The Volokh Conspiracy

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Free Speech

Court Declines to Enter TRO Ordering Defendants to "Retract … Complaints … to Amazon"

The court so holds as a matter of the law of remedies, though I think such an order would generally be an unconstitutional prior restraint as well.


From Judge Kari Dooley's decision earlier this month in Ligeri v. Tischer (D. Conn.) (a lawsuit over sales of "moleskin, nutritional supplements, sporting goods, housewares, and the popular 'Green Sky' brand rubber ducks"):

Plaintiffs Benjamin Ligeri and Central Concepts Inc. … have moved for a temporary restraining order … and therein seek a mandatory injunction requiring Defendants, Joshua Tischer, Optimistic Investments, Inc. and Michael Murphy to retract certain complaints they have allegedly made to Amazon and to cease and desist the filing of other complaints….

By verified complaint, Plaintiffs assert that the Defendants have and continue to tortiously interfere with their business expectancies, specifically their ability to sell products using their Legacy Account on the Amazon sales platform. The Defendants are alleged to have filed false and frivolous claims with Amazon that Plaintiffs' products either: infringe a copyright; infringe a trademark; or are counterfeit, all of which would violate the Amazon platform policies. As a result, Amazon has removed some of Plaintiffs' products from the website resulting in lost sales. Plaintiffs allege that this conduct can result in the diminished value of the Legacy Account and might ultimately destroy Plaintiff's ability to do business on the Amazon platform entirely. Finally, Plaintiffs assert that the loss of a Legacy Account cannot be addressed through damages given the various advantages afforded such accounts which once lost, are lost forever.

On the papers submitted, the Court cannot conclude that the Plaintiffs have shown a "clear and substantial" likelihood of success on the merits of their claim. In order to find that the Defendants' conduct was tortious, the Court would be required to find that the complaints were false or frivolous. In order to determine that the complaints were false or frivolous, the Court would need to assess whether the Plaintiffs' products infringed a copyright, were counterfeit, or infringed a trademark, which in turn requires detailed and sometimes nuanced analysis under very complex bodies of law. The Plaintiffs ask this Court to summarily decide that no such infringement has occurred by looking at internet screenshots of the products at issue. This the Court cannot do. Although there is evidence from which to infer that the defendants are selectively targeting the Plaintiffs, e.g., allegations that the Defendants are not challenging other sellers of similar products, this does not establish one way or the other whether the complaints themselves are frivolous or false.

Further, nor does the submission establish irreparable harm absent immediate action by this Court. The submission makes clear that Amazon gives sellers a mechanism and process by which to dispute or challenge a complaint. It encourages sellers who believe the complaint is in error to contact Amazon so that Amazon can investigate. There is no indication that the Plaintiffs have availed themselves of this process before seeking the extraordinary relief identified in the motion for temporary restraining order. Indeed, Plaintiff alleges that Amazon requires sellers such as the Plaintiffs to initiate litigation against the complainant if there is a dispute as to the complaint. This allegation is at odds with the Plaintiffs' exhibits which clearly instruct otherwise.

The Court offers no opinion as to whether, following the hearing on the motion for preliminary injunction, the Plaintiffs might meet their evidentiary burden, only that they have not done so at this juncture…

For more on the prior restraint argument against such TROs and preliminary injunctions, see here, or pp. 93-96 of my Anti-Libel Injunctions article.