(My attorney’s official response to Andy Esquivel’s repeated threat to “sue”)
September 10, 2010
Dear Mr. Esquivel,
This letter is in response to your incessant refrain that you will “see [my client] in federal court.” The short response is – I very much doubt it. Although the threat has long since been rendered hollow through its shear repetition (to say nothing of the lawsuits that you have several times claimed to have already filed), I am aware of no legitimate basis that would support your initiation of legal action against Mr. Acumen. While I will not waste my client’s money outlining every reason that is so, I will endeavor to provide a rough overview.
While I cannot know the precise claims you would assert against my client, I will assume them to be substantially similar to those included in the complaint that was the focus of the YouTube video that you posted on Friday, July 23, 2010 (link), which complaint you said would be filed the following Monday – July 26, 2010.
Request for Injunctive Relief
Your complaint begins with a request that the Court issue a “preliminary and permanent injunction enjoining” Mr. Acumen from blogging, which speech you allege to be defamatory. This relief is clearly barred by Article II, Section 10 of the Colorado Constitution, which provides, without qualification, that “every person shall be free to speak, write, or publish whatever he will on any subject, being responsible for all abuse of that liberty.” The Colorado Supreme Court has repeatedly held that this provision provides broader protection for speech than does the First Amendment. See, e.g., Bock v. Westminster Mall, 819 P.2d 55, 59-60 (Colo. 1991) (collecting cases).
Finally, the Colorado Court of Appeals has specifically held that defamatory speech (which Mr. Acumen’s speech is not), while actionable in damages, cannot be enjoined. DeGroen v. Mark Toyota-Volvo, Inc., 811 P.2d 443 (Colo. App. 1991) (holding that injunctive relief is not available against speech activity, because the harm to reputation is insufficient to justify that remedy).
Alternative Tort Claims
Your remaining claims – Intentional Infliction of Emotional Distress, Intentional Interference with Business Relations, and Defamation – can all be effectively categorized as defamation, and defamation-like claims. Considering claims such as yours, courts around the country have uniformly held that a plaintiff may not make an “end run” around the First Amendment by employing alternative tort labels to what is, in essence, a speech claim. As a result, a court would only consider your alternative tort claims if you are able to establish the elements of a defamation claim.
However, even if the defamation claim were actionable (which it is plainly not), and your other claims could possibly proceed, there are several reasons why your alternative speech claims warrant dismissal. With regard to the “Outrageous Conduct” claim, it is worth noting that corporations – even were those listed as plaintiffs to actually exist – cannot suffer emotional distress. Thus this claim cannot be brought on their behalf. In any event, however, it is plain that Mr. Acumen’s actions – uncovering and publicizing your highly suspect business dealings is not the sort of conduct that would strike one as at all “outrageous,” especially given the precedent set by case law.
There are myriad problems with your claim for Intentional Interference with Contract as well. I’ll spare you the complete scholarly dissertation for why that is so, but suffice it to say that such a claim would require that you identify real contracts that, but for my client’s conduct, you would have been able to close. What evidence you have proffered so far appears quite implausible – a characterization that, admittedly, may push too far the boundaries of acceptable euphemism.
Part of what makes defamation law so interesting for practitioners is the stories that come out about the plaintiffs. While defamation plaintiffs are often colorful characters, such as yourself, the real difference lies in the procedural aspects of the claim. As you may be aware, a plaintiff’s personal history and character are usually inadmissible inasmuch as they are generally irrelevant to the questions at issue in the case. But in a defamation claim, the question at issue is whether the plaintiff’s character has been damaged by the defendant. In addition, the plaintiff has the burden of proving that he has a good character that has been damaged, and that the statements in question were false.
Thus, were you to actually file suit for defamation, your character would be very much at issue. This would include your criminal history: beginning with your initial federal felony and continuing through your 2004 Utah Federal Court conviction for being a felon in possession of a firearm and its accompanying sentence to six months in federal prison. See U.S. v. Andres Esquivel (D. Utah Case No. 2:03-CR-000293-001) (reflecting also that the defendant’s bond was revoked after court-ordered drug tests in May and August 2003 revealed the presence of methamphetamine). Also at interest would be any outstanding warrants in Utah for unpaid child support (should any exist); your by-now-infamous run-in with law enforcement authorities in Bountiful (which I believe you said someone had filmed from the back-seat of your Lamborghini); as well as the three securities fraud cases pending against you in Utah.
I should note that you may perceive the previous paragraph as a threat on my client’s part. It is not. It is simply a statement of fact. When a plaintiff claims to be a man of good character who has been maligned by a defendant, that defendant has the right – and his attorney has a corresponding duty – to zealously investigate whether the plaintiff’s claim of good character is well founded.
As a result, much of our inquiry would be naturally focused on the question of whether Xtagged.com really is a “scam,” a statement that you have taken particular issue with. That would necessarily involve the investigation of the company’s finances – who invested what, and where the money went (all of which evidence would be directly relevant to the case and, should you refuse to disclose it, is almost certain to be ordered produced by the court). Another area of interest would be Xtagged’s much advertised “facial recognition technology.” I am very interested to see precisely how you managed to invent software that is capable of accurately recognizing facial features within low-resolution cell-phone pictures – a programming feat that continues to elude the rest of the country, despite the many of billions of dollars thus-far devoted to the problem.
Also relevant to Mr. Acumen’s defense against any claim premised upon his statement that your businesses are “scams” would be your easily discovered and stunningly-flagrant violations of federal intellectual property laws. The most recent example, of course, is the revelation that your Buzz/Wiser drink (along with nearly all of its website advertising) appears to have been merely a direct copy of “Security Feel Better,” a European drink that has just begun to be sold in the United States, as well as its website. You’ll likely recall the profanity-laced e-mail and cease and desist letter that you received from the manufacturer of that product.
Of course, that was not the first cease and desist letter that you received regarding your misuse of intellectual property and claim of affiliation with more famous brands. You’ll also likely recall contact by representatives from New Belgium Brewing and Mothers Against Drunk Driving.
Finally, a defendant in a defamation case is naturally concerned about damages as well. Mr. Acumen would thus subpoena evidence regarding how many subscribers Xtagged had prior to his blog postings, and how many after. In addition, he would seek solid evidence of actual orders placed for your so-called “Buzz/Wiser” drink, and for “Wiser E-Cigarettes.”
Sadly, because your case would unlikely survive a motion to dismiss, it is likely that observers would be deprived of the benefit of the colorful stories that would surely come out of any defamation case that you filed. To give just one example, your “YouTube Complaint” fails to specify the precise statements that you allege to be defamatory. This is cause for dismissal for failure to state a claim.
Were you to attempt to provide adequate specificity, you would likely find that many of the allegedly defamatory statements that you attribute to Mr. Acumen were not actually made by Mr. Acumen. While many of the posts on Mr. Acumen’s UtahRaves.com message board were posted by Mr. Acumen (all of which are identified as having been written by “dacumen”), most were not. Pursuant to Section 230 of the Communications Decency Act of 1996 (“Section 230”), Mr. Acumen cannot be held liable for the postings he did not author. Looking at the remaining posts, I believe that you will find that they constitute either true statements of fact, or statements of rhetorical hyperbole that no one would understand to be literally true and that thus cannot be the basis of a defamation action. And, while you surely contest this, any other message board statements regarding you appear to clearly fall within the boundaries of substantial truth – if not literal truth.
Finally, you should be aware that should you file a lawsuit against Mr. Acumen, and the lawsuit is dismissed before the defendant is required to answer, Section 13-17-201 of the Colorado Revised Statutes provides that you “shall” be liable for Mr. Acumen’s reasonable attorney’s fees in defending the action. Given your meager financial resources, your fellow plaintiffs would most likely be held responsible for this amount.
I remain happy to discuss these issues with your attorney. However, since he cannot be bothered to respond to phone calls or e-mails, I can only assume that he does not, in fact, intend to represent you in this matter. As a result, I would be willing to answer any specific questions that you may have via e-mail, so that we may have a record of the exchange.
Adam M. Platt, Esq.
 I should note that this letter addresses only the substantive defects in the proposed causes of action themselves and ignores the myriad procedural defects and drafting errors. For example, your complaint includes as plaintiffs “WISER E-CIGARETTE, a Colorado Corporation” and “XTAGGED, a Colorado Corporation.” As you must be aware, the Colorado Secretary of State lists no such corporations in its list of businesses licensed to operate within the state. While there is a “Wiser E-Cig, LLC” registered in the name of your mother, Jobita Berriel (registered April 23, 2010), there is not and has never been a business entity of any type registered under the name “Xtagged” within the state of Colorado (nor, I believe, in any other state).
 See, e.g., Caine v. Duke Communications Int’l, 24 Media L. Rptr. (BNA) 1187, 1190 (C.D. Cal. 1995) (“The employment of alternative tort labels cannot be used to evade constitutional limitations for defamation actions.”); Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, 39 F.3d 191, 196 (8th Cir. 1994) (same, with respect to claim for tortious interference with business relations); Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 273-74 (7th Cir. 1983) (holding that a plaintiff may not make an “end run” around the rules for defamation claims by characterizing the claim as one for tortious interference); Foretich v. Advance Magazine Publishers, Inc., 765 F. Supp. 1099, 1104-06 (D.D.C. 1991) (holding that plaintiff may not, through “creative pleading,” invoke other, non-libel torts as a vehicle for “end-running other requirements of defamation law”); Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 342-43, 783 P.2d 781, 788-89 (Ariz. 1989) (applying First Amendment limitations to “any tort action relating to free speech”); Blatty v. New York Times, 42 Cal. 3d 1033, 1042-43, 728 P.2d 1177, 1182-83 (Cal. 1986); (same, with regard to tortious interference); Dulgarian v. Stone, 652 N.E.2d 603, 609 (Mass. 1995) (same, with regard to claim under state consumer protection statute); Hoppe v. Hearst Corp., 53 Wash. App. 668, 675-76, 770 P.2d 203, 207-08 (Wash. App. 1989) (same, with regard to claims for intentional and negligent infliction of emotional distress and false light invasion of privacy).