conclusions. As statements representing pure opinion, Mr. Kamens’ posts are strongly protected under the First Amendment.
Accordingly, Vandell’s argument that the usage of the term “scam” to describe Mitchell’s business dealings represents libel per se is without basis. The word “scam” is widely used in common parlance to mean any situation in which someone acts in an intentionally misleading way. If you bring suit against Mr. Kamens based on his use of this word, we are prepared to prove objectively, with overwhelming evidence, that Vandell has acted in an intentionally misleading way. As such, the use of the term “scam” to describe Vandell’s actions is an entirely reasonable and protected statement of opinion.
Vandell’s argument that it is only a “middle-man” does not excuse it from its obligation not to pass on false or misleading statements of its “clients” or otherwise engage in consumer fraud and Mr. Kamens has every right to raise his legitimate concerns about Vandell’s business practices. Mr. Kamens has ample, concrete evidence to support his blog posts and if called to do so in court is prepared to prove that Vandell is violating various laws and making false statements. Moreover, Mr. Kamens believes he can already prove conclusively that Vandell made some of its false statements knowingly, and is confident that more of them will emerge from pre-trial discovery.
Some of these are false statements that Mr. Kamens can prove now, before any discovery. If called upon to defend any accusation of defamation, Mr. Kamens will offer a defense of truth, an absolute defense to any defamation claim. Further, Mr. Kamens will argue that he gave Vandell ample opportunity to respond to the allegations he made against it. He allowed comments posted by Vandell to appear on his blog, and he published an open letter to Tony Mitchell in which he asked specific questions which would be easy for Mitchell to answer were his claims accurate. Vandell failed to provided evidence to support its claims. Thus, Mr. Kamens postings are good-faith fair reporting which mitigates any claims of malice and is one of several reasons why it will be impossible for Vandell to satisfy the elements of defamation.
Please be reminded that a plaintiff with unclean hands is not entitled to seek through the courts an equitable remedy, as you propose. Mr. Kamens would defend any effort to remove any blog postings by proving that Vandell posted forged comments on his blog, several of which purported to be from satisfied callees who had been awarded prizes, and one of which purported to be from a police detective, but all of which were in fact posted from Vandell’s office IP address. These forgeries clearly muddy Vandell’s hands. Vandell may not find it wise to allow such forgeries to be litigated into a public record, as well as other evidence of false and deceptive conduct. Thus discovery in any suit against Mr. Kamens may prove more damaging to Vandell than simply allowing Mr. Kamens to exercise his First Amendment rights.
Given these facts, any suit Vandell brings against Mr. Kamens would be in bad faith, frivolous and without merit and Mr. Kamens would seek appropriate sanctions including recovery of any and all costs, including attorneys fees incurred in defending against such frivolous claims.
Andrew M. Fischer
CC: Jonathan Kamens
I’ve heard nothing back from Mudd since Andrew’s letter was sent, which I hope means either that Mudd knew all along that he had no case and was hoping to intimidate me into taking down my blog postings, or that Andrew’s letter had the intended effect of making Mudd see the wisdom in dropping the matter.
As I noted above, I paid Andrew a fee to represent me in this matter — I wouldn’t ask a friend to do professional work for me without paying him for it! Andrew’s fee was reasonable, but it’s not like I’m rolling in cash or anything. If you hate slimy telemarketers, not to mention people who threaten to sue others for engaging in free speech, please consider clicking the “Donate” button to the right and kicking in a few bucks to help me recover my legal fees. I’ll stop asking if/when that happens. Thanks!