No. of Recommendations: 24
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
http://boards.fool.com/Message.asp?id=1331725000861014&sort=postdate
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
http://www.sirius.com/~casp/intro.html
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.


Teknon

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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No. of Recommendations: 3
Hi:
I'm a little suprised after reading most -but not all-(shame on me didn't do thorough research) of the responses to the Bill Barker article that noone thought to suggest that maybe the party that ought to be sued is Yahoo itself. I like most others here disagree with the sympathy expressed in the article on behalf of CFSB.
I agree with most of Teknon's points expressed a couple days ago as to why the article was way off the mark in siding with a multibillion dollar investment underwriter like CFSB against 11 individuals who most likely can barely afford the cab fair to get to the courthouse.
Having seen some of the offending posts and read the commentary here I quite agree there is no merit for a lawsuit. In fact its ridiculous. But for the sake of argument if CSFB is going to sue anybody why not sue Yahoo Internet for its negligence in failing to adaquately monitor its message boards?
I know you've taken a wacking here but why didn't Bill Barker as a rep of TMF-the best boards on the net by far- if he's so concerned about message board quality not take Yahoo to task for not more closely policing its message boards? Am I nuts here or what? Oh I see because the boards are supposed to be a forum for free and open disucssion and any attempts to censor them by Yahoo or TMF or anybody else would be improper and a violation of free speech.But its OK to waste the courts time and money because some investors said what they thought - which in fact turned out to be accurate and some shrinking violet analyst got his feathers ruffled?
Should the internet be any different than any other entity when it comes to slander and liable? As far as I'm concerned if your going to regulate what you can say on the internet a questionable assumption - itself - why not hold the internet companies liable. What I'm saying is the wrong guys are taking the fall here. Yahoo should step up and defend those that patronize its message boards and CSFB should be exposed for what this absurd suit is: a thinly veiled attempt to skapegoat the weakest party for its own profit - the individual investor.
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No. of Recommendations: 2
Seems to me there's two different matters here.
1. How Yahoo monitors its msg boards.
2. What people post on those boards.

Why don't we hold Yahoo responsible for how it monitors its boards and hold the posters responsible for what they post.

Surely the quickest way to lose your freedom of speech is to claim that you are not resposible for what you say and that it is someone else's responsibility. If you turn responsibility for what you say over to someone else, then you also turn over the control of what you say to that person.

Dale
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No. of Recommendations: 1
Good morning Teknon,

You made some excellent points in your post. However, you said; 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 was just posing my thoughts as a question for TMF Max to consider because CSFB is the first firm to go after posters critizing one of their analysts. I well remember when the Swiss put Eric Von Doniken in prision for what he claimed was heresy. Evidently some of his writings about the possibility of aliens visiting the earth in the past in books such as; The Chariots of the Gods were offensive. Although, his critics claimed he was jailed for fraud and embezzlement. However, I'm not sure where the truth lies, but do remember his writings offended the powers that be at the time. So, freedom of speech might have been stiffled by the Swiss in Von Doniken's case and its something to consider because Credit Suisse is the owner of First Boston. From my experience, I have noticed that many Europeans don't share what they call the "American wild west" approach to Freedom of Speech.

Keep Foolish and Prosper,

Spirit
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No. of Recommendations: 0
i'm beginning to think things like "monica lewinsky" and "tempest in a teapot" and "harness the wind"
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No. of Recommendations: 3
<<I was just posing my thoughts as a question for TMF Max to consider because CSFB is the first firm to go after posters critizing one of their analysts. >>

And, just to keep the record straight, the criticism aspect doesn't have a blessed thing to do with any justifiable legal case here. Criticism rocks -- I'm all for it. I dare say there probably isn't a single writer on staff here who has spent more time than I have publicly criticizing Wall Street's analysts within the editorial content of this site.

Leaving aside the specifics of any particular case, where there are differences of opinion that are explained through any public utterance that, "We differ on these things, and the source of the disagreement is I'm telling the truth and the other guy is a liar; I'm an honest citizen and the other guy is a criminal; I'm pure as the driven snow and the other guy is evil. Those are all just facts" -- well, there you've got something that the law treats quite differently than "this is a thing about which reasonable minds can differ, and I happen to be the one who's demonstrably right."

The law in this country always has treated those things differently. I hope that isn't news to anybody. You have a right to free speech. You also have a right not to be wrongly defamed through somebody else's free speech. You may very well not care at all about preserving that right, but you happen to have it, and so does the other guy.

It's kind of shocking when somebody actually bothers to think his reputation has been lessened in any way by message board chatter, but -- and let me reiterate -- any iota of justifiability here doesn't come from trying to shut people up. It's a matter of preservation of reputation against wrongful defamation about one's integrity -- about one's being an honest and law-abiding citizen. If somebody wants to publicly take on those who are saying he may not hold himself up to be honest and law-abiding, he's got an avenue within our legal system to do so. And the whole thing has nothing to do with who is "big" and who is "little" in my mind.

The Internet hasn't changed the right to defend your reputation in that manner, as far as I know.

Hope that helps,

Bill
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No. of Recommendations: 3
TMF Max said; The Internet hasn't changed the right to defend your reputation in that manner, as far as I know.

Bill, I think that after the long ordeal the nation endured during the Paula Jones case and Clinton's impeachment hearings, the words Libel and Slander were almost rendered obsolete. President Clinton was widely accused in the media of being a liar, a pervert, a criminal and even a murderer. On CNBC's Geraldo program, guest Ann Coulter insisted the President had Peronni's disease and because she was sure he had it, Paula Jones could identify him. The President had to go to his physician to prove he didn't, and that still didn't satisfy her! Coulter, a constitutional attorney and dozens of others in the media and legal profession made many slanderous statements aimed at Clinton and have never been called to defend themselves in a libel or slander suit to this day. Voicing such libel and slander aimed at the President on a daily basis, could have rubbed off on a large segment of our population. I'm not just talking about the Elan Eleven because their statements were mild compared to what I have seen written about other posters, politicians, journalists, analysts and TV pundits all over the net.

So, I have to lay a lot of the blame on the media, not Yahoo as some have suggested, because if you can say and write such strong statements, some of which were proven false, about an American President, calling an analyst goofy, a loser or even evil seem rather mild. Also, remember NONE of Elan Eleven's comments were copyrighted or sent to the media for dissemination. As one poster said...board postings are more like cocktail party discussions and all statements should be considered the author's opinion unless otherwise noted.


Keep Foolish and Prosper,

Spirit
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No. of Recommendations: 1
Oh I see because the boards are supposed to be a forum for free and open disucssion and any attempts to censor them by Yahoo or TMF or anybody else would be improper and a violation of free speech.

I agree that Yahoo could change if they wanted, and it would be legal. TMF has monitors for it's boards. The best boards on the net are the ones that have monitors. This is not to censor anyone (though occasionally it happens, the monitors are human after all), and does not violate anyone's free speech because hey, it's TMF's board, not ours, so they can control it however they wish.

I don't know how that applies to email, but for message boards, I have no problem with the owner of the board monitoring it for appropriate content.

I guess ... then we'd have to watch the Napster suit to find out. If that works, then maybe they will sue Yahoo! :-)

liable

That guy who said we're all spelling libel wrong forgot there are two different words, liable and libel. Now everyone really is spelling it wrong! :-) (sorry I couldn't resist pointing this out, especially when the "correcter" needs to be corrected :-)

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No. of Recommendations: 4
I've never posted to this board b4. I actually followed a link from the Elan thread to get here. I've read the recent Motley Fool article about the CSFB suit against the Elan 11 and felt it was seriously under researched. I got the impression that the Elan 11 were being compared to those whose posts are regularly abusive or contain vulgar language. I'd be the first to criticise such posts and have done so on numerous occasions in the past. These types of posts can quickly turn a message board into a cesspool.

The Elan message board has never had this problem. It is generally more professional and courteous than most. The majority of the regular posters are long term investors who direct each other to recent news items regarding the company. There is a sense of mutual respect among its posters and real friendships have been nurtured. In fact, a group of its posters from several countries are getting together in Dublin this November to attend an Elan Conference and just basically have a good time.
I've followed hundreds of message boards over the last few years and I can, without hesitation, state that the Elan board is easily the most civil and informative that I've come across.

Some of the Elan 11, including myself, are getting sued for one post out of hundreds. I personally cannot understand the motive behind the suit, but I believe it's something other than has been proclaimed. The Motley Fool might be providing a more useful service if it were to chase up this angle.

I would also ask the writer of the recent article on this subject to reassess his position. Take some time to get a feel for the Elan message board (b4 the suit changed its character) and then do some research on the analyst in question. Check out his reports on Elan, the timing and the regularity. Also, check the content versus the available information at the time. Compare them to other analysts. Look at the bigger picture.

The majority of the Elan 11 are courteous and intelligent posters. They are the backbone of the Elan board. They are the ones you would remove from the board if you wanted to stifle its effectiveness. If the Motley Fool is concerned about the quality of message boards in general, then it should make a distinction between these posters and the ones who are abusive. In this case, there is a real danger of throwing out the baby and keeping the water.

kindest regards,
Peadir 'Og (one of the Elan 11 and a concerned retail investor)
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No. of Recommendations: 3
TMFSpirit wrote:
I think that after the long ordeal the nation endured during the Paula Jones case and Clinton's impeachment hearings, the words Libel and Slander were almost rendered obsolete. ...So, I have to lay a lot of the blame on the media, not Yahoo as some have suggested, because if you can say and write such strong statements, some of which were proven false, about an American President, calling an analyst goofy, a loser or even evil seem rather mild.

Uh, there's a big difference in the ridicule of a public figure, especially public officials, and a private citizen. Such shenanigans may very well have jaded us to the terms libel and slander. It may be that the general public's notion of acceptable demeaning language has changed; but, that is not a defense.

The cocktail hour conversation defense I believe is attributable to whooshing. It's an interesting concept and will very likely make it difficult for the plaintiffs to prove damages. How can there be damages, if the alleged defamations are not taken seriously?

Of course, a message board, while like a conversation is not merely a verbal exchange. What we write remains available and searchable for an undetermined period of time. It becomes an extended record and a resource used by reporters, investigators and the public.

The fact that someone has filed a lawsuit is not surprising. I have expected this to happen for some time. If we were at a cocktail party, would we repeat some of the things written in message boards, or chat rooms in earshot of the targeted individual? The long-lasting nature of posts are the near equivalent. Surprised that somebody got irate about what they read about themselves? I'm not. Amazed that a company might defend their reputation, or the reputation of their representative? I'm not.

I've been looking for a place to jump in on this conversation. I think a careful reading of Mr. Barker's (TMF Max) article will show he has not chosen sides on the question of the specific case at all. I think it was a good article, and well thought out.

The questions about what constitutes due diligence do not apply (IMHO), since he did not in fact specifically comment on the merits. The focus of the article was about freedom of speech, and criticism of ideas without slander.

There is a difference between criticizing analysts for what they say, and alleging abuse or malintent. Civilization demands that we know the difference.
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No. of Recommendations: 2
chrisb76 said in #4553 << .... then we'd have to watch the Napster suit to find out. >>

Hi chrisb76.

When I was growing up, my dad had a Napster suit that he wore everywhere. And I mean, EVERYwhere. Sheesh! What a dork! I was embarrassed to be seen with him. But now I hear they're coming back into style -- Napster suits, not dorks. So I s'pose he was ahead of his time. Which is pretty cool, I guess. But it sure didn't seem so at the time. ;-)

I guess it just goes to show that today's Napster suit can be tomorrow's nostalgia.

Nico

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I would also ask the writer of the recent article on this subject to reassess his position. Take some time to get a feel for the Elan message board (b4 the suit changed its character) and then do some research on the analyst in question. Check out his reports on Elan, the timing and the regularity. Also, check the content versus the available information at the time. Compare them to other analysts. Look at the bigger picture.
...
kindest regards,
Peadir 'Og (one of the Elan 11 and a concerned retail investor)


If your being sued, the best damn advise I can give you is to stop posting on the subject. Really, you are only hurting yourself. It will come up in the court case. Regardless of whether you are right or wrong, you are going to insure some serious legal bills. You don't want to add to your trouble by discussing the issue in a public forum.

I have a cyber friend whose husband was wrongfully fired. He sued the company and his wife brought the issue up on Usenet. Yes, the issue came up in court. Yes, it hurt their case.

Personally, I think you should not loose. Personally, I think CSFB is frivolous. Personally, I support your right to say negative things about bone headed analyst recommendations. What I want to add is:

Do yourself a favor and SHUT UP!
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