by Sean Kelly, UnhappyFranchisee.Com

Last week, San Francisco Attorney Nikolaus W. Reed slapped (or perhaps SLAPPed) me with a $35,000,000 defamation lawsuit on behalf of his client, Mark Golob.

I say SLAPPed because that’s what I suspect this lawsuit is: a Strategic Lawsuit Against Public Participation (or SLAPP).

A SLAPP is a lawsuit that the suing party (or Plaintiff) has no real intention of winning.

In my understanding, it’s used by people who have enough money to threaten, intimidate and financially drain the resources of those who have expressed opinions they don’t like.

It’s a crass manipulation of the legal system to take away an opponent’s right to express his or her opinions (ie Public Participation), a right that’s protected by the 1st Amendment.

For that reason, filing a SLAPP is against the law in California.

Why would Mark Golob & Nikolaus Reed SLAPP me?

Mark Golob was founder,  CEO and President of a women’s fitness concept called Butterfly Life.  In the mid to late 2000s, Mr. Golob and his staff sold individual and area development franchise opportunities requiring an investment ranging from $90,000 to $287,000.  Eventually, the franchises failed, the franchisees’ investments were lost and the franchise chain folded.

In 2008, I conducted short interviews with 7 Butterfly Life franchisees about their experiences:  Jeff Marks, Carol King, Linda McBride,  Julie Franco, Lisle Head, Michael Motes, and Matt Wilson.

I also posted the tragic news when Butterfly Life franchisee Cynthia Holt took her own life, and when the franchisees lost their litigation against the franchisor when they could not come up with the arbitration fee.

I suspect that Mr. Golob is suing me in order to get these unflattering interviews and the accompanying comments removed from the Internet.

Perhaps he hired Mr. Reed to threaten and intimidate me to the point where I’ll willingly take the content down, and/or he can bankrupt me and destroy the site.

And since he has no valid justification for suing me (in my opinion), perhaps he is resorting to an invalid method:  SLAPPing.

Nikolaus Reed’s own website states that the statute of limitations has passed

Nikolaus ReedWhy do I suspect that attorney Nikolaus Reed is knowingly filing a lawsuit he knows is not credible?

Because the statute of limitations for defamation in California is 1 year from the date of first publication.  The comments Reed claims are defamatory were published nearly six years ago.

Mr. Reed states, on the page titled “Defamation, Libel, Slander” on his own website:

Unfortunately, the statute of limitations [in California] does not last long (ONE YEAR) and if you do not seek compensation from the offender before that time, no one can help you…

In the complaint, Nikolaus Reed references that his client read the comments in January, 2014, as if the date of “reading” is relevant.

[Update:  Later, Mark Golob would claim I made a new post in January, 2014 that included allegedly defamatory statements, though he wouldn’t submit a copy of the allegedly defamatory posting.  I hadn’t posted since 2008.]

According to the Digital Media Law Project (DMLP) website:

California’s statute of limitations for defamation is one (1) year. See California Code of Civil Procedure 340(c).

California applies the single publication rule pursuant to California Civil Code 3425.1-3425.5. A California Court of Appeals recognized the single publication rule in the context of publications on the Internet. Traditional Cat Ass’n, Inc. v. Gilbreath, 13 Cal.Rptr.3d 353, 358 (Cal. Ct. App. 2004).

The DMLP site explains the “Single Publication Rule”:

Most states have adopted the so-called “single publication rule,” which states that the statute of limitations period begins to run when a defamatory statement is first published… [In cases regarding the Internet], the statute of limitation period begins when a defamatory statement is first made available online.

If I, a lowly blogger and non-attorney, could find this information with a couple of Google searches, it seems likely that California attorney Nikolaus Reed knew ful-well that the statute of limitations for Mr. Golob’s lawsuit had run out nearly 5 years ago.

But he filed it anyway.

Be careful who you SLAPP.  They might SLAPPback.

In the midst of all this nastiness, there is some good news.

According to the DMLP site, those who are SLAPPed can SLAPPback:

If you prevail on a motion to strike under California’s anti-SLAPP statute, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys’ fees and court costs. See Cal. Civ. Proc. Code § 425.16(c).

Additionally, if you win your motion to strike and believe that you can show that the plaintiff filed the lawsuit in order to harass or silence you rather than to resolve a legitimate legal claim, then consider filing a “SLAPPback” suit against your opponent. A “SLAPPback” is a lawsuit you can bring against the person who filed the SLAPP suit to recover compensatory and punitive damages for abuse of the legal process…

If your successful motion to quash arises out of a lawsuit filed in a California court, the judge has discretion to award expenses incurred in making the motion. The court will award fees if the plaintiff opposed your motion “in bad faith or without substantial justification,” or if at least one part of the subpoena was “oppressive.” Cal. Civ. Pro. Code § 1987.2(a).

Interesting stuff.  I’m off to speak to attorneys specializing in anti-SLAPP lawsuits.

If you have a recommendation, or an opinion on whether this qualifies as a SLAPP, please comment below or email me at UnhappyFranchisee[at]gmail.com.

[UPDATE:  The Judge ruled in my favor, and ruled that Plaintiff Mark Golob must pay my attorney fees.  Read $35,000,000 Lawsuit Backfires on Health Club Franchisor]

Also read:

MARK GOLOB LAWSUIT : Overview, Updates, and Discussion

MARK GOLOB LAWSUIT: Does Mark Golob Have a History of Litigation in the Health Club Industry?

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TAGS: Mark Golob, Mark Golub lawsuit, Butterfly Life lawsuit, Unhappy Franchisee lawsuit, Nikolaus W. Reed, attorney Nikolaus Reed, Sean Kelly, SLAPP lawsuit, frivolous lawsuit, franchise lawsuit, Strategic Lawsuit Against Public Participation, Anti-SLAPP, SLAPPback

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