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Wednesday
Jan162008

Dermacare sues everyone on Medical Spa MD?

It appears that Dermacare has thrown in the towell regarding it reputation.

I received this email from Dermacare and it's CEO Carl Mudd regarding a suit that Dermacare has filed. Since this is the first contact I've ever had with Dermacare, I'm a little surprised. It makes me wonder what's been going on on that Dermacare thread that has 700 comments. 

Rather than engage in a back and forth or aim for clarity, which is what I would have recommended, or complaining to me that some of the remarks have crossed a line, (I have actually taken down many comments if they contain profanity directed at any specific individual.), Dermacare and it's CEO Carl Mudd have actually gone and filed suit. (I also received a PDF of the suit naming multiple John and Jane Does.)

Here's the email: 

VIA E-MAIL AND U.S. MAIL

Jeff Barson
(I've removed my address here)

                Re:         DLC Dermacare, LLC v. John and Jane Does – CV2008-090071

Dear Mr. Barson:

My office represents DLC Dermacare, LLC (“Dermacare”) and its CEO Carl Mudd.  I am writing in regards to the blog that you host located at www.medicalspamd.com .  As you know, you have allowed numerous persons to post information related Dermacare and about Mr. Mudd personally on your site.  The information posted is overwhelming incorrect and has served as a discussion board for Dermacare franchisees to not only discourage potential franchisees from partnering with Dermacare but to also promote the breaching of current franchisee agreements held by many of the bloggers on your site.

The comments that you have allowed to be posted on your site have evolved from mere discussions/complaints into actionable claims against the bloggers and possibly even you personally.  Pursuant to our filing the above referenced complaint we are now seeking the Internet Protocol (IP) address and the Internet Service Provider (ISP) for each of the following bloggers on your site:

  • Dermadoc
  • Mr. Bob
  • Just Another Ex
  • Passive Conduit
  • Pm
  • Jennifer D
  • Pengy
  • Mr. Freeze
  • Bastard Son of Dermadoc
  • GH
  • Maxwell Smart
  • The Clinician
  • The Real M. Smart
  • John Galt
  • George
  • Max
  • XYZAL
  • Christmas
  • Maxwell’s Silver Hammer
  • The Passive Conduit
  • The Riddler & The Joker
  • DoubleDermadare You
  • Mad Max
  • Manic Max
  • Mad as Hell in Dermacare Hell
  • A current Franchisee
  • FreeTheDerm@ yahoo.com
  • WPS
  • Insider
  • Thomas Jefferson, Jr
  • TF
  • T. Jefferson, Jr.
  • The Joker
  • Curious
  • Mr. X

Please provide the IP address and ISP for each of the above names no later than Friday, January 18th, 2008.  Should you not provide the requested IP addresses and ISP by this date I will be forced to have you served with a subpoena to obtain this information.  I have included a copy of the lawsuit that was filed in this matter for your files.  If you have comments or questions please direct them to my office.

                  Sincerely,

John N. Skiba

One North Macdonald Road, Suite 201
Mesa, Arizona 85201
Tel. 480.361.5643
Fax 480.704.3071
www.skibalaw.com

 

You can download the actual PDF of the Suit here.

I wasn't asked to keep any of this confidential so here it is. 

 

So what's Dermacare and Carl Mudd doing?

This is what is know as a CyberSLAPP suite. Basically it's a way of intimidating critics by threatening to find out their identity and hit them with some kind of suit. (read below)

You'll notice that Dermacare and Carl Mudd are demanding that I turn over everyones ISP. For those of you who are not that technically savvy, ISP = Internet Service Provider, which I have absolutely no way of knowing anyway as far as I can tell. The IP address is different. That's a unique identifier and could be used to find out who someone is.

These kinds of suits have become increasingly common as a way of combating free speech on the internet. It used to be that if someone said something unkind, it didn't matter that much since only a few people would hear about it. The net changed all of that and now someone who's unhappy with you or your business can be found by everyone so those whe illicit a lot of negative comments tend to have a rougher go of it.

My guess is that this is intended to intimidate those who may comment in a negative way about Dermacare or Mr. Mudd, and to find out who everyone is. While anonymous speech is protected by the constitution, its still unnerving to have someone you've been talking about know exactly who you are, especially if you're in some kind of business relationship. By filing a real suit against 'everyone' in the form of John and Jane Does, it allows him to issue a legal subpoena to get information. (It's basically a cynical way of using the courts which is why some states like California have laws specifically against this.)

Here are some links about these kinds of CyberSlapp suits and where the law comes down on free speech and other issues around this:

Chilling Effects Clearinghouse: A joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law clinics.

Do you know your online rights? Have you received a letter asking you to remove information from a Web site or to stop engaging in an activity? Are you concerned about liability for information that someone else posted to your online forum? If so, this site is for you.

Defamation
The law of defamation balances two important, and sometimes competing, rights: the right to engage in free speech and the right to be free from untrue attacks on reputation. In practice, the filing or even the threat to file a lawsuit for defamation has sometimes been used as a tool to shut down legitimate comments on the Internet.

John Doe Anonymity
Do you post to a public message boards or discussion areas on websites such as Yahoo, AOL or Raging Bull? Do you use a pseudonym, fake name or a "handle"? Has someone asked the host of the discussion or your ISP to turn over information about you or your identity? If so, then the John Doe/Anonymity section may answer some of your questions.
Topic maintained by Stanford Center for Internet & Society

Protest, Parody and Criticism Sites
The Internet, which offers inexpensive access to a worldwide audience, provides an unparalleled opportunity for individuals to criticize, protest and parody.

The following is long but you'll come away with a much better understanding of what this all means: 

About Defamation:

Question: What are the elements of a defamation claim?

Answer: The party making a defamation claim (plaintiff) must ordinarily prove four elements:

  1. a publication to one other than the person defamed;
  2. a false statement of fact;
  3. that is understood as
  4. a. being of and concerning the plaintiff; and
    b. tending to harm the reputation of plaintiff.
  5. If the plaintiff is a public figure, he or she must also prove actual malice.

Question: What defenses may be available to someone who is sued for defamation?

Answer: There are ordinarily 6 possible defenses available to a defendant who is sued for libel (published defamatory communication.)
1. Truth. This is a complete defense, but may be difficult to prove.
2. Fair comment on a matter of public interest. This defense applies to "opinion" only, as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual "malice." ( Malice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.)
3. Privilege. The privilege may be absolute or qualified. Privilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice.
4. Consent. This is rarely available, as plaintiffs will not ordinarily agree to the publication of statements that they find offensive.
5. Innocent dissemination. In some cases a party who has no knowledge of the content of a defamatory statement may use this defense. For example, a mailman who delivers a sealed envelope containing a defamatory statement, is not legally liable for any damages that come about from the statement.
6. Plaintiff's poor reputation. Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff's poor reputation by calling witnesses with knowledge of the plaintiff's prior reputation relating to the defamatory content.


Question: Can an opinion be defamatory?

Answer: No — but merely labeling a statement as your "opinion" does not make it so. Courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. (A verifiable fact is one capable of being proven true or false.) This is determined in light of the context of the statement. A few courts have said that statements made in the context of an Internet bulletin board or chat room are highly likely to be opinions or hyperbole, but they do look at the remark in context to see if it's likely to be seen as a true, even if controversial, opinion ("I really hate George Lucas' new movie") rather than an assertion of fact dressed up as an opinion ("It's my opinion that Trinity is the hacker who broke into the IRS database").


Question: Is there a difference between reporting on public and private figures?

Answer: Yes. A private figure claiming defamation — your neighbor, your roommate, the guy who walks his dog by your favorite coffee shop — only has to prove you acted negligently, which is to say that a "reasonable person" would not have published the defamatory statement.

A public figure must show "actual malice" — that you published with either knowledge of falsity or in reckless disregard for the truth. This is a difficult standard for a plaintiff to meet.


Question: Who is a public figure?

Answer: A public figure is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter. In addition to the obvious public figures — a government employee, a senator, a presidential candidate — someone may be a limited-purpose public figure. A limited-purpose public figure is one who (a) voluntarily participates in a discussion about a public controversy, and (b) has access to the media to get his or her own view across. One can also be an involuntary limited-purpose public figure — for example, an air traffic controller on duty at time of fatal crash was held to be an involuntary, limited-purpose public figure, due to his role in a major public occurrence.

Examples of public figures:

  • A former city attorney and an attorney for a corporation organized to recall members of city counsel
  • A psychologist who conducted "nude marathon" group therapy
  • A land developer seeking public approval for housing near a toxic chemical plant
  • Members of an activist group who spoke with reporters at public events

Corporations are not always public figures. They are judged by the same standards as individuals.

Question: May someone other than the person who originally made the defamatory statement be legally liable in defamation?

Answer: One who "publishes" a defamatory statement may be liable. However, 47 U.S.C. sec. 230 says that online service providers are not publishers of content posted by their users. Section 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law.

Question: Can an ISP or the host of the message board or chat room be held liable for
defamatory of libelous statements made by others on the message board?

Answer: Not in the United States. Under 47 U.S.C. sec. 230(c)(1) (CDA Sec. 230): "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This provision has been uniformly interpreted by the Courts to provide complete protection against defamation or libel claims made against an ISP, message board or chat room where the statements are made by third parties. Note that this immunity does not extend to claims made under intellectual property laws.

Question: Must an ISP or message board host delete postings that someone tells him/her are defamatory? Can the ISP or message board delete postings in response to a request from a third party?

Answer: 47 U.S.C. sec. 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law.

 

About John Doe Anonymity

 

Question: How is Internet anonymity affected by John Doe lawsuits?

Answer: Often called "CyberSLAPP" suits, these lawsuits typically involve a person who has posted anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then files a lawsuit so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved and thereby discover the identity of their anonymous critic. The concern is that this discovery of their identity will intimidate or silence online speakers even though they were engaging in protected expression under the First Amendment.

Question: Why is anonymous speech important?

Answer: There are a wide variety of reasons why people choose to speak anonymously. Many use anonymity to make criticisms that are difficult to state openly - to their boss, for example, or the principal of their children's school. The Internet has become a place where persons who might otherwise be stigmatized or embarrassed can gather and share information and support - victims of violence, cancer patients, AIDS sufferers, child abuse and spousal abuse survivors, for example. They use newsgroups, Web sites, chat rooms, message boards, and other services to share sensitive and personal information anonymously without fear of embarrassment or harm. Some police departments run phone services that allow anonymous reporting of crimes; it is only a matter of time before such services are available on the Internet. Anonymity also allows "whistleblowers" reporting on government or company abuses to bring important safety issues to light without fear of stigma or retaliation. And human rights workers and citizens of repressive regimes around the world who want to share information or just tell their stories frequently depend on staying anonymous – sometimes for their very lives.

Question: Is anonymous speech a right?

Answer: Yes. Anonymous speech is presumptively protected by the First Amendment to the Constitution. Anonymous pamphleteering played an important role for the Founding Fathers, including James Madison, Alexander Hamilton, and John Jay, whose Federalist Papers were first published anonymously.

And the Supreme Court has consistently backed up that tradition. The key U.S. Supreme Court case is McIntyre v. Ohio Elections Commission. http://www.eff.org/Legal/Cases/mcintyre_v_ohio.decision

Question: How do CyberSLAPP plaintiffs discover the identity of anonymous Internet critics?

Answer: CyberSLAPP plaintiffs usually get the personal information you gave an ISP or online message board when you signed up (name, address, telephone number, etc.). Some web sites that host discussion boards might only have your e-mail address, in which case a second subpoeana to the ISP that hosts that address will reveal your identity. In many cases, even more detailed information about your use of the Internet can be obtained; it's important to realize that when you go online, you leave electronic footprints almost everywhere you go. (With advanced knowledge of the Internet, however, there are ways to cover your tracks.)

Question: Don't judges review subpoenas before they are sent to ISPs?

Answer: No. The issuing of civil subpoenas is not monitored by the court handling the case. Under the normal rules of discovery in civil lawsuits, parties to a suit can simply send a subpoena to anyone they believe has information that could be useful. That information doesn't even have to be relevant to the lawsuit, as long as it could possibly lead to the discovery of relevant information. The only way that a court will evaluate an identity-seeking subpena is if either the ISP or the target of the subpoena files a motion asking the judge to block the subpoena. Unfortunately, in practice that rarely happens. That is because these subpoenas usually have a short, roughly 7-day deadline, and because many people never even find out that their Internet data has been subpoenaed.

Question: Isn't my ISP required by law to tell me if someone asks for my Internet-usage records and identity?

Answer: Unfortunately, in practice CyberSLAPP subpenas are rarely challenged becaue ISPs often fail to notify the individual who's personal information is sought. Even when they do, the short deadline (often as little as 7 days) does not provide enough time for the speaker to find and hire an attorney and the attorney to prepare the Constitutional arguments necessary to defend against the subpena.

Question: What is a "motion to quash" a subpoena?

Answer: This is a formal request for a court to rule that your information should not be given to the requesting party. This normally includes the request, plus a legal brief (sometimes called a memorandum of points and authorities) explaining why, by law, your information should not be turned over. Samples of briefs filed in John Doe cases are available at:

EFF Archive, Cullens v. Doe, http://www.eff.org/Privacy/Anonymity/Cullens_v_Doe/
http://www.citizen.org/litigation/briefs/IntFreeSpch/articles.cfm?ID=5801

Question: What should I do if I receive notice that my ISP has received a subpoena for my data?

Answer: First you should decide whether you wish to fight to protect your identity, Internet usage records, or whatever else is being sought. You might want to ask your ISP for a copy of the subpoena if they haven't already provided one. If you decide to fight it, you should inform the ISP immediately, and you may want to request that they delay compliance to give you time to find a lawyer. Then find a lawyer, who will file a motion to have the subpoena thrown out. (If your lawyer can later prove that the lawsuit was frivolous, you may be able to recover legal fees if your state has passed an anti-SLAPP statute.)

Question: What are the typical claims behind a CyberSLAPP suit?

Answer: The most common complaints by CyberSLAPP plaintiffs are defamation, trademark or copyright infringement, and breach of contract. Speech that involves a public figure - such as a corporation - is only defamatory if it is false and said with "actual malice." It also must be factual rather than an expression of opinion. In the US, because of our strong free speech protections, it is almost impossible to prove defamation against a public figure. Trademark and copyright complaints typically claim that defendants have violated intellectual property rights by using the name of a corporation or its products, or by quoting from some of their copyrighted materials such as an annual report. In reality, the First Amendment includes a clear right to criticize and discuss corporations and their products, and the law includes clear exceptions for the "fair use" of protected material for those purposes. Breach of contract suits often involve a claim that anonymous speakers might be employees who have violated a contract by releasing confidential information. Of course, the right to anonymous speech is meaningless if a corporation can unmask your identity at will because you might be an employee breaking a promise of confidentiality.


Question: How do judges decide whether to let a subpoena go forward?

Answer: This is a very new area of the law, and there are few well-established principles. The courts do have a duty to balance the right of anonymity against the need to prevent true defamation. So far there have been both good and bad rulings from judges; fortunately several have ruled that the plaintiff must prove that his case has at least a theoretical chance of prevailing before anonymity can be stripped away. Other cases have established a set of key factors to be used in judging anonymity-stripping subpoenas. In most of these the key factors are 1) that the party seeking the subpoena provide evidence that the identity is needed; 2) that the identity is directly needed for a key element in the case; 3) and that the identity information is not otherwise available to the party seeking it. While not yet firmly entranched in the law, these common-sense principles are clearly the right way to ensure that First Amendment rights are protected while still allowing identity to be revealed when there is a genuine need to do so.

Question: What are some of the important cases in this area of law?

Answer: Important CyberSLAPP cases include Dendrite v. Does, http://www.citizen.org/documents/dendriteappeal.pdf,
Melvin v. Doe, http://legal.web.aol.com/decisions/dlpriv/melvinop.html,
Doe v 2TheMart.com, http://www.eff.org/Cases/2TheMart_case/20010427_2themart_order.html,
Global Telemedia International v. Doe, http://www.casp.net/busted.html. Additional information about these and other cases can be found by searching the Internet or looking on the Web sites listed below.

Question: Can I do anything to help change this situation?

Answer: You can do several things. Be educated about your rights. Find out your ISP's policy on the handling of subpoenas, and encourage them - and any Web sites you frequent - to adopt good policies, especially a pledge to notify you of any subpoena before any private information is disclosed. Encourage your state legislators to pass legislation requiring such notice, and press them to amend state anti-SLAPP statutes to explicitly include Internet anonymity cases.

Question: What other resources are available?

Answer: Web sites dealing with this issue include:

www.aclu.org,
www.citizen.org,
www.eff.org,
www.epic.org,
www.johndoes.org,
www.casp.net,
www.cybersecuritieslaw.com,
cyber.findlaw.com/expression/censorship.html


Question: Can someone ask for my identity even if I am not the Defendant in the case?

Answer: Yes. The rules of civil discovery allow a party to a lawsuit (the plaintiff or defendant) to ask anyone for any information that may lead to the discovery of relevant evidence to their case. However, your ability to quash such a request if you are not named as a party to the lawsuit is the same as if you are named. You can still file a motion to quash. Below is a link to the case files for such a case:

http://www.eff.org/Cases/2TheMart_case/

Question: I am in California. Do I have a right to both resist such a subpena and to ask a court to throw out the case, right away, and award me attorneys fees?

Answer: Yes. California has a specific statute, called the anti-SLAPP statute, that allows an early motion to be brought to have a case dismissed if it is aimed at silencing protected expression and participation in matters of public concern.

Code of Civil Procedure § 425.16(b)(1) provides:

A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

A legal brief explaining the California statute further in a case involving claims of online defamation is available at:

http://www.eff.org/Legal/Cases/Kesler_v_Doe/

Question: What are the key federal decisions involving anonymous speech?

Answer: 1. Buckley v. American Constitutional Law Foundation (1999) 525 U.S. 182, 197-200;

2. McIntyre v. Ohio Elections Commission (1995) 514 U.S. 334. In that case, on page 357, the Supreme Court said:

"[A]n author is generally free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be, . . . the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content Amendment.
* * *
Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent.

3. Talley v. California (1960) 362 U.S. 60. (holding unconstitutional a state ordinance prohibiting the distribution of anonymous handbills)

4. Lamont v. Postmaster General (1965) 381 U.S. 301, 307 (finding unconstitutional a requirement that recipients of Communist literature notify the post office that they wish to receive it, thereby losing their anonymity);

5. ACLU of Georgia v. Miller (N.D. Ga. 1997) 977 F. Supp. 1228 (striking down a Georgia statute that would have made it a crime for Internet users to “falsely identify” themselves online).

Question: Aren’t people required to explain why they’re subpoenaing my identity and other information?

Answer: Not with the initial request. The reasons for the subpena are only provided if the subpena is challenged, through a motion to quash. In opposing the motion to quash, the person seeking the information must demonstrate, at a minimum, that it is likely to lead to the discovery of information that would be useful in a lawsuit.

Question: I signed a confidentiality/privacy agreement with my ISP that provides that they will not release my information. Doesn’t that protect me?

Answer: No. Most privacy agreements state that information will be turned over in response to legal requests, and a subpena is such a request. Even if the agreement does not say so, a legally issued subpoena overrides such agreements as a matter of public policy. Each ISP has a different policy about notifying users when their information has been subpoenaed, but they cannot simply ignore a subpoena under the law without risking legal santion themselves.

Question: What does "respond" to the subpena mean?

Answer: Usually, it means that the ISP will give the requested information to the requesting person. In some cases, ISPs have resisted requests for information on behalf of their customers, but this is not the norm. Unless specifically told differently by your ISP, you should assume that your ISP will turn over your information as part of its response.

Question: Can an ISP or the host of the message board or chat room be held liable for defamatory of libelous statements made by others on the message board?

Answer: No. Under 47 U.S.C. sec. 230(c)(1): "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This provision has been uniformly interpreted by the Courts to provide complete protection
against defamation or libel claims made against an ISP, message board or chat room where the statements are made by third parties. Note that this immunity does not extend to claims made under intellectual property laws.

Question: Can my ISP or the host of a message board be held liable for defamatory statements I make on the grounds that they are a "publisher" or "republisher" of the information?

Answer: No. Federal law provides: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This has been interpreted to protect hosts of discussions between other people against defamation and libel claims as a "republisher" of the information. Note that this protection does not extend to claims under intellectual property laws.

Question: Must an ISP or message board host delete postings that someone tells him/her are defamatory? Can the ISP or message board delete postings in response to a request from a third party?

Answer: 47 U.S.C. sec. 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law.

Question: My ISP tells me it's been asked to turn over my name as part of a lawsuit against hundreds of "John Does" in a faraway state. What can I do?

Answer: You should probably contact a lawyer, and suggest that the lawyer take a look at arguments raised by the EFF, ACLU, and Public Citizen in one of these suits (e.g., http://www.eff.org/IP/P2P/RIAA_v_ThePeople/JohnDoe/20040202_UMG_Amicus_Memo.pdf)

Reader Comments (37)

Jeff:

Are they asking for the IP address of all commenters in the dermacare blogs or have they taken the time to weed out individuals who have been very careful as to what they say on your site? I think I'm one of those guys?

01.16 | Unregistered CommenterWPS

I've put in the email as I got it. I don't know how or why they made that list.

The irony with some of these SLAPP suits is that they just end up republishing all of the negative comments. I fully support someone's right to fight libel. However, it is often counter-productive. If you make a bit deal about what people have said, it simply places more focus on the negative statements and becomes a public relations nightmare. Just ask DIRECT BUY. They threatened a web site for allegedly libelous comments and within a week had dozens of bloggers republishing the negative comments. Many people who would never have heard the dirt on DIRECT BUY saw it over and over again.
Sounds like DERMACARE name might be mudd - sorry bad pun but I could not resist.

01.17 | Unregistered CommenterRand

There may be another unintended consequence of this action. Anyone sued by Dermacare may now require corporate to produce documents. Thus, Dermacare has thrown open all it's door and windows and the defendants can now stroll in and get access to all information needed to prove the statements made. This legal action does not appear to be a wise move by Dermacare, but, that just my opinion.

01.17 | Unregistered CommenterPro Docs

It makes you wonder if the Dermacare guy has some sort of Jedi Mind Control. Why would these docs have signed up in the first place?

I agree with Pro Docs though. This has the stink of total desperation. It makes me think that the bills are piling up and the only way out for the Dermacare guy is to try to find some way to sue all the franchises. It can't be a good sign when you're trying to find evidence to sue the very hands that are feeding you. (That's just my opinion too of course....) Whew.

01.17 | Unregistered CommenterCutter MD

In reading through that post it also appears that some states may have laws trying to curb this very thing. I clicked on that lawyer and saw that one of his areas of expertise is bankruptcy. Certainly makes you think.

01.17 | Unregistered CommenterDr. Grumpy

Please tell me if I am right on the following two points:

1) Dermacare is trying to get the ISPs of bloggers. But, if Dermacare gets that information, the most the ISPs could provide is the name of the subscriber to the internet service. The ISPs do not know who actually typed words or submitted posts.

2) If a blogger goes to Starbucks (or any other public place that provides free internet access) then the subscriber would be Starbucks and the trail ends there.

01.17 | Unregistered CommenterPro Docs

Pro Docs:

I may be wrong but unless you originally accessed this blog from somewhere else, then they probably captured your IP address.

01.17 | Unregistered CommenterWPS

You're both right partly. ISP's generally know who their subscribers are. The IP Address is where content is coming from. This site would have no way at all of 'knowing' what your ISP is but wherever this site is actually 'hosted' would probably know your IP Address.

So, If this site were hosted on Google's Blogger software, Google would certainly know your IP address. If it's a Wordpress blog it would be the same deal.

Just because you are writing a blog does not necessarily mean that you have or know how to get this type of info.

01.17 | Unregistered CommenterDr. Tech

I'm just tickled to be first on the list!

I totally agree with ProDocs, Rand, CutterMD, et al - what exactly could he be hoping to accomplish by suing all his franchisees. Even if he sues half of us, we are all nearly broke and/or bankrupt anyway, and the Dermacare name is going to be worthless. He then has lots more people angry at him, half the revenue, and franchises he can't sell. It does sound like desperation.

As for the IP address issue - am I wrong or is there nothing linking a specific person to the computer that typed the entry? I have accessed this blog for probably a dozen locations around the country. Who can say that eery entry under my name was written by me, especially with an anonymous posting system? In fact, I think there were quite a few posts that I don't recall writing...

01.17 | Unregistered CommenterDermaDoc

It's quite bizarre that my usual initials (TF) are on the list of alleged rogues, as I am neither a franchisee, nor have I made any defamatory remarks about the plaintiffs....perhaps they meant someone else?

01.17 | Unregistered CommenterTF

At first I didn't understand what was going on when I read this article. I thought we were living in a country with free speech.

Having never heard of Dermacare or Mudd, this is my first real introduction to both. I can't imagine a more poor showing.

This Carl Mudd character must be quite a shmoozer or some kind of Sith Lord to sell everyone one day and turn around and sue them the next.

DermaDoc and TF

I may have accidentally used both of your names on this site but I don't remember for sure. Perhaps thats why I am not on "The List".

01.17 | Unregistered CommenterPro Docs

Hey ProDocs-

Not to worry, there are too many ways for Carl to screw this up before he even gets the information he is trying for. And as several folks have pointed out, having this kind of bad pubicity on the blog may be more damaging than anything we may have said!

Actually, I guess I am still not entirely clear regarding Jeff's reply to the request for info - Jeff: are you going to turn over the info, wait for the subpoena if one appears, or dig in and try to resist? Do what you gotta do of course, just curious as to the timeframe of the process now.

01.17 | Unregistered CommenterDermaDoc

Rather than turn over any info upon a mere request, Jeff should force them to subpoena the exact records they want. That protects Jeff and forces them to spend the time and money to do it correctly.

01.17 | Unregistered CommenterPro Docs

This is so cool!

Wait until 60 Minutes get a hold of this!

01.18 | Unregistered CommenterDan Rather

If the name is on the list and there is multiple IP's wouldn't it make sence that all the IP's thus all the people who used the name are turned over?

01.18 | Unregistered Commentermedspabuzz

medspabuzz-

you may be right, but it will take a lot of work to sift through all the IP's, names, locations, and find reasonable proof that whoever wrote under a name at a Starbucks in Phoenix is the same person who used the name at the airport in Florida or at home in another state. Then he has to prove that what was said was defamatory and untrue. Just because something may not be true doesn't make it libelous, it has to be damaging. I can say I saw him driving an '82 Toyota to the 7-11 to pick up a couple of Slurpees. May not be a pleasant image but he would have to show why it is damaging. The burden of proof is on Carl, just as it would be on us to prove he lied or had bad intent. Oh wait, that one has already been proven! (see the 'unclean hands' comments a couple of weeks back). Then we have the issue of paying his attorneys which seems to have been an issue in the past. How much work are they going to put into it without a big fat retainer? We can all prbably assume that retainer is coming from our national advertising fund.

If his attorney is halfway decent, he should be warning Carl about all this.

01.18 | Unregistered CommenterDermaDoc

DermaDoc,

I agree, multiple IP's, who said what and when? Whatever, good luck proving whatever it is you are trying to prove. I just wanted to point out that someone like prodocs name could actually land somewhere in Dermacare land based on using Dermadoc name while posting.

01.18 | Unregistered Commentermedspabuzz

I am Dermadoc. No, I am DermaDoc. No! I'm Derma-Doc.

Is Carl is going to try to crucify everyone on the roads to Rome?

I'm new to this site and don't really know all of the details. I did see one post with over 600 comments which seemed too intimidating to read, but there is an opinion forming that I wouldn't want to do business with Carl Mudd or Dermacare if it's willing to sue all of its own franchisees. A friend of mine has a franchise and they have a group that that negotiates directly with corporate if there's a problem or dispute. Doesn't Dermacare have something like this?

01.18 | Unregistered CommenterNewbie

Newbie-
If you are asking if we feel comfortable going to Corporate/Carl and identifying ourselves as having a problem and asking for assistance, I would say the answer is in the blog entires... (short answer - we tried it, it was shut down by terminating the franchisee trying to start it) Read the posts - it is intimidating true, but nevertheless, a fascinating study on business, ethics, and the power of FREE SPEECH!

01.18 | Unregistered CommenterDermaDoc

Because I find this whole ISP thing interesting, I contacted my Internet Service Provider today (cable, not dial up or DSL) and asked how it all works. The short version is:

1) The Internet Service Provider (ISP) installs a modem at your location that permits your computer to accesses the internet, either wireless or through a cable from the modem or router.

2) Every modem has a unique IP address, something like 1.2.3.4. IP addresses are assigned across the US like zip or area codes. Your modem's IP address is analogous to you phone number with area code.

3) Some but not all web landing sites have the ability to record and retrieve IP addresses of visitors. If multiple computers access the internet through a single modem, then only the IP address of the modem can be recorded. The visited internet site can not distinguish between computers 1, 2 or 3 who have access through a single modem.

4) Anyone within range of your wireless signal can hack in and access the internet through your modem and your modem's IP address may be recorded.

5) In the Dermacare law suite, they must first spend the time and money to subpoena the IP addresses, if they are available. They must then spend the time and money to determine what area of the US the IP address is assigned to. They must then spend the time and money to determine what Internet Service Provider in that area of the US was assigned that specific IP address. They must then spend the time and money to subpoena all the Internet Service Providers to get the name on the account of the person leasing the modem in question. They must then spend the time and money to determine who used the modem. They must then spend the time and money in determining if the person using the modem was the person who posted the objectionable words on this blog. They must then be absolutely sure they are correct. They must then spend the time and money amending their Complaint from John Doe to Dr. Doe. Good luck.

The good news is I can sit outside DermaDoc's location and continue hacking into his unsecured wireless internet connection and continue to post whatever I want on this site using his name. No one will ever know.

Yours truly,
Jimmy Hoffa

01.18 | Unregistered CommenterPro Docs

ProDocs-

I knew it was you all along! LOL!

While you are outside my office hacking, would you send a few patients in for us pretty please?

01.18 | Unregistered CommenterDermaDoc

Who cares what Carl knows or what Carl wants.
He is getting what he deserves.

What has to happen NOW is that all current franchisee HAVE TO STOP PAYING royalty and NAF.

Stop NOW. Your money is going to pay for Carl's witch hunts. He has no staff. He has no expenses. He provides no support. All YOUR MONEY is going to his attorney.

He is bad and he is evil and I can prove it.

He is a big bully who intimadates people by suing them (no one can afford to fight him in court because it costs hundreds of thousands of dollars).

Jeff Barson, hold fast. I will send you money to fight Carl. I am sure there are lots of people who would send money to defend free speech.

This situation has the potential to hit the national media, especially with the University of Florida involved.

What a juicy story. Free Speech, Big Bully. Failed Franchise. MedSpa. Botox. DUI. I am sure there is also sex and drugs involved somewhere.

"He who seeks good finds goodwill, but evil comes to him who searches for it."

The Book of Proverbs 11:27

Carl Mudd is VERY desperate . . . and this is why . . .this is where Dermacare is in January 2008 and this is how we all got here:

Carl continues to remind us what a great opportunity Dermacare is and how it is the Industry Leader, etc.

In his “The Truth, The Future” Email he ends by bragging . . . , “**I still own 100% of Dermacare, but Equity and Venture capital calls every other week . . . Dermacare corporate isn’t going anywhere but up!”

We are interested in exploring whether Carl tells the truth in his “The Truth, The Future” Email. Our first analysis showed that he was not telling the truth when he claimed a greater than 80% clinic success rate (it is really an 80% Failure Rate). This is the second part of our documentary series. Is he telling the truth when he says, “Dermacare corporate isn’t going anywhere but up”. Is he knowingly misleading or does he really believe his hyperbole? Is he living in a fantasy world? Is he going insane?

What is the Truth??? What is the Future??? (let’s take a look)

2008 - What a Difference a Year Makes.

See the article: Dermacare Records Banner Year in 2006 (yes, 2006).

http://biz.yahoo.com/iw/070207/0212270.html

Wed Feb 2,2007: Financial News. Press Release.

Headline: Aesthetic Skin Care Franchisor Opens 19 New Clinics and Now Boasts 28 Locations in 14 States. The company also secured contractual agreements for 22 other clinics, most of which will open in 2007.

Yep . . . things looked pretty good one year ago. This was the trend: 1 clinic (2001) to 4 clinics (2005) to 9 clinics (2006) to 28 clinics (2007) to 50 clinics (2008). The franchise was growing nicely. Fast forward to January 2008 . . . there are only 21 clinics left !!! Not the predicted 50 (Fifty). A net loss of 7 clinics !!! (13 closed, went bankrupt or were terminated; 6 new clinics started)

What happened ???

Lets review 2007 to see what happened.

Carl was losing his court battle against Denver (lots of time, energy and money (our royalty money)). Clinics were being terminated. Clinics were going bankrupt. Clinics were closing. No new clinic sales. Excessive staff turnover at corporate. Drunk Driving Arrests. Law suits all over the place. Very active negative blog on www.medicalspamd.com.. Very active negative email campaign from disgruntled current and former franchisees. Current Franchisees not paying royalty (not able to pay). Carl fighting with the Moffos (another stupid fight). Carl fighting with Ohio Master Regional Franchisee. Carl fighting with everyone.. Carl drinking too much, Carl having mental problems possibly going insane. Franchisees in open revolt (Declaration of Independence from Dermacare, LLC).

In April of 2007, the first clinic closed (Brooklyn Heights, NY). Then the three Dallas Clinics, then St. Louis, then Atlanta, then Ft. Lauderdale and then the Original Clinic in Phoenix (Tatum). New Jersey was terminated, then Alabama, then Tennessee, then California. One of the Goforth’s clinics was closed. Most clinics are struggling to make ends meat. Most clinics cannot afford the 6% Royalty that Carl demands each month (can’t get blood from a stone).

No new clinic sales because . . . how can you sell clinics when all your old clinics are closing, going bankrupt or are being terminated.

Why did this all happen? Well this is just my opinion . . . but see if it makes sense . . . see if it “rings true” The truth usually makes sense, it usually “feels” right. (I am sure Carl will have another explanation if he even accepts the fact that things are going poorly).

Why did things go so terribly bad? My Answer: Carl Mudd. And this is why.

Carl was very busy in 2006 selling franchises and fighting with Denver (he wanted to make an example of them to keep the rest of us in-line). He was doing nothing to support his current franchisees. He only cared about the clinic’s gross income and the royalty payment. He did not care about Profitability or Treatment Results or Patient Satisfaction. He provided zero support to help clinics achieve these two essential goals (Profitability and Happy Patients).

In 2007 everything came crashing down on Carl and his franchisees. Laser treatments were not working (Titan and Laser Genesis), patients were not happy (poor patient referral rates), ads were not working anymore (market saturation) and franchisees could not afford to pay the royalty (can’t afford to pay thousands of dollars each month for NOTHING). Clinics started to close, royalty payments were late, clinics got terminated, people got angry and began to blog, people got angrier and began to email. Oppression, Repression, Revolt !!!

In 2007, Dermacare contracted very significantly without any new growth. They lost 13 clinics and opened 6 clinics which had been scheduled to open from 2006. They sold zero new clinics.

In 2008 we predict that Dermacare will be given away (since it is not worth anything) or it will go bankrupt (freeing all current franchisees from the oppressive and vindictive Mr. Mudd). Franchisees are not going to take Mr. Mudd’s intimidation or his bullying. There is no respect. There is no fear.

There is no money. There is no successful business model. There is only bankruptcies and law suits.

What a difference a year can make.

I doubt any Equity or Venture capital is interested. Dermacare is going down the tubes rapidly. I see no future for Carl Mudd and his Dermacare.

Read the article, check the website to see how many clinics there are and see our last email about the two year survival rate of Dermacare Clinics. This is the truth. This is the future.

Click on the website below and click on "Friggin . . . IDIOT! as you think of Carl. Carl reminds me of Uncle Rico from Napoleon Dynomite.

http://www.albinoblacksheep.com/flash/ndsound


Jeff-
What's the status of the subpoena? Are you planning on turning over the information? Just checking so I can tell the real DermaDoc....

01.19 | Unregistered CommenterDermadoc

Dear Jeff Barson,

I have been one of the most active bloggers about Dermacare on this site.

I am not worried about Carl Mudd. I sleep very well at night.

I have told the truth. I have done the right thing by blogging about Mr. Mudd and Dermacare.

I hope you will not turn over our names and IP addresses because I don’t have the resources to fight Mr. Mudd in the courts. My message and the message of the other bloggers is very important. We have to remain anonymous to avoid law suits against us personally.

When Carl finds out who I am, I will stand up proudly knowing that I have told the truth. I truly believe everything that I have said. I am ready for a direct confrontation if it ever occurs. I want to avoid this because I might sustain a few flesh wounds while I tear him apart.

I believe that I have a duty and an obligation to tell what I know to protect the Doctors who Carl Mudd is trying to recruit into his Dermacare Mess. Carl Mudd and Dermacare is a direct path to financial ruin. The Dermacare System drains your personal fortune and then Mr. Mudd sues you when you cannot pay Royalty. When you sign with Carl Mudd, you have signed with the Devil.

I also have a duty and an obligation to try to help the current and former Dermacare Franchisees. We are in a titanic struggle with Mr. Mudd. We must not lose. We cannot lose.

Carl Mudd really is an evil human being. He is mean and he is vindictive. He does not tell the truth and he will try to ruin you financially if you disagree with him or you get on his bad side. This is true. I believe this in my heart. I have seen this many times since I have known Mr. Mudd. A court found this to be true in their ruling in the Denver Case.

That being said, Jeff Barson, you must delay, block and frustrate Carl Mudd’s attempt to find out who we are by any and all means. First and foremost, because anonymous free speech is protected under the constitution. You cannot be a blog that just rolls over and betrays the trust of your bloggers and does not protect free speech and protect our identify. If Mr. Mudd was open to critisism and receptive to change we would have told him what we thought in constructive meetings. He is vindictive and he sues people at the drop of the hat. He has extensive resources so he can afford a legal battle which costs hundreds of thousands of dollars while we cannot afford this (we think he uses our royalties and our money from the national advertising funds to fund his legal adventures). Our only recourse is to blog anonymously about Mr. Mudd and Dermacare. We tell the truth. We believe what we say. We have lived it. We know it is true. We don’t hide because we are ashamed of what we are saying. We hide because Big Brother is looking for us. He wants to capture us and torture us.

In addition, you must fight this attempt to suppress free speech because by fighting this, this struggle has a good chance of being picked up by the national media. This would be great for you and terrible for Mr. Mudd and Dermacare. When the bright lights of the national media are focused on Mr. Mudd and Dermacare, everyone will plainly see the truth. You can’t let this man run roughshod over free speech. He has done this to Dermacare Franchisees for years now. You can’t let him do this to you and do this to this blog and do this to internet blogging in general. You have a duty to fight this. You must fight this. You must gather all supporters of free speech and you must notify the national media that this man is trying to suppress free speech by finding out who we are and suing us. Remember, Carl Mudd is an evil and bad man. His story will generate no sympathy, only loathing and hatred from the common man.

Did we damage Carl Mudd and Dermacare? Probably we did. We just told the truth. If this is damaging to Mr. Mudd and Dermacare, then so be it.

Carl Mudd is an evil, vile, disgusting and toxic Frog. He fools you into thinking that he is a Charming Prince. He fooled all of us. We now know the truth and are merely warning others to be very careful. If Carl Mudd was really a Charming Prince and we were lying and telling people he was the evil Frog, then he would have an actionable claim. Since Carl Mudd is REALLY an evil, vile, toxic Frog, there is no claim because he is who he is and we are merely telling the truth (the emperor has no clothes).

If and when we ever have to face him in court, we can prove what we say. We don’t want to face him in court because we can’t afford it. We are all very weak financially because we have lost hundreds of thousands of dollars by investing in our Dermacare Franchise.

This my personal challenge to Carl Mudd. Mr. Mudd, you point out anything you think is untrue on this blog and I will provide proof that what I say is true.

Let’s start with the 80% Failure Rate of Your Dermacare Clinics in the First Two Years. Mr. Mudd, I know you read this blog. You tell me the two year success rate/failure rate, name the clinics and provide a status report on each clinic. Let’s start with something which is black and white like this. I have done this three times already on this blog and you have never refuted it with a list and facts. You have never refuted this 80% Two Year Failure Rate.

This is my challenge to you, Mr. Mudd. Let’s see what you have to say. No lawyers. No legal bills. Let’s see if you can stand up like a real man and fight fairly with fact, figures and the truth. I don’t think you can handle the truth! YOU CAN’T HANDLE THE TRUTH!

Signed,

Ishmael
(you forgot to name me in your law suit. Please add my name)


01.19 | Unregistered CommenterIshmael

Dermadoc has asked what that status is. I received the letter that the email referred to. Other than that the status is unchanged. If and when there is any change I will certainly post about it.

I represent 19 Dermacare Franchisees who have gone backrupt or have been terminated by Mr. Mudd. At Dermacare's Apex there were 32 Clinics. There are now 22. Fully 60% of Dermacare's Franchisees have gone bankrupt or been terminated.

Mr. Mudd is either a pathological liar or he lives in a dream world. He is either crazy (detached from reality) or he is evil and bad.

For those of us caught in the Dermacare Nightmare, we are ready to fight to the death. There will be no settlement. There will be no further Dermacare Franchise sales (if we can help it). We are mortal enemies. We fight to get even and we fight to protect other naive doctors who may consider Dermacare is a business vehicle.

We are tireless. We will outlast, outwit and outplay Mr. Mudd.


Accordingly, this master regional clinic is going to made part of Dermacare Corporate, here on referred to as Corporate North . . . It is expected that with the University of Florida academic relationship, that the Gainesville MRF franchise of Dr. Phillip & Charley Barkley, the largest MRF in the U.S. and the Research triangle franchise of the Keverlines will also become more than Regional Training Centers, and also be involved in the corporate structure.

We have the best trade name in the industry. We have the best system in the industry. We have the best franchisee success rate in the industry. We have the best reputation in the industry.

---Carl Mudd, State of the Franchise-January 20008.


60% Clinic Failure Rate! What is Carl Smoking?

Dear Drs. Smith, Barkley and Keverline,

You now know about the 60% Dermacare Clinic Failure Rate. Is Carl delusional or is he knowingly misleading people (including current franchisees)?

Your support and your testimonials legitimize this opportunity and make Mr. Mudd’s false and outrageous claims believable and credible. You have a moral and a professional obligation NOT to mislead and entrap your fellow physicians in this losing proposition.

We know you have invested a lot of time and money into your Dermacare Clinics and your territories. It is hard to walk away. This is what we suggest you consider.

Form a group and break away from Mr. Mudd. Mr. Mudd is the problem. He is the cancer. He is what makes Dermacare a losing proposition. Once you are rid of Mr. Mudd, correct the problems with Dermacare and continue to recruit and sell. We don’t have a problem with the three of you. We have a major problem with Mr. Mudd because we know he will continue to propagate current problems while will lead to clinic bankrupsies, terminations and financial ruin of franchisees.

Will he stab you in the back one day? Just talk to Dr. Patel and Dr. Moffo. They were his “go-to” doctors in the beginning. They were his best friends. He probably said about them:

3 of the finest individuals on earth, who have more character, charity, and empathy in their little finger---Carl Mudd. Blog Entertaiment coming to a Close. 1-22-08.

Now Dr. Patel is suing Carl because Carl did not pay Dr. Patel for his clinic and did not pay the laser leases ruining Dr. Patel’s credit. Dr. Moffo hates Carl because Carl is an asshole. We have an exchange of emails which document their disagreement. (By the way, Carl really seems like a total ass). The Doctors Moffo and Dr. Patel did so much for Carl Mudd and Dermacare and then he screwed them without a second thought. He has a very short memory when you have done things for him. Talk to these men. Mr. Mudd WILL screw you at some point in the future. Count on it. He did it to Dr. Patel and to Dr. Moffo.

More importantly you will be linked and enjoined in all the coming law suits against Mr. Mudd and Dermacare. There is lots of liability associated with 19 failed clinics. In addition there are angry and wronged vendors, attorneys and ex-employees. Are you sure you want to take on Carl’s problems?

If you stay with Mr. Mudd you will be held accountable by us, by the people you help recruit and by your god and your maker. Think about it.

All of us “Carl Haters” are communicating with each other. A pretty clear picture of Carl is emerging. A movement is growing. Dermacare is doomed if Carl Mudd stays involved. “You live by the Sword . . . You die by the Sword”. Mr. Mudd has made his bed and now he has to lie in it.

Think long and hard about becoming Dermacare North and Dermacare South. It is NOT a good idea. Helping Mr. Mudd IS NOT a good idea. He will use you and then discard you. It is not the right thing to do. It is wrong. Very wrong. You will feel very bad about all the new prospects you bring to this evil man and his losing proposition (if any are naïve enough to join in the first place).

Signed,

The Alliance and the Merry Pranksters


So if Carl is trying to get the identities of all the anti-Dermacare bloggers for libel, defamation, etc., etc. ... will anyone try to obtain the identities of the pro-Dermacare bloggers (most likely CM) and sue for fraud, false advertising, and the like?

Jeff -

Have you had more contact with DC about the CyberSlAPP suit? Has any of the info been turned over? If you are able to answer with a simple yay or nay it would be great - I expect they may have hit you with a restraining order to not say anything about the suit right before they brought out the subpoena.

Thank you!!

03.5 | Unregistered CommenterDermaDoc

How to view and post anonymously


I have no opinion on the dermacare issue. I can say, if you want to surf the web an dpost comments on message boards without having your IP address logged then you can use an anonymizing proxy to do this.


I have used Proxify for this (I dont work for them) and I have also heard very positive things about a free alternative, tor, which uses a more sophisticated approach.

@ Dermadoc,
No information has ever been turned over by Medical Spa MD to anyone. Hope that helps.
Jeff

Carl Mudd is suing his former franchisees for $30 million dollars.

They are all bankrupt or they hate him so much, they would rather go to jail than pay him one penny.

Does anyone know where Carl Mudd is currently working and living?

He still owes many Franchisees hundreds of thousands of dollars from court cases he has lost.

Jack Nicholson, Esq.
The Jack Attack
"Here's Johnny"

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