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EXHIBIT 8 Tim Cushing
“Utah Judge Won’t Let The Constitution Get In The Way Of A Little Prior Restraint”
TECHDIRT (Mar. 6, 2017)
Case 2:17-cv-00138-DB Document 28-8 Filed 03/09/17 Page 1 of 8
3/7/2017 Utah Judge Won't Let The Constitution Get In The Way Of A Little Prior Restraint | Techdirt
https://www.techdirt.com/articles/20170304/17525336840/utah-judge-wont-let-constitution-get-way-little-prior-restraint.shtml 1/7
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Free Speechby Tim Cushing
Mon, Mar 6th 20171:15pm
Filed Under:
first amendment,injunction,
mattress reviews,prior restraint
Companies:ghostbed, honest
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Utah Judge Won't Let The Constitution Get In The Way Of
A Little Prior Restraint
from the anotherlibeland/orLanhamcase dept
For reasons unknown, a federal judge has said the hell with free speech and steered the court intothe First Amendment‐troubling waters of prior restraint.
It's another defamation lawsuit that doesn't spend too much time dealing with defamation,preferring to focus on Lanham Act violations and tortious interference. Purple Innovations, makerof a (purple) bed‐in‐a‐box mattress, is suing the Honest Mattress Reviews website, along with RyanMonahan, former "Chief Brand Officer" for Purple Innovations competitor, Ghostbed, and creator ofthe site.
Unlike other defamation suits we've covered here ‐‐ especially those attempting to dodge anti‐SLAPP motions by presenting themselves as trademark suits ‐‐ Purple's complaint is long anddetailed. Purple feels multiple posts at Honest Mattress Reviews have falsely disparaged thecompany and its products. All of the posts center on the white "powder" Purple uses to coat itsmattresses during packaging to prevent it from sticking to itself.
Purple's Lanham Act claims rest on Monahan's alleged conflicted interests, even as it admits in itsfiling that Monahan is no longer associated with GhostBed. It points to several statements postedat Honest Mattress Reviews which infer the powder used by Purple might be dangerous orunhealthy. HMR offers no proof of these assertions, but very few of them are actual assertions. Inmost cases, they're merely implications, surrounded by phrasing and pull quotes that help makethe patent‐pending substance appear more dangerous than Purple claims it is. Purple hasn'toffered too many specifics in defense of its white powder, citing its pending patent as the reasonit can't be more specific about the powder's composition.
At this point, we don't know much about the merits of Purple's arguments, and nothing at all aboutthe merits of Honest Mattress Review's defense. The defendants haven't been allowed to respondyet. The path to Purple's granted restraining order has been completely non‐adversarial. Not asingle document has been filed or motion entered by the defendants. [click through to enlarge]
In less than a week, Purple has:
(a) accidentally sued itself
(b) had the case transferred from a magistrate to district court judge
(c) asked for a restraining order
(d) received a restraining order
(e) asked for contempt charges to be brought against the defendants
Purple has filed a 102‐page complaint [PDF] and a 174‐page restraining order request [PDF], thelatter of which is basically the 102‐page complaint with 70 pages of website screenshots. Withoutseeing anything more than Purple's allegations, Judge Dee Benson has granted the request [PDF].Not only does it require Honest Mattress Reviews to take down existing posts about PurpleInnovations and its packing powder, it forbids the defendants from discussing the lawsuit in anyway the court disapproves of.
Case 2:17-cv-00138-DB Document 28-8 Filed 03/09/17 Page 2 of 8
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Um, fair use!
Defendants shall not attempt to circumvent the intent of this Order by make new
statements about Purple or its products which are false and misleading and convey
the same substantive message as in the statements referenced in preceding sub‐
paragraphs (a)‐(c), including through the “clever use of innuendo, indirect
intimations, and ambiguous suggestions.”
[...]
Defendants are hereby restrained from making false, misleading, or confusingposts or discussions on social media or otherwise about the existence of thislawsuit, the Court’s temporary restraining order or other any other orders thatmay be issued by the Court, or about Purple’s efforts in this lawsuit to restrainDefendants from continuing to engage in the conduct at issue, in an attempt to
circumvent the purpose of the injunctive relief sought by Purple.
We'll have to see if Honest Mattress Review's post about the lawsuit adheres to the confines ofthe restraining order. It doesn't make any false statements but does contain wording the plaintiffsare sure to find objectionable, even if the court doesn't.
This temporary order commands that we take down all reviews, and even cease
rating this company with a rating of “Poor.” Yes, indeed, we are no longer even
permitted to rate this company as Poor. I guess we will change its rating to “�.”
[...]
Do you trust a company that, rather than compete in the marketplace, decides that
it will just try and sue negative reviews out of existence?
The court says the 14‐day (minimum) restraining order does not harm the public in any way, whilecontinued publication of HMR's inferences and allegations would continue to do "irreparable harm"to Purple Innovations. It also says HMR is fully aware of the situation, even if it's not being allowedto participate in the process yet.
Plaintiff has provided multiple declarations, reflecting notice to the Defendants,
through various means. The Court is satisfied that the Defendants have notice of
these proceedings.
All well and good, but we're not talking an inordinately lengthy delay between the filing of the suitand the defendants' response. We're talking about one week from filing to prior restraint, withouta single nod being given to the "adversarial" part of the process.
The defendant website is now being represented by Marc Randazza, who's collected several FirstAmendment‐affirming wins for clients over the years. The allegations in this case may not be asbaseless as in others he's handled (Tobinick v. Novella, Roca Labs v. Opinion Corp.), but he tendsto find prior restraint to be rather triggering. The first move will be to put the Constitution backin play. After that, there are dozens of pages of allegations to address, so this isn't going to beresolved anywhere near as fast as it went from mere allegations to ignoring Walter Sobchak.
To print the document, click the "Original Document" link toopen the original PDF. At this time it is not possible to print thedocument with annotations.
To print the document, click the "Original Document" link toopen the original PDF. At this time it is not possible to print the
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Case 2:17-cv-00138-DB Document 28-8 Filed 03/09/17 Page 3 of 8
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Case 2:17-cv-00138-DB Document 28-8 Filed 03/09/17 Page 4 of 8
3/7/2017 Utah Judge Won't Let The Constitution Get In The Way Of A Little Prior Restraint | Techdirt
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Purple hasn't offered too many specifics in defense of its white powder, citing its pending patent asthe reason it can't be more specific about the powder's composition.
This is blatantly false. By seeking a patent, Purple is agreeing that all such information about the
composition of the white powder will become public knowledge. Since the patent application has
already been submitted, it is guaranteed that if this powder is patentable, they will be the ones to
receive said patent. If it is not patentable, then the application (which will include the composition),
will become public after 18 months from the date of application. Either way, there is absolutely no
reason at this point to not release details on the composition of their powder.
Except, of course, if releasing that information would support the implications that the powder is
dangerous.
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Reader Comments
TechDescartes (profile), 6 Mar 2017 @ 12:08pm
When this is the first line of your publicly‐filed complaint...
Purple has recently become the target of a concerted, widespread, and public online smear campaign,
which threatens to go viral if it has not already...
...you might want to re‐think your strategy.
[ reply to this | link to this | view in chronology ]
Mononymous Tim (profile), 6 Mar 2017 @ 2:24pm
Re: When this is the first line of your publicly‐filed complaint...
Helloooo Barbra!
[ reply to this | link to this | view in chronology ]
Anonymous Coward, 6 Mar 2017 @ 1:33pm
Purple hasn't offered too many specifics in defense of its white powder, citing its pending patent as the reason it
can't be more specific about the powder's composition.
This is blatantly false. By seeking a patent, Purple is agreeing that all such information about the composition of thewhite powder will become public knowledge. Since the patent application has already been submitted, it is guaranteedthat if this powder is patentable, they will be the ones to receive said patent. If it is not patentable, then theapplication (which will include the composition), will become public after 18 months from the date of application.Either way, there is absolutely no reason at this point to not release details on the composition of their powder.
Except, of course, if releasing that information would support the implications that the powder is dangerous.
[ reply to this | link to this | view in chronology ]
DB (profile), 6 Mar 2017 @ 1:53pm
Proper service is optional?
Declarations that the defendants are aware of the lawsuit does not (or should not) substitute for proper service. Utah has a reputation, and that reputation was earned. When something sketchy happens, look for the churchconnection. Sure enough, we find them here. Dee Benson has very strong ties to the LDS church, was a missionary, and has many controversial rulings that seemheavily biased in favor of church‐connected people. The owners of Purple Innovations were missionaries and continue to be heavily involved in the church. Of course they all went to BYU.
+ + FW LW
+ + FW LW
+ + FW LW
+ + FW LW
Case 2:17-cv-00138-DB Document 28-8 Filed 03/09/17 Page 5 of 8
3/7/2017 Utah Judge Won't Let The Constitution Get In The Way Of A Little Prior Restraint | Techdirt
https://www.techdirt.com/articles/20170304/17525336840/utah-judge-wont-let-constitution-get-way-little-prior-restraint.shtml 5/7
[ reply to this | link to this | view in chronology ]
Anonymous Coward, 6 Mar 2017 @ 2:36pm
Re: Proper service is optional?
This is Utah we are talking about. Most business owners meet the criteria you mention. Having an incompetent judgecan happen in any state of the union. You don't have to assume conspiracy when incompetence is much more likely.
[ reply to this | link to this | view in chronology ]
Cdaragorn (profile), 6 Mar 2017 @ 2:52pm
Re: Proper service is optional?
Even if what you say is true (and you provide absolutely zero evidence that it is), the assertion you're trying to makeis absolutely ridiculous. Blaming an entire group for the actions of a few of its members is one of the oldest logical fallacies in the book.Every group has members that don't follow that groups thinking and do dumb things. I could easily counter withexamples of members of that group doing really great things. Heck, I'll even step out there and admit that I'm a member of the LDS Church, and I've seen some members do somepretty terrible things that I abhor. I also recognize the difference between what someone chooses to do on their ownand what the Church actually teaches.
[ reply to this | link to this | view in chronology ]
DB (profile), 6 Mar 2017 @ 3:47pm
Re: Re: Proper service is optional?
I normally shy away from making such assertions, but the connection through the LDS church is pretty clear whenit comes to technology companies, VC funding and their lawsuits (e.g. the SCO lawsuit).
[ reply to this | link to this | view in chronology ]
Anonymous Coward, 7 Mar 2017 @ 7:01am
Re: Re: Proper service is optional?
Blaming an entire group for the actions of a few of its members is one of the oldest logical
fallacies in the book.
Yep, just look what it did to the KKK.
[ reply to this | link to this | view in chronology ]
Mitch (profile), 6 Mar 2017 @ 5:10pm
Re: Proper service is optional?
How is Utah and BYU and the LDS church any different than a judge in Alabama hearing a case involving frat brotherswho all have Roll Tide bumper stickers? Not that corruption in Alabama excuses corruption in Utah, but calling it out solely on a church affiliation seemspretty narrow‐minded and fraught with preconceived bias. And I agree with AC, I tend to default to incompetence over conspiracy.
[ reply to this | link to this | view in chronology ]
Mononymous Tim (profile), 6 Mar 2017 @ 2:34pm
In less than a week, Purple has:
(a) accidentally sued itself
Those are some crack (pot) lawyers ya got there.
[ reply to this | link to this | view in chronology ]
Anonymous Coward, 6 Mar 2017 @ 2:42pm
Re:
Well they did file suit against the party engaged in shady behavior, which is pretty reasonable. They just brieflyforgot that party was the party they were representing.
[ reply to this | link to this | view in chronology ]
Anonymous Coward, 6 Mar 2017 @ 5:21pm
Please do keep us up‐to‐date on the lawsuit of Purple v. Purple.
[ reply to this | link to this | view in chronology ]
+ + FW LW
+ + FW LW
+ + FW LW
+ + FW LW
+ + FW LW
+ + FW LW
+ + FW LW
+ + FW LW
Case 2:17-cv-00138-DB Document 28-8 Filed 03/09/17 Page 6 of 8
3/7/2017 Utah Judge Won't Let The Constitution Get In The Way Of A Little Prior Restraint | Techdirt
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That One Guy (profile), 7 Mar 2017 @ 2:31am
Think beyond the now when making legal rulings
The court says the 14‐day (minimum) restraining order does not harm the public in any way, while continued
publication of HMR's inferences and allegations would continue to do "irreparable harm" to Purple Innovations. It also
says HMR is fully aware of the situation, even if it's not being allowed to participate in the process yet.
I'd say the judge is not just wrong a little with this argument, they're completely wrong when you pull back a littlebeyond this individual case.
While the public may not be 'harmed' in having this specific bit of info suppressed for a while, they are most certainlyharmed by the precedent that speech can be silenced and removed without the one speaking being able to contest itbefore the order to remove and not speak goes into place.
The idea that you can get a legal order removing speech and prohibiting something from being said ahead of time, allwithout the one affected having a chance to object and potentially fight back until after the fact is most certainlyharmful to the public, and is far more serious than any harm a particular company might face from having unflatteringor even downright defamatory comments made against it.
Free speech is more important than the hurt feelings or financial well‐being of a company, and as such should be givenfar more weight in any consideration between the two, not just shrugged off as no big deal as seems to be happeninghere.
[ reply to this | link to this | view in chronology ]
jane, 7 Mar 2017 @ 3:08am
white powder = chalk
It's pulverized chalk. Hardly a patent‐worthy substance... but baby powder will do fine as well.
[ reply to this | link to this | view in chronology ]
Anonymous Coward, 7 Mar 2017 @ 7:02am
Re: white powder = chalk
It's pulverized chalk. Hardly a patent‐worthy substance...
You can get a patent on almost anything these days.
[ reply to this | link to this | view in chronology ]
Monday (profile), 7 Mar 2017 @ 4:43pm
Excuses are like assholes...
citing its pending patent
Sounds very much like, "[] can't release my Taxes because I am under audit" bullshit act that D.J. Trump espouseseverytime he is asked for a date on when his taxes will be released. AND, don't give me some more bullshit lame‐assdefence that "He doesn't have to release his taxes if he doesn't want to."
Do you hear that??? That's HMS TRUMP getting its ass sunk by a Russian Iceberg...
[ reply to this | link to this | view in chronology ]
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+ + FW LW
+ + FW LW
+ + FW LW
+ + FW LW
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Case 2:17-cv-00138-DB Document 28-8 Filed 03/09/17 Page 8 of 8
