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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS


EASTERN DIVISION

David Blockowicz, Mary Blockowicz, and Lisa )


Blockowicz, individuals, )
) Civil Action No. 1:09-cv-03955
Plaintiffs, )
) Judge Holderman
v. )
) Magistrate Judge Cox
Joseph David Williams and Michelle Ramey, )
individuals, )
)
Defendants. )

MEMORANDUM IN SUPPORT OF MOTION FOR


THIRD PARTY ENFORCEMENT OF INJUNCTION

Plaintiffs David Blockowicz, Mary Blockowicz and Lisa Blockowicz seek the Court’s

assistance in ensuring that its October 6, 2009 injunction is meaningfully enforced. The

Defendants, to the surprise of no one, have declined to remove the defamatory statements that

are the subject of the injunction. Therefore, Plaintiffs’ counsel approached individual third party

websites to seek their assistance in removing the defamatory statements. While other websites

have readily agreed to remove the defamatory statements, Ed Magedson and Xcentric Ventures,

LLC (collectively, “Xcentric”), the operators of the website <ripoffreport.com>, have refused to

cooperate. If Xcentric is not compelled to remove the defamatory statements, then the Courts’

October 6, 2009 order and injunction will be rendered essentially worthless.

Xcentric has not been able to state a reasonable basis for its refusal to remove

Defendants’ defamatory statements from its website. Xcentric does not claim that removing

these statements is costly or burdensome. Nor does Xcentric have any personal or property

interest in Defendants’ defamatory statements. And removing these defamatory statements is

consistent with Xcentric’s business goals, since its own terms of service forbid its users from

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posting defamatory statements. Despite this, Xcentric has responded to Plaintiffs’ request for

removal of these statements with personal attacks and with attempts to reargue the merits of this

case, even though Xcentric is not a party. Because Plaintiffs’ counsel has exhausted all

possibility of obtaining Xcentric’s voluntary assistance, Plaintiffs seek the Court’s assistance in

enforcing its order pursuant to Fed. R. Civ. P. 65.

I. Background

Xcentric operates the consumer complaints website <ripoffreport.com>. Through this

website, Xcentric encourages consumers to post complaints about companies, while at the same

time offering its “services” to help these companies improve their image -- for a fee. Xcentric’s

practices are controversial. In one recent lawsuit, the plaintiff alleged that Xcentric “actively

solicit[s] defamatory content from third parties and directly encourage[s] the use of hyperbole

and exaggeration in the title and body of the complaint to maximize the impact and marketability

of false reports.” Certain Approval Programs, LLC v. Xcentric Ventures, LLC et al., No. CV08-

1608-PHX-NVW, 2009 WL 596582, *1 (D. Ariz. March 9, 2009) (Ex. A). These types of

allegations are frequent enough that Xcentric even has a section of its website dedicated to those

who want to sue it -- it includes headings such as “I Heard That Ripoff Report Is An Extortion

Scheme; What’s Up With That?” and “Is the Corporate Advocacy Program and Extortion

Scheme?” (Ex. B.) Plaintiffs are not taking issue with Xcentric’s business model but, rather,

believe this information, as argued below, explains Xcentric’s refusal to cooperate.

One central theme amongst Xcentric’s defense of the numerous lawsuits filed against it is

that Xcentric is not an “information content provider.” See GW Equity LLC v. Xcentric Ventures,

LLC et al., Civil Action No. 3:07-CV-976-O, 2009 WL 62173, *13 (N.D. Tex. January 9, 2009)

(granting summary judgment in favor of Xcentric based on argument that Xcentric is not an

“information content provider” and, therefore, is immune from liability under the

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Communications Decency Act) (Ex. C). In other words, Xcentric’s defense in these other cases

has been that it is not the author of the statements in question -- the statements posted on

Xcentric’s website are solely the statements of the person who submitted them.

Xcentric’s Terms of Service (“ToS”) confirms this to be the case. (Terms of Service, Ex.

D.) The ToS note that “Xcentric reserves the right to immediately suspend or terminate your

registration with ROR, without notice, upon any breach of this Agreement by you which is

brought to Xcentric’s attention.” (Id.) They go on to state that:

You are solely responsible for the content or information you publish or display
(hereinafter, “post”) on ROR.

You will NOT post on ROR any defamatory, inaccurate, abusive, obscene,
profane, offensive, threatening, harassing, racially offensive, or illegal material, or
any material that infringes or violates another party’s rights (including, but not
limited to, intellectual property rights, and rights of privacy and publicity). You
will use ROR in a manner consistent with any and all applicable laws and
regulations. By posting information on ROR, you warrant and represent that the
information is truthful and accurate.

(Id.) However, in seeming contradiction, the ToS then state that:

By posting information on ROR, you understand and agree that the material will
not be removed even at your request.

(Id.)

Xcentric also affirms its policy of never removing posts in the section addressed to those

who would sue Xcentric. (Ex. B.) There it repeatedly states that it will never remove a report.

(Id.) It even states it will not enforce its own ToS because it purportedly has no way of knowing

if the statements at issue are actually false:

[A]lthough our Terms of Service prohibit users from posting false information,
we simply cannot serve as the judge or jury in disputes between two parties. If
you contact us and demand that we remove information because you contend
that it’s false and therefore a violation of our TOS, we have no way to
determine if this is true, of if the information is really accurate. These issues
have to be determined in court, not by us.
***

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[I]f a report contains information which you allege is false, the staff of Ripoff
Report cannot simply remove information based on your request because doing
so would place us in a position of having to determine which side is telling the
truth. Because we cannot make such determinations, if you allege that a report
contains false and defamatory statements, you should pursue legal action
against the author if determine such action is warranted.

(Id. (emphases added))

Plaintiffs have done exactly as Xcentric itself suggests. Plaintiffs pursued legal action

against the Defendants and obtained a judgment that the statements in question are false and

defamatory. Nonetheless, when presented with the Court’s orders, Xcentric still refused to

remove the defamatory statements, resorting to a series of personal attacks and convoluted (and

meritless) legal arguments.

Particularly, Xcentric first responded by calling Plaintiffs’ counsel a “liar,” for its

allegation that Xcentric often charges money for companies to respond to complaints posted

about them on the <ripoffreport.com> website. (Ex. E.) Xcentric’s counsel added further

personal attacks on Plaintiffs’ counsel, alleging that it had “misled” the Court, and further

alleging that attorneys from Plaintiffs’ counsel’s law firm were generally untrustworthy. (Exs.

G, I.) Only after repeated entreaties from Plaintiffs’ counsel did Xcentric provide something

resembling arguments on the merits, which Plaintiff addresses below. Particularly, Xcentrich

argues:

(a) Xcentric is not obligated by or bound to the Court’s order because it was not a
party to the case;

(b) Plaintiffs’ underlying claims were purportedly barred by the Statute of


Limitations;

(c) The Communications Decency Act somehow bars enforcement of the Court’s
order; and

(d) “Voluntarily” complying with the Court’s order in this case would somehow
expose Xcentric to “hundreds, if not thousands,” of similar requests.

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(See Exs. D-N.) None of these arguments have merit.

II. The Court may enforce the injunction as to third parties.

At the outset, and contrary to Xcentric’s argument, a Court’s injunction against a

Defendant may be enforced against third parties. See Generally, James Wm. Moore et al., 13-65

MOORE’S FEDERAL PRACTICE, § 65.61[2] (Matthew Bender 3rd Edition). Rule 65 on its face

applies to persons acting in “active concert or participation” with a party that has been enjoined.

Accordingly, Defendants may not nullify a Court’s order merely because they act through aiders

and abettors. Regal Knitwear v. NLRB, 324 U.S. 9, 14 (1945). And the Court can exercise

jurisdiction against any such persons, even those normally outside of the Court’s jurisdiction,

since such enforcement is necessary and proper to the Court’s enforcement of its orders. SEC v.

Homa, 514 F.3d 661, 673-675 (7th Cir. 2008).

III. Xcentric is in active concert and participation with Defendants.

Because of the Court’s inherent authority to enforce its own orders, and Xcentric’s active

aiding and abetting of Defendants after receiving notice of the Court’s October 6, 2009 order, the

Court’s October 6, 2009 order is enforceable as to Xcentric.

Xcentric is aiding and abetting the Defendants, and that aiding and abetting appears to be

a core business practice of Xcentric. While Xcentric’s supposed Terms of Service prohibit users

from posting false statements, those Terms of Service are apparently just for show. This case

particularly illustrates that, while Xcentric pays lip service to defamation, it has no intention of

removing defamatory statements because doing so will hurt its business model. Xcentric

explicitly states on its website that it will never remove users’ posts. (Ex. B.) That prominent

assurance to its users actually encourages the types of exaggerated and defamatory statements

that litter the <ripoffreport.com> website. At the same time, Xcentric announces that it will

protect the anonymity of its users. (Id.)

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The reasons for these policies are simple greed -- having provided a protected

environment for users to post defamatory statements without repercussions, Xcentric then

attempts to sell its “services” -- i.e., a “corporate advocacy program” which has been

characterized as extortion (Exs. A, B), and now a “mediation program,” for which Xcentric will

surely receive a cut of the mediation fees (Ex. M). If Xcentric were to remove posts that have

been found by a court to be defamatory, then it will be providing individuals like Plaintiffs a

third option -- but one in which Xcentric does not make any money. Xcentric does not want to

recognize Court judgments about defamatory statements because its potential “customers” may

find that route more tasteful than engaging in Xcentric’s “corporate advocacy program” or its

“mediation” program.

Fortunately, it is not up to Xcentric to define the metes and bounds of free speech, or of

defamation law. Defendants posted their defamatory statements on Xcentric’s website knowing

that Xcentric would continue publishing those statements to the world at large, and Xcentric

knowingly engages in this behavior to increase the leverage value of its “services.” Having now

received notice of the defamatory nature of Defendants’ comments, Xcentric’s failure to remove

these defamatory statements constitutes active concert and participation for purposes of Rule 65.

See Portland Feminist Women's Health Ctr. v. Advocates for Life, Inc., 859 F.2d 681, 685 (9th

Cir. 1989) (holding two demonstrators in contempt, even though nonparties to underlying

action); Sisneros v. Nix, 884 F.Supp. 1313, 1351 -1352 (S.D.Iowa 1995) (noting Court would

have power to impose penalties for contempt if Arizona officials, not named in injunction,

attempt to thwart injunction after receiving notice).

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IV. Xcentric does not have standing to re-litigate the case on the merits.

Xcentric does not have any significant due process rights in this case,1 nor is it entitled to

re-litigate the issues on the merits, because it does not have any protectable property interest in

Defendants’ statements. Xcentric has suggested, in correspondence preceding this motion, that

it is entitled to fully re-litigate the issues in this case, and that the Court’s order is somehow an

impermissible adjudication of Xcentric’s rights. But the Court was not asked to, and did not,

adjudicate Xcentric’s rights. Nothing about the Court’s order or even this motion prevents

Xcentric from making its own statements about the Blockowicz family (of course, Xcentric has

no reason to make any such statements, and could be exposing itself to potential defamation

charges if it did so). Indeed, Xcentric has made clear in its prior litigation with other parties that

the statements found on its website are not its own statements. Xcentric has no interest in this

case, no interest in the Blockowicz family, and no substantive interest in the defamatory

statements themselves. As a result, requiring Xcentric to assist in enforcing the Court’s October

6, 2009 injunction raises no real due process concerns. By the same token, Xcentric does not

have standing to address the merits of the underlying case -- especially where Defendants

themselves did not even care to appear.

V. Xcentric’s substantive arguments are also without merit.

The Court is of course free to consider on its own any of the issues raised by Xcentric if

the Court believes those issues might affect, for example, subject matter jurisdiction. But none

of the issues raised by Xcentric relating to the underlying case have merit.

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That is, due process rights in the underlying litigation. No doubt Xcentric has a right to notice and an opportunity
to be heard with respect to this motion.

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A. Plaintiffs’ requested relief is not barred by the Communications Decency
Act.

Xcentric has argued, in its correspondence, that it need not recognize the Court’s October

6, 2009 order because it is purportedly barred by the Communications Decency Act, and

particularly by 47 U.S.C. § 230(c)(1). But Xcentric reads far too much into the Act, which

merely provides that Xcentric shall not be “treated as the publisher or speaker” of information

posted by others. See also Certain Approval Programs, 2009 WL 596582, *1-*3 (discussing

applicability of Communications Decency Act to Xcentric) (Ex. A). Plaintiffs are not attempting

to hold Xcentric civilly liable for anything; they are not seeking damages from Xcentric and they

are not attempting to impute Defendants’ statements to Xcentric. They are merely trying to stop

Xcentric from aiding and abetting Defendants’ refusal to comply with the Court’s order.

B. Plaintiffs’ claims were not barred by the statute of limitations.

Plaintiffs’ underlying claims in this case are also not barred by the statute of limitations.

As Plaintiff informed the Court at the outset of this case, some of the statements at issue

originally appeared in 2003. (See generally, declarations in support of motion for preliminary

injunction.) Plaintiffs were unable to locate copies of the original 2003 postings, but the

printouts submitted at the time of the filing of the Complaint showed that (a) all of the posts

directed exclusively to Lisa Blockowicz were new in 2009, and (b) the older 2003 posts were

marked as “updated” in March of 2009. Moreover, the Defendants had supplemented their

original 2003 posts with additional, substantive comments in early 2009.

While Xcentric’s counsel claims, in unsworn correspondence, that the original 2003 posts

have not changed and that the “modified” tag refers to the date of the last comment, (Exs. I-L),

this fact, even if accurate, does not change the ultimate result. Particularly, it is the Defendants’

appending, in 2009, of new comments to the original 2003 posts which constitutes a

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republication of the original statement. The new activity in 2009 resurrected these old posts,

rendered them more relevant to common search engines, and effectively re-published what had

become old and defunct web pages.

This type of substantive updating of defamatory comments is precisely the type of

activity that avoids the “single publication rule.” Davis v. Mitan, 347 B.R. 607, 609-610 (W.D.

Ky. Aug. 14, 2006) (updating old statements with “Breaking News!” and “Update!” sections

sufficed to constitute a new publication). Moreover, it does not appear that any Court has

interpreted Illinois’ “single publication rule” as including internet publications to begin with (on

its face it does not), nor does there appear to be authority interpreting Illinois’ single publication

statute as a modification of the statute of limitations. See generally, Wathan v. Equitable Life

Assurance Society, 636 F.Supp. 1530 (C.D. Ill. 1986) (discussing confusion of single publication

rule with statute of limitations issues generally, though before the internet age).

Thus, setting aside for the moment whether Xcentric even has standing to address the

statute of limitations, the statute does not apply to the all-new posts relating to Lisa Blockowicz,

which were first posted in early 2009, and does not apply to the 2003 posts that Defendants

republished by making substantive changes and additions to those posts by adding new

comments to them. Of course, had Defendants elected to participate in this case, these issues

may have been explored more thoroughly – and perhaps discovery would have even uncovered

further evidence of re-publication – but without Defendants’ participation, the Court can only act

on the well-pled allegations of the complaint, which sufficiently establish that the single

publication rule does not apply.

VI. Xcentric’s personal attacks are irrelevant.

While Xcentric initially responded to Plaintiffs’ takedown request with personal attacks,

Xcentric has retreated from those arguments over the course of their correspondence. Should

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Xcentric attempt to resurrect them in response to this motion, it should go without saying that

they should be ignored. Plaintiffs have attempted to resolve this dispute without Court

involvement, and only file this motion because Xcentric has stopped responding to Plaintiffs’

counsel’s letters.

VII. Conclusion

Because Xcentric is, through its policy of refusing to remove even proven defamatory

posts on its website, aiding and abetting the Defendants in their refusal to obey the Court’s

October 6, 2009 order, it is in active concert or participation with Defendants. Xcentric has

notice of the Court’s October 6, 2009 order and is therefore bound to the applicable portions of

that order. Accordingly, this Court should direct Xcentric to immediately

Dated: October 29, 2009 /s/ Cameron M. Nelson


Cameron M. Nelson
Kevin J. O’Shea
Greenberg Traurig, LLP
77 West Wacker Drive, Suite 3100
Chicago, IL 60601
Telephone: 312-456-8400
Facsimile: 312-456-8435

Attorneys for Plaintiffs

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