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S CHIFF H ARDIN LLP
ATTORNEYS AT LAW
SAN FRANCISCO
USA TECHNOLOGIES’ OPPOSITION TO JOHN DOE, aka STOKKLERK’S MOT. TO QUASH-CV 09-80 275 MISC (SI)
Case3:09-mc-80275-SI Document14 Filed12/04/09 Page2 of 28
1 TABLE OF CONTENTS
2 Page
3 I. SUMMARY OF OPPOSITION....................................................................1
4 II. STATEMENT OF FACTS............................................................................2
5 III. PROCEDURAL HISTORY........................................................................11
IV. ARGUMENT ..............................................................................................12
6
A. The Constitutional Framework. ........................................................12
7
1. The First Amendment Does Not Protect Defamation. ...........12
8
2. Courts Must Balance A Defamation Plaintiff’s Right To
9 Redress Against The Defendant’s Interest In Posting
Anonymously Online..............................................................13
10
B. USAT Has Proven A Prima Facie Case Of Actionable
11
Defamation Under Pennsylvania Law. .............................................14
12 1. Pennsylvania Defamation Law Governs. ...............................14
13
2. Stokklerk’s Statements Constitute
14 Defamation Per Se..................................................................15
15 3. It Is Stokklerk’s Burden To Establish
16 The Defense Of “Truth.” ........................................................19
17 4. Accusing USAT Of Operating A Ponzi Scheme
Is Actionable Defamation At Common Law..........................20
18
21
6. USAT’s Complaint Meets The Pleading Requirements Of
The Federal Rules Of Civil Procedure. .................................22
22
V. CONCLUSION ...........................................................................................22
23
24
25
26
27
28
S CHIFF H ARDIN LLP
ATTORNEYS AT LAW
i
SAN FRANCISCO
USA TECHNOLOGIES’ OPPOSITION TO JOHN DOE, aka STOKKLERK’S MOT. TO QUASH-CV 09-80 275 MISC (SI)
Case3:09-mc-80275-SI Document14 Filed12/04/09 Page3 of 28
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ATTORNEYS AT LAW
ii
SAN FRANCISCO
USA TECHNOLOGIES’ OPPOSITION TO JOHN DOE, aka STOKKLERK’S MOT. TO QUASH-CV 09-80 275 MISC (SI)
Case3:09-mc-80275-SI Document14 Filed12/04/09 Page4 of 28
12
STATUTES
13
42 Pa. C.S.A. § 8343..............................................................................................20
14 FED. R. CIV. P. 45 ................................................................................................12
15 FED. R. CIV. P. 26(F) ...........................................................................................11
Securities Exchange Act Of 1934, 15 U.S.C. § 78j(b) ..........................................19
16
Securities Exchange Commission, 17 C.F.R. § 240.10b-5 ...................................19
17
18
OTHER AUTHORITY
19
Restatement (2nd) Torts, § 573 (1977) .............................................................15, 16
20 Restatement (2nd) Torts, § 566 (1977) ...................................................................21
21 Black’s Law Dictionary 1278 (9th Ed. 2009.)..........................................................3
22
23
24
25
26
27
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S CHIFF H ARDIN LLP
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USA TECHNOLOGIES’ OPPOSITION TO JOHN DOE, aka STOKKLERK’S MOT. TO QUASH-CV 09-80 275 MISC (SI)
Case3:09-mc-80275-SI Document14 Filed12/04/09 Page5 of 28
23
USAT: soft Ponzi?
24
3
“Ponzi” Schemes, published by the U.S. Securities and Exchange
25
Commission, http://www.sec.gov/answers/ponzi.htm. See also Black’s Law
26 Dictionary 1278 (9th Ed. 2009.)
4
27 Id., Exh. B, p. 7.
5
28 Id., Exh. B, p. 11.
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USA TECHNOLOGIES’ OPPOSITION TO JOHN DOE, aka STOKKLERK’S MOT. TO QUASH-CV 09-80 275 MISC (SI)
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18
Definition of “soft Ponzi”?
August 4, 2009 Re: The road is littered with Wanna BE’s
19
Slvfx excuses extraordinary executive compensation/multi-year
20 sequential losses/stock dilution. A medium-sized fortune has
21 been transferred from shareholders of common stock to insiders.
22 USAT: soft Ponzi?
17
http://finance.yahoo.com/q/bc?s=USAT&t=m...
USAT: soft Ponzi?
18
August 6, 2009 Re: Michael Moore Motive
19
MM,
20
Jensen’s a hustler, a former stockbroker. His skills are not
21 computer science or networking; his skill is working the
22 publicly listed company. He took USAT public to capitalize on
the internet boom that was alive and well in 2000. Wired
23 vending machines! Can’t miss! Well, they missed. Never mind;
24 a 1-100 reverse split will keep the chump money coming in.
Stock price tanking? Need cash? Warrants, that’s the ticket. Sell
25 warrants to the chumps. Sell any effing thing, just so long as we
26 maintain the illusion that we’re a viable company with a
brilliant future.
27
For me, it’s all statistics. Everything else is white noise. By
28 now, most readers have seen the chart of USAT’s performance
S CHIFF H ARDIN LLP
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USA TECHNOLOGIES’ OPPOSITION TO JOHN DOE, aka STOKKLERK’S MOT. TO QUASH-CV 09-80 275 MISC (SI)
Case3:09-mc-80275-SI Document14 Filed12/04/09 Page10 of 28
21
August 14, 2009 Re: Accounting Omissions?
Didn’t take “death panel” slvfx long.
22
He sees value in the patents. If that were the case, USAT would
23
be highly profitable as a patent leasing company. It’s not.
24 He takes the cashless vending sector very seriously. That
25 statement is pure “death panel,” nothing but unquantifiable
white noise.
26
All an investor needs to know about USAT are in the consistent
27 negative earnings/exhorbitant executive compensation since the
28 company’s inception. Quantifiable. Non-negotiable.
S CHIFF H ARDIN LLP
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USA TECHNOLOGIES’ OPPOSITION TO JOHN DOE, aka STOKKLERK’S MOT. TO QUASH-CV 09-80 275 MISC (SI)
Case3:09-mc-80275-SI Document14 Filed12/04/09 Page12 of 28
4 August 16, 2009 Re: The road is littered with Wanna BE’s
5 If you’ll permit me...
6
Re USAT: “This is legalized highway robbery.”
I think that’s the very definition of a so-called soft Ponzi, vs. a,
7
shall we say, hard Ponzi, which is, by definition illegal. I don’t
8 recall where I got the definition. A scholar of economics.
Rubini, maybe. No matter. It seems to fit.
9
I think we’re on the same page, different paragraph.
10
August 17, 2009 Re: Rights offering
11
I charge you with being the same poster as slvfx. Prove you’re
12 not him. Prove you’re not with USAT.
13 Okay? Get it?
14 USAT: soft Ponzi?
15 August 17, 2009 Re: Rights offering
16 “Badges? We don’t need no stinking badges!”
17
Since when is it necessary to have “legitimate reasons” to post
on this or any other Yahoo stock chatroom?
18
What are “legitimate reasons”? Are they what you say they are?
19 The poster Michael Moore has said nothing that isn’t in the
20 public record for USAT. The uninterrupted negative earnings,
the market share, the executive compensation: it’s all a matter
21 of public record.
22 A reader who has a suspicious turn of mind—not I, of course—
23 might see the situation as you trying to intimidate Moore with
the threat of a suit. That’s not especially smart. The discovery
24 process might bear some interesting fruit. For all anyone
25 knows, you could be with USAT.
26 Interesting, no?
USAT: soft Ponzi?
27
August 18, 2009 Re: Eport Connect
28
S CHIFF H ARDIN LLP
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USA TECHNOLOGIES’ OPPOSITION TO JOHN DOE, aka STOKKLERK’S MOT. TO QUASH-CV 09-80 275 MISC (SI)
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19
20 6
Id., Exh. B, pp. 1, 3, 5, 7, 9, 11, 13, 16, 18, 20, 23, 25, 27, 29, 31, 33, 35,
21 37, 39, 41, 43, 45, 47.
7
22 Id., Exh. C.
8
23 Typically the blogger does not provide his or her real name to Yahoo, and
instead Yahoo will only have information about the blogger’s IP address. USAT
24 will then have to request leave to serve a Subpoena on the Internet Service Provider
25 for identifying information for the blogger.
9
26 Id., Exh. E. Michael_Moore_Is_Fat did not file a motion to quash to
prevent the disclosure of his identifying information. USAT does not address
27 Michael_ Moore_Is_Fat’s postings which are not subject to Stokklerk’s motion to
28 quash.
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SAN FRANCISCO
USA TECHNOLOGIES’ OPPOSITION TO JOHN DOE, aka STOKKLERK’S MOT. TO QUASH-CV 09-80 275 MISC (SI)
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1 subpoena on Yahoo! via certified mail on September 24, 2009.10 On October 15,
2 2009, Stokklerk filed his motion to quash Yahoo’s disclosure of his identity and
3 related information.11
4 IV. ARGUMENT
5 A. The Constitutional Framework.
6 1. The First Amendment Does Not Protect Defamation.
7 The First Amendment provides qualified protection for the identities of
8 anonymous online speakers in case where disclosure may cause “embarrassment”
9 or create some harm to the anonymous speaker. Columbia Insurance Company v.
10 Seescandy.com, 185 F.R.D. 573, 578 (N.D.Cal. 1999). While legitimate criticism is
11 protected, postings which constitute defamation are not. Ibid.; see also Chaker v.
12 Crogan, 428 F.3d 1215, 1223 (9th Cir. 2005). The Supreme Court has explicitly
13 held that “defamation…[is] ‘not within the area of constitutionally protected
14 speech.’” R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992) (quoted in Chaker,
15 supra, 428 F.3d 1215, 1223 (9th Cir. 2005)). “A publication is defamatory if it
16 tends to blacken a person’s reputation or expose him to public hatred, contempt, or
17 ridicule, or injure him to public hatred, contempt, or ridicule, or injure him in his
18 business or profession.” Green v. Minzer, 692 A.2d 169, 172 (Pa.Super. 1997).
19 This applies to corporations and their business reputations. Centennial School Dist.
20 v. Independence Blue Cross, 885 F.Supp. 683 (E.D.Pa. 1994). See also, e.g.,
21 Digiorgio Fruit Corp. v. AFL-CIO, 215 Cal. App. 2d 560, 570-71 (Cal. Ct. App.
22 1963).
23
24
10
25 Id., Exh. D. USAT’s service of its subpoena via certified mail is a valid
method of service authorized by Federal Rule of Civil Procedure No. 45. See, e.g.,
26 In re Shur, 184 B.R. 640 (Bankr. E.D.N.Y. 1995).
27 11
Both for simplicity and to maintain consistency with Stokklerk’s brief,
28 USAT uses the masculine pronoun “him” to refer to Stokklerk.
S CHIFF H ARDIN LLP
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1 Because USAT meets the requirements of either test, this Court should deny
2 Stokklerk’s Motion To Quash as outlined below.
3 B. USAT Has Proven A Prima Facie Case Of Actionable Defamation
Under Pennsylvania Law.
4
1. Pennsylvania Defamation Law Governs.
5
6 Stokklerk does not dispute the application of Pennsylvania law, and indeed
7 cites extensively to Pennsylvania defamation law.12 Moreover, in defamation cases,
8 the Court should apply the law of the plaintiff’s domicile as required by choice of
9 law rules: “In cases of defamation, these [the relevant governmental interest]
10 factors normally would call for application of the law of the plaintiff’s domicile . . .
11 where the plaintiff has suffered the greatest injury by reason of his loss of
12 reputation.” Hanley v. Tribune Publishing Co., 527 F.2d 68, 70 (9th Cir. 1975); see
13 also Tucci v. Club Mediterranee, S.A., 89 Cal.App.4th 180, 194 (Cal. App. 2001)
14 (accord), and Fitzpatrick v. Milky Way Productions, Inc. 537 F.Supp. 168, 171 (E.
15 D. Pa. 1982) (accord). Accordingly, this Court applied the law of the plaintiff’s
16 domicile in Highfields Capital Management L.P., supra, 385 F.Supp.2d at 979, fn.
17 15. Here, Stokklerk made defamatory statements against USAT, a Pennsylvania
18 Corporation headquartered in Malvern, Pennsylvania.13 Especially since USAT has
19 no information about Stokklerk’s domicile, this Court should apply the law of
20 USAT’s domicile, Pennsylvania.14
21
22
12
Motion To Quash, pp. 7-13.
23
13
Catalona Dec., Exh. C, p. 1, Parties, ¶ 1.
24 14
These same requirements defeat Stokklerk’s attempt to apply California’s
25 Anti-SLAPP statute and companion Motion To Quash provisions that must not
26 apply to USAT’s lawsuit under Pennsylvania law. Stokklerk must acknowledge
that his authority, Newsham v. Lockheed Missles & Space Co., Inc. 190 F.3d 963
27 (9th Cir. 1999), arose in California and has no bearing on the underlying claims
28 which arose, and are being prosecuted, in Pennsylvania.
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1 system; and (4) the state had previously closed down the
Academy. Cornell runs a facility that provides juvenile
2 services to the state and requires licensing by the state.
3 Such statements could have easily resulted in the state not
licensing the Academy and may result in other
4 government entities not contracting with Cornell for
future business.
5
Cornell Companies, Inc. v. Borough of New Morgan, 512 F.Supp.2d 238 (Ed. Pa.
6
2007), at 271-272.15
7
In this case, Stokklerk stated that USAT operated as a Ponzi scheme in 23
8
separate postings. Stokklerk also accuses management of embezzlement: the “top
9
two people at USAT have skimmed over $30M from this hugely unprofitable
10
venture.”16 While inflicting maximum harm on USAT, Stokklerk argues in his
11
Motion to Quash that his postings were not defamatory because he put a question
12
mark after the reference to Ponzi scheme.17 Stokklerk cannot avoid liability by
13
inclusion of a question mark after accusing USAT of being a Ponzi scheme,
14
“USAT: soft Ponzi?,” in a poorly-concealed attempt to disguise what he is doing—
15
accusing the management of USAT of defrauding investors. In only one posting
16
does Stokklerk explain what he means by “soft Ponzi”:
17
18
15
Stokklerk quotes Synergy, Inc. v. Scott-Levin, Inc., 51 F.Supp.2d 570 (E.D.
19
Pa. 1999) for the proposition that “one of the requirements under the Pennsylvania
20 defamation statute is that the plaintiff prove that it suffered special harm [which]
requires proof of a specific monetary or out-of-pocket loss as a result of the
21
defamation.” Mot. To Quash, p. 11, lines 12-18. This case does not so hold since
22 the Court held that the plaintiff was “relieved of the requirement of proving special
damages however, where spoken words constitute defamation (slander) per se.”
23
Synergy, Inc., supra, at 580. Stokklerk also cites cases arising in California and
24 other jurisdictions that require proof of special harm but which lack allegations of
defamation per se. USAT submits that it has sufficiently alleged defamation per se
25
under Pennsylvania law which applies in this case. To the extent that this Court
26 requests additional evidence or allegations, USAT requests leave to provide it.
16
27 Id., Exh. B, p. 7.
17
28 Motion To Quash, p. 9.
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5 Stokklerk’s definition of a soft Ponzi is not controlling, nor does it exculpate him
6 from liability. The other twenty-two postings refer to USAT as a soft Ponzi,
7 without any limiting or defining language. Since the postings are read
8 independently of each other by the common viewer, over a more than four month
9 period, a person reading Stokklerk’s accusations that USAT is a soft Ponzi would
10 justifiably understand that Stokklerk is accusing USAT of the common
11 understanding of a Ponzi scheme, i.e., fraudulent and illegal activity.
12 There is also no mistaking Stokklerk’s repeated accusations of business
13 misconduct, including charges of outright fraud, which he levels 23 separate times.
14 Under Pennsylvania law, stating that a company has committed “business
15 misconduct” amounts to defamation per se. Defendants who engage in this activity
16 may not shield their identify based on protections afforded Constitutionally
17 protected speech.
18 Stokklerk attempts to avoid responsibility for his postings by arguing that
19 many of his references to USAT as a Ponzi scheme are in the footer of the
20 message.19 The placement of the Ponzi scheme reference in the footer actually
21 highlights the reference and makes it more prominent, and hence more defamatory.
22 Stokklerk also argues that USAT may not bring a defamation claim on behalf
23 of its officers.20 USAT is not doing so. Rather, Pennsylvania law recognizes that
24
18
Catalona Dec., Exh. B, p. 27.
25
19
Motion To Quash, p. 9.
26 20
Motion To Quash, p. 11. Stokklerk relies on Powers v. Ohio, 499 U.S.
27 400, 111 S.Ct. 1364, (U.S.Ohio, 1991), a case that is not relevant since it addresses
28 race-based peremptory challenges, not defamation.
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1 the “party need not be specifically named in defamatory statements as long as ‘the
2 defamatory communication may reasonably be understood as referring to the
3 plaintiff.’”21 Each of the defamatory statements that refers to USAT’s officers is
4 made in connection with accusing USAT of being a Ponzi scheme, and therefore
5 the statements should be considered in determining if a prima facie case for
6 defamation has been alleged.
7 Fundamentally, Stokklerk’s accusations are much more damaging than the
8 charges of violating a zoning ordinance and not having a functioning sewage
9 system that were found to be actionable in Cornell Companies, Inc., supra, 512
10 F.Supp.2d at 271-272. By making his accusations in a public investors’ forum run
11 by Yahoo! and dedicated to USAT stock, Stokklerk made certain his statements
12 would be “particularly harmful” to USAT and its stock value.22 Just as in Cornell
13 Companies, Stokklerk’s statements could have resulted in USAT losing “future
14 business,” as they were designed to turn away the very investment needed for
15 USAT to survive. Ibid. Under Pennsylvania law, USAT need not prove, or even
16 allege, that it has suffered pecuniary injury or special harm. Stokklerk’s 23 separate
17 postings each constitute defamation per se, and he must now defend them in Court.
18
3. It Is Stokklerk’s Burden To Establish The Defense Of “Truth.”
19
To establish defamation, USAT is not required to negate Stokklerk’s charges
20
of business misconduct. By statute, Pennsylvania has codified the burdens of
21
plaintiffs and defendants in defamation actions, 42 Pa. C.S.A. § 8343, and it is the
22
defendant’s burden to prove a defamatory statement is in fact true. Simms v. Exeter
23
24 21
Weinstein v. Bullick, 827 F.Supp. 1193 (E.D.Pa., 1993).
25 22
In addition to its defamation claims, USAT has alleged violations of the
26 Securities Exchange Act Of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 of the
Securities Exchange Commission, 17 C.F.R. § 240.10b-5. USAT does not address
27 these claims here because it has established an actionable defamation claim under
28 Pennsylvania law which by itself must defeat Stokklerk’s motion.
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1 Architectural Products Inc., 916 F. Supp. 432, 436-37 (M.D. PA 1996). Stokklerk
2 has cited no authority to support his position that all statements about publicly
3 traded companies may be deemed matters “of public concern” warranting
4 heightened Constitutional protection. Stokklerk’s example where a court shifted
5 the defendant’s burden to the plaintiff involved a City-wide newspaper detailing a
6 Grand Jury’s investigation of specific elected officials selling influence to a reputed
7 mafia figure. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986).
8 The case and its holding were explicitly limited to the sub-set of media defamation
9 law not applicable here. Stokklerk’s rants do not qualify as media publications or
10 touch on any matter of public concern requiring heightened Constitutional
11 protection.
12 4. Accusing USAT Of Operating A Ponzi Scheme Is Actionable
Defamation At Common Law.
13
14 This Court should also consider the facts and holding from a non-
18 Supp. 1010 (E.D.N.Y. 1968). In Levesque, plaintiff Real Levesque sued his former
20 (Vance), for defamation. After forcing Plaintiff to resign, Vance stated that
21 Plaintiff had approved loans that “were a Ponzi operation.” Id., at 1011.
22 Defendants moved for summary judgment on the ground that Vance made his
24 proceedings, and it was therefore privileged. Ibid. The Court, however, denied
28
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1 Management, USAT has established a “prima facie claim of actionable harm.” 385
2 F. Supp.2d 969, at 970-71 (2005).
3 Stokklerk’s claim that he has merely criticized USAT for its allegedly “poor
4 performance and its generous executive compensation package” is belied by his
5 postings.23 Stokklerk’s accusations of business misconduct and fraud are actionable
6 defamation that is not protected by the First Amendment. USAT seeks to
7 determine Stokklerk’s identity to obtain a fair hearing of its defamation claim.
8 Stokklerk seeks to shield his identity so that he may continue his defamation with
9 impunity. Notably, Stokklerk has made no showing that revealing his identity will
10 cause any harm, embarrassment or legally-recognized prejudice. On balance, the
11 Court should deny Stokklerk’s motion and permit USAT to proceed with its
12 lawsuit.
13 WHEREFORE, USA Technologies, Inc. prays that the Court deny Defendant
14 John Doe, A.K.A. Stokklerk’s Motion To Quash The Subpoena To Yahoo! Inc.
15 Seeking Identity Information.
16
22
23
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23
28 Mot. To. Quash, p. 1, line 18.
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1
Certificate of Service
2
3
The undersigned hereby certifies that all counsel of record who are deemed
4
to have consented to electronic service were served the 4th day of December, 2009,
5
with a copy of USA TECHNOLOGIES INC.’S OPPOSITION TO
6
DEFENDANT JOHN DOE, A.K.A. STOKKLERK’S MOTION TO QUASH
7
THE SUBPOENA TO YAHOO! INC. SEEKING IDENTITY
8
INFORMATION via the Court’s CM/ECF system. I certify that all parties in this
9
case are represented by counsel who are CM/ECF participants.
10
11
DATED: December 4, 2009 SCHIFF HARDIN LLP
12
13
By: /s/ Alex Catalona
14 Alex P. Catalona, (Bar No. 200901)
Attorneys for Plaintiff
15 USA TECHNOLOGIES, INC.
16
SF\9516531.1
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SAN FRANCISCO
USA TECHNOLOGIES’ OPPOSITION TO JOHN DOE, aka STOKKLERK’S MOT. TO QUASH-CV 09-80 275 MISC (SI)