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TMF Otter (and others):

Thanks for the thoughtful replies to my original posts. I frankly still don't understand the position of what seems to be the majority of TMF staffers on the Elan 11, but so be it.

In retrospect, I think what concerned me most about the original FOTH piece as well as your response (and others) fell into a few broad categories:

• The 'so-what' response to what is potentially a very important issue to forums like Motley Fool. The indolence in gathering information for the FOTH piece, so unlike the Fool's own principles (and my point #1 originally) falls into this category. Or, as another staffer put it: "I'm not sure what the fuss is here ... Litigation happens" - TMF Cheeze
But since you assert: We are fully aware of the effect such a suit could have on the Motley Fool, I'd be glad to stipulate that you realize this tempest may spill over into quite a few teapots, including your own. 'Nuff said.

• The 'they deserve it' response characteristic of several staffers as well as some other post-ers who made little or no effort to find out what was actually written in the posts in question. After all, we're talking about an internet message board here, right? And an unsupervised Yahoo board at that, one of the cesspools of inane accusation and totally unnecessary and insupportable hostility where there are no grown-ups around and where the operant script is Lord of the Flies.

Just so we're clear: we are on the same page as far as libel goes. We do have first-amendment free-speech rights, but we are responsible for what we say and can be held accountable for same in a court of law. Ok? But we've heard from a couple members of the Elan 11 right here on the Fool message boards, and, although I'm not a lawyer, I simply can't see how what they posted was actionable. The 'guilty (ok, liable) until proven innocent' attitude characteristic of some posts from TMF staffers and others is simply appalling. I have read far worse right here on the Fool, and if CSFB succeeds in this suit, then y'all at FoolHQ better rent out that White House e-mail-sniffing computer and delete any and all questionable posts that another financial entity claimed did them 'economic harm'.

• The 'immaculate conception' of CSFB's motives. After all, CS First Boston has a claim I [TMF Max] wouldn't mind seeing recognized because a successful slander suit could [have a] positive effect on general message board quality. Sure: by scaring off all posts that are even slightly controversial, you concurrently keep all of the riffraff out. Nice plan. But, of course, that could be CSFB's main motive here, could it not? intimidation and the threat of a lawsuit against any dissent? Why have none of the TMF staffers even admitted this as a real possibility? (TMF Spirit alone 'gets it' on this issue, although I think her it's-a-Swiss-thing theory is a bit over the top.) I encourage all of us who care about the outcome of this suit to begin to familiarize ourselves with the ins and outs of SLAPP lawsuits - Strategic Lawsuits Against Public Participation. And yes, Otter, SLAPP defendants can SLAPP back at their prosecutors for monetary damages if the original suit was found to be meritless.

The California Anti-SLAPP pages
are a good place to start on this. Quoting from there: SLAPPs are often brought by corporations, real estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits.

That is exactly what is going on here, imho, and that is exactly why I am so bothered by TMF's apparent sympathy with the prosecutors in this case.


P.S. On a personal note: work concerns will call me away from posting for a while. I may be able to monitor the debate from afar, but I'm afraid this will likely be my last post on the subject for some time. I hope theCSFB/Yahoo issue generates some good discussions here and elsewhere, and I wish the Elan 11 all the best in whatever happens next.
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