We just added a “Beckie Speaks” tab to the blog where I intent to post as many of Rebecca Dunn’s anti-Xtagged documents as possible. Beckie was formerly the pretended CEO of Andy’s various scams. She eventually came to her senses and realized that Andy is a con man and Xtagged / Wiser are scams. She’s still a little delusional, but her documents add a lot of color to Andy’s operations and state of mind.
I first became aware of Xtagged through a club owner in Salt Lake City. I owned all the nightlife websites in the state at the time and Andy had approached this club owner about his social media website hoping to persuade him to give Andy special access which he could use to look like a big-shot and pick up girls. Andy tried this ploy in several nightclubs in Utah including Skybar, Allure, and eventually Playground, which (according to Andy) went so far as to give him a percentage of the club in exchange for ownership of the club in exchange for licensing rights to the Xtagged.com website. The club owner in Salt Lake suggested that Andy meet with me, since I was already dominant in the nightlife social media space and a friend of his, and called to recommend I speak to Andy.
When I met Andy, he gave me an elaborate pitch about a dating website that used license plates to authenticate users and blue-tooth technology. He told me that MySpace was offering to buy him out for $100 million dollars and that everything was patented. The idea didn’t sound very marketable to me (the MySpace buyout claim was downright ridiculous) and I doubted it would ever go anywhere, but I continued to listen to Andy because he had been recommended by a friend and because his claims about patents seemed plausible and if so would have indicated that there was in fact some legitimate intellectual property behind what he was saying. I wouldn’t find out until much later that his patent claims were absolute garbage.
I told Andy that I would post his Xtagged logo on my website’s homepage (it actually rotated with other partner logos) and that I’d introduce him to some technology investors in Park City who could flush out whether he had anything worth funding. My wife objected to me working with Andy because she thought he was full of crap, but I said that there was no risk since it wasn’t really costing me anything except my time and I owed it to my friend to at least hear him out.
I later introduced Andy to my mother, who was out of work and living with me at the time, to see if she would be able to pick up some business consulting hours for helping him get his story straight. Andy claimed to have funding and I figured if he was for real, then he and my mother could mutually benefit one another.
I eventually took Andy to meet with some investor friends in Park City, but the meeting came to nothing. They later told me that they didn’t believe Andy’s idea was worth their time and they doubted he had any really proprietary technology under the hood. My wife and I drove Andy and his companion Allen Brady home after the meeting and spend three hours with them stuck in a snowstorm on the freeway listening to Andy rant about his technology and ideas. It was then that my wife realized that not only was Andy Esquivel completely full of crap, but he was probably insane as well. I was too busy fighting traffic to notice and my wife would spend the next several months trying to convince me to stay as far away from Andy as possible.
Andy eventually convinced a club owner to let him “hang out” with his friends and promote his “Xtagged” brand in their vanue. The club was Playground in Park City and Andy invited me up to take pictures of his events and to meet the club’s owners. The events was a total bust with only Andy’s invited friends and Allen Brady attending, but I used the time to introduce myself to the owners in the hopes that I could leverage the relationship later during Sundance as a way to expand my website’s reach into Park City. It was during that event that I started gettign red flags which suggested Andy was not at all what he claimed to be.
First, Andy pulled me aside and complained that I’d talked independently to the owners about working with my website to promote their events. Andy claimed that he’d “already hooked [me] up with them bro” and that I’d “embarrassed him” by going over his head. I pretty much blew Andy off and told him that under no circumstances would I allow him to speak for my website or to be an intermediary between me and nightclubs in the area. My website sold itself and the last thing I needed was some small-time upstart interfering with my operations.
Later that same night Allen Brady gave me my second red flag when he approached me at the clubs back bar and confessed that he was beginning to think that Andy was a scam and completely full of crap. I didn’t share with him at the time that I had come to the same conclusion. Instead I reassured him that many early stage ventures seem shifty at first and that he should keep a healthy skepticism and keep his eyes open, but that I was sure Andy was probably an alright guy. In short, I lied!
Andy and I continued to speak occasionally over the phone for several weeks after the failed Playground event. I managed to talk to his patent attorney at one point about some unrelated business, but Andy told me not to call him again because he was trying to steal the company from him (a recurring theme over the years). My mother continued to meet with Andy and even had my uncle talk to him about his ventures. Apparently Andy gave him a sob story about his lawyers trying to steal his business from him and my uncle bought into it, offering to help. I’m frankly not completely convinced that my uncle isn’t a con-artist as well.
I continued to tolerate Andy even though I was increasingly convinced that he was full of crap because I believed that with some professional help he might be able to turn his wild ideas into a viable concern. I kept his logo on my website to add variety and my mother continued to work with him even though, except for a few dollars Andy asked me to give to her once at Playground, she wasn’t getting paid. Eventually my mother moved away and I lost touch with Andy. Looking back, it was a huge mistake to deal with Andy for as long as I did. The red flags were all over the place, but like many I was too busy to pay them much attention. Most of the time I would humor Andy and listen to his rants simply to avoid an uncomfortable conversation in which I confessed I didn’t believe a word he was telling me anymore. I was probably numb to Andy’s garbage because I dealt with so many promoters who were just like him on a weekly basis.
In the end, the only person I have to blame for my involvement with this dirt-bag is myself. My wife continues to tell me ‘I told you so!’
Xtagged.com was a social media dating website assembled by Andy Esquivel that used license plate numbers as the primary identifier. I claimed to make the Internet safer by employing advanced technologies like facial recognition and API links to law enforcement databases (like child molester registries) and the DMV to authenticate user identities.
Unfortunately the entire system turned out to be an elaborate scam and Andy Esquivel was subsequently charged with three felony counts of securities fraud for selling stock in the holding company (Xtagged LLC or Xtagged Inc depending on the day of the week) which never legally existed.
The case is now before a district court judge in Davis County and Andy faces up to 25 years in prison if convicted – 15 for one 2nd degree felony count and 5 years for each 3rd degree felony count of securities fraud. The Utah case number is 111701135.
Xtagged.com no longer exists and is being redirected to Bump.com, a legitimate website based on the same concept. Andy current;y contends that Bump.com stole his idea and claims to be suing them over it, though no evidence of such legal actions exists and there would be no basis for one if it did.
Andy Esquivel just posted the following on his Wiser Scam website:
January 17, 2011 American Fork prosecutor offers Andy plea bargain (NO jail and one year probation). Andy said no thank you. WHY? because Andy is innocent!
Hmmm…so it looks like Andy is holding out for a better plea deal than “NO jail and one year probation.” What’s he expecting, no jail and six months probation? Maybe he really does want this case to go to trial.
Andy Esquivel is still trying to convince his friends that he’s in complete control of his legal situation and that things aren’t as bad as they appear. Here’s the lates from the Wiser Technology website:
Court Update; January 17,2012 in Davis County court, we all finally get to tell our side as owners of Xtagged. John Steer, Jake House, Allen Brady, Shar Jenkins, Steve klemark & more. Followed by American Fork where we all will testify against Daryl Acumen.
After we all prove that securities were never sold as Ryion & Daryl stated “hundreds were sold”.
We will continue with our lawsuit for Xtagged.
F.Y.I Wiser Technology has received a great offer from a Nevada company that we are looking into 01/18/2012.
…so where do we begin? First of all, the hearings held today in Davis County and American Fork Utah were preliminary hearings, not trials. There was no jury and nobody was the least bit interested in anything Andy Esquivel had to say. In short nobody “testified” about anything…period! In both cases, Andy’s attorney simply informed the court that he needed more time to convince his client to plead ‘guilty’ or to formulate some kind of defense. The idea that Andy or his gullible friends would get to ‘tell [their] sides of the story’ today or ‘testify against’ me is completely delusional and illustrates how mentally disturbed Andy Esquivel is.
Second, Andy is an IDIOT if he thinks he’s going to be able to convince a judge that he never sold securities, especially when the state has copies of the checks written to him by investors as well as signed documents claiming to do precisely that. I don’t know what Andy means by “hundreds were sold”. Hundreds of what? Does he mean shares? If so, then his own documents conform that Andy sold tens of thousands of shares, not hundreds.
As for a lawsuit for Xtagged, all I have to say is…next? I mean seriously, we’ve been hearing the same hollow threats about the same fictitious companies for years. Who at this point is still listening?
Finally Andy now claims that some company from Nevada, blah, blah, blah… We’ve heard that before too. it used to be entertaining, but now it’s just…whatever. The first time I ever spoke to Steve Klemark on the phone he said Andy had some BS story about investors in Nevada. Every time Andy wants to create the impression that there’s money right around the corner he brings up some company in Nevada. It’s almost a running joke, like saying ‘I’ve got some beach-front property in Arizona to sell.
I think it’s funny that Andy still has the stones to try so hard to spin his dilemma online. Everybody knows he’s guilty of fraud and within a few months he’s going to be pleading guilty to all charges. What does he think he’s gong to gain by continuing to lie?
for REAL updates, stay tuned to this website and check out “Trial Updates” section monthly. As new information comes in that is public record, we will post it here.
Today Andy showed up in American Fork with his attorney and was granted another continuance. The court ruled that he doesn’t have to show up for the next hearing and that a plea statement can be filed via affidavit. For more details, click here.
Andy appeared in court today with his attorney and asked for a remand of his waived preliminary hearing from last year. The Judge set the date for a remanded preliminary hearing on February 17th 2012. For details, click here.
Personally I think this is one of Andy’s stupidest videos. It’s definitely his most daring! Here Andy actually tries to manipulate the key witnesses in his securities fraud trial on camera with promises that they will all be millionaires if they keep their fake shares. It’s unbelievable that someone facing felony charges for fraud would publicly attempt to manipulate key witnesses in the case against him and promise them money if they continued to buy into the scam.
Andy begins this video by claiming that he is not the manipulator, I am. This a pretty bold claim considering he’s on trial for manipulation and I am not.
40 seconds into the video Andy brags that there’s a multi-million dollar lawsuit int he works and suggests that if the witnesses against him cooperate, they will be able to share the spoils. This is absolutely insane! First of all, Andy doesn’t have the resources to file such a lawsuit, second he has no grounds for such a lawsuit since he has no intellectual property and never filed a patent for any of his ridiculous ideas, third Andy’s only attorneys are criminal lawyers trying to keep him out of jail, and finally trying to bribe witnesses with promises that they will share in a multi-million dollar lawsuit if they play ball is criminal!
At :55 Andy claims that my mother and I were hired by some unnamed masked man to discredit Andy. That’s an odd claim considering I haven’t spoken to my mother in years and I already have a job (Andy it must be noted does not).
1:05 Andy claims that he’s not angry at the Utah victims for stealing their money and that this all his rants over the last three years were simply to collect data for Steve Klemark’s mythical Digital Internet DNA project. In other words, Andy never meant to look like a nut, it was all just a setup for me.
1:25 Andy claims that he will be bringing 20 – 40 people to Utah for his criminal trial instead of the half dozen brainless minions he brought to his preliminary hearing. He then says that he’s been trying to get in touch with the ‘District Attorney’ to make arrangements to pay the Utah victims back, even though the Prosecutor told Andy that doing so would not stop the criminal case against him and he didn’t need to go through the courts to do it.
2:00 into the video, Andy begins going through his collection of Linked In connections and bragging that they imply some sort of broad media coverage and legitimacy on his part. He thinks that having a connection to a recruiter for Linked In means he’s endorsed by the company. He shows a Linked In connection between Steve Klemark and the Mayor of Denver (not surprising since he’s a state employee) and uses that to ‘prove’ that Steve Klemark is more than a low-level IT guy at the Denver PD. Andy actually spends two whole minutes ranting about how a few Linked In connections proves he’s famous, which only shows how little Andy knows about social media.
4:15 into the video Andy begins ranting about how Mitch Thrower is a Billionaire (he is not) and how he found a fatal flaw in Bump.com and somehow that has something to do with Andy and Xtagged. This segment is mostly senseless babble which makes little sense, but Andy uses the fog to allude to some sort of connection to Thrower and to imply that this somehow validates Xtagged or his lawsuit or something.
Now the fun part! Startign at about 5:00 in the video, Andy turns the spin up to 11. he starts by asserting one more time that he SOLD Xtagged and that if the Utah victims keep their fake percentages in a legally nonexistent company and let him keep their money, they will all become millionaires! not only that, but they’ll also be asked by mentally incapacitated stoner Allen Brady to tour the country and speak on countless college campuses telling the story of how they were manipulated by me. You have to be really high or really stupid to fall for this garbage, but Andy keeps spinning it as if it’s the gospel straight from the lord on high. He once again asserts that the last two years of senseless rants on his part were merely to smoke me out and to gather data for Steve Klemark’s mythical Digital DNA technology. Wow!
At 5:45 in the video, Andy announces that he’s fired Leonard Martinez for collaborating with me. He goes on and on about Leonard giving me his “discovery,” even though the Davis County courts have NO RECORD of Leonard Martinez ever requesting discovery and the first recorded request for such didn’t occur until December 8th, long after this video was recorded, by Michael Holje!
To me, this video is simply amazing! It clearly illustrates how stupid Andy Esquivel is and proves that up until this video was made he was not receiving competent legal counsel. NOBODY in their right mind who was facing felony fraud charges facing fraud charges would post a video like this on Youtube and any attorney who advised his client to do so would surely be guilty of malpractice. Aside from the signed notarized fraud documents Andy used to defraud his victims, I think this video is probably the most damning piece of evidence against him.
At 6:10, Andy begins thumping his chest and claiming that the SEC (Andy has never spoken to the SEC) has promised him a federal investigation and he welcomes it. He says he’s hired a lawyer that everybody would be surprised to find out who it was. of course the lawyer turned out to be Michael Holje, a associate attorney at a law firm in Salt Lake nobody had ever heard of.
This is one of Andy Esquivel’s first slight-of-hand fake product videos and it’s hilarious!
Andy begins by showing you a Samsung Instinct box then flips it over to reveal (dramatic pause0 a silver Xtagged sticker! Having a sticker on a box obviously means it’s a bundled product, right?
he goes on to explain that Xtagged is now shipping with the Samsung Instinct phone from Sprint and begins showing you how it works.
With a magical mix of photos stored in his phone and a savvy flip over to the built in web browser, Andy tries to convince the viewer that all he has to do it point the phone at someone’s Xtagged badge and the phone’s “secret formula freezes the shot and automatically takes you to” the persons Xtagged profile.
Only a complete idiot (like Allen Brady) would fall for this pathetically transparent trick, but Andy seems excited about it nonetheless. It takes either someone who is completely insane or really high to believe that anyone out there would fall for this sort of thing, but Andy does. He even goes on to explain that ‘recruiters’ can use the technology to stop ‘pedophiles’ from posing as something. i dind’t quite understand that part of the pitch, but Andy is excited about it anyway.
In this video, Andy Esquivel has Ron Kelsay on the phone and they’re bragging that Ron and Ryion have come to a settlement in the case against Andy. They claim that Ron has negotiated the repayment of the roughly $20,000 that Andy stole from Ryion, Kyle and Chris in exchange for something, but not sure what.
In the video Andy griped that I’m trying to manipulate the settlement when I correctly pointed out online that Andy paying the Utah victims back would not stop the criminal charges pending against him from moving forward and would have little impact on the felony case against him. In spite of my malicious blogging however, Andy claims that his real enemy is me (Daryl) and that Ryion and the reast were really cool guys.
Here’s the rub: Andy didn’t have the money to pay Ryion, Kyle or Chris back and frankly this was all just an elaborate show to convince Ron Kelsay (a gullible convicted felon Andy picked up in Denver) that he was legitimate. Ryion never expected to get paid back and neither did the other Utah victims, but they went along with the charade in case Andy was desperate enough to prove himself not to be a fraud that he actually found the money somewhere and gave it back to them.
In the end (of course) there was no money. Andy found some excuse to push back the payment deadline and then to claim that the deal was off. All this was really immaterial, but it’s an amusing example of Andy trying to prove himself to someone who hasn’t yet figured out he’s a scam and going to the extreme length of saying that someone he’s been lambasting for three years is “really a cool guy,” only to change his mind when the ‘cool guy’ proves once again that Andy is a fraud.
Well, we’ve finally located Andy’s dumbest and most revealign video. I call this the “Healthcare Video” because about 5 minutes into it, Andy claims that he’s using 51% of the profits from the scam to fix healthcare. This is about the time when Congress was debating Obama’s healthcare reform bill, so it goes to show Andy’s lack of creativity.
This video is the most telling of all Andy recordings because it was made before he realized he’d be open to the intense scrutiny of this blog or it’s predecessor massage board thread. In it he shows off his full lunatic glory by bragging with wild abandon about the millions of dollars he could be making without any regard for physical reality. Over time Andy’s videos became slightly (but not much) more restrained and he took a little (but not much) more care to make claims that weren’t as easy to invalidate.
To add to the fun of this video, I’ve decided to break the lies down by video timestamp. This will allow the viewer to jump to the funniest parts of the production without having to wait through other less interesting claims along the way.
Since he’s facing three felony counts of securities fraud, I think the answer is clear…”You are, Andy!”
Over the course of the last several months, Andy Esquivel has written the Utah courts several times to ask for more time to find an attorney. Each time Andy sends a letter to the court, it becomes a matter of public record (a fact which Andy is completely ignorant of). Because these letters are a matter of public record, anyone with a good attorney (or access to a public library and a basic knowledge of what to look for) can gain access to copies of those letters. Below you will find links to the letters Andy has sent to the court so far, including one in which Andy openly wonders how in the world we are able to gain access to these letters in the first place.
Letter complaining that these letters are a matter of public record [PDF] (case#101101231)
Letter asking for more time and claiming that Ron Yengich is his attorney [PDF] (case#111701135)
4TH DISTRICT CT – AF
UTAH COUNTY, STATE OF UTAH
CEDAR HILLS CITY, : MINUTES
Plaintiff, : CONTINUANCE
vs. : Case No: 101101231 MO
ANDRES ESQUIVEL, : Judge: THOMAS LOW
Defendant. : Date: December 7, 2011
Prosecutor: MERRILL, TIMOTHY G
Defendant’s Attorney(s): MICHAEL T HOLJE
Date of birth: September 8, 1970
Tape Number: 2 Tape Count: 9.46
1. ELECTRONIC COMMUNICATION HARASSMENT – Class B Misdemeanor
Plea: Not Guilty
The Defendant’s counsel Michael Holje.
Reason for continuance:
The motion is granted.
PRETRIAL CONFERENCE is scheduled.
Time: 02:30 p.m.
Location: Courtrm 1, 3rd Floor
Fourth District Court
75 East 80 North
American Fork, UT 84003-0986
Before Judge: CHRISTINE JOHNSON
(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).