• April 27, 2018

The StarTribune reported a recently filed action in Hennepin County district court this week.The action describes itself as “Petitioner Air T, Inc.’s Rule 27.01 Petition to Perpetuate The Testimony of Yahoo! Inc.”

Apparently, an anonymous person going by the name of “Blueskiesforme1” has been blasting Air T, Inc., on a Yahoo! “message board” with criticism.

Air T “anticipates that it may be a party to an action…[It] expects that any such action will involve claims for…breach of contract for violation of a non-disparagement clause…”

How does Air T know that the anonymous hater is a party to an agreement that includes a non-disparagement clause? The hater, we’re told, “is likely someone with access to inside information…” (See here on p. 2.) What’s the evidence to support that?

The statement that the hater “is likely someone with access to inside information” is supported in Air T’s papers by a citation to a declaration offer by the company’s C.E.O., Nick Swenson, filed with Air T’s petition. The Swenson declaration provides no factual basis to support this speculation, however; it simply states Mr. Swenson’s personal belief.

Air T’s action raises several questions. Is a Rule 27.01 petition to perpetuate testimony the proper motion or should Air T have brought a “John Doe” complaint and subpoenaed¬†Yahoo! Does it matter which procedure Air T chooses? Should it matter?

(Recently a porn film copyright-holder went the subpoena route in a John Doe complaint and was rebuffed by U.S. Mag. Judge Frank L. Noel (D. Minn.)).

Has Air T shot itself in the foot with the Streisand Effect, bringing attention to an unhinged anonymous hater who otherwise would have remained relatively obscure in his little Yahoo! message board cess-pool? How much damage does one anonymous hater inflict on a company?

All businesses, including lawyers and law firms, of course, must now deal with (or ignore) on-line anonymous haters.

Weighing the harm of the hate, on one side, and the cost of a remedy (litigation) plus the prognosis for success (i.e., the likelihood of “winning” the litigation, whatever that might mean), on the other hand, is a tricky¬†calculation.

In light of the uncertainty and expense of civil litigation, in our view, the harm of the hate must be pretty serious to justify suing over it.


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