Answers & Counterclaims — now with 100% more dork #notchilled

Reminder: These are my own views, and not the views of any other organization. Longer disclaimer here.

A brief sum-up of where we are in the Ellora’s Cave v. Dear Author litigation. There are four major things going on right now.

A. The claim by EC against DA alleging defamation.
B. The motion for a temporary restraining order by EC
(discussed here and also peripherally here: the TRO hearing was continued by the judge, and so is in temporary limbo.)
C. The removal of the case to federal court
(discussed here and here: we’re waiting for the judge to rule on the remand motion).
D. The counterclaim by EC against DA alleging abuse of process.

This post touches on threads A and D. Often I use “Jane” and “DA” interchangeably to refer to the defendants as a whole. Because Jane Litte, in her personal capacity, and Dear Author, the LLC, have replied separately, in this post I will refer to them separately.

Where we are: On October 22, DA filed an answer to Ellora’s Cave’s claims and a counterclaim. Jane did not file an answer on that time, and so I put off discussion of those two. On October 24, EC moved to remand the case to state court, something I’ve talked about before. As a result of that, the parties jointly moved on October 29th to extend the time for responsive pleadings. The judge denied that motion on November 6, and that same night, Jane filed her answer in her personal capacity.

So here’s where we are.

 Thread A: The original defamation claim.

While memoranda in support and in opposition of the TRO are flying, with potential hearings, the original lawsuit continues to trundle on.

Just so you know what you’re looking at when you download the documents, the complaint and the answer are both initial pleadings–meaning that they tell the court what the plaintiff wants and what their grounds are for wanting it. In return, the defendant lets the court know what they agree with, what they might potentially dispute, and if they have any defenses or counterclaims.

Pleadings usually don’t set out the case in detail. They’re not briefs where they lay out their reasons for winning and losing in detail; they’re skeleton sketches. Both Jane and Dear Author’s answers are pretty boring for the most part. All they’re doing is going through the original complaint filed by EC paragraph by paragraph and saying whether they admit or deny the paragraph. So you’ll see (unsurprisingly) that Jane and Dear Author agree that EC publishes books and that Dear Author reviews books, and you’ll also see (unsurprisingly) that Jane and Dear Author deny that Jane libeled EC and acted with hatred and ill-will. Sometimes, the answer will say, “We don’t really know about this, so prove it.”

You could go through this paragraph by paragraph if you wanted, but you already know the gist of what’s going to be said.

The answer gets interesting on page 4 of both DA’s  and Jane’s answers, which is where the affirmative defenses are. If you’re wondering what an affirmative defense is, you can figure it out by what you’ve just seen. You’ve just seen plain old defenses–that is, denying factual allegations or conclusions from those. So imagine that a mother comes home and finds all the cookies she’s baked gone. “Jimmy,” she asks, “did you eat the cookies?”

“No, I didn’t!” Jimmy could say. That’s a regular old defense–he’s denying the facts of the accusation.

But there are also affirmative defenses:

“You said I could have some cookies if I finished my homework, and I finished my homework!”
“A bad man came over and held a gun to my head until I ate all the cookies!”
“Your sisters came over, and I had to give them something, and then Aunt Lobelia said I should have a cookie with them.”

Those are potential affirmative defenses: things that get Jimmy off the hook that don’t rely on denying the facts of the accusation.

So Dear Author and Jane both plead affirmative defenses. Their affirmative defenses are not the same for both DA and Jane (and I knew they wouldn’t be). Here’s a brief summary of them, and my thoughts on them.

1. Dear Author is immune under Section 230 of the Communications Decency Act.

This is the only affirmative defense that DA makes that Jane does not.

I apologize in advance for my total dorkgasm about this. I tried to hold myself back and I failed and I would hide my head in shame but it’s too interesting for me to even manage that.


A bit of background about CDA immunity: The Communications Decency Act (47 U.S.C. s. 230(c)(1)) says that “[n]o 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.”

The easy way to see what this means in action, and to understand why we have this law, is to imagine this: Can you sue Google if some random person harasses you using a Gmail account? Without the CDA, the answer would be “maybe” and that maybe would depend on a number of factors which don’t matter, because so long as it depends, every time some jerk wanted to sue about something wrong on the internet, said jerk would try to attach Google or Facebook or Yahoo as a defendant because they have money. The CDA says that services would mostly be immune, and so the answer turns into “never” instead of “maybe.”

So that there’s your average, run of the mill, CDA case.

This is not an average, run of the mill deployment of the CDA. Once upon a time, I read every appellate-level CDA immunity opinion that was available, and most if not all of the published trial level opinions.[1] In all that reading (okay, it’s not that much reading), I don’t think I ever saw the CDA deployed in precisely this way.

Here’s a different question: Is Google immune from suit under the CDA if Larry Page, the CEO of Google, harasses you using a Gmail account? That’s closer to what we have here.

Almost every CDA case that I have seen had a provider of an information service being sued for something posted by someone who was essentially a random, unaffiliated, user of the service. Jane appears to be the owner of Dear Author (from state LLC filings). I have never seen an opinion granting CDA immunity to an entity where the speech in question was made by the owner of the official site owned by the entity. To be perfectly fair, I have never seen an opinion denying CDA immunity under those circumstances, either, and I suspect that is because nobody thus far has had the chutzpah to make the claim. So far as I know, this is a novel and therefore extremely interesting (to me) use of the CDA.

Whether DA gets immunity on this question will turn on whether Jane’s speech is that of “another information content provider.” The closest we have to on-point legal authority–and this is actually only tangentially relevant–here is the 9th Circuit’s opinion in Fair Housing Council of San Fernando v.

Short version of… No, there is no short version. There is only a less long version, which commences: It is illegal to specify certain preferences in a housing search. So, for instance, you can’t say “I will rent this house to whites only.” (You’re allowed to actually discriminate under certain circumstances, but you’re not allowed to say that you’re discriminating in all circumstances.) allowed people to sign up to look for roommates, and had boxes for people to check so that you could specify that you would not be interested in a male roommate, or a gay roommate, or a roommate with children. The question (well, one of the questions) in the case: was including those check boxes the speech of the individual looking for a roommate (in which case would not be liable under the CDA), or was an “information content provider” of the speech?

The important part of the decision (for our limited purposes) is this: “[T]he fact that users are information content providers does not preclude Roommate from also being an information content provider by helping ‘develop’ at least ‘in part’ the information in the profiles.” In other words, under the reasoning in Roommates, just because Jane was the speaker of the underlying speech doesn’t necessarily mean that Dear Author is not also an information content provider responsible for the speech.

My first knee jerk reaction to this defense was that it was novel and daring and also doomed to failure, because it strikes me as flat-out freaking weird to say that an entity is not liable for speech by the owner that directly relates to a central mission of the entity and occurs on the entity’s website. If that’s the case, then no entity could ever be found liable for anything said online. Google could make a Google Doodle that was outright defamatory, and then say, “Whoa, that was the speech of the person who created it!” And it can’t be the case that entities aren’t liable for things that are obviously the creation of the entity. The fact that some underlying person also came up with it is irrelevant; the entity was responsible for developing and creating it.

But the more I thought about it, the more I convinced myself that there’s more here than my knee-jerk reaction thought.

Let’s take some place like Salon or the Huffington Post, where there is some sort of editorial review process, but–basically this editorial process means that essentially random people can put up terrible opinions for pure clickbait purposes. Is that speech inherently the speech of Salon? Or is Salon providing a service in the form of a platform and minor editorial content? What about the Guardian? The Washington Post? This is an open question under the CDA, and if you think about it, it’s one that has potentially huge ramifications for journalism. My gut feeling is that in the case of something like Salon, this is clearly speech of another information content provider and should be immune, although I don’t believe that a court has ever held that.

Applying that back to the case of Dear Author, it doesn’t seem quite so bizarre to suggest that Dear Author is immune, for instance, for guests posts. Or for posts written by Janine or Robin (who I believe are independent contractors and not corporate officers in any capacity). That’s just the Salon principle writ small.

So what about DA’s liability for things written by Jane? This could turn on some interesting factual scenarios about DA’s internal structure which I don’t know. My gut sense says, for instance, that if DA the entity treats Jane’s articles precisely the same way as it treats articles written by other independent contractors, she has a much greater chance of success.

All that being said, Jane’s earlier declaration indicates that discussion of publishers is a primary mission of Dear Author. I’m not convinced a judge will buy that DA itself is not an “information provider” responsible for the development of the blogpost in question when the discussion of publishing houses is so central to its mission that Jane says “I cannot, in good conscience, maintain a blog about this subject without being free to report on all publishing houses.” TRO response, Exhibit A, at 9.

Further complicating all this is that is not controlling authority in Ohio, and that decision has been the subject of serious criticism. The decision was a sore enough point that it was called en banc in the 9th Circuit (that is: the judges of the 9th Circuit voted to rehear the case by a panel of 11 judges, after the opinion delivered by the three-judge panel; interestingly enough, the same judge that wrote the opinion in the three-judge panel also write the majority for the en banc panel, so see how far that en banc call got the 9th circuit).

In any event, I have no idea if anything is going to happen with this but it concentrated my dorkiness to such a degree that I almost imploded.

My dorkiness is not done. The other fascinating thing about this defense: As a general rule, when you see a business entity plus the owner get sued, usually what happens is the owner does her best to duck out under some combination of limited liability rules while the business entity faces the claim. This is the first time I’ve seen someone claim that the business is immune but the owner is liable.

The reason I held off on discussion of the answer is that I wondered if Jane would claim in her reply that this was speech by Dear Author and that she was therefore not liable for it in her personal capacity. (For the record, I know precisely jack about LLC forms in Iowa and don’t know if that is even remotely possible.) That, coupled with the CDA claim from DA, would have been even more interesting (to me) (possibly not to anyone else in the world) than this bare claim–it would have forced EC to either argue that Jane’s speech was in her personal capacity (in which case DA would be off the hook under the CDA) or that it was in her corporate capacity (in which case Jane would personally be off the hook under limited liability principles)–meaning that potentially (but not necessarily) EC would have been forced to dismiss the lawsuit against one of them right off the bat. (As a further sidenote, this might have had interesting implications for whether Jane/DA could share a lawyer, too.)

But that didn’t happen and now I am really going to stop boring you with my dorktastic legal counterfactuals. What this should convince you of is that nobody wants this case to turn on the CDA because as exciting as it is to legal dorks to make new law and blaze new precedent, it also has the potential to prove exceedingly expensive for both sides.

2 & 3.  Truth and Substantial Truth.

I don’t think I need to go into these too much. We all understand that truth is a defense to defamation, yes? And that substantial truth is also a defense to defamation?

These defenses will turn on what comes up at discovery. No need to rehash the public evidence; we’re just going to await further evidence.

4. Qualified Privilege

I’m going to admit up front that qualified privilege is not my wheelhouse. That being said, here’s the barebones statement. A statement may be shielded by qualified privilege under these circumstances:

A communication made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable…

Hahn v. Kotten, 43 Ohio St. 2d 237, 245-46.

As an example: If you fire an employee because you think they’re lying to customers, and a potential employer calls and says, “Why did you fire this employee?” and you say, “Because they’re lying to customers,” that communication may be made under qualified privilege.

Here are further considerations:

The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only.

Id. at 246.

The sticky part of this defense is going to be whether publication was “in a proper manner and to proper parties only,” since it was an internet post.

I seem to have a vague memory that qualified privilege can sometimes operate more broadly for journalists, but I know absolutely nothing about how precisely that works. It may be statutory and determined on a state-by-state basis? Or maybe not? See how little I know!–and I don’t want to spend hours figuring it out at this point. I’m going to wait for the briefs (if they come). Whether Jane as a blogger will be considered a journalist is an open question.

And finally, this defense doesn’t get DA/Jane anything more than what’s asserted in #7: if the speech here is privileged communication, it doesn’t mean that it’s completely nonactionable. It just means that EC has to prove that Jane spoke with actual malice.

5. Failure to state a claim

When I took Civil Procedure as a law student, lo in the dark and ancient days of 2004, I was taught that in order to state a claim upon which relief could be granted, all you had to do was vaguely wave your hand in the direction of the elements of a claim, cursorily allege that they had, in fact, been met because of reasons vaguely mumbled, and the court would allow you to proceed.

Since then, two Supreme Court cases have raised the bar. The standard for pleadings, as stated in Ashcroft v. Iqbal, is:

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” As the Court held in Twombly, 550 U. S. 544, the pleading standard Rule 8 announces does not require “detailed factual allegations,” but it demands more than an unadorned, the-defendant-unlawfully­ harmed-me accusation. Id., at 555 (citing Papasan v. Allain, 478 U. S. 265, 286 (1986)). A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” 550 U. S., at 555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id., at 557.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id., at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reason­able inference that the defendant is liable for the misconduct alleged. Id., at 556. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlaw­fully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’”

Got that? Let me summarize: It’s no longer just enough to recite the elements of the claims in federal court and say, “They have done all these things; curse them mightily.” A plaintiff actually has to allege facts that plausibly give rise to an inference that the person is liable.

In this case, the answers don’t specify exactly what defendants think are missing, but we can infer some of what is missing. For instance, under the Twombly/Iqbal standard, Ellora’s Cave has to allege facts indicating that Jane acted with actual malice. The complaint simply asserts that Jane acted with malice and hatred. It does not allege any facts from which we could draw any reasonable inferences about Jane’s state of mind.

That’s going to have to be corrected or this litigation is unlikely to go anywhere on EC’s part.

6. Failure to join an indispensable party

The basic idea is this: When a court hears a case, they don’t want to monkey around. They want to resolve all the issues that can be resolved, and they want to resolve them as efficiently as possible.

In this case, the claim is that Tina Engler is not a party to the lawsuit, but the claim makes statements about Tina Engler which could be construed as defamatory. The court does not want to resolve this lawsuit, only to have Tina Engler say, “Oh, guess what, that resolved all the issues between DA and Ellora’s Cave, but I was also defamed, and now I am going to sue separately, so let’s do it all again!” That would be inefficient and painful. In cases like this, a party can ask for a person who is not part of the suit but who should necessarily be involved to join in, and–if the court agrees that that person’s presence is necessary–that person will have to join in, and the act of joining an additional party to the litigation is called joinder.

Joinder is governed by Rule 19 of the Federal Rules of Civil Procedure.

What’s going to happen with this? Well, if you take a look at Rule 19(b), it lays out the options. First, the court is going to have to decide if Engler’s absence would leave DA/Jane “subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations” — which I think is not going to pose many difficulties under the current circumstances.

At that point, if the court agrees with me, either the court will order that Tina Engler be joined to this litigation, or, if that’s not possible for some reason, the court will have to decide if it’s better to have the lawsuit go forward, knowing that it will be incomplete, or to dismiss it altogether.

This is one of those things that you do to cover your bases. You don’t want your client to have to defend against two lawsuits, so a good lawyer always makes sure you’ve joined all necessary parties.

7. Lack of actual malice

I’ve talked about the requirement that a defendant have actual malice–a legal standard meaning that Jane/DA would have to know that they were lying, or should have known that they were lying, not that Jane/DA did not like Ellora’s Cave–in order to be liable for defamation.

I still think that this is the simplest, straightest path to the answer, and that it will prove dispositive in this case. It’s going to be really hard for Ellora’s Cave to prove that Jane was lying. Tina Engler has stated that the rumors about Ellora’s Cave are false and were started by authors who wanted their rights back. Even if she can prove this, it means that other people told DA/Jane lies. If that is true, that actually legally exonerates Jane. If other people told Jane lies, and Jane believed those lies, Jane is not liable for defamation. It’s that simple.

Thread D. The counterclaim.

This is very brief. Just so you know, a counterclaim is exactly what it sounds like. It says, “you claim I hurt you, and so now I’m claiming that you hurt me, too.”

DA claims abuse of process. This is a tricky claim to win; in essence, DA will have to prove that the litigation was filed for the purpose of harassing Dear Author and silencing and intimidating authors, cover artists, and editors. Proving that kind of purpose on EC’s part will be difficult.

We’ll see how that plays out.


[1] This is not as exciting or as impressive as it sounds–there aren’t that many of them. I stopped keeping up with CDA immunity questions circa 2011, so I’m no longer up to date. But I vaguely think that if there had been anything massively changing the law, I’d have seen it on the cyberprofs listserv or in the brief search that I just conducted. This is my way of saying that my understanding of the CDA is probably not total shit. It is also my way of saying that this is something that I think is interesting, which means that I will probably have more to say about it than, say, the questions of qualified privilege or joinder, which I think are boring as hell.

13 thoughts on “Answers & Counterclaims — now with 100% more dork #notchilled

  1. Thank you for taking the time to lay this all out for us. I feel caught up and informed, and now eager for the next volley. Probably nowhere near as eager as those caught up in the machinations of what appears to be an epic case of managerial self-immolation by a capricious CEO. I hope that a speedy resolution can be reached for their sake, as well as all the authors held hostage for the duration.

    Your expertise and narrative acumen are much appreciated.

  2. Thanks again for the detailed analysis of DA’s response. It will be interesting to see if the internet has changed the traditional definition of what constitutes a journalist.

    In Obsidian Finance Group v. Crystal Cox, the Ninth Circuit found that the internet has indeed blurred the lines between the institutional press and bloggers. Judge Hurwitz wrote, “Although the Supreme Court has never directly held that the Gertz rule applies beyond the institutional press, it has repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers.”

  3. It’s after midnight here in the Eastern Caribbean, but I just remembered something else.

    One of the case cites for the TRO that EC’s lawyer wrote involved qualified privilege. Am. Chem. Soc’y v. Leadscope, Inc. It’s an Ohio Supreme Court ruling.

    It’s not the sort of qualified privilege DA/JL are invoking, but the case was ruled not defamatory due to the qualified privilege. The dissent is interesting reading. Also interesting is how mixed the justices were on that ruling (see p. 39).

  4. Ultimately, I don’t think it matters whether DA is immune under the CDA because, if anyone is, JL is, and she owns DA. Maybe when you get to multi-employee companies the immunity question gets interesting, but for single member LLCs it’s pretty much irrelevant. It seems to me that the limited liability that an entity can provide an owner is largely illusory for one person shops.

  5. @Josh:

    For the record, I don’t actually know that DA is a single member LLC. There are other people who post on DA who may have ownership in it.

    @Deirdre Saoirse Moen:

    Actually, I’d say that he’s wrong about limited liability, not the CDA. If you have limited liability, it protects the owner. So if DA is sued and NOT Jane, DA’s liability ends at the limits of DA’s assets, leaving Jane’s personal assets (her house, her savings) untouched by the suit.

    If Jane is sued instead of DA, though, and DA is her sole possession, then even if DA is not sued, shares in DA are assets that could be attached–just like if you get sued and you have 1,000 shares of Microsoft stock, those are things you could potentially lose.

    In scenario #1, the only thing at risk is DA.
    In scenario #2, everything is at risk.

    So from a monetary standpoint, there isn’t a whole lot of difference between dismissal of DA and nondismissal of DA.

    That being said, one of the benefits to having DA immune and not Jane, in this case, is that if DA can earn early dismissal, there is the possibility that a non-Jane member of DA could start blogging about EC once again. I’m not sure they’d WANT to do that, but it’s a possibility.

  6. @courtneymilan: We don’t know for sure that DA is a one-member LLC, but from what I’ve observed of LLC formation and from the way DA is run, it seems more likely than not to me that it is. It’s just simpler to form and run and more congruent with an LLC’s status as a passthrough for tax purposes.

    The first time I saw an LLC formation document (it’s been so long I don’t remember what they’re called), my reaction was disbelief that it was so uncomplicated compared to formation documents for an S corporation (or any corporation, really). IIRC, LLCs and S corps are the only way to protect a sole proprietor/owner from personal liability while also being passthroughs for tax purposes.

  7. @Deirdre Saoirse Moen and @Courtney Milan: I just reread what I wrote and see that it was ambiguous. What I meant as that if anyone is liable JL is. I am guessing that DA is a single member LLC. Which goes back to my point that it doesn’t matter whether DA is shielded or not. JL isn’t–JL is always liable for her own torts–the LLC won’t limit her own liability. JL likely owns a controlling if not the entire interest in DA, meaning the CDA immunity for DA is ephemeral too.

  8. I learnt what affirmative defense is and this made me crack up- “Short version of… No, there is no short version. There is only a less long version, which commences”… I do so love your rants.

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