Counter Cease and Desist Letter From Kenneth White

Counter Cease and Desist Letter From Kenneth White

Postby admin » Sat Oct 12, 2013 11:03 pm

Counter Cease and Desist Letter from Kenneth White to Howard Ray Schechter

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Brown White & Newhouse LLP
Attorneys

333 South Hope Street, 40th Floor
Los Angeles, California 90071
Telephone 213.613.0500
Facsimile 213.613.0550
http://www.brownwhitelaw.com

Thomas M. Brown
Kenneth P. White
George B. Newhouse, Jr. (Admitted in CA and NY)
Alfredo X. Jarrin
Nannina L. Angioni (Admitted in CA and NV)
Hon. George P. Schiavelli (Ret.)

____________
Michael P. McGory
Jack B. Osborn
E. Joan Nelms (Certified Specialist Estate Planning, Trust & Probate Law, State Bar of California, Board of Legal Specialization)

April 25, 2012

VIA EMAIL AND U.S. MAIL

Howard Ray Schechter
Schechter Attorney at Law
PO Box 1121
Malibu, CA 90265

Re: Your Legal Threats Regarding Ecologica Furniture

Dear Mr. Schechter:

This firm represents [deleted] and its principal. I write in response to your email of April 23, 2012. Please stop all direct contact with our client immediately.

Your email threatens to report our clients to the "Los Angeles Police Department and the District Attorney's Office" based on the proposition that internet comments questioning the bona fides of Ecologica Furniture are a crime. In my seventeen years practicing criminal law, I have only seen such preposterous accusations of crime from pro se litigants and the intractably mentally ill. In addition to being ridiculous on its face, your threat is a direct violation of California Rule of Professional Conduct 5-100(A), which provides that a member of the California bar "shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute." Cease your unethical and unprofessional threats immediately.

The rest of your letter relies on vague and bumptious legal threats buried among misspellings, bizarre malapropisms, misstatements of law, and gibberish. I note that your letter does not specify even a single false statement of fact you accuse our clients of making. In my experience, vague legal threats are a hallmark of empty thuggery. If you believe that you can demonstrate that any specific statement of fact our clients made was false, I challenge you to identify that particular statement, point to where it was made, and explain your basis for saying that it is false.

Your letter threatens suit for slander (despite the fact that no verbal statements are at issue), liable [sic], unfair competition, assault, and "intentional infliction of emotional injury." If your client files suit on those theories, your client will be paying our attorney fees. We will respond to any lawsuit with an anti-SLAPP motion under California Code of Civil Procedure section 425.16.

We will have no difficulty carrying our initial burden of demonstrating that your lawsuit is directed at protected speech. (Code Civ. Proc., Section 425.16, subd. (d).) California courts have repeatedly extended the anti-SLAPP statute to protect comments by consumers and about goods and services, including comments on the internet. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883 [web comments accusing broker of being unethical fell under anti-SLAPP statute as issue of public concern]; Carver v. Bonds (2005) 135 Cal.App.4th 328 [comments denigrating podiatrist were matter of public concern under anti-SLAPP statute]; Gilbert v. Sykes (2007) 147 Cal.App.4th 13 [internet comments about plastic surgeon were matter of public concern protected by anti-SLAPP statute]; Wong v. Tai Jing (2010) 189 Cal.App.4th 1354 [internet comments about dentist were matter of public concern protected by anti-SLAPP statute]). It does not matter how you style your causes of action -- the anti-SLAPP statute will apply. (Martinez v. Metabolife Intern, Inc. (2003) 113 Cal.App.4th 181, 187 ["Our Supreme Court has recognized that the anti-SLAPP statute should be broadly construed [citation] and a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a 'garden variety breach of contract [or] fraud claim' when in fact the liability claim is based on protected speech or conduct"].)

Once we demonstrate that your suit is premised on our clients' protected speech, the burden will shift to you to show a likelihood of prevailing on the merits. Contrary to your incorrect statement of law in your email, you will bear the burden of proving that the statements are false. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 747 [when "speech involves a matter of public concern, a private-figure plaintiff has the burden of proving the falsity of the defamation."].) Moreover, you will bear the burden of proving that they are false statements of fact, as opposed to statements of opinion. Milkovitch v. Lorain Journal (1990) 497 U.S. 1. It is clear from the facts -- and from your client's own admissions in its press release -- that you will not be able to carry this burden. Therefore, we will be entitled to attorney fees from your client. (Code Civ. Proc., Section 425.16, subd. (c)(1).) In addition, we reserve the right to seek sanctions against you personally under California Code of Civil Procedure section 128.7.

Persisting in your meritless threats, or acting upon them, can only lead to disaster for your client. As anyone familiar with the Streisand Effect could have predicted, your freakishly unprofessional email has already drawn much more attention to your client's conduct. Further threats, or any legal action, will increase that attention by orders of magnitude.

I urge you to reconsider your course of action.

Sincerely,

Kenneth P. White
for BROWN WHITE & NEWHOUSE LLP
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