Publishers’ Claims Over Alleged Harassment Campaign by eBay Can Go Forward

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From yesterday’s decision by Judge Patti Saris (D. Mass.) in Steiner v. eBay, Inc. (see this post for more on the criminal prosecution):

In 2019, Ina and David Steiner, a married couple living in Natick, Massachusetts, became the target of a months-long harassment and intimidation scheme. The Steiners own and operate a trade publication, ECommerceBytes, which reports on e-commerce companies such as eBay. A group of eBay employees devised and engaged in a campaign of harassment, stalking, and threats to stop the Steiners from reporting about eBay. The conduct carried out by the group included: sending the Steiners threatening online messages; arranging for the delivery of disturbing packages, including fly larvae, live spiders, cockroaches, a Halloween mask of a bloody pig face, a funeral wreath, and a book entitled “Grief Diaries: Surviving Loss of a Spouse”; signing the Steiners up for unwanted email subscriptions; publicly posting the Steiners’ address inviting strangers for parties and yard sales; and traveling to Massachusetts and surveilling the Steiners’ home.

The government subsequently brought criminal charges against seven individuals involved in the conspiracy. All seven have pled guilty. The Steiners bring this civil suit against those seven individuals, in addition to six other parties: eBay, three former eBay executives, and a separate company and its CEO. The Steiners assert fourteen different claims. Several Defendants move to dismiss the claims brought against them.

The court dismissed some of the claims, but allowed the intentional infliction of emotional distress and negligent infliction of emotional distress claims to go forward. It also allowed the negligent supervision and retention claims to go forward:

The FAC [First Amended Complaint] plausibly establishes that had eBay and PFC [Progressive F.O.R.C.E. Concepts, LLC, a security company] properly supervised their employees—and had Wenig and Jones properly supervised Baugh—then they would have known (or should have known) that their employees were engaging in criminal activity. The FAC alleges that eBay knew or should have known about the Executive Defendants’ directives targeting the Steiners, which the company failed to investigate. Plaintiffs also allege that eBay, Wenig, and Jones knew or should have known about Baugh’s violent conduct towards his employees that allowed the conspiracy to occur, such as his “pattern of breaking down the analysts, firing them without cause, and creating a toxic work environment” and “stabbing chairs and forcing [the security team] to watch graphic video footage ….” As for PFC, the FAC alleges that the company knew or should have known that Zea was using her credit card for improper purchases to fund the scheme.

And it allowed a claim to go forward under the Massachusetts Civil Rights Act:

The MCRA provides that an individual “who interferes, or attempts to interfere, with another’s exercise or enjoyment of rights secured by the constitution or laws of the United States or the Commonwealth may be liable.” “To establish a claim under the [MCRA], the plaintiffs must prove that (1) their exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by threats, intimidation or coercion.” …

Plaintiffs have stated a plausible claim of relief under the MCRA. The FAC alleges that “the Defendants attempted to interfere with the Steiners and EcommerceBytes’ exercise and enjoyment of their First Amendment and Article 16 … rights to free speech and liberty of the press, rights secured by both the United States Constitution and the Massachusetts Declaration of Rights.” The FAC is filled with allegations and inferences that the actions of the eBay security team were threatening, intimidating or coercive, and that such actions pressured the Steiners into ceasing their coverage of eBay. See Planned Parenthood League of Mass., Inc. v. Blake (Mass. 1994) (affirming court’s finding of an MCRA violation where a reasonable person “would be made fearful and apprehensive, and would feel pressured, by the defendants’ conduct so that she would desist from seeking those services while that conduct continued”).

PFC argues that Defendants’ alleged conduct does not rise to the level of “an actual or potential physical confrontation accompanied by a threat of harm,” which is “an element of MCRA claims.” However, the Massachusetts Supreme Judicial Court has held that a showing of physical force is not required under the MCRA. At this stage, Plaintiffs have sufficiently pled that Defendants raised at least the potential of physical confrontation, and accompanied it with threats of harm.

The Executive Defendants also move to dismiss the MCRA claim on the grounds that the FAC fails to allege that they “personally engaged” in the harassment and intimidation acts that interfered with Plaintiffs’ civil rights. However, as discussed above, the Executive Defendants’ directives and orders to the security team to “take down” Ina Steiner in order to stop EcommerceBytes’ reporting on eBay establish plausible claims of liability under the MCRA.

Plaintiffs’ defamation claim could go forward as well:

The FAC alleges that Defendants caused defamation by: sending pornography to the Steiners’ neighbors to reputationally harm the Steiners; posting a Craigslist advertisement on behalf of the Steiners claiming to be a married couple seeking sexual partners; and creating fake “Persons of Interest” files on the Steiners in order to suggest that the Steiners were a threat to eBay and their security. The identified messages are plausibly defamatory and capable of damaging the Steiners’ reputation in their community….

Plaintiffs’ trespass claim (based on “Gilbert [allegedly having] entered the Steiners’ property and wrote ‘Fidomaster’ in graffiti on their fence, thus defacing and vandalizing the Steiners’ property” and “Baugh, Harville, and Zea [allegedly having] approached the Steiners’ home and attempted to install a GPS on the Steiners’ vehicle”) survived as well. And “Plaintiffs have stated a plausible claim for false imprisonment because the Steiners were confined to their home out of fear for their lives based on Defendants’ death threats.”

Plaintiffs are represented by Jillise M. McDonough and Rosemary C. Scapicchio, both of the Law Office of Rosemary C. Scapicchio.

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