Popehat Signal: Help An Oregon Blogger Exposing Telemarketing Violations

Law
New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

New Popehat Signal courtesy of Nigel Lew. Thanks, Nigel!

Today I light the Popehat Signal for an Oregon blogger threatened with a defamation lawsuit over statements on Telecom Compliance News Press, his blog about various telemarketing schemes. You know those "Rachel from Card Services" calls to your cell phone that I've written about? He writes about that sort of thing. The subjects of his posts have threatened him before.

Recently he received an email from and attorney named F. Antone Accuardi. Mr. Accuardi previously been mentioned as associated with entities accused of telemarketing abuse, and is a defendant in a proposed federal class action suit alleging telemarketing violations, which allegations he denies. In Mr. Accuardi's email to the blogger, he threatened as follows:

Pursuant to Oregon statute I am writing you to demand that you retract your defamatory statements that you have ubiquitously posted on your internet blog, telemarketerspam/wordpress.com. I do not own or control any of the businesses you falsely associate me with, do not receive a dime for CNAM, do not know or have anything to do with Louis Martinez or any company he may have an interest in, and have no offshore bank accounts where I hide my ill gotten gains. Most importantly, I am not the mastermind behind a nation wide conspiracy to violate state and federal laws by initiating, facilitating or otherwise participating in any telemarketing scheme, nor have there been any FTC complaints alleging that I did anything that might initiate such complaints. Put simply, you posted stories purporting to be facts with absolutely no proof whatsoever as to their veracity. Now you must remove it, along with a statement to the effect that you were wrong. Frankly, I could care less if you do, I am going to sue you in any event. Failure to provide this demand would eliminate my probability of getting presumed, general damages in my suit against you for, among other things, libel per se. FYI, I am fully cognisant of Oregon's SLAPP statute and have already compiled substantial evidence that I will prevail in this case, so bring it on.

This should also serve as notice to you that you are going to be sued and that you are required to preserve all of the evidence in your possession or control. Failure to do so may result in a motion for spoliation of evidence instruction to the judge and or jury that hears the case, allowing them to find that such destruction of evidence can be inferred negatively against you at trial.

See you round the courthouse…..

Thank you for your prompt attention in this matter.

I have not investigated whether the blog made the statements Mr. Accuardi attributes to it, nor do I know whether the blog has a factual basis to make those statements if it did. However, this emailed threat has many of the hallmarks of vexatious harassment. Though he specifies specific statements alleged to be false — something of a rarity — Mr. Accuardi ignorantly or deceitfully misstates Oregon law. The Oregon retraction law to which Mr. Accuardi alludes allows a demand for retraction only within 20 days of when the subject actually learns of the publication. The blog's last publication was in February 2013. Mr. Accuardi has known about the blog, and followed it, since 2012. He corresponded with the blogger in July 2012 and corresponded with me about it that same month. So: either Mr. Accuardi hasn't bothered to read the statute he is invoking, or he is hoping to deceive the blogger about its terms through bluster. The rest of the email — bumptious and unprofessional — also smacks of censorship rather than merit.

The best way to resolve such a claim is when both parties are represented by competent counsel. Unfortunately, our legal system makes it ruinously expensive to defend even a meritless claim. As a result, people are often chilled into silence about important issues — like telemarketing abuse — not justly, but out of fear of financial ruin. That's why I invoke the Popehat Signal. I make no prejudgments about whether the Telecom Compliance News Press said something about Mr. Accuardi that was incorrect. That's a question best resolved through exacting analysis of Mr. Accuardi's claims and, if appropriate, thorough discovery into his interactions with telemarketing companies. But a blog exposing telemarketing misconduct should not be shut down out of fear generated by a threat like this one. If you are admitted in Oregon, please consider contributing pro bono help to the blogger: advice at this stage, and perhaps defense if the threat becomes fact. If you know anyone admitted in Oregon who may help, please spread the word.

Edited to add: Three attorneys within a few hours. You people are awesome.

Last 5 posts by Ken White

25 Comments

25 Comments

  1. sorrykb  •  Aug 22, 2013 @11:43 am

    Frankly, I could care less if you do, I am going to sue you in any event.

    Can I counter-sue for abuse of the English language?
    http://www.youtube.com/watch?v=om7O0MFkmpw

  2. Chris Mulder  •  Aug 22, 2013 @11:45 am

    Govern yourself accordingly.

  3. Gabriel  •  Aug 22, 2013 @11:48 am

    Now you must remove it, along with a statement to the effect that you were wrong.

    If I don't have a statement that I was wrong already posted, do I have to make one and THEN remove it? Or can we just call that part a wash?

    If you're a lawyer, sentence construction is not an optional part of the job.

  4. Jeroen  •  Aug 22, 2013 @11:52 am

    Now you must remove it, along with a statement to the effect that you were wrong.

    So… post an apology, then remove it along with the offending posts?

  5. Graham Shevlin  •  Aug 22, 2013 @12:03 pm

    "see you round the courthouse" is pure East London threatening bluster. This guy is a posturer of the first order.

  6. ketchup  •  Aug 22, 2013 @12:10 pm

    This brings up an interesting question. In a legal document such as this – after all Mr. Accuardi states this is official notice of intent to sue – is one bound by what it actually says ("remove your apology"), or what the author in all probability really means ("post an apology")? I would think that such a contradiction would render the sentence completely meaningless from a legal point of view. As this is arguably the most important sentence in the document, as it contains the actual demands, does it render the entire document moot?
    As Gabriel says, grammar is not optional for lawyers.

  7. jimmythefly  •  Aug 22, 2013 @12:25 pm

    "I…have no offshore bank accounts where I hide my ill gotten gains."

    So, they're just under the mattress then? Or maybe buried about the yard in mason jars?

  8. ketchup  •  Aug 22, 2013 @12:55 pm

    "Iā€¦have no offshore bank accounts where I hide my ill gotten gains."

    I note this is a much weaker statement than the easier to write

    "I have no ill gotten gains".

  9. En Passant  •  Aug 22, 2013 @1:00 pm

    I've got no legal expertise to offer here, but I'm in contact with a black belt umpteenth dan telecom engineer and CLEC owner, who's been expert witness in many cases, some of national interest. I'm optimistic that he could become available if his expertise is needed.

  10. xbradtc  •  Aug 22, 2013 @1:13 pm

    INAL, but doesn't the intention to sue, even if the defendant complies with the stated demands, imply malice or somesuch?

  11. melK  •  Aug 22, 2013 @1:42 pm

    "take down this material"
    "I am going to sue anyway"

    Given the statement that a lawsuit is imminent, is there any advantage to the defendant in complying in this situation? There will be a lawsuit anyway, and there will be a defamation judgement either way. Those facts won't have changed.

    But IF found guilty of defamation, will the penalties be less if the material is taken down? Or is the announcement of intent to sue regardless of compliance a mitigating factor?

  12. Manatee  •  Aug 22, 2013 @2:40 pm

    "See you round the courthouse…" is the kind of threat that comes from a guy lacking the testicular fortitude to pull off "and YOU can count on ME waiting for you in the parking lot."

  13. Joel  •  Aug 22, 2013 @2:43 pm

    I would think, if anything, complying would hurt the defense, as it would show a recognition of prosecution's legitimacy. If you demand I take down defamatory statements and I'm arguing that the statements aren't defamatory under law, then by my argument, I have nothing to take down.

  14. AlphaCentauri  •  Aug 22, 2013 @3:07 pm

    Is this one of those situations where the blogger can sue first for declaratory judgment? (IANAL so I'm making this up; I remember something about this with Chris Recouvrer's situation.)

    If I were a blogger fighting Rachel from Cardmember Services, I would dearly love the opportunity to be able to subpoena data about someone I suspect is responsible.

  15. James Pollock  •  Aug 22, 2013 @7:19 pm

    Having read the last couple of posts on the blog in question, I think this is one of those situations where the best defense is proving the truth of the allegations. The most recent posting says something along the line of "(X) appears to be the mastermind" but goes on to say "but he hasn't been brought to justice". In other places, however, there are specific claims of fact which would be non-frovolously arguably defamatory if false*.

    *This is an opinion, but it is not the opinion of a trained, experienced, and licensed attorney, so YMMV. Like Ken above, I believe this is really the sort of thing that can only be properly sorted out in a court of law, with adequate professional representation on both sides. But if the guy isn't the mastermind, he's got a legitimate reason to gripe. If he's not even involved beyond being the guy who, say, filed the incorporation paperwork with the Secretary of State's office, he's got a really good reason to gripe. If he IS the mastermind, I'd like to see his hide stitched above the courthouse door. I get a LOT of phone spam, and I'm home in the daytime, so I know about it even if their machine detects that my machine has answered the call.

  16. Joe Pullen  •  Aug 22, 2013 @9:03 pm

    @Ken, I can dig up my files and send them to you offline. I've conducted my own independent research in the past that leads me to believe this blogger is accurate and there is a clear connection between Mr. Accuardi and the entity engaging in these illegal telemarketing calls.

  17. En Passant  •  Aug 22, 2013 @9:05 pm

    James Pollock wrote Aug 22, 2013 @7:19 pm:

    Having read the last couple of posts on the blog in question, …

    … But if the guy isn't the mastermind, he's got a legitimate reason to gripe. If he's not even involved beyond being the guy who, say, filed the incorporation paperwork with the Secretary of State's office, he's got a really good reason to gripe. If he IS the mastermind, I'd like to see his hide stitched above the courthouse door.

    To see most of the corporate and other state filings, It's necessary to read more than the last couple of posts.

    See this [PDF]:

    http://www.psc.nd.gov/database/documents/12-0750/004-010.pdf

    Pay particular attention to graf 6.

    The ND link is from:
    http://telemarketerspam.wordpress.com/2012/10/22/north-dakota-attorney-general-targets-pacific-telecom-and-f-antone-accuardi-for-violations/

    And a few state SOS corporate filings searches help verify some facts too.

    The trail of filings isn't as strange as Prenda's though.

    The key to the definitive answer probably lies in filings in Belize.

    But I know no primary sources for those.

  18. Frank Rizzo  •  Aug 22, 2013 @9:07 pm

    He said, she said, a confusing situation.

    "STATE OF NORTH DAKOTA
    COUNTY OF BURLEIGH

    Tonya J. Hetzler states under oath as follows:

    1. I swear and affirm upon penalty of perjury that the statements made in this affidavit are true and correct to the best of my information and belief.

    2. I am an investigator with the North Dakota Attorney General's Office, Consumer Protection and Antitrust Division, and I have been the investigator assigned to the complaints filed against Pacific Telecom Communications Group 12228 Venice Blvd, Ste 559, Los Angeles, Ca 90066 (hereinafter "Pacific Telecom") and Pacific Telecom's clients, including Capitol Solutions Group, S.A., Telephone Management Caller ID, and International Telephone Corporation. A number of Pacific Telecom's clients are located outside of the United States, including, Panama and Belize.

    The affidavit provides additional information concerning the various complaints received from consumers receiving these unwanted calls, and claims made by those alleged to be participants in these schemes.


    6. Pacific Telecom has repeatedly represented that it was in the process of terminating the company and ceasing it's operations. However, it appears that the company is continuing to provide telephone numbers to clients making telephone calls in violation of N.D.C.C> ch 51-28. Additionally, based upon information and belief, it appears that the company is now being operated by individuals who are located outside of the United States, including, F. Antone Accuardi ("Accuardi"). Based upon information and belief, Accuardi is a principal owner of International Telephone Corporation located in Belize, who is responsible for a large percentage of the illegal telephone calls made using Pacific Telecom's telephone numbers.

    Dated this 3rd day of October, 2012"

  19. Frank Rizzo  •  Aug 22, 2013 @9:08 pm

    He said, she said, a confusing situation.

    "STATE OF NORTH DAKOTA
    COUNTY OF BURLEIGH

    Tonya J. Hetzler states under oath as follows:

    1. I swear and affirm upon penalty of perjury that the statements made in this affidavit are true and correct to the best of my information and belief.

    2. I am an investigator with the North Dakota Attorney General's Office, Consumer Protection and Antitrust Division, and I have been the investigator assigned to the complaints filed against Pacific Telecom Communications Group 12228 Venice Blvd, Ste 559, Los Angeles, Ca 90066 (hereinafter "Pacific Telecom") and Pacific Telecom's clients, including Capitol Solutions Group, S.A., Telephone Management Caller ID, and International Telephone Corporation. A number of Pacific Telecom's clients are located outside of the United States, including, Panama and Belize.

    The affidavit provides additional information concerning the various complaints received from consumers receiving these unwanted calls, and claims made by those alleged to be participants in these schemes.


    6. Pacific Telecom has repeatedly represented that it was in the process of terminating the company and ceasing it's operations. However, it appears that the company is continuing to provide telephone numbers to clients making telephone calls in violation of N.D.C.C> ch 51-28. Additionally, based upon information and belief, it appears that the company is now being operated by individuals who are located outside of the United States, including, F. Antone Accuardi ("Accuardi"). Based upon information and belief, Accuardi is a principal owner of International Telephone Corporation located in Belize, who is responsible for a large percentage of the illegal telephone calls made using Pacific Telecom's telephone numbers.

    Dated this 3rd day of October, 2012"

    http://www.psc.nd.gov/database/documents/12-0750/004-010.pdf

  20. M. Alan Thomas II  •  Aug 23, 2013 @2:43 am

    Ah, the classic "You must take down all your illegal posts and you must preserve all evidence of your illegal posts." Because those are never contradictory.

  21. ZarroTsu  •  Aug 23, 2013 @6:05 am

    The more times I read the word 'defamatory' in this context at Popehat, the more it loses all proper meaning. It seems entirely a go-to word in law to make your opponent feel bad, like screaming "I hate you" in a shrill, childish voice when a friend mildly inconveniences you on the playground.

    This ultimately tells me that the people who can afford lawyers to write such things with a straight face are far, far too childish for their net worth.

    I almost feel apologetic for the lawyer, except…

    This should also serve as notice to you that you are going to be sued [...]

    I don't know how I'd personally phrase the intent to sue someone if ever such an event occurred, but this sounds like a really sloppy way to say it. I'd go so far to argue that using the word 'sue' or 'sued' at all is a really sloppy way of saying it. It just makes it look so childish.

  22. Owen  •  Aug 23, 2013 @7:55 am

    Alpha:

    Is this one of those situations where the blogger can sue first for declaratory judgment?

    Almost certainly. A party may sue for declaratory judgment whenever there exists an "actual controversy." The meaning of the term is somewhat amorphous, but it includes situations where a dispute is substantially imminent. Primarily, it's purpose is to exclude circumstances where the dispute between the parties is indefinite, abstract, or hypothetical. In this case, the dispute is very definite, concrete, and plainly threatened. Sending a mere cease and desist letter, often enough, is grounds for a potential declaratory judgment action.

    This reminds me of the dispute between Carreon and that satirical blogger, which was handled so eminently by Paul Levy. Bringing an action for declaratory judgment often garners certain strategic advantages, such as determining which court the suit is brought in, and ensuring that it happens now instead of at some future (potentially more inconvenient) time and location (as Carreon so helpfully spelled out in his threats). This could especially be helpful if the blogger is in a different state than Mr. Accuardi, as he could bring the action for declaratory relief in his home state, rather than being forced to respond to it in another.

  23. En Passant  •  Aug 23, 2013 @10:26 am

    Frank Rizzo wrote Aug 22, 2013 @9:07 pm:

    He said, she said, a confusing situation.

    Yes, it is not incontrovertible proof of the truth of the blogger's opinions. It was only a sworn statement by a ND state investigator based on his information and belief.

    But the point is that the blogger wasn't just making up allegations out of whole cloth with disregard for their truth. The blogger had cited the ND affidavit.

  24. Frank Rizzo  •  Aug 23, 2013 @12:39 pm

    He said, she said, a confusing situation.

    Perhaps the "he" refers to one "Accuardi" as named in the affidavit? Then does the blogger just become the reporter of the various alleged facts and controversy?

  25. John Smith  •  Sep 1, 2013 @1:44 am

    He'll never sue. If he sues it opens him up to discovery, meaning you can force him to turn over all his business records pertaining to any telemarketing company he's ever dealt with.