Suing to Silence?
RadioShack turns its legal guns on a middle-class web site operator.
By Dan Malone
<TABLE cellSpacing=6 cellPadding=4 width=175 align=right><TBODY><TR><TD align=left>http://www.fwweekly.com/issues/2004-01-28/metropolis1-1.gif RadioShack's headquarters complex is going up along with the company's legal costs.
</TD></TR></TBODY></TABLE>Even as RadioShack's new headquarters rises from mounds of dirt on the northern edge of downtown Fort Worth, complaints about the company's overtime policies are turning into a mountain of their own.
More than 3,300 current or former RadioShack managers across the nation, including 310 from Texas, have "opted-in'' to a class action lawsuit alleging that the company required them to work long hours without overtime pay. That means almost half of the estimated 7,500 eligible workers have joined the suit -- an almost 50 percent sign-up rate that attorneys say they rarely achieve in such cases.
RadioShack, meanwhile, has refocused the aim of one of its own lawsuits, training its large-bore legal guns on the administrator of a website, RadioSha****cks.com, that was publicizing the class action claim.
Bradley D. Jones, the webmaster of RadioSha****cks.com, said the lawsuit has left him waging a serious David and Goliath battle over the issue of free speech on the internet.
"I'm just one little guy against a multi-million- or billion-dollar corporation,'' Jones said in a telephone interview from his business in London, Ky. "I want people to realize that I am a 44-year-old family man. I have a wife and two kids and was a RadioShack dealer for 17 years. ... I'm not some punk kid trying to run a protest site.''
The company's suit against Jones and the workers' class action suit against the company are inextricably intertwined. Shortly after a federal judge in Chicago tentatively approved the class action, RadioShack sued RadioSha****cks.com and two former employees who had posted information there that the company found objectionable. The site also includes links to a law firm handling the class action lawsuit, including one that allows a visitor to "click here to see if you qualify'' to join in the litigation.
Even for a large national retail chain like RadioShack, the stakes are substantial. The company has already paid out $30 million to settle one such claim, and an attorney working on the current class action said that suit could cost the company $100 million more. The class action complaint contends that RadioShack wrongly characterizes salespersons as managers in order to avoid having to pay them overtime -- a charge that the company has disputed.
Fort Worth Weekly first reported on the fight between the company and the pesky, irreverent web site in August 2003. The site mixes Beavis and Butthead-level humor (a cartoon character whizzing on the RadioShack logo), litigation news, and commentary posted anonymously by employees and consumers about the company. The chatter ranges from complaints about company policies to queries about whether employees have ever had sex in store bathrooms.
RadioShack's initial lawsuit against the web site was aimed at two former employees, people Jones calls "rogue users," whom the company claimed were posting objectionable and defamatory e-mails. Those two employees, who subsequently agreed to stop posting offensive material on the site, have since been dropped from the lawsuit. Jones, though, has replaced them as a defendant.
In its most recent filing, RadioShack claims that Jones breached a contract he signed to settle a lawsuit that he had previously filed against the company. Jones, who ran a RadioShack store in Kentucky, said he sued the company after it refused to renew his contract and then opened a nearby store that competed with his own.
In that settlement, Jones received $7,500, was released from a $5,000 debt to RadioShack, and agreed to drop all links to RadioSha****cks.com from his own web site -- an agreement that RadioShack says blocks him from operating the objectionable site. Nothing in that agreement, however, specifically addressed whether Jones could run -- as opposed to merely link to -- the sucks.com site.
Ryan Stephan, one of the class action attorneys, said RadioShack is "intent on having this site removed.''
"They are essentially taking the position that they will overwhelm this individual,'' Stephan said. "That's a tough thing for an individual to face when you have a corporation going after you and your personal assets. We believe the lawsuit is meritless. The question is, can you spend $100,000 to defend this?''
He also said there is no doubt that the site played a big role in connecting his law firm to potential class action clients. "Usually a very successful rate is [when] 10 to 20 percent'' of those eligible join a class action lawsuit, he said. "People are afraid of suing their employer and losing their job. In this case, we're almost at 50 percent.''
"I think they [RadioSha****cks.com] were very instrumental in our level of success," Stephan said. "The fact that this lawsuit [against the site] was filed two weeks after we were allowed to proceed ... is very telling.''
The Weekly wanted to ask RadioShack executives about their views on the growing number of plaintiffs in the class action lawsuit and why the company had refocused its lawsuit on Jones. But in an e-mail, company spokesman Charles Hodges said RadioShack's executives would remain silent "because the questions [are] related to pending litigation that we can't discuss at this time.''
In an interview last summer, however, senior vice president Mark Hill defended the company, saying it respected the free-speech rights of its workers and treated them in accordance with federal labor law. He said the company had no intention of shutting down the site.
Jones' lawyer, Kevin Vice of Dallas, said a 1996 federal telecommunications law protects message boards from the type of lawsuit filed by RadioShack. That law, according to Vice, was intended to shield web hosts, internet service providers, and others in the electronic ether by making it clear Congress didn't consider them to be traditional publishers vulnerable to libel lawsuits.
RadioShack has accused Jones of libel, breach of contract, and trademark violations. Jones said he has done nothing wrong. He took over running the site a couple of years ago from another former RadioShack worker and said he makes no money from it. "Not a penny,'' he said. "In fact the web site costs me money.'' He said his aim is to provide a forum where those who have issues with the company "can let off a little steam.''
The lawsuit, he said, imperils the free speech rights that Americans cherish. If RadioShack prevails, others are sure to follow their lead. "There are public message boards all over the internet,'' he said. "Where are you going to draw the line on that? Are you going to say public message boards can't exist? It's just like a wall outside an interstate [highway]. If somebody paints graffiti on it, are you going to blame the wall?'' Neither of the lawsuits has been scheduled for trial. But lawyers for the class action case are scheduled to be in Fort Worth next month to take depositions from company executives -- collecting yet more information in the case they're attempting to build against RadioShack.
<CENTER>You can reach Dan Malone at dan.malone@fwweekly.com (dan.malone@fwweekly.com). </CENTER>