Lomax v. WikiMedia Foundation, Inc. et al

[Abd]

Lowdown on the Lomax Latest

https://www.courtlistener.com/recap/gov ... 0.33.0.pdf

That document is being cited by some as if some sort of definitive demolition of my complaint.

If there are any questions, I'm happy to answer.

Much of the document seems to hinge on your alleged misunderstanding of Noonan v. Staples.

Would you agree that perhaps you've misunderstood the point of law this precedent raised.

I'll agree that IANAL and thus misunderstanding is possible. However, I see no precedent that shows such a misunderstanding.

I mean, Noonan did indeed pad his expense account and was fired in accordance with company rules / regulations. But Staples "maliciously" defamed him in a manner they'd not done previously with other employees who had also abused expense accounts.

What is more accurate is that a company investigation found errors in his expense reports. Noonan denied that they were deliberate. Yes, that element is missing from the WMF situation, the difference of treatment. However, what is more significant here is that the company claimed "truth" as a defense. The WMF is saying that they published the "truth," that they had banned me. Many have claimed, commenting on this, that "truth is an absolute defense," but then, a statement may imply to a reasonable reader something that is untrue and defamatory. That would depend on circumstances and is a question of fact, not of law.

Citing this case strikes me as misjudged. The WMF did NOT publish your block maliciously, and in fact did so in accordance with a straightforward policy they'd adhered to on all prior occasions.

You claim that they did not, and policy does not dictate whom they ban. The policy actually indicates that there must be a serious violation of the ToU or serious hazard. So a ban does have meaning, even though they deny there is any meaning to it. Again, there are factual issues here.

Thoughts.

First of all, I claim that their routine practice is routinely defamatory, against all the Office banned users. Not just me. I'm just the first to challenge it, AFAIK. They claim it is not appealable. Legally, yes, I can't appeal the ban (unless they consent), but I can claim that the publication was defamatory. I also claim that the ban was an action taken as part of a conspiracy, and what the WMF knew and did not know is unknown. "Actual malice" is a term in common law and it can include culpable negligence. Again, question of fact.

Massachusetts still follows the old common law of defamation, where non-public figures are involved, not the much stricter standard normal in the United States because of the First Amendment, and the First Circuit accepted that. Staples made noises about appealing, but never did.

Secondly, if I had an attorney, and the attorney did not raise the two Noonan cases, it would be legal malpractice. In the first case, a jury trial was needed to determine if there was actual malice or not. Remember, this was after discovery. The jury in Noonan 1 found the evidence of malice to be insufficient. However, there was then Noonan 2, because an officer of Staples shot off his mouth and claimed that Noonan had stolen from them. In that case, the court found that "stolen" was a permissible opinion. It is not clear that this judgment would have withstood appeal. However, again, the court ruled that a thin reason to suspect actual malice in the statement was enough to go ahead, so Noonan 2 was headed for trial. And then Noonan withdrew the case. What happened? Well, my opinion is that Staples finally realized that they had cost Noonan millions of dollars for what was a relatively minor offense -- possibly. And it was going to cost them much to fight the second case. And they might lose. So they settled.

At least that's my opinion. I do not need to prove malice at the complaint stage. I must plausibly allege it.

The WMF also asserts that Doe v. Amherst is not apposite. In Doe, what was found was that the school had investigated a rape charge and thus the report to other schools of the investigation and its result was not defamation. Perhaps. I don't remember all the details. But in the end, what happened was that evidence came to light that the investigation had been incompetent, and so suddenly, it appears, Amherst was eager to settle with Doe. Making a statement that defames based on your own incompetent investigation is not protected by "truth." (I.e., the truth that your investigation found X, which it did.)

[Anyone]

Much of the document seems to hinge on your alleged misunderstanding of Noonan v. Staples.

Would you agree that perhaps you've misunderstood the point of law this precedent raised.

I'll agree that IANAL and thus misunderstanding is possible. However, I see no precedent that shows such a misunderstanding.

I'll re-read the case and get back to you. Right now, though, I'm puzzled as to why your interpretation of events is at odds with that put forward by Jones Day.

I note too that this case of yours is being handled by Jones Day in Boston, so it goes without saying they're intimately acquainted with Noonan v. Staples

I'll look at this summary [NiemanLab, Cambridge, MA] when I've got more time:

https://www.niemanlab.org/2009/02/the-most-dangerous-libel-decision-in-decades/

[sashi]

I think WMF posts their banns publicly, so the Staples case (internal communication even if to 1500) seems difficult to compare.

It might also be difficult to say that Lomax is an entirely private figure (now).

[sashi]

Lowdown on the Lomax Latest

https://www.courtlistener.com/recap/gov ... 0.33.0.pdf

ouch.

[Graaf Statler]

It is a complete nonsense trail what Abd simple is going to lose in my opinion.

[Abd]

Much of the document seems to hinge on your alleged misunderstanding of Noonan v. Staples.

Would you agree that perhaps you've misunderstood the point of law this precedent raised.

I'll agree that IANAL and thus misunderstanding is possible. However, I see no precedent that shows such a misunderstanding.

I'll re-read the case and get back to you. Right now, though, I'm puzzled as to why your interpretation of events is at odds with that put forward by Jones Day.

I am not puzzled. They are not my attorney, they are representing the WMF, and are pushing whatever interpretation favors their client. Why would you imagine that defendant's attorneys would do anything different?

I note too that this case of yours is being handled by Jones Day in Boston, so it goes without saying they're intimately acquainted with Noonan v. Staples

I'll look at this summary [NiemanLab, Cambridge, MA] when I've got more time:

https://www.niemanlab.org/2009/02/the-most-dangerous-libel-decision-in-decades/

I researched Noonan v. Staples at some length and depth. There were those "the sky is falling" commentaries. Realize that if they were correct, it's good news for me.

At this point, I could continue to do the Google equivalent of Shepardizing, or go to the local law library, but I'm taking a more efficient path: I'm simply going to see what the judge writes. Instead of paying an attorney thousands of dollars to get an informed opinion, I simply filed an effing lawsuit for $400 and I'll get an answer. And then I'll decide what to do, one step at a time.

By the way, all cases cited are linked on the CFC wiki, to public copies, from my draft and a copy of the WMF MTD and then an annotated version of the WMF draft Reply to Opposition.

Motion_to_Dismiss
Memorandum_in_Opposition
Reply_to_Opposition_to_Motion_to_Dismiss

The court, unfortunately, does not allow URLs in case documents. Security concerns. A more sophisticated rule would allow URLs as links to case documents and to google case law archives. But they don't.

[Abd]

I think WMF posts their banns publicly, so the Staples case (internal communication even if to 1500) seems difficult to compare.

It might also be difficult to say that Lomax is an entirely private figure (now).

My argument is that the WMF routine practice is defamatory. That a company does something routinely doesn't make it not defamatory. There is also relevant law in Doe v. Amherst. Bottom line, if a company investigation was incompetent, that can make their necessary reporting of it into defamation. There is no necessity to publish WMF bans, unless conditions make it necessary. That they do it the way they do it does not negate the possibility of malice in general. They show no care for the privacy of banned users, only for the privacy of complainants. "Malice" can exist from neglect. It can be inferred from fairly weak, circumstantial evidence. Routine practice might establish that malice is not personal, it could be general toward anyone considered "disruptive to the projects."

As to private figure, that's a separate bridge to cross. At the time, I was reasonably private, and I'm still not covered personally in news media. I would not come close to qualifying for a Wikipedia article, for example.

[Anyone]

Lowdown on the Lomax Latest

ouch.

I take it you're averse to my alluring alliteration. I wonder why!

[Graaf Statler]

As to private figure, that's a separate bridge to cross. At the time, I was reasonably private, and I'm still not covered personally in news media. I would not come close to qualifying for a Wikipedia article, for example.

No, of course not. Because with a total bullshit law case it is very unlikely you will hit the headlines. Or qualify yourself for a wiki article.
Why? Because WMF is doing nothing wrong.

As long they follow the nominations of the wiki community's and don't make the reason public they are complete covered by Section 230 Abd, that seems clear to me.

If WMF had nominated candidates for a SanFanBan themselves or if they had made the reason of those bans public, yes, you had have a case. But not now.

Do you really think those WMF lawyers and Jones lawyers are really just as stupide as you guys are, Abd? Forget it!

[JuiceBeetle]

Karen Brown (T&S) referring to Abd. https://meta.wikimedia.org/w/index.php?title=Talk:Office_actions/Community_consultation_on_partial_and_temporary_office_actions/09_2019&curid=10880126&diff=19500731&oldid=19499707

... we must publish all evidence in all cases onwiki? I'm afraid that's not possible, largely due to the legal obligations I mentioned earlier. Most notably, we have been sued for things like defamation in the past in retaliation for placing global bans, and that is without our publishing anything negative about the person we banned. If we were to publish evidence or allegations, we could very easily find ourselves in a situation where we did not have enough time or money to do anything other than defend ourselves in court over and over from people suing us.

Of course, the reason why people are banned or blocked is publicly available, so this is BS to justify the secret evidence for Fram.