Blogger Can Collect Fees Over Lawyer’s Threats

SAN FRANCISCO (CN) - A lawyer who feuded with popular comic website The Oatmeal owes attorneys' fees to a blogger he threatened to sue, a federal judge ruled.

Christopher Recouvreur had been one of many bloggers who took interest when Oatmeal creator Matthew Inman complained in 2010 that FunnyJunk.com, a content aggregator website, was stealing his work.

Charles Carreon sent Inman a demand letter on behalf of FunnyJunk seeking $20,000 in damages. The letter also asked that Inman remove all references to FunnyJunk from his website and blog.

Making light of that demand, Inman launched a fundraiser called "Operation BearLove Good, Cancer Bad," but said he would give the proceeds to the American Cancer Society and the National Wildlife Federation, rather than the creator of FunnyJunk, "hoping that philanthropy trumps douchebaggery and greed."

The campaign featured a cartoon of an obese woman in her underwear, trying to seduce a bear. It ultimately raised $200,000, which Inman forwarded to the named charities, as promised.

Carreon's short-lived defamation lawsuit over the cartoon was criticized by digital privacy advocates with the Electronic Frontier Foundation as "bizarre" and "frivolous."

Recouvreur meanwhile set up a website charles-carreon.com, where he used exaggerated language to parody the tone of Carreon's demand letters and other communications.

In a declaratory judgment complaint Recouvreur filed anonymously in 2012, he claimed that Carreon had threatened to sue him for trademark infringement. Recouvreur claimed that he should be allowed to use the domain name for his satirical website. He said the website was designed to make clear that it was a parody, with the phrase "censorious douchebag" appearing in the title tag on each page of the site. The subtitle of the site is "The satirical diary about Charles Carreon." The site also makes clear that it was not created by the real Charles Carreon, whom it describes as a "character" in a "giant internet soap opera."

After several unsuccessful attempts to serve Carreon with the suit, which service Carreon refused to waive, Recouvreur's lawyer finally served Carreon in person outside a courtroom.

Recouvreur then moved for expenses and attorneys' fees, leading Carreon to offer a judgment of $725 under Rule 68 of the Federal Rules of Civil Procedure. The offer stated that Carreon would deem Recouvreur's use of the domain name and current use of the website as not violating his rights and as protected under the First Amendment. It specified that $725 would cover the filing fee and service costs.

After Recouvreur accepted this offer, he filed a second motion for $77,765.25 in fees pertaining to the work that his attorney, Paul Levy, did on the two motions

He argued the case was "exceptional" because Carreon's litigation threats for trademark infringement and cybersquatting were allegedly groundless.

U.S. District Judge Richard Seeborg concluded Friday that fees are available to Recouvreur under the Lanham Act. He similarly refuted Carreon's claims that his litigation threats are protected by the litigation privilege of California's Anti-SLAPP (Strategic Lawsuit Against Public Participation) law.

"The filing of this case appeared to be no different than the filing of any other declaratory judgment case," Seeborg wrote. "Defendant's threatening email simply provides evidence that an actual case or controversy existed between the parties. Thus, the California litigation privilege cannot protect defendant from attorney fee liability under the Lanham Act."

While Recouvreur's website does link to two for-profit sites, the court concluded that this "tangential connection" is not enough to classify the website as a commercial activity.

Likewise Carreon's threatened litigation was not frivolous, as he could have possibly raised debatable issues of law and fact, had he chosen to mount a defense, according to the ruling.

Furthermore, while Carreon's claims were not "exceptional" at the outset, his "actions throughout the litigation certainly transformed this case into an 'exceptional' matter, deserving an award of attorney fees," Seeborg added.

"Evidence supports a finding of malicious conduct during the course of this case," the 11-page opinion states. "Defendant first went to great lengths, imposing unnecessary costs to plaintiff, to avoid service. Then, in response to this motion for attorney fees under the Lanham Act, defendant engaged in unnecessary, vexatious, and costly tactics in preparation of his opposition to the motion. ... Defendant's serving of interrogatories and taking of plaintiff's deposition amounted to a mini-trial on plaintiff's motion for fees. Indeed, plaintiff incurred an additional $37,650.25 in fees and costs after his motion was filed. Despite this additional discovery, defendant has presented no evidence to support his initial contention that plaintiff's attorney is on a mission to 'turn Internet gripe sites into profit centers for him and Public Citizen Law Group.' Defendant has failed to show that his additional discovery efforts led to anything other than additional frustration for plaintiff and his attorneys. Accordingly, plaintiff's efforts to respond to defendant's litigation tactics merit the imposition of a fees award."

Seeborg also found that Recouvreur's acceptance of the $725 judgment offer did not moot the fees request since that judgment "specifically referred to the 'filing fee' and 'costs of service.'"

Carreon additionally made the partial judgment offer despite knowing that Recouvreur had also sought attorneys' fees.

"Defendant cannot now escape the consequences of his inartful drafting," the ruling states.

Seeborg calculated the fee award to be $37,650.25.

In addition to Levy with the Washington, D.C.-based Public Citizen Litigation Group, Recouvreur had also been represented by Catherine Rachel Gellis of Sausalito, Calif.

Carreon represented himself.

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