The Volokh Conspiracy
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For the past year, I've been researching libel takedown and deindexing injunctions. People get these injunctions chiefly to send them to Google and other search engines: Once Google sees that a court has determined that material is libelous, it will often remove it from Google indexes so that searchers won't see it. The material will thus, practically speaking, largely vanish from the Internet.
But a procedure where a third party (Google) is asked to honor injunctions in cases in which it wasn't a party risks abuse—especially when the injunction comes from a default judgment (one in which the defendant never showed up) or a stipulated judgment (one in which the plaintiff and defendant agreed to the injunction). For instance, what if a defendant didn't actually write the allegedly libelous material but just claims he wrote it so that he can then stipulate to the injunction? The real author might never be notified about the case, and both the court and Google might be deceived into thinking that the fake author is the real author.
My amicus brief in the pending California Supreme Court Hassell v. Bird case noted a suspicious pattern—in some cases that I had come across—though stressing that any inference from the facts I laid out was just a suspicion (for links to the relevant case documents, see the PDF):
Several sets of stipulated judgments from Texas and from Ohio (in over 15 cases put together) … share an unusual property. All of the cases say that the defendant resides (or at least "may reside") in Texas or in Ohio; presumably that is the justification for the cases being filed in those states. But in every one of these cases, the defendant's signature was notarized in California (in all but one case, in the Bay Area-Sacramento corridor).
Now it is of course possible that, in one case, a defendant may get a signature notarized while traveling. But seven such cases from one Houston lawyer, three from another Houston lawyer, and five from an Ohio lawyer? We hear about eco-tourism, medical tourism, and even sex tourism—but we never hear about notarization tourism, even to lovely Northern California. The likelier inference is that there is something odd afoot. One possibility … is that some "reputation management company" hired by plaintiffs has lined up local defendants who incorrectly claim to have written defamatory material, and then stipulate to the issuance of an injunction that could then be sent to Google with a deindexing request.
In one set of these cases, one Texas lawyer represented plaintiffs in seven 2016 cases where the court and the defendant's address were in Texas, but the defendant's signature on the Waiver of Service, Affidavit, or Answer was notarized in Northern California. (According to Houston court records, these are the only defamation cases that this lawyer has ever filed in Houston district courts.) Another Texas lawyer has represented plaintiffs in three 2016 cases that fit the same pattern. Three other Texas lawyers have done the same in one or two cases each.
One Ohio lawyer likewise represented plaintiffs in five 2015-16 Ohio cases, with the complaints stating that the defendant is believed to reside in Ohio, or at least "may reside in" Ohio. There are also similar cases in Florida and in Maryland; the Florida case was filed by a lawyer at the same firm where the Ohio lawyer was practicing at the time, and the Maryland case was apparently submitted to Google by the Ohio lawyer.
It is not clear who was responsible for procuring the notarizations. It is possible that neither the lawyers nor the plaintiffs were involved in that process, but just accepted documents from a reputation management company, expecting that the defendants had been properly identified and were indeed the authors of the allegedly defamatory posts. But in any event, there is reason to doubt that the posts litigated in these cases were actually all written by people in Northern California.
I'm glad to report that, late last month, the Texas attorney general's office filed a civil complaint against a reputation management company that seems to have been involved in at least one of these cases (Grisak Properties v. Baroro). The company is Solvera Group Inc., run by Chris Dinota (the complaint labels both as "Solvera Defendants") and operating under the names Instant Complaint Removers, InstantComplaintRemovers.com and DefamationRemoval.com. From the complaint (paragraph breaks added):
Summary of Scheme
12. Solvera Defendants perpetuated a scheme in the guise of "reputation management" through filing lawsuits that they knew to contain false information—including fictitious plaintiffs and defendants. In doing so, they deceived consumers nationwide, local Texas attorneys, Texas judges, including in Harris County, and search engines such as Google. As a result, the Solvera Defendants have deceived consumers by removing potentially legitimate internet postings through deceptive use of the legal process. …
Solvera Defendants' Operation
… 15. Legitimate small businesses or individual consumers, in Texas and nationwide, first contact Solvera after finding negative information about them posted online. The basic process that then takes place is:
- The consumer signs a contract with Solvera.
- Solvera Defendants hire a California blogger to post an additional comment or review to whatever webpage the consumer has concerns about.
- Solvera Defendants hire a local Houston-area attorney claiming to have identified the individual who posted the negative information, draft a defamation lawsuit, and send the attorney the draft pleadings.
- The attorney files the defamation lawsuit, then later an agreed judgment, with the court.
- The court signs the agreed final judgment which orders the negative website deindexed.
- Solvera Defendants take the judge's order to Internet search engines to get them to de-index the site.
Solvera Defendants at each stage of the above outlined process employ a variety of false, deceptive, and misleading acts and practices through which they deceive and confuse customers [who pay $10,000 or more -EV], attorneys, Internet search providers, and Texas courts, as described in more detail below. …
17. Solvera Defendants next contract with attorneys, including in Harris County, Texas, to file defamation lawsuits on behalf of their customers. At this point, both the consumer and the attorney are misled. Specifically, Solvera Defendants fail to obtain authorization from, or even notify, its customers before contracting with attorneys to file lawsuits as part of their services. Businesses are surprised to learn, after the fact, that a company with a very similar name to their legal name has been named as the plaintiff in a lawsuit.
Second, the attorney has been told by Solvera Defendants that they have already identified and contacted the alleged defamation defendant, the individual who purportedly posted the negative information on the Internet, and the parties have already reached a settlement. Solvera Defendants have already drafted the lawsuit, and send it along with the URL De-Index Agreement to the attorney.
Local attorneys are thereby misled, because Solvera Defendants misrepresent that their customer has in fact authorized a lawsuit, when in actuality it is a fictitious business entity. This entity has then granted power of attorney to the local lawyer. Solvera Defendants make this misrepresentation by sending those attorneys a different version of the URL De-Index Agreement than the one that was signed by the customer. This version of the De-Index Agreement includes provisions stating that the consumer has agreed to be represented by the local attorney by granting a power of attorney, provisions that are not present in the original De-Index Agreement.
Moreover, these local attorneys are further misled because Solvera Defendants fail to actually identify and contact the original poster of the content the consumer had believed was defamatory. Instead, a California blogger has made an additional posting to the original purportedly defamatory content, and has agreed to be "defendant" in the defamation lawsuit.
Identifying the person consumers believe originally posted negative information would be nearly impossible to accomplish from the often anonymous complaints posted on the internet. So, Solvera Defendants have a local California associate sign an affidavit, in which he/she falsely states that he/she is a resident of the Court's jurisdiction, including Harris County, and further falsely states that he/she engaged in all of the conduct alleged in the lawsuit, which extends to more than just the comment that they had additionally provided. This is evidenced by the fact that invariably the affidavit is notarized in California despite the alleged defamation defendant's supposed local residence, in Harris County.
18. The attorney then files the lawsuit in state court, including Harris County District Court, resulting in Solvera Defendants' misleading the court that the fictitious plaintiff entity is the real business entity that has been defamed, and further that defendant is in fact the person that originally defamed the plaintiff. Solvera Defendants then send the attorney a waiver of service from the defendant named in the lawsuit, along with an agreed final judgment.
19. This agreed final judgment, a settlement made without the original parties' (the original alleged defamer and the originally allegedly defamed business) knowing participation, orders Internet search engines to de-index the review or posting in question. The attorney then signs and files the agreed final judgment with the court, and obtains the judge's final order, who has then unknowingly signed a court order premised on a complete falsehood.
With this signed order from the court, Solvera Defendants are then able to contact search engines such as Google, to make them de-index the listed websites containing the allegedly defamatory review or posting. Thus, misrepresenting to search engines that the original parties have agreed the content was defamatory, when in fact the original poster of the speech has not been identified, only the paid commenter. Once de-indexed, the websites cannot be located through that search engine, though they do still exist on the Internet. Solvera Defendants have caused Harris County judges to enter multiple similar orders. Some of these postings have now been re-listed by Google and other search engines.
20. On information and belief, Solvera Defendants thus made misrepresentations to the consumer, who did not know a lawsuit was being filed as part of the services they had paid for, to local Texas attorneys, who did not know the lawsuits were premised on a paid transaction between a fictitious plaintiff and a paid defendant, to the court that did not know the originally "defamed" consumer and original "defaming" speaker were unaware of the suit and had not made any true settlement, and to search engines such as Google who were unaware the court order was premised on such misrepresentations. Furthermore, it appears today that Solvera Defendants' use of these tactics was sometimes ineffective, as it may not extend to cover mobile-optimized websites or provide a permanent "removal" solution as represented to customers.
21. The instantcomplaintremovers.com website, while no longer operational, touted that it is the "#1 Rated Content Removal Solution" and can "Remove Complaints in as Little as 48 Hours." The website further stated that "You may have been told that it's impossible to remove content from search results … but that's where the team at ICR disagrees…. we retain the most advanced in-house legal counsel. We work in conjunction with our specialized team of legal counsel and legal consultants …"
The website also indicated that the company has removed 4203 complaints and de-indexed 2647 URLs. The way their company differs from other reputation management firms, the site said, is that those suppress negative content while Instant Complaint Removers instead actually de-indexes or deletes specific links.
The lawsuit seeks an injunction ordering Solvera to (1) stop its improper practices, (2) reveal any past cases involving such practices to courts, search engines and the sites that were targets of deindexing attempts and (3) pay civil penalties of $20,000 per violation.
But even apart from the specific punishment, I think the lawsuit can help show courts that there is a massive problem with shenanigans in the libel takedown system. For more on other such shenanigans, see these posts; in particular, see this post about fake-defendant lawsuits, this post about forged notarizations and this post about outright forged court orders.
Thanks to the Lumen Database, which has been invaluable in my research.