KELL, ALTERMAN & RUNSTEIN, L.L.P. 

ATTORNEYS AT LAW

520 SW YAMHILL, SUITE 600 

PORTLAND, OR 97204 

TELEPHONE (503) 222-3531 

FACSIMILE (503) 227-2980 

Error! No document variable supplied.

Response to ORS 31.150 Special Motion to Strike 

Thomas R. Rask, III, OSB No. 934031 

trask@kelrun.com 

Robert B. Lowry, OSB No. 852751 

rlowry@kelrun.com 

Kell, Alterman & Runstein, L.L.P. 

520 SW Yamhill St., Suite 600 

Portland, OR 97204-1329 

Telephone: 503/222-3531 

Fax: 503/227-2980 

Attorneys for Plaintiff 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

CONSUMER CELLULAR, INCORPORATED, 

an Oregon corporation,

Plaintiff, 

v. 

CONSUMERAFFAIRS.COM, INC., a Nevada 

corporation; CONSUMERS UNIFIED, LLC, a 

Nevada limited liability company; and 

DAVID ZACHARY CARMAN,

Defendants. 

Case No.: 3:15-cv-01908-PK

PLAINTIFF’S RESPONSE TO 

DEFENDANTS’ ORS 31.150 

SPECIAL MOTION TO STRIKE 

Request for Oral Argument 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 1 of 42
KELL, ALTERMAN & RUNSTEIN, L.L.P. 

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Response to ORS 31.150 Special Motion to Strike Page i

Table of Contents 

I. FACTS ........................................................................................................................................ 1 

II. ARGUMENT ............................................................................................................................ 2

A. The Anti-SLAPP Statute should not be Applied in Federal Court. ..................................... 2 

B. The Anti-SLAPP Statute is Inapplicable to Federal Causes of Action (i.e. RICO). ............ 2 

C. Defendants’ motion should be denied both because Consumer Cellular’s laims include 

allegations of deceptive nondisclosure and extortionate actions distinguishable from protected 

speech covered by the anti-SLAPP statute, and because plaintiff has presented prima facie 

evidence to support its claims. .................................................................................................... 3 

1. Plaintiff’s first, second, and third claims include deceptive nondisclosure 

and extortionate actions, distinguishable from protected speech covered by 

the anti-SLAPP statute. ................................................................................................. 3 

2. Defendants’ motion should be denied because plaintiff has presented 

prima facie evidence for its claims. .............................................................................. 5 

a. Plaintiff has presented substantial evidence to support a prima facie 

claim for violations of the Unlawful Trade Practices Act. ...................................... 6 

b. Plaintiff has presented prima facie evidence to support the claim 

for intentional interference with prospective economic relations. ....................... 10 

c. Consumer Cellular’s RICO claim is not subject to the anti-SLAPP 

motion, but for the record the claim is well pled. .................................................. 15 

(1) Consumer Cellular has sufficiently pled multiple acts of wire 

fraud against each Defendant. ........................................................................... 15 

(2) Consumer has plead actionable extortion under ORS 164.075. ..................... 19 

(3) Consumer Cellular has pled a pattern of racketeering activity. .................... 21 

(4) Consumer Cellular has adequately pled that each of the 

Defendants has participated in the management of the alleged 

alternative RICO enterprises. ............................................................................ 22 

(5) Consumer Cellular’s pleading satisfies RICO’s standing 

requirement under Bridge. ................................................................................ 22 

d. Plaintiff has presented substantial evidence to support a prima facie 

claim for defamation. ................................................................................................ 23 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 2 of 42
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Response to ORS 31.150 Special Motion to Strike Page ii

(1) Defendants’ statements were untrue and defamatory. .................................... 24 

(2) Defendant published the defamatory material................................................. 27 

(3) The defamatory statements were defamatory per se and 

resulted in special harm to Plaintiff. ................................................................. 28 

(4) It is improper for Defendants to raise the affirmative defense 

of immunity at this stage and, even if the Court were to consider 

it, immunity does not apply here. ...................................................................... 28 

D. Plaintiff’s claims against Defendant Carman are well-pled. ............................................ 31 

E. Plaintiff should be allowed to conduct discovery if the court finds that it has not 

presented prima facie evidence. ................................................................................................ 33 

III. CONCLUSION ..................................................................................................................... 34 

 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 3 of 42
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ATTORNEYS AT LAW

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TELEPHONE (503) 222-3531 

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Response to ORS 31.150 Special Motion to Strike Page iii

Cases

Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015)......................................... 2 

Accuardi v. Fredericks, 

2014 WL 848263 (D. Or. Mar. 4, 2014) ..................................................................................... 5 

Allen v. Hall, 

328 Or. 276 (1999) .................................................................................................................... 14 

Allwaste v. Hecht, 

65 F.3d 1523 (1995) .................................................................................................................. 27 

Altamont Summit Apts. LLC v. Wolff Props. LLC, 

2002 U.S. Dist. LEXIS 2761, at *14 (D. Or. Feb. 13, 2002) .................................................... 39 

Anza v. Ideal Steel Supply, 

547 U.S. 451 (2006) .................................................................................................................. 28 

Batzel v. Smith, 

333 F.3d 1018 (9th Cir. 2003) .................................................................................................. 36 

Bridge v. Phoenix Bond & Indem. Co., 

553 U.S. 639 (2008). ............................................................................................... 19, 22, 28, 29 

Bulletin Displays, LLC v. Regency Outdoor Adver., Inc., 

448 F. Supp. 2d 1172 (C.D. Cal. 2006) ...................................................................................... 3 

Cortez v. Nacco Material Handling Group, Inc., 

356 Or. 254 (2014) .................................................................................................................... 38 

Denson v. Ron Tonkin Gran Turismo, Inc., 279 Or. 85 (1977) ...................................................... 7 

Douglas Med. Ctr. LLC v. Mercy Med. Ctr., 

203 Or. App. 619 ...................................................................................................................... 13 

Evans v. Sirius Computer Solutions, Inc., 

No. 3:12–CV–46–AA, 2012 WL 1557294, at *3 (D. Or. May 1, 2012) .................................. 17 

Fair Hous. Council v. Roommates.com, LLC, 

521 F.3d 1157 (9th Cir. 2008) .................................................................................................. 36 

FLIR Systems, Inc. v. Sierra Media, Inc., 

No. CV–10–971–HU, 2011 WL 1832806 (D. Or. May 10, 2011) ........................................... 17 

Gardner v. Martino, 

2005 WL 3465349 (D. Or. Sep. 19, 2005).................................................................................. 5 

Globetrotter Software, Inc. v. Elan Computer Group, Inc., 

63 F. Supp. 2d 1127 (N.D. Cal. 1999) ........................................................................................ 3

Goodyear Tire & Rubber Co. v. Tualatin Tire & Auto, 

129 Or. App. 206 (1994) ............................................................................................................. 9 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 4 of 42
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ATTORNEYS AT LAW

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PORTLAND, OR 97204 

TELEPHONE (503) 222-3531 

FACSIMILE (503) 227-2980 

Response to ORS 31.150 Special Motion to Strike Page iv

Goodyear Tire & Rubber Co. v. Tualatin Tire & Auto, 

322 Or. 406 (1995) ...................................................................................................................... 9 

H. J. Inc. v. Northwestern Bell Tel. Co., 

492 U.S. 229 (1989) ............................................................................................................ 26, 27 

Hilton v. Hallmark Cards, 

599 F.3d 894 (9th Cir. 2010) ...................................................................................................... 3 

Hinds v. Paul's Auto Werkstatt, Inc., 

107 Or. App. 63 (1991) ............................................................................................................... 7 

In re Bah, 

321 B.R. 41(B.A.P. 9th Cir. 2005).............................................................................................. 3 

Investigators, Inc. v. Harvey, 

53 Or App 586, 633 P2d 6 (1981) ............................................................................................... 7 

LaHodny v. 48 Hours, et al., 

No. 6:13–cv–02102–TC, 2015 WL 1401676, at *5 (D. Or. Mar. 24, 2015) ............................ 16 

Levitt v. Yelp! Inc., 

765 F.3d 1123 (9th Cir. 2014) ............................................................................................ 23, 24 

Luisi v. Bank of Commerce, 

252 Or 271, 449 P2d 441 (1969) .............................................................................................. 14 

Makaeff v. Trump Univ., LLC, 

736 F.3d 1180 (9th Cir. 2013) .................................................................................................... 3 

Makaeff v. Trump Univ., LLC, 715 F.3d 254 (9th Cir. 2013) ......................................................... 2 

McGanty v. Staudenraus, 

321 Ore. 532, 901 P.2d 841 (1995). .......................................................................................... 13 

McPhee Elec. Ltd., LLC v. Konover Constr. Corp., 

2009 Conn. Super. LEXIS 3110, 2009 WL 4846555 (Conn. Super. Ct. Oct. 22, 2009) .......... 26 

Metabolife Int’l v. Wornick, 

264 F.3d 832 (9th Cir. 2001) .................................................................................................... 40 

National Union Fire Ins. Co. v. Starplex Corp., 

220 Or. App. 560 (2008) ..................................................................................................... 29, 34 

Neumann v. Liles, 

261 Or. App. 567 (2014) ........................................................................................... 4, 29, 35, 37 

Newcal Indus. V. Ikon Office Solution, 

513 F.3d 1038 (9th Cir. 2008), cert. denied 557 U.S. 903 (2009) ................................ 22, 23, 29 

People v. Dioguardi, 

8 N.Y.2d 260 (1960) ................................................................................................................. 25 

Reves v. Ernst & Young, 

507 U.S. 170 (1993) .................................................................................................................. 28 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 5 of 42
KELL, ALTERMAN & RUNSTEIN, L.L.P. 

ATTORNEYS AT LAW

520 SW YAMHILL, SUITE 600 

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Response to ORS 31.150 Special Motion to Strike Page v

Ron Tonkin Gran Turismo v. Wakehouse Motors, 

46 Or App 199, 611 P2d 658 .................................................................................................... 14 

Roommates.com, LLC, 

521 F.3d at 1172 ....................................................................................................................... 36 

Sanford v. MemberWorks, Inc., 

625 F.3d 550, 557 (9th Cir. 2010) ............................................................................................ 19 

Sanville v. Bank of American Nat. Trust Savings Ass’n, 

18 Fed. Appx. 500 (9th Cir. 2001) ............................................................................................ 22 

Schwern v. Plunkett, 

2014 U.S. Dist. LEXIS 92310, *7 (D. Or. Apr. 22, 2014) ............................................... 6, 7, 32 

Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010) ......................... 2 

State v. Nyhuis, 

251 Or. App. 768 (2012) ........................................................................................................... 25 

State v. Perez, 

147 Conn. App. 53 (2013) ........................................................................................................ 26 

Straube v. Larson, 

287 Or. 357 (1979) .................................................................................................................... 13 

Tubra v. Cooke, 

233 Or. App. 339 (2010) ........................................................................................................... 30 

Turner v. Cook, 

362 F.3d 1219 (9th Cir. 2004) .................................................................................................. 27 

United States v. Woods, 

335 F.3d 993 (9th Cir.); cert. denied, 540 U.S. 1025 (2003) .................................................... 20 

Wampler v. Palmerton, 

250 Or. 65 (1968) ...................................................................................................................... 39 

Warfield v. Gardner, 

346 F. Supp. 2d 1033 (D. Ariz. 2004) ...................................................................................... 25 

Wool v. Tandem, 

818 F.2d 1433 (9th Cir. 1987). ........................................................................................... 21, 39 

Young v. Davis, 

259 Or. App. 497 (2013) ................................................................................................... 6, 7, 35 

Statutes

18 U.S.C § 1961(4) ....................................................................................................................... 15 

18 U.S.C. § 1343 ........................................................................................................................... 16 

18 U.S.C. § 1962 (d) ..................................................................................................................... 15 

18 U.S.C. § 1964(c) ...................................................................................................................... 15 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 6 of 42
KELL, ALTERMAN & RUNSTEIN, L.L.P. 

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TELEPHONE (503) 222-3531 

FACSIMILE (503) 227-2980 

Response to ORS 31.150 Special Motion to Strike Page vi

18 U.S.C. §§ 1962 (c) ................................................................................................................... 15 

18 U.S.C.S § 1951(b)(2) ............................................................................................................... 19 

47 U.S.C. § 230(c)(1) .................................................................................................................... 29 

A.R.S. § 13-1804A(3),(8) ............................................................................................................. 20 

Cal. Pen. Code § 518..................................................................................................................... 19 

Conn. Gen. Stat. § 53a-119(5) ...................................................................................................... 21 

Conn. Gen. Stat. § 53a-119(5)(B) ................................................................................................. 21 

NY CLS Penal § 135.60................................................................................................................ 20 

of FRCP 9(b) ................................................................................................................................. 32 

ORS § 646.605 ................................................................................................................................ 8 

ORS § 646.605(4) ....................................................................................................................... 6, 7 

ORS § 646.605(6)(a) ............................................................................................................. 7, 8, 10 

ORS § 646.608 ............................................................................................................................ 6, 8 

ORS § 646.608(1)(b) ...................................................................................................................... 8 

ORS § 646.608(1)(d) ...................................................................................................................... 8 

ORS § 646.608(1)(e) ....................................................................................................................... 9 

ORS § 646.608(1)(h) .................................................................................................................. 7, 9 

ORS § 646.638 ........................................................................................................................ 6, 7, 9 

ORS 164.005(5) ............................................................................................................................ 20 

ORS 164.075 ................................................................................................................................. 19 

ORS 31.150 ......................................................................................................................... 5, 28, 29 

ORS 31.150(2) ............................................................................................................................ 3, 4 

ORS 31.152(2). ............................................................................................................................. 33 

Rules

Rule 56(b) ..................................................................................................................................... 33 

Rule 9(b) .................................................................................................................................. 16, 22 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 7 of 42
KELL, ALTERMAN & RUNSTEIN, L.L.P. 

ATTORNEYS AT LAW

520 SW YAMHILL, SUITE 600 

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TELEPHONE (503) 222-3531 

FACSIMILE (503) 227-2980 

Response to ORS 31.150 Special Motion to Strike Page 1

Defendants filed a Special Motion to Strike solely under ORS 31.150, Oregon’s antiSLAPP statute. Defendants’ Motion should be denied for the following reasons: 

(1) Oregon’s anti-SLAPP statute procedural rule should not be applied in federal court; 

(2) The anti-SLAPP statute is inapplicable to federal causes of action (i.e. RICO); 

 (3) Plaintiff’s first, second, and third claims include deceptive nondisclosure and 

extortionate actions, distinguishable from protected speech covered by the anti-SLAPP statute; 

(4) Plaintiff has presented prima facie evidence for its claims; and 

(5) Under Ninth Circuit authority, Rule 56(b) requires discovery before an anti-SLAPP 

motion may be granted for lack of prima facie evidence.

Plaintiff relies on the record on file herein, including the Complaint, the Declarations of 

John S. Marick, Brian E. Hepner, Dominic Artero, Robert B. Lowry and Mike Strain, each of 

which contain exhibits, and the following points and authorities.

I. FACTS 

ConsumerAffairs.com purports to be a consumer advocacy organization dedicated to 

helping consumers make decisions about purchasing products and services by providing an 

unbiased consumer review posting website among other things. Instead, the Defendants have 

since at least the beginning of January 2014 operated ConsumerAffairs.com using a business 

model that involves a deceptive scheme to negatively manipulate online consumers interested in 

reviewing the products and services of Plaintiff Consumer Cellular Incorporated (Plaintiff or 

Consumer Cellular) (and others). They have done so in an attempt to extort large fees to help 

repair the business disparagement Defendants continue to intentionally cause Consumer Cellular. 

Consumer Cellular has been injured in its business in excess of $5,000,000 in lost online sales 

and otherwise as a result of the Defendants’ scheme. 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 8 of 42
KELL, ALTERMAN & RUNSTEIN, L.L.P. 

ATTORNEYS AT LAW

520 SW YAMHILL, SUITE 600 

PORTLAND, OR 97204 

TELEPHONE (503) 222-3531 

FACSIMILE (503) 227-2980 

Response to ORS 31.150 Special Motion to Strike Page 2

Because of the nature of the anti-SLAPP motion, which potentially requires presentation 

of prima facie evidence for some of Plaintiff ‘s claims, and because all of the allegations that 

underlie the claims are important in responding to the motion, Plaintiff refers the Court to an 

annotated copy of Plaintiff’s Complaint (referred to herein as “AC”) attached as Exhibit 17 to the 

Declaration of Robert B. Lowry. Plaintiff’s allegations are annotated in the AC with references 

to the various Declarations and exhibits referenced above which provide evidentiary support for 

the factual allegations. The references below to the annotated Complaint are made by the 

designation “AC” along with the number of the paragraph in the complaint where both 

allegations and detailed evidentiary references are located. 

II. ARGUMENT 

A. The Anti-SLAPP Statute should not be Applied in Federal Court. 

Consumer Cellular opposes application of Oregon’s anti-SLAPP procedure because it 

conflicts with federal procedural rules for the reasons addressed in: (1) Shady Grove Orthopedic 

Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010); (2) Abbas v. Foreign Policy 

Group, LLC, 783 F.3d 1328, 1337 (D.C. Cir. 2015) (relying on Shady Grove); (3) Chief Judge 

Kozinski in Makaeff v. Trump Univ., LLC, 715 F.3d 254, 273 (9th Cir. 2013) (Kozinski, C.J. 

concurring) where he said the matter should be reviewed and negated en banc; and (4) Judge 

Watford in Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1189-90 (9th Cir. 2013) (Watford, J. 

dissenting from denial of rehearing en banc). 

B. The Anti-SLAPP Statute is Inapplicable to Federal Causes of Action (i.e. RICO). 

The Ninth Circuit has held that a “state anti-SLAPP statute does not apply to federal law 

causes of action.” See Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010), where the 

court reasoned that the Erie doctrine rationale for state law claims is inapplicable to federal law 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 9 of 42
KELL, ALTERMAN & RUNSTEIN, L.L.P. 

ATTORNEYS AT LAW

520 SW YAMHILL, SUITE 600 

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TELEPHONE (503) 222-3531 

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Response to ORS 31.150 Special Motion to Strike Page 3

claims (Lanham Act), citing Bulletin Displays, LLC v. Regency Outdoor Adver., Inc., 448 F. 

Supp. 2d 1172, 1180 (C.D. Cal. 2006) (inapplicable to RICO and Clayton Act claims). See also

In re Bah, 321 B.R. 41, 46 (B.A.P. 9th Cir. 2005) (“anti-SLAPP statute may not be applied to 

matters involving federal questions”); and Globetrotter Software, Inc. v. Elan Computer Group, 

Inc., 63 F. Supp. 2d 1127, 1130 (N.D. Cal. 1999). Defendants’ frivolous attempt at an antiSLAPP motion against Consumer Cellular’s federal RICO claim should be denied. 

C. Defendants’ motion should be denied both because Consumer Cellular’s laims 

include allegations of deceptive nondisclosure and extortionate actions 

distinguishable from protected speech covered by the anti-SLAPP statute, and 

because plaintiff has presented prima facie evidence to support its claims. 

The Oregon Court of Appeals recently clarified Oregon’s “two-step burden-shifting 

process” for an ORS 31.150 special motion to strike. Neumann v. Liles, 261 Or. App. 567, 572 

(2014). First, a court must “determine whether the defendant has met its initial burden to show 

that the claim against which the motion is made arises out of one or more protected activities 

described in ORS 31.150(2). Second, if the defendant meets that burden, the court must 

determine whether the plaintiff has established that there is a probability that the plaintiff will 

prevail on the claim by presenting substantial evidence to support a prima facie case.” Id. 

(internal citations omitted). Defendants’ motion fails at both steps of the analysis. 

1. Plaintiff’s first, second, and third claims include deceptive nondisclosure and 

extortionate actions, distinguishable from protected speech covered by the 

anti-SLAPP statute. 

Oregon’s anti-SLAPP statute requires Defendants to first show that Plaintiff’s claims 

arise out of one or more of the following: 

(a) Any oral statement made, or written statement or other 

document submitted, in a legislative, executive or judicial 

proceeding or other proceeding authorized by law; 

(b) Any oral statement made, or written statement or other 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 10 of 42
KELL, ALTERMAN & RUNSTEIN, L.L.P. 

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TELEPHONE (503) 222-3531 

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Response to ORS 31.150 Special Motion to Strike Page 4

document submitted, in connection with an issue under 

consideration or review by a legislative, executive or judicial body 

or other proceeding authorized by law; 

(c) Any oral statement made, or written statement or other 

document presented, in a place open to the public or a public 

forum in connection with an issue of public interest; or 

(d) Any other conduct in furtherance of the exercise of the 

constitutional right of petition or the constitutional right of free 

speech in connection with a public issue or an issue of public 

interest. 

ORS 31.150(2). Defendants cannot make such a showing with respect to Plaintiff’s first, second, 

or third claims for relief to the extent that those claims include deceptive nondisclosure and 

extortionate actions, distinguishable from protected speech. Central to Plaintiff’s claims for 

violations of the Unlawful Trade Practices Act, intentional interference with prospective 

economic relations, and violations of RICO are extortionate conduct, Defendants’ stifling of 

positive reviews, and deceitful and manipulative nondisclosure of information which misleads 

online consumers. 

Defendants attempt to conflate the issues by relying on a number of other cases related to 

the posting of consumer complaints. Defendants’ ORS 31.150 Special Motion to Strike, at 9, 

citing Gardner v. Martino, 2005 WL 3465349 (D. Or. Sep. 19, 2005), Accuardi v. Fredericks, 

2014 WL 848263 (D. Or. Mar. 4, 2014). However, unlike in those cases, Plaintiff’s claims are 

not based on the content of any consumer complaint or review published on Defendants’ 

website. 

As Defendants’ acknowledge, the purpose of Oregon’s anti-SLAPP statute is to “protect 

individuals from meritless, harassing lawsuits whose purpose is to chill protected expression.” 

Gardner, 2005 WL 3465349, at *2. Consistent with the goals of the statute, Plaintiff’s claims 

are premised on the idea that consumers should be protected from deceit and are entitled to have 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 11 of 42
KELL, ALTERMAN & RUNSTEIN, L.L.P. 

ATTORNEYS AT LAW

520 SW YAMHILL, SUITE 600 

PORTLAND, OR 97204 

TELEPHONE (503) 222-3531 

FACSIMILE (503) 227-2980 

Response to ORS 31.150 Special Motion to Strike Page 5

their posted reviews freely expressed without suppression or manipulated by Defendants because 

Plaintiff has chosen not to pay Defendants’ requested fee. Defendants’ conduct has not been “in 

furtherance of” the constitutional right of free speech, as they contend. To the contrary, 

Defendants’ conduct has inhibited free speech rights.

2. Defendants’ motion should be denied because plaintiff has presented prima 

facie evidence for its claims. 

To the extent Defendants meet their burden, Plaintiff needs only present substantial 

evidence to support a prima facie claim. Young v. Davis, 259 Or. App. 497, 508 (2013) (“the 

statutory text indicates that the presentation of substantial evidence to support a prima facie case 

is, in and of itself, sufficient to establish a probability that the plaintiff will prevail”). As this 

Court has stated, “the fact that the defendant may present substantial evidence to the contrary is 

irrelevant to determining whether the plaintiff has met his burden” and the court is required to 

interpret the parties’ respective evidentiary proffers in the light most favorable to” the nonmoving party. Schwern v. Plunkett, 2014 U.S. Dist. LEXIS 92310, *7 (D. Or. Apr. 22, 2014) 

(Papak, J.). “Only claims that entirely lack merit under that forgiving standard are to be stricken 

at the second step of the two-step process.” Id. at *27-28. 

As the Oregon Court of Appeals has stated, this “low bar befits the pretrial nature of a 

special motion to strike under ORS 31.150; the goal, similar to that of summary judgment, is to 

weed out meritless claims meant to harass or intimidate—not to require that a plaintiff prove its 

case before being allowed to proceed further.” Young, 259 Or. App. at 508. Even if the Court 

finds that Plaintiff’s claims are subject to Oregon’s anti-SLAPP statutes and do arise out of a 

protected activity, Consumer Cellular has presented prima facie evidence for its claims. 

/// 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 12 of 42
KELL, ALTERMAN & RUNSTEIN, L.L.P. 

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TELEPHONE (503) 222-3531 

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Response to ORS 31.150 Special Motion to Strike Page 6

a. Plaintiff has presented substantial evidence to support a prima facie 

claim for violations of the Unlawful Trade Practices Act. 

The UTPA is construed broadly to protect consumers: “The purpose of UTPA is to 

protect consumers from certain acts.” Hinds v. Paul's Auto Werkstatt, Inc., 107 Or. App. 63, 67 

(1991) (transaction for purchase and sale of motor vehicle) quoting Investigators, Inc. v. Harvey, 

53 Or App 586, 592, 633 P2d 6 (1981) (dentist was subject to suit under the UTPA because he 

was a person offering goods or services for personal and family use to the people of Oregon). 

“[T]he legislative history of the Oregon Unlawful Trade Practices Act supports the view that it is 

to be interpreted liberally as a protection to consumers.” Denson v. Ron Tonkin Gran Turismo, 

Inc., 279 Or. 85, 90 n.4 (1977)). Consumer Cellular’s claims in this action fall squarely within 

the act’s purpose as a consumer protection statute that must be construed as broadly as possible 

to protect consumers. 

ORS § 646.638 provides a cause of action as follows: 

“[A] person that suffers an ascertainable loss of money or property, 

real or personal, as a result of another person's willful use or 

employment of a method, act or practice declared unlawful under 

ORS 646.608, may bring an individual action in an appropriate 

court to recover actual damages or statutory damages of $200, 

whichever is greater. The court or the jury may award punitive 

damages and the court may provide any equitable relief the court 

considers necessary or proper.” 

ORS § 646.638. To state a claim under ORS § 646.638, a plaintiff must show an “ascertainable 

loss of money or property” caused by another party’s misconduct as specified in ORS § 646.608. 

For the following reasons, the claim is proper: 

First, Consumer Cellular is a proper plaintiff under the UTPA. The definition of a 

“person” under ORS § 646.605(4) authorized to bring a UTPA claim includes “corporations, 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 13 of 42
KELL, ALTERMAN & RUNSTEIN, L.L.P. 

ATTORNEYS AT LAW

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TELEPHONE (503) 222-3531 

FACSIMILE (503) 227-2980 

Response to ORS 31.150 Special Motion to Strike Page 7

trusts, partnerships, incorporated or unincorporated associations and any other legal entity.”1

ORS § 646.605(4). “These statutes [ORS § 646.605(4) and ORS § 646.638] clearly contemplate 

that a corporation may bring a private action against another corporation.” Goodyear Tire & 

Rubber Co. v. Tualatin Tire & Auto, 129 Or. App. 206, 217 (1994) reversed on other grounds by 

Goodyear Tire & Rubber Co. v. Tualatin Tire & Auto, 322 Or. 406, 408 (1995). ORS § 

646.608(1)(h) expressly references disparagement of the “business of a customer or another” by 

use of “false or misleading representations of fact.” Consumer Matter clearly qualifies as a 

plaintiff under the statute’s plain language and purpose.2

Second, both Consumer Cellular and Consumer Affair’s goods and services constitute 

“real estate, goods, or services” as contemplated by the statute. “Real estate, goods, or services” 

are defined in ORS § 646.605(6)(a) as “those that are or may be obtained primarily for personal, 

family, or household purposes... and includes... franchises, distributorships and other similar 

business opportunities....” ORS § 646.605(6)(a) (emphasis added). ConsumerAffairs provides 

consumer services in the form of web-based consumer news, product information and reviews to 

likely buyers of certain consumer products. (AC ¶ 3). Consumer Cellular’s cell phone services 

 

1

 “Most states that permit business claims under their UDTPAs do so by providing that suit can 

be brought by ‘any person,’ and then defining the word ‘person’ to include corporations. Even 

though the rationale for permitting business claims under UDTPAs would seem to fit more 

closely with smaller corporations that have limited bargaining power, corporations of any size 

can bring suit under UDTPAs.” See Gilleran, Michael C., The Rise of Unfair and Deceptive 

Trade Practice Act Claims, Oct. 17, 2011. 

http://apps.americanbar.org/litigation/committees/businesstorts/articles/fall2011-unfairdeceptive-trade-practice-act-claims.html 

2

 In addition to being a “person” as defined under ORS § 646.605(4), Consumer Cellular is 

arguably itself a consumer of ConsumerAffairs products, having visited the website on numerous 

occasions and thereby producing ad revenue for ConsumerAffairs.com. ConsumerAffairs also 

targeted Consumer Cellular aggressively with respect to its “Accredited Member” program. 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 14 of 42
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are primarily offered to consumers for personal, family or household use with a focus on 

providing no-contract, affordable pricing for consumers over 50. (AC ¶ 2). Both 

ConsumerAffairs and Consumer Cellular therefore conduct consumer transactions concerning 

“real estate, goods, or services” as defined in ORS § 646.605(6)(a).3 

Third, ConsumerAffairs’ manipulation of user-generated reviews, misrepresentations of 

impartiality, and extortionate conduct regarding Consumer Cellular’s services satisfy the 

requirements of sections (1)(b), (1)(e), and (1)(h) of ORS § 646.608, which states: 

“(1) A person engages in an unlawful practice if in the course of 

the person’s business, vocation or occupation the person does any 

of the following: 

*** 

(b) causes likelihood of confusion or of misunderstanding as to the 

source, sponsorship, approval, or certification of real estate, goods 

or services; 

*** 

(e) represents that real estate, goods or services have...approval, 

characteristics,...uses, benefits, quantities or qualities that the real 

estate, goods or services do not have....; 

*** 

(h) disparages the real estate, goods, services, property or business 

of a customer or another by false or misleading representations of 

fact.” 

Applying the facts to this law, it is clear that ConsumerAffairs.com’s manipulative, 

deliberate suppression of positive user-generated reviews of Consumer Cellular’s goods and 

services, combined with its false representations of impartiality and omissions of material fact 

(1) has caused confusion or misunderstanding as to the “source, sponsorship, approval, or 

certification” of Consumer Cellular’s products as contemplated by ORS § 646.608(1)(b); (2) 

constitute “deceptive representations” regarding Consumer Cellular’s goods and services as 

 

3

 The term “consumer” is not defined among the “definitions” offered in ORS § 646.605. 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 15 of 42
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contemplated by ORS § 646.608(1)(d); (3) constitute a representation that Consumer Cellulars’ 

goods and services “have sponsorship, approval, characteristics... or qualities” that they do not 

have, or a “sponsorship, approval, status, qualification [or] affiliation” that they do not have, in 

each case as contemplated by ORS § 646.608(1)(e); and (4) disparaged goods and services 

provided by Consumer Cellular “by false or misleading representations of fact” as contemplated 

by ORS § 646.608(1)(h). Consumer Cellular is therefore entitled to the greater of statutory 

damages of $200 or its actual losses, in addition to punitive damages and “any equitable relief 

the court considers necessary or proper.” ORS § 646.638. 

Finally, Consumer Cellular has suffered “ascertainable losses” as a result of Consumer 

Affair’s intentional manipulation and deceit of consumers. (AC ¶ 24). The resulting harm from 

Consumer Affair’s deliberate deception of consumers is shown by Consumer Affair’s own 

representations: 

“[Consumer Affair’s presents] an opportunity for the brand to 

repair a currently negative sentiment in organic search for 

searchings on both your brand name and for reviews on the 

brand... The page gets enough views in a month to pay for the 

program itself and then some with even a low conversion to sales 

rate of 1% (see [web traffic statistics]. 

(AC ¶ 12). 

Consumer Cellular’s claims are consistent with the intent of the UTPA. Consumer 

Affair’s business model deceives consumers into believing they are reading unbiased and 

independent content and it capitalizes on that deceit by “allowing” companies like Consumer 

Cellular to pay a monthly fee to repair the damage that ConsumerAffairs.com has itself created. 

Oregon courts have not yet applied Oregon’s UTPA to purely commercial transactions between 

businesses in which no consumers were deceived or harmed, where neither party provided any 

goods or services to consumers, or where the plaintiff is a business competitor and not a 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 16 of 42
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consumer of the defendant business’s goods or services. But the cases cited by Defendants are 

distinguishable with respect to Consumer Cellular’s claims against ConsumerAffairs. Here both 

Consumer Cellular and ConsumerAffairs provide goods and services to consumers as defined by 

ORS 646.605(6)(a). And here Consumer Affair’s misrepresentations are directed to consumers 

and intended to deceive the consuming public – as distinguishable from cases in which a 

commercial plaintiff alleges misrepresentations and unfair practices between business entities 

only, with no allegation of consumer confusion or deceit. Consumer Cellular has established its 

prima face case with respect UTPA claims and the motion to strike should be denied. 

b. Plaintiff has presented prima facie evidence to support the claim for 

intentional interference with prospective economic relations. 

To state a claim for intentional interference with prospective economic advantage, a 

plaintiff must allege: "(1) the existence of a professional or business relationship (which could 

include, e.g., a contract or a prospective economic advantage), (2) intentional interference with 

that relationship, (3) by a third party, (4) accomplished through improper means or for an 

improper purpose, (5) a causal effect between the interference and damage to the economic 

relationship, and (6) damages." Douglas Med. Ctr. LLC v. Mercy Med. Ctr., 203 Or. App. 619, 

630 (2006) quoting McGanty v. Staudenraus, 321 Ore. 532, 535, 901 P.2d 841 

(1995). "Improper means" must be "independently wrongful by reason of statutory or common 

law, and includes violence, threats, intimidation, deceit, misrepresentation, bribery, unfounded 

litigation, defamation and disparaging falsehood." Douglas Med. Ctr. LLC v. Mercy Med. Ctr., 

203 Or. App. 619, 634 (2006). With respect to these statutory and common law precepts, "it is 

not necessary to prove all the elements of liability for another tort if those elements that pertain 

to the defendant's conduct are present. For instance, fraudulent misrepresentations made to a 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 17 of 42
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third party are improper means of interference with plaintiff's contractual relations whether or 

not the third party can show reliance injurious to himself." Id. An "improper purpose" or 

improper motive includes any act to injure the plaintiff without any other legitimate basis for the 

act. Straube v. Larson, 287 Or. 357, 362 (1979). 

Under Oregon law, evidence of prospective economic advantage or business relationship 

is sufficient to sustain this claim, and allegations of the existence of a contract or even an offer to 

contract with a third party are not necessary. See Allen v. Hall, 328 Or. 276, 281 (1999); Ron 

Tonkin Gran Turismo v. Wakehouse Motors, 46 Or App 199, 611 P2d 658, rev. denied, 289 Or 

373 (1980) (interference with “tentative agreement” or “prospective contract” sufficient to 

sustain claim, unless interference was within fair competition privilege); Luisi v. Bank of 

Commerce, 252 Or 271, 449 P2d 441 (1969)(“[A] third-party’s interference may be actionable 

“even though the arrangement interfered with does not rise to the dignity of a contract.”). 

Here, Consumer Cellular’s online sales metrics and ConsumerAffairs’ own 

representations and data confirm that Consumer Cellular has a “reasonable probability of a 

business opportunity” with between 1.69% - 2.32% of consumers specifically seeking to make 

contact with Consumer Cellular. (AC ¶ 9). ConsumerAffairs acknowledged that Consumer 

Cellular’s treatment on the ConsumerAffairs.com website was steering not less than “$7,200 a 

month in customer lifetime revenue” away from Consumer Cellular. (AC ¶ 9). This estimate of 

harm is not speculative; it is based on trackable statistics and verifiable sales predictions—i.e. 

converting 18,000 unique inquiries into Consumer Cellular’s products into paying customers at a 

2% conversion rate. Id. And this harm was intentionally caused by ConsumerAffairs’ willful 

disparagement of Consumer Cellular. Complaint, ¶ 22(a)-(h). 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 18 of 42
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Indeed, ConsumerAffairs is acutely aware of Consumer Cellular’s business expectancy 

of converting between 1-3% of online inquiries by potential customers into actual sales.4 

Internet sales are a substantial component of Consumer Cellular’s business, and cell phone and 

cell phone service transactions are particularly likely to be conducted online. ConsumerAffairs’ 

presentation to Consumer Cellular specifically highlighted the fact that consumers tend to 

research online before buying, and rely on reviews like those offered by ConsumerAffairs. See 

(AC ¶ 9) (“87% of consumers research a company online before buying. 88% of consumers trust 

reviews.”). ConsumerAffairs acknowledged that Consumer Cellular’s treatment on the 

ConsumerAffairs.com website was steering not less than “$7,200 a month in customer lifetime 

revenue” away from Consumer Cellular. Id. And this estimate of harm is not speculative, but 

rather reasonably based on trackable statistics and verifiable sales metrics—i.e. converting 

18,000 unique inquiries into Consumer Cellular’s products into paying customers at a 2% 

conversion rate. Id. But in reality, the damage caused by Consumer Affair’s conduct is much 

higher: Consumer Cellular’s own internet sales metrics show conversion rates of 1.69% - 2.32%, 

and unique views sales losses caused by Consumer Affair’s deliberate interference with 

Consumer Cellular’s prospective customers in the amount of $5,230,072.00. (AC ¶ 24(a)). 

Consumer Cellular’s intentional interference and improper purpose have been 

exhaustively pleaded, and more than substantiate a prima facie case for intentional interference 

with prospective economic relations: 

 

4

 Given the undisputed communications from ConsumerAffairs to Consumer Cellular, 

Defendants’ assertion that “plaintiff has not—and cannot—allege the ConsumerAffairs knew of 

the existence of any prospective business relationship” is without merit. See Motion to Strike, p. 

24. 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 19 of 42
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 “Only review pages of non-paying members contain a superimposed screen 

prompt on every page saying ‘Not Impressed With [brand]? Find a company you can trust.’” Id. 

 Deliberate suppression of Consumer Cellular’s “Star Rating” in an effort to drive 

away customers and coerce Consumer Cellular into becoming an “Accredited Member.” (AC ¶ 

13). 

 “Defendants have for over a year intentionally almost entirely screened positive 

Consumer Cellular reviews from posting with the limited exception of the time when Consumer 

Cellular was talking with ConsumerAffairs about a possible deal.” (AC ¶ 16). 

 Refusing to post or deleting positive online reviews, including Joe Monahan’s 

2014 review, in violation of ConsumerAffair’s representation to customers that they are an 

independent and impartial “consumer news, information and [consumer advocacy” organization, 

and that they do not remove consumer reviews. (AC ¶21). 

 Deceitful and improper manipulation of the review process and satisfaction rating 

system to favor Accredited Members and disparage companies that refuse to pay Consumer 

Affair’s fees. (AC ¶¶ 4, 22-23). 

ConsumerAffairs cites three district court cases to support its claim that Consumer 

Cellular lacked a sufficient business expectancy with consumers seeking information about 

Consumer Cellular’s products. These cases either do not conflict with a finding that Consumer 

Cellular had a reasonable probability of a business opportunity with consumer searching for its 

brand online, or are factually distinguishable. First, in LaHodny v. 48 Hours, et al., No. 6:13–

cv–02102–TC, 2015 WL 1401676, at *5 (D. Or. Mar. 24, 2015), the court struck the intentional 

interference claim where the defendant was a news organization publishing information about a 

murder. The court found “there [was] no allegation that defendants knew of any current or 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 20 of 42
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prospective business relations. Here, however, ConsumerAffairs has deliberately sought to 

insinuate itself into the relationship between Consumer Cellular and customers specifically 

seeking information about Consumer Cellular’s products. In FLIR Systems, Inc. v. Sierra Media, 

Inc., No. CV–10–971–HU, 2011 WL 1832806 (D. Or. May 10, 2011), the plaintiff sued a 

competitor for making a promotional video that portrayed plaintiff’s products in a poor light. 

The court stated that the intentional interference doctrine “does not extend the first element of a 

claim for intentional interference to a relationship that might happen with just anyone,” and 

found that a competitor’s advertisement did not tortuously interfere with a protected business 

expectancy with “a potential customer who has had no contact with the plaintiff... purchase a 

competing product rather than plaintiff's product.” Id., *17, 19. In contrast, ConsumerAffairs is 

not a competitor of Consumer Cellular producing advertisements that favor its own products—

rather, ConsumerAffairs is deliberately drawing customers who are specifically searching for 

Consumer Cellular’s products online for the purpose of misleading them about those services. 

 Finally, in Evans v. Sirius Computer Solutions, Inc., No. 3:12–CV–46–AA, 2012 WL 

1557294, at *3 (D. Or. May 1, 2012), the court denied a defendant’s motion to dismiss plaintiff’s 

intentional interference claim and found sufficient allegations of “future agreements” with 

plaintiff’s customers. Plaintiff complained that his former employer, a direct competitor, was 

contacting Plaintiff’s clients and discouraging new clients. The court reasoned that while a 

“mere possibility a business might buy a product in the future is not enough,” where a plaintiff 

alleges that it “had a business relationship with ‘potential customers’ prior to the action that 

allegedly interferes,” such pleading is sufficient. Id. at 8-9. Here, Consumer Cellular alleges 

that its potential customers have searched for Consumer Cellular’s products online, and that 

those customers have been intercepted by Consumer Affair’s false and misleading “consumer 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 21 of 42
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news” website. The online consumer’s specific interest in Consumer Cellular therefore precedes 

ConsumerAffairs interference, and Consumer Cellular’s pleading comports with the doctrine of 

this case to the extent it applies. 

By its own admission, ConsumerAffairs has deliberately, intentionally interfered with 

Consumer Cellular’s business relationships with its prospective customers using improper means 

and for an improper purpose. The basis for the calculation of damages has been essentially 

asserted by ConsumerAffairs itself as it tried to extort Consumer Cellular. Abundant evidence of 

each element of this claim is present and the Motion to Strike should be denied.

c. Consumer Cellular’s RICO claim is not subject to the anti-SLAPP 

motion, but for the record the claim is well pled. 

Any person who has been “injured in his business or property by reason of” conduct 

constituting a RICO violation may assert a RICO claim under 18 U.S.C. § 1964(c). Plaintiffs 

claim RICO violations pursuant to 18 U.S.C. §§ 1962 (c) and (d). As required, Plaintiff has pled 

facts establishing the essential elements of a RICO claim, which are (1) conduct (2) of an 

enterprise (3) through a pattern of (4) racketeering activity. Sanford v. MemberWorks, Inc., 625 

F.3d 550, 557 (9th Cir. 2010). The RICO statute defines an "enterprise" as "any individual, 

partnership, corporation, association, or other legal entity, and any union or group of individuals 

associated in fact although not a legal entity." 18 U.S.C § 1961(4) . 

Consumer Cellular has sufficiently pled multiple acts of wire fraud in addition to 

attempted extortion under Oregon law. Defendants do not per se contest that “racketeering 

activity" as defined in RICO includes wire fraud and extortion under Oregon law. 

(1) Consumer Cellular has sufficiently pled multiple acts of wire 

fraud against each Defendant. 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 22 of 42
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The wire fraud statute prohibits the use of the wires "for the purpose of executing" a 

"scheme or artifice to defraud" including by means of false or fraudulent pretenses or 

representations 18 U.S.C. § 1343. A "scheme or artifice to defraud" is a plan to deprive a person 

of something of value by trick, deceit, chicane or overreaching. Bridge v. Phoenix Bond & 

Indem. Co., 553 U.S. 639, 661 (2008). The scheme may involve any affirmative misstatements 

or half-truths involving omitted or undisclosed facts. United States v. Woods, 335 F.3d 993, 997-

999 (9th Cir.); cert. denied, 540 U.S. 1025 (2003). Even where statements that are part of the 

scheme are not literally false the statements as a whole together with half-truths involving nondisclosures as well as “alternative routes” such as actions involving “a scheme or artifice to 

defraud which may or may not involve and specific misstatements.” Id. 

[T]he deception need not be premised upon verbalized words alone. 

The arrangement of the words, or the circumstances in which they are 

used may convey the false and deceptive appearance. *** Put another 

way, "[t]he fraudulent nature of the 'scheme or artifice to defraud' is 

measured by a non-technical standard. Thus, schemes are condemned 

which are contrary to public policy or which fail to measure up to the 

reflection of moral uprightness, of fundamental honesty, fair play and 

right dealing in the general and business life of members of society." 

Id., at 998 (citations omitted). 

Consumer Cellular has met the pleading requirements of Rule 9(b) for wire fraud by alleging 

in detail the times, places and nature of the multiple components of the Defendants’ attempted 

extortion and related ongoing and open-ended web of deception of half-truths and non-disclosures of 

online consumers by the self-described unbiased consumer advocacy organization reviewing 

Consumer Cellular and its competitors. (AC ). The mutual involvement of ConsumerAffairs.com 

and Consumers United is alleged (AC ), along with the position of control exercised by Carman, 

the self-described architect of the business model that amounts to a scheme of internet online 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 23 of 42
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deception of consumers looking at Consumer Cellular and of attempted extortion (AC ). Carman is 

the president, and holds all official offices of ConsumerAffairs.com and is the manager of 

Consumers United (AC ). As held by the Ninth Circuit in Wool v. Tandem:

[W]here, as here, the corporate officers are a narrowly defined 

group charged with the day-to-day operations of a public 

corporation, it is reasonable to presume that these officers had the 

power to control or influence the particular transactions giving rise 

to the securities violation. Consequently, it is sufficient if Wool 

informed the individual defendants "who they are alleged to 

control and what acts or status indicate such control." *** 

Moreover, in cases of corporate fraud where the false or 

misleading information is conveyed in prospectuses, registration 

statements, annual reports, press releases, or other "grouppublished information," it is reasonable to presume that these are 

the collective actions of the corporate officers. See Bruns, 583 F. 

Supp. at 1052; Zatkin, 551 F. Supp. at 42. Under such 

circumstances, a plaintiff alleges culpable participation under 

section 20(a) by pleading the misrepresentations with particularity 

and where possible with respect to the individual 

defendants. Cf. Bruns, 583 F. Supp. at 1052; Zatkin, 551 F. Supp. 

at 42. 

818 F.2d 1433 (9th Cir. 1987). 

It is particularly reasonable to presume that where the scheme of deception involves 

“group published information” it is the collective action of the officers. Id. at 1440. Under Rule 

9(b), specific intent may be inferred from the circumstances. Further details of the inner 

machinations of the Defendants concerning their scheme of deception and extortion are in their 

sole possession. “In such cases, the particularity requirement may be satisfied if the allegations 

are accompanied by a statement of the facts upon which the belief is founded.” Id. 

Defendants incorrectly assert that, to allege a RICO claim based on predicate acts of wire 

fraud, Plaintiffs’ must allege that the Defendants made the false statements to or intended to 

defraud or deceive Consumer Cellular, rather than the deceit of online consumers reviewing 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 24 of 42
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Consumer Cellular, citing Sanville v. Bank of American Nat. Trust Savings Ass’n, 18 Fed. Appx. 

500, 501 (9th Cir. 2001). Seven years after Sanville, the United States Supreme Court, in Bridge 

v. Phoenix Bond & Indem. Co., 553 U.S. 639, 661 (2008), held that in RICO claims based on a 

scheme to defraud (e.g., mail fraud in that case) first party reliance is not an element of the RICO 

claim. Affirming the Seventh Circuit’s reversal of the trial court’s dismissal of a RICO claim for 

competitive injury by bidders for county tax liens against their competitors who allegedly made 

misrepresentations to Cook County which were not relied on by the plaintiff bidders, the Court 

stated: 

Whatever the merits of petitioners' arguments as a policy matter, 

we are not at liberty to rewrite RICO to reflect their—or our—

views of good policy. We have repeatedly refused to adopt 

narrowing constructions of RICO in order to make it conform to a 

preconceived notion of what Congress intended to proscribe. ***

We see no reason to change course here. RICO's text provides no 

basis for imposing a first-party reliance requirement. If the 

absence of such a requirement leads to the undue proliferation of 

RICO suits, the “correction must lie with Congress.” *** “It is not 

for the judiciary to eliminate the private action in situations where 

Congress has provided it." *** For the foregoing reasons we hold 

that a plaintiff asserting a RICO claim predicated on mail fraud 

need not show, either as an element of its claim or as a prerequisite 

to establishing proximate causation, that it relied on the defendant's 

alleged misrepresentations. 

Id. at 660-661 (citations omitted). 

See also, Newcal Indus. V. Ikon Office Solution, 513 F.3d 1038 (9th Cir. 2008), cert. 

denied 557 U.S. 903 (2009), where the Ninth Circuit reversed the trial court’s dismissal of a 

RICO claim by plaintiff lessors of copier equipment against their competitor IKON based on an 

alleged scheme of mail and wire fraud where IKON allegedly misled its customers under 

contract (not IKON’s competitors bringing suit) by inducing the customers to sign amendments 

without disclosing the amendments would extend their contract term. Id. at 1043-44, 1054-1056. 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 25 of 42
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IKON’s competitors claimed injury from the lost market share due to the extended contracts and 

from inflated prices to buy out the contracts. Id. at 1055. 

(2) Consumer has plead actionable extortion under ORS 

164.075. 

Under ORS 164.075, Consumer Cellular has pled that Defendants’ have used their 

scheme of wire fraud as a means of attempting to extort Consumer Cellular to pay Consumers 

Unified large fees to repair the intentional disparagement of Consumer Cellular with regard to 

online consumers considering Consumer Cellular. ORS 164.075 defines the crime of Theft by 

Extortion. Defendants’ sole opposition to this racketeering activity is based on the reasoning in 

Levitt v. Yelp! Inc., 765 F.3d 1123, 1132 (9th Cir. 2014). Levitt involved interpretation of 

extortion under a California law (Cal. Pen. Code § 518), a very similar to the Hobbs Act (18 

U.S.C.S § 1951(b)(2)). Id. However, the terms of ORS 164.075 are readily distinguishable from 

the California law. Therefore, the reasoning of the court in Levitt v. Yelp! Inc., 765 F.3d 1123, 

1132 (9th Cir. 2014) is inapplicable here. 

As stated in Levitt v. Yelp, “Like the Hobbs Act, California law states that "[e]xtortion is 

the obtaining of property from another, with his consent induced by a wrongful use of force or 

fear." See Cal Pen Code § 518 (“Extortion is the obtaining of property from another, with his 

consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force 

or fear, or under color of official right.”); 18 USC § 1951(b)(2) (“The term ‘extortion’ means the 

obtaining of property from another, with his consent, induced by wrongful use of actual or 

threatened force, violence, or fear, or under color of official right.”). 

In contrast, Oregon’s ORS 164.075 states that a person commits theft by extortion when, 

as alleged by Consumer Cellular, “the person compels or induces another to deliver property to 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 26 of 42
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the person or to a third person by instilling in the other a fear that, if the property is not so 

delivered, the actor or a third person will in the future” “cause damage to property,” “engage in 

other conduct constituting a crime,” or “expose a secret or publicize an asserted fact, whether 

true or false, tending to subject some person to hatred, contempt or ridicule.” 

ORS 164.005(5), which defines “property” as “any article, substance or thing of value, 

including, but not limited to, money, tangible and intangible personal property, real property, 

choses-in-action, evidence of debt or of contract.” This definition has been interpreted broadly, 

and includes “anything of value.” State v. Nyhuis, 251 Or. App. 768, 771 (2012). 

States with extortion statutes similar to Oregon’s have interpreted their statutes to include 

fear of economic or reputational harm. Like Oregon, extortion in Arizona may be based on a 

threat to “cause damage to property” or “cause anyone to part with any property.” A.R.S. § 13-

1804A(3),(8). Under this statute, where plaintiff alleged that defendant threatened to cause 

damage to plaintiff’s business in the form of refusal to process credit card transactions and 

demand for monthly “consulting” fees, the plaintiff had sufficiently pled theft by extortion as a 

predicate offense to RICO claim. Warfield v. Gardner, 346 F. Supp. 2d 1033, 1050 (D. Ariz. 

2004). Similarly, in New York, “It is well-settled law in this State that fear of economic loss or 

harm satisfies the ingredient of fear necessary to the crime.” People v. Dioguardi, 8 N.Y.2d 260, 

268 (1960). Under New York’s NY CLS Penal § 135.60, extortion includes a threat to “cause 

damage to property” or “perform any other act which would not in itself benefit the actor but 

which is calculated to harm another person...” NY CLE Penal § 135.60(2),(9). In Connecticut, 

the fear that defendant would impede plaintiff’s renovation and development plans for 

commercial property was sufficient to sustain crime of extortion under Conn. Gen. Stat. § 53a119(5). See Conn. Gen. Stat. § 53a-119(5)(B)(damage to property), (I) (“inflict any other harm”); 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 27 of 42
KELL, ALTERMAN & RUNSTEIN, L.L.P. 

ATTORNEYS AT LAW

520 SW YAMHILL, SUITE 600 

PORTLAND, OR 97204 

TELEPHONE (503) 222-3531 

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Response to ORS 31.150 Special Motion to Strike Page 21

State v. Perez, 147 Conn. App. 53, 64 (2013); See also McPhee Elec. Ltd., LLC v. Konover 

Constr. Corp., 2009 Conn. Super. LEXIS 3110, 2009 WL 4846555 (Conn. Super. Ct. Oct. 22, 

2009) (“[A] business should exercise due care in speech that may affect the economic well-being 

of a competitor [because there is] no significant public benefit in giving business rivals greater 

protection for . . . defamatory speech they use as an economic club to harm each other.") 

For these reasons, Consumer Cellular’s extortion claim under Oregon’s law should stand.

(3) Consumer Cellular has pled a pattern of racketeering activity. 

A "pattern" of racketeering activity also requires proof that the two or more racketeering 

predicates are related and "that they amount to or pose a threat of continued criminal 

activity." Evidence of multiple schemes is not required to show a threat of continued criminal 

activity, and proof of a single scheme can be sufficient so long as the predicate acts involved are 

not isolated or sporadic. H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S.229, 239-40 

(1989) (noting that Congress “had a fairly flexible concept in mind).” See also Turner v. Cook, 

362 F.3d 1219, 1229-130 (9th Cir. 2004), and Allwaste v. Hecht, 65 F.3d 1523, 1527-1530 

(1995). The pattern requirement of continuity may be satisfied where the RICO pattern is 

closed or where the racketeering activity has persisted over a substantial period of time, such as 

five or thirteen months, or where the racketeering activity is threatened, ongoing, or has become 

a regular way of doing business. Allwaste v. Hecht, 65 F.3d 1523, 1527-1530 (1995). The 

requirement of continuity is easily met in this case where, in addition to acts of extortion, the 

daily pattern of deceptive wire fraud causing mounting injury to Consumer Cellular has gone on 

for well over a year and continues unabated (AC ).

Defendants misread the cases they cite for their assertion that a RICO claim requires 

multiple victims. None of the cited cases so hold. The cited cases dealt with the question of 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 28 of 42
KELL, ALTERMAN & RUNSTEIN, L.L.P. 

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open-ended continuity in cases where there was a closed scheme of insufficient duration. It has 

long been well settled by the Supreme Court that criminal conduct is sufficiently related if it 

"embraces criminal acts that have the same or similar purposes, results, participants, victims, or 

methods of commission, or otherwise are interrelated by distinguishing characteristics and are 

not isolated events.” H. J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239-40 (1989). The 

question of multiple victims arises if there is only one act of racketeering activity or when the 

racketeering activity is over with regard to actions which have injured the defendant. In that 

event multiple victims may indicate that there is open-ended continuity. Here the web of 

deception of online consumers continues daily unabated. There is no question about whether 

there have been at least two acts of wire fraud and that the activity not only poses a threat of 

future harm but is a regular way of doing business for the Defendants. (AC ¶ ). 

(4) Consumer Cellular has adequately pled that each of the 

Defendants has participated in the management of the alleged 

alternative RICO enterprises. 

As Defendants acknowledge Reves v. Ernst & Young, 507 U.S. 170, 183 (1993), only 

requires that a RICO defendant have “some role” in the operation or management of a RICO 

enterprise. For the same reasons as described above with regard to the sufficiency of pleading 

wire fraud as to each corporate defendant and Carman under Rule 9(b), Consumer Cellular has 

sufficiently pled the participation in operation or management of a RICO enterprise.

(5) Consumer Cellular’s pleading satisfies RICO’s standing 

requirement under Bridge. 

Defendants incorrectly assert that Plaintiff lacks standing to allege a RICO claim because 

Plaintiff alleges business injury from Defendants’ deception of internet consumers seeking 

unbiased reviews. In Bridge, two years after Anza v. Ideal Steel Supply, 547 U.S. 451 (2006) 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 29 of 42
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(lack of connection between racketeering activity and injury), the unanimous Supreme Court 

held that proximate causation under RICO should be a flexible concept and that "a plaintiff 

asserting a RICO claim predicated on mail fraud need not show, either as an element of its claim 

or as a prerequisite to establishing proximate causation, that it relied on the defendant's alleged 

misrepresentations." Instead, there need only be "'some direct relation between the injury 

asserted and the injurious conduct alleged,'" i.e., causation. Bridge, 553 U.S. 654, 658 (causation 

shown where plaintiffs’ damages are “foreseeable and natural consequence” of RICO mail and 

wire fraud scheme). To the same effect, see Newcal, 513 F.3d at 1055-56 (direct competitive 

injury from fraud on third parties where third parties were not likely to vindicate the fraud). 

Here, the directness and foreseeability of the injury under Bridge is not in doubt. 

Plaintiff’s continuing injury to its business which is in excess of $5,000,000 is calculated based 

on the financial injury repeatedly targeted in ConsumerAffairs.com’s unsolicited 

communications with Consumer Cellular in the attempt to coerce Consumer Cellular into paying 

large fees to Consumers Unified to fix the disparaging impact of ConsumerAffairs.com 

manipulation review-related online content. (AC ).

d. Plaintiff has presented substantial evidence to support a prima facie 

claim for defamation. 

The elements of a prima facie claim of defamation are “(1) the making of a defamatory 

statement; (2) publication of the defamatory material; and (3) a resulting special harm, unless the 

statement is defamatory per se and therefore gives rise to presumptive special harm.” Neumann, 

261 Or. App. at 575, quoting National Union Fire Ins. Co. v. Starplex Corp., 220 Or. App. 560, 

584 (2008). There is evidence to support each of those elements here and Defendants’ motion 

should be denied. 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 30 of 42
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(1) Defendants’ statements were untrue and defamatory. 

The first element of Plaintiff’s prima facie claim is met because Defendants’ statements 

were defamatory. “A defamatory statement is a false statement that would subject the plaintiff to 

hatred, contempt or ridicule or tend to diminish the esteem, respect, goodwill or confidence in 

which the plaintiff is held or to excite adverse, derogatory or unpleasant feelings or opinions 

against the plaintiff.” Tubra v. Cooke, 233 Or. App. 339, 347 (2010), citing Farnsworth v. Hyde, 

266 Or. 236, 238 (1973). 

Plaintiff has presented substantial evidence to establish this element. There is no real 

question that, if a business is presented as receiving predominantly negative reviews, it would 

result in a diminishment of the “esteem, respect, goodwill, or confidence” in which it is held. 

The only question is whether Defendants’ presentation of consumer reviews of Plaintiff was 

false. Plaintiff has presented substantial evidence that it was. 

Even though nearly all of the relevant information is exclusively in the hands of 

Defendants, Plaintiff has presented sufficient evidence that Defendants’ presentation of the 

reviews of Plaintiff was false. First, one need only look at the difference between Defendants’ 

presentation of Plaintiff and (1) the reviews of Plaintiff on other consumer review websites, and 

(2) Defendants’ presentation of Plaintiff’s competitor, Jitterbug, which has chosen to pay 

Defendants’ demanded fee. 

With respect to the reviews of Plaintiff on other sites, they are generally very positive, 

with Plaintiff being the number one consumer-rated cellular phone provider with Consumer 

Reports. (AC ¶ 2). The overwhelmingly negative reviews of Plaintiff on Defendants’ website 

stand in sharp contrast to the reviews of Plaintiff everywhere else. That Defendants have used 

this negative rating as leverage to attempt to convince Plaintiff to pay a membership fee—

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 31 of 42
KELL, ALTERMAN & RUNSTEIN, L.L.P. 

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520 SW YAMHILL, SUITE 600 

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TELEPHONE (503) 222-3531 

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Response to ORS 31.150 Special Motion to Strike Page 25

combined with the fact that, under Defendants’ business scheme, Defendants have no services to 

offer to a company that enjoys positive reviews—indicates that Defendants took actions to 

artificially drive down Plaintiff’s overall ratings. 

Defendants’ presentation of Plaintiff’s competitor, Jitterbug, illustrates perfectly that 

Defendants’ business model is based on rewarding companies that pay to become members by 

ensuring that they are presented as being positively reviewed, and punishing those companies 

that refuse to pay to become members by ensuring that they are presented as being negatively 

reviewed. Prior to paying to become a member, Jitterbug had never received a positive review 

on the website. (AC ¶ 22(g)(i)). Immediately after paying the membership fee, however, 

Jitterbug began receiving predominantly positive reviews to the point that it now enjoys a nearly 

perfect overall rating on the website. Id. This is the polar opposite of how Plaintiff has been 

presented. Since making clear to Defendants’ that it would not pay the membership fee, 

Plaintiff’s reviews have gone steadily downhill to the point where it now has a one-star rating. 

Id., ¶ 19. 

This disparate treatment is also presented in more subtle ways. Whereas Jitterbug’s 

reviews are presented as “Reviews and Complaints,” Plaintiff’s reviews are presented as 

“Complaints and Reviews.” Id., ¶ 22(f). Defendants argue that there is no difference between 

the two phrasings, but the fact is that, if the two phrasings did not convey different messages, 

Defendants would not bother to use the distinctive phrases. Defendants use the different 

phrasings because they know that “Complaints and Reviews” indicates to the average reader that 

the business in question has primarily received complaints. One of the perks of becoming a 

paying member is that this is switched to “Reviews and Complaints” so that the reader is not 

given a negative impression at the outset. While more subtle, this practice also demonstrates that 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 32 of 42
KELL, ALTERMAN & RUNSTEIN, L.L.P. 

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520 SW YAMHILL, SUITE 600 

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TELEPHONE (503) 222-3531 

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Defendants artificially constructed a negative presentation of Plaintiff simply because it would 

not pay the membership fee. 

In addition to this comparative evidence, Plaintiff has also presented direct evidence that 

Defendants removed and refused to post positive reviews of Plaintiff. Id, ¶ 21. This is not based 

on speculative pleading, as Defendants claim, but is based on actual reports from customers who 

have told Plaintiff that they submitted positive reviews that were never posted. Id. 

Defendants have submitted a declaration admitting that they removed positive reviews of 

Plaintiff, but claiming that they were removed for legitimate reasons. Carman Decl., ¶ 9. 

However, it is improper for the Court to weigh the parties’ respective evidence in the context of 

an anti-SLAPP motion. Plaintiff’s only burden at this stage is to present evidence of a prima 

facie claim and “the fact that the defendant may present substantial evidence to the contrary 

is...irrelevant to determining whether the plaintiff has met his burden.” Schwern, 2014 U.S. 

Dist. LEXIS 92310, at *7. As a result, the Court should not even consider any contrary evidence 

submitted by Defendants when determining whether Plaintiff has met its burden. 

Further, the declaration submitted by Defendants (without any supporting evidence) only 

reinforces the fact that there are substantial questions of fact regarding Defendants methods for 

screening out and removing reviews. As discussed below, to the extent that the Court finds that 

Plaintiff has not presented substantial evidence of this element, leave should be given for 

Plaintiff to conduct discovery on this issue. 

Finally, Defendants also argue that Plaintiff’s defamation claim fails because it is based 

on statements of opinion. Defendants misunderstand the nature of Plaintiff’s claim and 

improperly conflate their own conduct with the reviews submitted by consumers. Defendants 

rely on a long line of cases holding that a consumer’s rating or evaluation of a business is 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 33 of 42
KELL, ALTERMAN & RUNSTEIN, L.L.P. 

ATTORNEYS AT LAW

520 SW YAMHILL, SUITE 600 

PORTLAND, OR 97204 

TELEPHONE (503) 222-3531 

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Response to ORS 31.150 Special Motion to Strike Page 27

inherently a statement of opinion. However, these cases are inapplicable here because Plaintiff’s 

claim is not based on any consumer review that was submitted to Defendants’ website. 

To the contrary, Plaintiff’s claim is based on Defendants’ deliberately misleading 

presentation of the consumer reviews that were submitted. Plaintiff’s claim is based on 

Defendants’ conduct in removing positive reviews and artificially driving down the overall rating 

of Plaintiff. While an ordinary visitor to the site would understand that the star rating 

represented the aggregated opinions of the consumers who had submitted reviews, he would also 

reasonably believe that it was the result of an unbiased process of compiling the ratings from 

each individual review. Any opinion of Defendants would never enter the equation. 

Simply put, Plaintiff’s claim is not based on any opinion expressed by Defendants; it is 

based on Defendants’ intentionally misleading communication of other consumer’s opinions. 

This presentation was not based on Defendants’ opinion of Plaintiff, but rather was based on 

Defendants’ business model of ensuring that companies who did not pay to become members are 

shown as being poorly reviewed. Because Plaintiff’s defamation claim is not based on any 

statement of opinion, Defendants’ argument should be rejected and the Court should find that 

Plaintiff has presented substantial evidence of the first element of a prima facie claim for 

defamation.

(2) Defendant published the defamatory material. 

There is no dispute that the second element of a prima facie claim is met because there is 

no question that Defendants’ defamatory misrepresentations were published on Defendants’ 

website and communicated to all of the site’s visitors. As a result, there is substantial evidence 

supporting the second element of Plaintiff’s prima facie claim. 

///

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 34 of 42
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520 SW YAMHILL, SUITE 600 

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TELEPHONE (503) 222-3531 

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Response to ORS 31.150 Special Motion to Strike Page 28

(3) The defamatory statements were defamatory per se and 

resulted in special harm to Plaintiff. 

Defendants also do not dispute that the third and final element is met. This is because it 

is well-settled that statements that attack a person’s professional capacity are defamatory per se

and there is no need to prove special damages. Affolter v. Baugh Constr. Or., 183 Or. App. 198, 

203 (2002). Further, even if special damages were required, Plaintiff can make that showing. 

Plaintiff has lost approximately 6,126 customers as a result of Defendants’ false and defamatory 

representations, equaling a total financial loss of approximately $5,230,072. Complaint, ¶ 24. 

This loss of earnings qualifies as special damages and satisfies the third element of Plaintiff’s 

prima facie claim. Nat’l Union Fire Ins. Co., 220 Or. App. at 586.

(4) It is improper for Defendants to raise the affirmative defense 

of immunity at this stage and, even if the Court were to 

consider it, immunity does not apply here. 

Defendants claim that, even if Plaintiff could establish a prima facie claim for 

defamation, Defendants would be immune from liability under Section 230 of the 

Communications Decency Act. Defendants’ Motion, at 22-23. However, such an argument is 

not properly made in the context of a motion to strike under ORS 31.150. Given the purpose of 

ORS 31.150 and its pretrial nature, a plaintiff seeking to overcome a motion brought under that 

statute must only present evidence “sufficient to meet the ‘low bar’ established by ORS 

31.150 ‘to weed out meritless claims meant to harass or intimidate’ a defendant.” Neumann, 261 

Or. App. at 575, quoting Young, 259 Or. App. at 508. Defendants seek to raise that bar by 

arguing that Plaintiff must also defeat any affirmative defenses that are asserted by Defendants. 

This argument is not supported by the law. Indeed, no Oregon court has ever granted a motion 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 35 of 42
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TELEPHONE (503) 222-3531 

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Response to ORS 31.150 Special Motion to Strike Page 29

brought under ORS 31.150 on the basis that an affirmative defense such as privilege or immunity 

applies. 

The only courts that have considered such an argument have expressed skepticism that 

the court could entertain such an argument at this stage. Neumann, 261 Or. App. at 580 n.8 

(stating that, while it did not matter because the defendant had not presented evidence that, as a 

matter of law, a privilege applied, the court would “save for another day the question of whether 

and to what extent ORS 31.150 authorizes parties to litigate affirmative defenses in the context 

of a special motion to strike”); Young, 259 Or. App. at 510 (overruling the trial court’s grant of 

an ORS 31.150 motion to strike because that court had improperly weighed the plaintiff’s 

allegations against the defenses asserted by the defendant “[r]ather than determine, simply, 

whether plaintiff had presented substantial evidence to support a prima facie case”). Because the 

affirmative defense of immunity was improperly raised by Defendants at this stage in the 

proceedings, this argument should not be considered by the Court. 

Even if the Court considered this argument, it would fail. Defendants again 

misunderstand the basis of Plaintiff’s claim and attempt to conflate Defendants’ actions with the 

reviews submitted by the website’s users. The immunity provision on which Defendants rely 

states, “No provider or user of an interactive computer service shall be treated as the publisher or 

speaker of any information provided by another information content provider.” 47 U.S.C. 

§ 230(c)(1). However, Plaintiff does not seek to hold Defendants liable for the content of any 

reviews that it posted; rather, Plaintiff seeks to hold Defendants liable for their deliberately 

misleading presentation and filtering of those reviews on the basis of Plaintiff’s refusal to pay a 

requested fee. 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 36 of 42
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TELEPHONE (503) 222-3531 

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Defendants further argue that the editorial functions that it performed in determining 

which reviews to post and how to categorize those reviews does not defeat immunity under 

Section 230. However, each of the cases on which Defendants rely for this argument only speak 

to “minor alterations.” See Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003) (stating that 

“something more substantial” than the minor alterations performed could defeat immunity); Fair 

Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1173 n.36 (9th Cir. 2008) 

(characterizing the defendant’s actions as “minor editing and selection”). 

These cases also distinguish between websites that acted “merely as a passive conduit” 

and websites that are “directly involved with developing” the offending content. 

Roommates.com, LLC, 521 F.3d at 1172; see also Batzel, 333 F.3d at 1031 (holding that Section 

230 immunity does not apply when the website plays a role in creating or developing the content 

in question). 

Whether or not Defendants can claim immunity under Section 230 depends directly on 

the extent to which it shaped the content on its website, i.e. whether it was “merely a passive 

conduit” or whether it was “directly involved with developing” the content. Plaintiff has alleged 

that Defendants’ filtering and editing of consumer reviews dramatically and substantially altered 

their content such that, while Plaintiff enjoyed relatively positive reviews on every other 

consumer review site, Plaintiff was presented as having received primarily negative reviews on 

Defendants’ website. While Defendants claim that its actions in removing postings and editing 

Plaintiff’s star rating were all taken for legitimate reasons, there are clear questions of fact as to 

whether this is actually the case. 

If the Court even considers the defense at this stage, Defendants must prove that it applies 

“as a matter of law.” Neumann, 261 Or. App. at 580 n.8. Defendants have not done so. They 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 37 of 42
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have simply submitted a single declaration without any additional evidence related to their role 

in shaping the content of their website. Questions of fact exist that can only be resolved through 

discovery. As a result, if the Court does consider the immunity defense, it should be rejected and 

Defendants’ Motion should be denied. 

D. Plaintiff’s claims against Defendant Carman are well-pled. 

Defendants have also moved to strike all claims against Defendant Carman. For all of the 

reasons discussed above, Defendants’ Motion should be denied. Defendants argue that the 

claims against Carman should be stricken because “plaintiff fails to set forth any facts sufficient 

to establish defendant Carman’s individual liability for any of the claims it asserts against him.” 

Defendant’s Motion, at 24. Defendants claim that, “after naming him as a defendant, and 

alleging ‘on information and belief’ that ‘Carman established a new business model when he 

acquired the business,’ plaintiff makes no further specific reference to Carman’s actions in its 

complaint.” Id. (internal citations omitted). 

That assertion is not true. Plaintiff has alleged and supported with evidence that t 

Carman is the sole Manager of Defendant Consumers Unified and the President, sole Director, 

Secretary and Treasurer of Defendant ConsumerAffairs.com. (AC ¶ 3). Additionally, Plaintiff 

has alleged, as supported by a Carman statement in an interview published by a Tulsa, Oklahoma 

newspaper that Carman “acquired” ConsumerAffairs.com in 2010. (AC ¶ 11). Also supported 

by Carman’s statements in that interview, Plaintiff alleges that Carman established a new 

business scheme when he acquired ConsumerAffairs.com, and that scheme was designed to try 

to convince brands included in its review pages to pay lucrative fees to become accredited 

members entitled to exclusive ConsumerAffairs ratings-related treatment and ratings image 

transformation services. (AC ¶ 11). That is the very scheme that underlies Plaintiff’s claims. 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 38 of 42
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Carman’s personal involvement in the tortious conduct against Plaintiff is sufficient to 

give rise to personal liability. Cortez v. Nacco Material Handling Group, Inc., 356 Or. 254, 272 

(2014) (citing to Restatement (Third) of Agency § 7.01 comment d for the holding that corporate 

officers are personally subject to liability when the officer “directs or participates” in tortious 

conduct). Defendant Carman’s role in shaping the extortionate policy to be followed by 

Defendant ConsumerAffairs.com’s employees is sufficient direction or participation to subject 

Defendant Carman to personal liability. 

Further, even under the heightened pleading standard of FRCP 9(b) that applies to 

Plaintiff’s RICO claim, Plaintiff has alleged sufficient facts to state a claim against Carman. 

While it is true that, “[u]nder most circumstances, the claimant also must attribute specific 

conduct to individual defendants...[t]his level of particularity...may be relaxed in cases of 

corporate fraud when the factual information is peculiarly within the corporation’s knowledge or 

control and inaccessible to the claimant until discovery has been completed.” Altamont Summit 

Apts. LLC v. Wolff Props. LLC, 2002 U.S. Dist. LEXIS 2761, at *14 (D. Or. Feb. 13, 2002). 

In this situation, a “pleading is sufficient under Rule 9(b) if it identifies the circumstances 

constituting fraud so that the defendant can prepare an adequate answer from the allegations.” 

Wool., 818 F.2d at 1439. Allegations based “on information and belief” satisfy the particularity 

requirement “if the allegations are accompanied by a statement of the facts upon which the belief 

is founded.” Id. As stated in the RICO section above, in cases of corporate fraud, particularly 

when “false or misleading information” is published by a corporation, it is “reasonable to 

presume” that the corporate officers are responsible for it. Id. at 1440. 

 “[T]here is no reason to protect corporate officers or employees who authorize, direct 

and participate in tortious conduct by their corporate principal. If the corporation commits a tort 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 39 of 42
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as a result of such intentional action on the part of its officers or employees, these agents are also 

responsible.” Wampler v. Palmerton, 250 Or. 65, 77 (1968). Carman’s motion to strike all 

allegations against him should be denied. 

E. Plaintiff should be allowed to conduct discovery if the court finds that it has not 

presented prima facie evidence. 

Oregon’s anti-SLAPP statute states that all discovery is to be stayed after the filing of a 

special motion to strike. ORS 31.152(2). However, the Ninth Circuit has ruled that such a 

provision directly conflicts with Rule 56(b). Metabolife Int’l v. Wornick, 264 F.3d 832, 846 (9th 

Cir. 2001) (refusing to enforce an identical provision of California’s anti-SLAPP statute). As a 

result, when an anti-SLAPP motion is brought in federal court, the non-moving party must be 

given an opportunity to conduct any discovery that is necessary to establish the prima facie 

elements of its claims. Id. 

If the Court finds that Plaintiff has not necessarily presented prima facie evidence for any 

claim, Plaintiff requests leave to conduct discovery to secure additional evidence that is in the 

hands of Defendants. 

//// 

//// 

//// 

//// 

//// 

//// 

//// 

//// 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 40 of 42
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Response to ORS 31.150 Special Motion to Strike Page 34

III. CONCLUSION 

For the reasons discussed herein, Defendants’ ORS 31.150 Special Motion to Strike 

should be denied. If the Court does grant any part of the motion, Plaintiff also requests leave to 

amend. 

DATED this 2nd day of November, 2015. 

s/ Robert B. Lowry 

THOMAS R. RASK, III 

OSB No. 934031 

ROBERT B. LOWRY 

OSB No. 852751 

503/222-3531 

Attorneys for Plaintiff 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 41 of 42
KELL, ALTERMAN & RUNSTEIN, L.L.P. 

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Error! No document variable supplied.

Response to ORS 31.150 Special Motion to Strike 

CERTIFICATE OF COMPLIANCE 

This brief complies with the applicable word-count limitation under LR 7-2(b) because it 

contains 10,045 words, including headings, footnotes, and quotations, but excluding the caption, 

table of contents, table of cases and authorities, signature block, exhibits, and any certificates of 

counsel. 

DATED this 2nd day of November, 2015. 

s/ Robert B. Lowry 

THOMAS R. RASK, III 

OSB No. 934031 

ROBERT B. LOWRY 

OSB No. 852751 

503/222-3531 

Attorneys for Plaintiff 

Case 3:15-cv-01908-PK Document 12 Filed 11/02/15 Page 42 of 42