Free speech is a privilege we enjoy in the United States. But it is anything but free. My personal price for the right to express my opinion about Medifast, Inc. was 5 years of my life and nearly $200,000. (Of course, that doesn’t include the emotional toll that the case took, as Medifast’s malicious pursuit of its meritless case against me was clearly designed to ruin me professionally.)
To summarize Medifast’s bogus case against the defendants:
- In May 2009, Barry Minkow and his Fraud Discovery Institute released a report about Medifast Inc. and its multi-level marketing arm called Take Shape For Life (TSFL)
- In September 2009, I wrote an article on this blog about Medifast and TSFL, exposing the fraud behind multi-level marketing (MLM)
- In February 2010, Medifast sued Barry Minkow, Robert Fitzpatrick, me, and others with claims of defamation, violations of California Corporations Code and Unfair Business Practices.
- Approximately two months later, my attorneys filed an anti-SLAPP motion.
- Of course, Medifast filed an amended complaint to add a claim of civil conspiracy to defame. (Probably in part to run up our legal fees, as we then had to amend our anti-SLAPP motion.)
- Medifast then cried to the court that it couldn’t possibly know if it had been defamed without doing discovery. (One of the key provisions in California’s anti-SLAPP legislation is that it basically puts the litigation on hold until the plaintiff shows that they have a probability of prevailing on their claims. The purpose behind this is to ensure that defendants aren’t bankrupted with meritless suits.)
- The court allowed what it called “limited” discovery. This took months and hundreds of thousands of dollars of attorneys’ fees.
- Attorneys Robert Giacovas and Lainie Cohen repeatedly lied to the court about my actions.
- In March 2011, the judge dismissed me from the case.
- Medifast immediately appealed.
- In June 2014 the Court of Appeals upheld my dismissal. (Yes, the appeals process took more than 3 years.)
- We filed our motion for fees, which I will discuss below.
- It then took nearly another year for the court to order my fees be paid by Medifast, and for Medifast to actually make payment.
- Rob Giacovas’s bio on his firm’s website still lists this lawsuit as a “representative matter” and suggests it was a big win for him. Do you think he will update the Lazare Potter & Giacovas website to reflect his complete failure in the case? (Unless you consider filling his own pockets with a bunch of Medifast’s money… then he was a huge success!)
Motion for Attorney’s Fees and Settling With Other Defendants
Medifast responded for my motion for attorneys’ fees by saying that I was making “… an excessive and stunning grab for money.” They complained that the defendants were collectively seeking reimbursement for $1 million in attorneys fees “… for a case that has yet to make it beyond the pleading stage.” Medifast litigated hard (and kept changing its claims against me at every stage of the litigation), we responded, and then they didn’t want to be held responsible for that.
My favorite part of their motion:
Coenen is simply trying to stick it to Medifast any way she can. This is gouging, plain and simple. And that is not the purpose behind the statute.
Nope, friends, I was simply seeking reimbursement for attorneys fees that were incurred in defending against their malicious, baseless lawsuit against me. The one they lost handily at the district court level and the appeals court level. And the one they must have recognized was meritless when they finally settled with the other defendants.
You see, I was fully dismissed from the case by the appeals court. The other defendants were not fully dismissed. The appeals court allowed some issues against them to proceed. Yet after it was assured that I was out of the case and Medifast would be paying my fees, Medifast settled with the other defendants.
The settlement included the defendants giving up nothing. There will be no retraction of anything that was said about Medifast. The future speech of the defendants will not be restricted. And Medifast paid a large portion of the defendants’ legal fees. How’s that for [almost, maybe, not quite, but possibly a little] admitting that they had a shitty case against us from day one???
This might be amusing if it hadn’t taken five years of my life to resolve. At every step of the case, Medifast and its attorneys acted unethically. For sure, the attorneys will tell you that they were litigating in the best interest of their client. In fact, they lied to the court repeatedly, ran up our legal fees, ran up their own legal fees, and unnecessarily prolonged a meritless case.
The Price of Free Speech
Free speech is not free. It has a price. The price is not just monetary. I will never get back the minutes and seconds this case took from me. I will never get back the sleepless nights, wondering what might happen if there were to be a verdict against me…. what would happen to my career?
I paid this price. Not just for myself, but for every single person out there who believes they should have the right to speak about people and companies. The law says we have the right to say truthful things about them, and to state our opinions about them. But we only keep that right if we fight for it. Companies like Medifast will try to take that right away from us. They will shut us up with meritless, expensive lawsuits. They know you will cower in fear at the thought of being bankrupted by attorneys fees. We must stand up to companies like Medifast, no matter the price. Because if we don’t, the price only goes up for the future.