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May 4, 2010

 Court Should Allow Criticisms of Telemarketing Investment Bank to Be Posted on Web, Lift Ban on Comments on 800notes.com

Public Citizen Defends Website Operator in Federal Court, Says Temporary Restraining Order Was Improper

WASHINGTON, D.C. – A website designed to air criticisms of telemarketers should operate freely, and a temporary restraining order that blocked comments on it should not be extended, Public Citizen told a court today.

Public Citizen is representing Julia Forte, operator of 800notes.com and Whocallsme.com, sites that host online message boards about telemarketers. With less than 90 minutes’ notice to Forte at her home in North Carolina, Houlihan Smith & Company, an investment banking firm headquartered in Chicago, went to court April 16 and obtained a temporary restraining order against Forte. The order, filed in Illinois state court and since moved to federal court in Chicago, prohibits people from posting factual comments about Houlihan Smith or any of its employees until Friday, May 7.

“This temporary restraining order is beyond the pale and is violating the First Amendment rights of people who want to criticize Houlihan Smith,” said Paul Alan Levy, the Public Citizen attorney handling the case. “Houlihan Smith waltzed into state court and made incorrect allegations about the nature of the operator’s involvement. If there was a true defamation case here, Houlihan Smith should go after the Does – the anonymous posters – not the woman who hosts the website.”

This isn’t the first time Public Citizen has defended Forte. Rather than try to sue the people who posted critical comments on the website, companies have attempted to sue Forte for content on her website, even though she does not write any comments on the site herself. Federal law protects Web hosts like Forte from being sued for what the public says on her website. Moreover, people have a First Amendment right to criticize companies on the Internet.

Houlihan Smith is trying to dress its defamation claims up as trademark dilution and claims that Forte embedded information about the company in title tags, meta-data or other code on the Web pages about the company, an accusation that is false, Levy said.

Since 2007, roughly 250 messages – many, but not all, unflattering – have been posted on 800notes.com about Houlihan Smith. Houlihan Smith said the comments constituted trademark misappropriation, dilution and right of publicity violations because its name and employees’ names were used in the posts.

The first Forte heard about Houlihan Smith was April 12, four days before the company went to court, when Houlihan Smith’s lawyer sent Forte a demand letter, insisting that 90 attached messages criticizing the company be removed from the Internet and future postings be blocked. Forte responded that Houlihan Smith could defend itself online in the comments, as she tells other companies complaining about criticism. Anyone can post on the site, but Forte has instructed commenters to provide truthful information and to avoid offensive language.

The temporary restraining order expires May 7, but Houlihan Smith’s lawyer is pushing to extend it through a preliminary injunction. Public Citizen filed a brief late Monday saying there should be no injunction and that Forte should not be pursued at all – that Houlihan Smith should instead pursue the posters for their comments.

Houlihan Smith’s lawyer is due to respond to the brief on Wednesday; the case will be heard before Honorable Virginia Kendall in U.S. District Court in the Northern District of Illinois in Chicago on Thursday.

L. Steven Platt of the Chicago firm of Arnold & Kadjan is local counsel for Forte.

Public Citizen’s brief may be found at http://www.citizen.org/litigation/forms/cases/getlinkforcase.cfm?cID=604.

 Before the temporary restraining order was entered, the comments could be found at http://800notes.com/Phone.aspx/1-312-499-5900 and http://whocallsme.com/Phone-Number.aspx/3124995900.

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