Accuardi v. Fredericks

Filing 40

OPINION AND ORDER: Granting Amended Special Motion to Strike 10 . Signed on 3/4/14 by Magistrate Judge Janice M. Stewart. (ST)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

F. ANTONE ACCUARDI,
Plaintiff,
Case No. 3:13-cv-01825-ST
v.
OPINION AND ORDER
BRAD FREDERICKS,
Defendant.
STEWART, Magistrate Judge:
INTRODUCTION
Plaintiff, F. Antone Accuardi (“Accuardi”), an Oregon attorney, filed this action against
defendant, Brad Fredericks (“Fredericks”) and several unidentified Internet users, based on
statements made about Accuardi on Fredericks’s Blog, The Telecom Compliance News Press,
and other websites. The Blog is dedicated to informing the public about the illegal telemarketing
industry. Accuardi alleges that Fredericks posted false statements about Accuardi’s involvement
in illegal telemarketing schemes that cast him as a dishonest, serial violator of state and federal
law with questionable professional ethics. Based on those false statements, he alleges three
claims under Oregon law for placing him in a false light, intentionally inflicting emotional
distress, and intentionally interfering with economic relations.

1 – OPINION AND ORDER

Based on the filing of the First Amended Complaint (docket #38), which deleted the
unidentified Internet users, this court has jurisdiction pursuant to 28 USC § 1332 based on
complete diversity between the parties and an amount in controversy which exceeds $75,000.00.
All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this
case in accordance with FRCP 73 and 28 USC § 636(c) (docket #39).
Fredericks has filed an Amended Special Motion to Strike (docket #10) all claims
pursuant to Oregon’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, ORS
31.150 et seq. Although this motion was filed against the initial Complaint, this court deems it
also as filed against the First Amended Complaint. For the reasons that follow, Fredericks’s
motion is granted.
STANDARDS
“A SLAPP suit is one in which the plaintiff’s alleged injury results from petitioning or
free speech activities by a defendant that are protected by the federal or state constitutions.”
Vess v. Ciba-Geigy Corp. USA, 317 F3d 1097, 1109 (9th Cir 2003). In response, a defendant in
federal court may file a motion to strike under an applicable Anti-SLAPP statute. Vineyard v.
Soto, 10-CV-1481-SI, 2011 WL 5358659, at *2 (D Or Nov. 7, 2011); see also Thomas v. Fry’s
Elecs., Inc., 400 F3d 1206, 1206-07 (9th Cir 2005).
Oregon’s Anti-SLAPP provisions “permit a defendant who is sued over certain actions
taken in the public arena to have a questionable case dismissed at an early stage.” Staten v. Steel,
222 Or App 17, 27, 191 P3d 778, 786 (2008). Pursuant to ORS 31.150, a defendant filing a
special motion to strike against a claim:
has the initial burden of making a prima facie showing that the claim
against which the motion is made arises out of a statement, document or
conduct described in subsection (2) of this section. If the defendant meets
this burden, the burden shifts to the plaintiff in the action to establish that

2 – OPINION AND ORDER

there is a probability that the plaintiff will prevail on the claim by
presenting substantial evidence to support a prima facie case. If the
plaintiff meets this burden, the court shall deny the motion.
A special motion to strike is treated “as a motion to dismiss under Or. R. Civ. P. 21 A and
requires the court to enter a ‘judgment of dismissal without prejudice.’” Gardner v. Martino,
563 F3d 981, 986 (9th Cir 2009) (applying Oregon law).1
Analysis of a special motion to strike is a two-step process. “First, the defendant has the
initial burden to show that the challenged statement is within one of the categories of civil
actions described in [ORS] 31.150(2).” Gardner, 563 F3d at 986. “[T]he critical point is
whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s
right of petition or free speech.” Mann v. Quality Old Time Serv., Inc., 120 Cal App 4th 90, 102,
15 Cal Rptr 3d 215, 220 (2004) (referring to the California Anti-SLAPP statute).2 The required
showing may be made on the basis of the pleadings alone. Staten, 222 Or App at 31, 191 P3d at
788.
If the defendant meets the initial burden, then “the burden shifts to the plaintiff in the
action to establish that there is a probability that the plaintiff will prevail on the claim by
presenting substantial evidence to support a prima facie case.” ORS 31.150(3). In making this
determination, “the court shall consider pleadings and supporting and opposing affidavits stating
the facts upon which the liability or defense is based.” ORS 31.150(4). The court must deny the
motion “[i]f the plaintiff meets this burden.” ORS 31.150(3).
1

“Application of Oregon’s anti-SLAPP statute, which requires entry of a judgment of dismissal without prejudice,
does not create a conflict between the ORCP and the FRCP.” Gardner, 563 F3d at 991, citing United States ex rel.
Newsham v. Lockheed Missiles & Space Co., 190 F3d 963, 972-73 (9th Cir 1999). The Ninth Circuit recently upheld
Newsham under the Erie doctrine analysis articulated in Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559
US 393 (2010). Makaeff v. Trump Univ., LLC, 736 F3d 1180, 1181 (9th Cir 2013) (“California’s anti-SLAPP
statute, by creating a separate and additional theory upon which certain kinds of suits may be disposed of before
trial, supplements rather than conflicts with the Federal Rules.”).
2
Oregon’s Anti-SLAPP statute is modeled after the California statute. Gardner v. Martino, CV-05-769-HU, 2005
WL 3465349, at *3 (D Or Sept. 19, 2005).

3 – OPINION AND ORDER

The parties dispute whether Fredericks has the additional burden of showing that
Accuardi’s intent in bringing the action was to chill protected speech. Accuardi argues that his
claims survive an Anti-SLAPP motion because he did not intend to stifle Fredericks’s First
Amendment rights, but seeks only to remedy the harm suffered from allegedly malicious
conduct. However, “[t]he defendant need not show that the plaintiff’s suit was brought with the
intention to chill the defendant’s speech.” Vess, 317 F3d at 1110 (internal quotation and citation
omitted). Thus, Accuardi’s “intentions are ultimately beside the point.” Id.
DISCUSSION
I.

Fredericks’s Burden
A.

Public Issue

Fredericks argues that his statements fall into two of the four categories of civil actions
described in ORS 31.150(2):
(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.
Fredericks’s Blog clearly consists of statements made either “in a place open to the public
or a public forum” or “in furtherance of the exercise of . . . the constitutional right of free
speech.” Id. First, Accuardi admits Fredericks’s Blog is a public forum. Response (docket
#19), p. 7. Moreover, courts applying the similar California Anti-SLAPP statute have found the
Internet is accessible to anyone who chooses to visit the hosting website and “hardly could be
more public.” Wilbanks v. Wolk, 121 Cal App 4th 883, 895, 17 Cal Rptr 3d 497, 503 (2004).
Particularly, “[w]ebsite forum pages allowing users to read and post comments free of charge
constitute a public forum under the anti-SLAPP statute.” Higher Balance, LLC v. Quantum

4 – OPINION AND ORDER

Future Grp., Inc., CIV. 08-233-HA, 2008 WL 5281487, at *3 (D Or Dec. 18, 2008), citing
ComputerXpress, Inc. v. Jackson, 93 Cal App 4th 993, 1006, 113 Cal Rptr 2d 625, 638 (2001).
Second, “online speech stands on the same footing as other speech — there is ‘no basis for
qualifying the level of First Amendment scrutiny that should be applied’ to online speech.” In re
Anonymous Online Speakers, 661 F3d 1168, 1173 (9th Cir 2011), quoting Reno v. Am. Civil
Liberties Union, 521 US 844, 870 (1997). The Internet “provides relatively unlimited, low-cost
capacity for communication of all kinds” and through its use “any person with a phone line can
become a town crier with a voice that resonates farther than it could from any soapbox.” Reno,
521 US at 870.
However, to meet his burden under ORS 31.150(2)(c) or (d), Fredericks also must show
his statements were made “in connection with a public issue or an issue of public interest.” The
statute does not define the terms “public issue” and “public interest.” As a general rule, Oregon
federal courts broadly interpret the terms in state statutes. See, e.g., Higher Balance, 2008 WL
5281487, at *4; Gardner, 2005 WL 3465349, at *5.
Abuses within the telemarketing industry have garnered national attention and are
regulated by the Federal Trade Commission (“FTC”) and other federal agencies under the
Telephone Consumer Protection Act, 47 USC § 227 et seq, enacted to regulate “commercial
telemarketing solicitations” using “automatic telephone dialing systems.” 47 CFR
§ 64.1200(a)(2). Between January 1 and October 22, 2012, Americans filed more than 3 million
consumer complaints about violations of the National Do-Not-Call Registry, a clearinghouse
maintained by the FTC of households that do not wish to receive telemarketing calls. Fredericks
Decl. (docket #12), ¶ 7. In fact, Accuardi does not contest that the topic of illegal telemarketing

5 – OPINION AND ORDER

is an issue of public interest but argues that his alleged professional association with
telemarketing companies (whom and what he counsels) is not a matter of public concern.
Fredericks started his Blog in May 2012 out of frustration with receiving frequent
unsolicited, prerecorded telemarketing calls (“robocalls”), despite having his name on the
National Do-Not-Call Registry. Id, ¶ 3. The purpose of his Blog is “to disclose how illegal
telemarketing is accomplished, how the companies and people involved make their money, and
to encourage the public to report unsolicited telemarketing calls to regulatory agencies so that
they can be properly investigated.” Id. The Blog has received over 350 comments from Internet
readers and tens of thousands of “views.” Id, ¶ 5. The FTC granted Fredericks news media
status in connection with his requests for documents related to Pacific Telecom Communications
Group (“Pacific Telecom”). Id, ¶ 6 & Ex. 3.
Accuardi argues that the Blog is not about the telemarketing industry because it does not
mention a single telemarketing company but instead discusses a telephone company, consulting
firm, Calling Name (CNAM) company, enhanced service providers, and himself. Fredericks
responds that those entities – International Telephone, Pacific Telecom, Telephone Management
Corporation (“TMC”), and CallerId4U (collectively “Telemarketing Entities”) – are of public
interest because they facilitate an illegal scheme to enable others to conduct telemarketing calls
and share the CNAM revenue generated through those calls. Fredericks’s Decl., Ex. 1 (Blog),
pp. 110, 180. To that extent, the Blog clearly concerns the public interest.
Accuardi also argues that even if his clients were associated with the Telemarketing
Entities, his status as their attorney is not a topic of public interest because he has no control over
their decisions. He claims that the Blog exaggerates his involvement with these clients, as he
only represents them in legal matters. In support, he points to several pieces of evidence. First,

6 – OPINION AND ORDER

the state corporate filings for Pacific Telecom and TMC do not list him as an officer. Sexton
Decl. (docket #13), Exs. 1 & 4. Second, his father, Fred Accuardi, the president of Pacific
Telecom and principal shareholder of International Telephone, states that Accuardi “has never
owned directly or indirectly any interest” in and “has never been and is not currently employed
by” Pacific Telecom and “has never received compensation” from either company. Response
(docket # 19), Ex. 25 (Fred Accuardi Aff.), ¶¶ 3, 5, 6, 8-11. Third, a shareholder of CallerID4U,
Luis Martinez, states that he has never done business with Pacific Telecom and that Accuardi,
whom he has never met, has never owned, been employed by, or received compensation from
CallerID4U. Id, Ex. 27 (Martinez Decl.), ¶¶ 3-8. Fourth, on September 6, 2013, Tonya Hetzler,
Investigator for North Dakota’s Consumer Protection & Antitrust Division, whose affidavit
Fredericks references in his Blog, retracted her opinion that Accuardi was the “principal owner”
of International Telephone. Response, Ex. 5. Finally, Accuardi swore in an affidavit dated
April 8, 2013, and filed in a case in New York state court, that he was never “an officer, director,
shareholder, principal, agent, employee, member or manager of” Pacific Telecom or
International Telephone. Second Sexton Decl. (docket #29), Ex. 2, ¶ 5.
However, Fredericks points to other evidence that Accuardi is affiliated with the
Telemarketing Entities. Accuardi states in his own declaration, as confirmed by his father, that
although he received no compensation, he signed contracts as the Vice President and General
Legal Counsel of International Telephone. Motion (docket #18), Ex. 2 (Accuardi Decl.), ¶ i;
Fred Accuardi Aff., ¶ 10. In fact, International Telephone’s form revenue-sharing agreement
lists Accuardi as Vice President and General Counsel. Fredericks Decl., ¶ 15 & Ex. 6. He has
corresponded with governmental units and third parties regarding the Telemarketing Entities
without any indicia of his nonemployee affiliation and with the purported authority to act on

7 – OPINION AND ORDER

their behalf. Accuardi Decl., Exs. 2, 3, & 26. Finally, several pieces of evidence suggest joint
control of TMC, International Telephone, and Pacific Telecom: (1) for both TMC and
International Telephone, Accuardi uses the same email address ([e-mail])
(Fredericks Decl., Ex. 6, p. 3; Accuardi Decl., Ex. 2, p. 8); (2) the Sheriff’s office in Hernando
County, Florida, discovered that the domain for Pacific Telecom’s Internet website is registered
to TMC (Fredericks Decl., ¶ 16 & Ex. 7, p. 11); and (3) the United States headquarters of TMC
and International Telephone is also Accuardi’s legal office, located at 2331 SW 5th Avenue,
Portland, Oregon, 97201. Id, ¶ 12 & Ex. 5, p. 6; Accuardi Decl., Ex. 6.
Regardless of Accuardi’s role in management of the Telemarketing Entities, Accuardi’s
undisputed position as legal counsel for TMC, Pacific Telecom, and International Telephone
makes him a subject of public interest. Substantial assistance in violations of telemarketing laws
is a violation of Federal Telemarketing Sales Rule. 16 CFR § 310.3(b) (“It is a deceptive
telemarketing act or practice and a violation of this Rule for a person to provide substantial
assistance or support to any seller or telemarketer.”). Many states, including North Dakota, have
similar provisions. Tax documents show Accuardi received income as an attorney from
International Telephone in 2012 and TMC during the period of 2010-2011. Accuardi Decl.,
Ex. 6. Accuardi represented TMC in responding to a subpoena from the North Dakota Attorney
General’s office. Id, Ex. 2, p. 8 (“Please do not hesitate to call on us if we can be of any further
assistance in this matter. If you provide the number of the complainant [then] TMC can advise
its client to remove that person from its call list.”). The Attorney General’s Office also
addressed to Accuardi the notice of Pacific Telecom’s potential violation of North Dakota law
for assisting International Telephone in confirmed violations. Id, Ex. 3, p. 2. Any alleged
involvement of Accuardi that encourages illegal telemarketing practices is a public issue. Thus,

8 – OPINION AND ORDER

Fredericks’s Blog would potentially expose entities that are violating federal law as accomplices
to illegal telemarketing practices.
Finally, Accuardi relies on this court’s decision in Obsidian Fin. Grp., LLC v. Cox, CV11-57-HZ, 2011 WL 5999334, *6 (D Or Nov. 30, 2011). In that case, the defendant published
statements on the Internet that the plaintiff had committed tax fraud while administering assets as
a court-appointed trustee in the bankruptcy proceedings of a private corporation. The court
found that those statements were not a matter of public concern because they did not involve a
question for public discourse, but strictly related to the handling of a private company’s
bankruptcy affairs, citing Gertz v. Robert Welch, Inc., 418 US 323, 350 (1974). The focus of
Fredericks’s statements about Accuardi, unlike those about the plaintiff in Obsidian, is how
Accuardi’s involvement with the private company affects the public. Fredericks’s scrutiny is not
limited to the private management of the Telemarketing Entities, but questions how that
management resulted in alleged robo-calling to the citizens on the National Do Not Call Registry
and violations of federal and state law. More importantly, the Ninth Circuit disagreed with this
court’s conclusion in Obsidian that the allegations of tax fraud were not a public issue because
“[p]ublic allegations that someone is involved in crime generally are speech on a matter of public
concern.” Obsidian Fin. Grp., LLC v. Cox, 12-35238, 2014 WL 185376, at *5 (9th Cir Jan. 17,
2014). As explained above, Fredericks’s statements implying that Accuardi is violating the law
involve a matter of public concern. Thus, Fredericks has met his initial burden.
II.

Accuardi’s Burden
To survive the Anti-SLAPP motion, Accuardi must produce substantial evidence to

support his claims. “Because it goes beyond the pleadings to examine the evidence in support of
the plaintiff’s claims, a special motion to strike bears many of the characteristics of a motion for

9 – OPINION AND ORDER

summary judgment.” Staten, 222 Or App at 30, 191 P3d at 788. “That burden is potentially
much heavier than merely establishing the existence of a disputed issue of fact. In deciding
whether the plaintiff has met its burden, the trial court may need to weigh the evidence,
something that it cannot do on a motion for summary judgment.” Id (citation omitted). “Finally,
a judgment granting summary judgment as to all parties and all claims is a final judgment on the
merits, whereas a judgment of dismissal following the grant of a special motion to strike is
without prejudice to the filing of a new action.” Id.
A.

False Light (Count One)

Fredericks contends that the claim for placing Accuardi in a false light fails because his
statements were all expressions of opinion. “[A] statement of opinion relating to matters of
public concern which does not contain a provably false factual connotation will receive full
constitutional protection.” Milkovich v. Lorain Journal Co., 497 US 1, 20 (1990) (citation
omitted). Therefore, “statements of opinion are protected by the First Amendment unless they
‘imply a false assertion of fact.’” Standing Comm. on Discipline v. Yagman, 55 F3d 1430, 1438
(9th Cir 1995); see also Reesman v. Highfill, 327 Or 597, 606, 965 P2d 1030, 1035 (1998)
(applying to a defamation cause of action under Oregon law), citing Milkovich, 497 US at 20.
The same First Amendment defenses that apply to defamation claims apply to false light claims.
Gardner, 2005 WL 3465349, at * 8, citing Time, Inc. v. Hill, 385 US 374, 387-88 (1967),
Partington v. Bugliosi, 56 F3d 1147, 1160 (9th Cir 1995) (rejecting false light claims “for the
same reason that we rejected his defamation claims based on those statements: both statements
are protected by the First Amendment, regardless of the form of tort alleged”).
To determine whether Fredericks’s statements are expressions of opinion or imply a false
assertion of fact, a court must ask “whether a reasonable fact finder could conclude that

10 – OPINION AND ORDER

contested statement impl[ies] assertion of objective fact. If the answer is no, the claim is
foreclosed by the First Amendment.” Partington, 56 F3d at 1153 (internal quotation omitted)
(alteration in original).
To determine whether a statement implies a factual assertion, we examine
the totality of the circumstances in which it was made. First, we look at
the statement in its broad context, which includes the general tenor of the
entire work, the subject of the statements, the setting, and the format of the
work. Next we turn to the specific context and content of the statements,
analyzing the extent of figurative or hyperbolic language used and the
reasonable expectations of the audience in that particular situation.
Finally, we inquire whether the statement itself is sufficiently factual to be
susceptible of being proved true or false.
Underwager v. Channel 9 Austl., 69 F3d 361, 366 (9th Cir 1995) (citations omitted).
As to the broad context, the tenor of Fredericks’s Blog communicates that its content is
offered as opinion. “Where the language of the statement is cautiously phrased in terms of
apparency, the statement is less likely to be understood as a statement of fact rather than a
statement of opinion.” Info. Control Corp. v. Genesis One, 611 F2d 781, 784 (9th Cir 1980). In
bold, red type, the Blog apprises readers that it “is a journalistic endeavor . . . and is published to
provide consumers with news and commentary regarding the telemarketing industry. Every
effort is made to ensure the accuracy of the information presented here and all statements are
made in good faith with the belief that they are correct.” Blog, p. 195.3 Fredericks cites some of
the numerous examples of how he presented the content in “terms of apparency,” including: “In
my personal opinion, Pacific Telecom is clearly in violation of the Telemarketing Sales Rule.
What do you think?” (id, p. 37); “These facts are a clear indication that Pacific Telecom and its
leaders Steve Hamilton, F. Antone Accuardi and Fred Accuardi are likely in violation of a
number of laws, including 16 C.F.R. § 310.3(b)” (id, p. 115); and “It is plausible that Telephone

3

In the Blog filed with the court, this language appears only in the January 30, 2013 post. Now, however, this
language is the first entry on the Blog’s website.

11 – OPINION AND ORDER

Management Corporation connects telemarketers with Pacific Telecom. However, if both
companies share the same ‘General Legal Counsel,’ it would seem odd that Pacific Telecom has
absolutely no knowledge about the telemarketers who use their phone network.” Id, p. 32.
On the other hand, Accuardi points to the Blog’s repeated links to Oregon Department of
Justice (“DOJ”) and the Oregon State Bar (“OSB”) websites as proof of Accuardi engaging in
illegal conduct. Yet these links simply replicate complaints filed with the entities (id, p. 16),
quote the websites (id, p. 23), or inform readers where they may file consumer complaints. Id,
pp. 5-6, 119. The post dated May 30, 2012, lists several complaints against Pacific Telecom
from an Oregon state data storage website, quotes a DOJ article about telemarketing becoming
the top consumer complaint, and states that “Pacific Telecom Communication Group’s ‘3rd party
telemarketers’ contribute to making telemarketing the #1 consumer complaint in Oregon.” Id,
p. 23. This statement hardly implies that Accuardi committed a crime, and the fact that it does
imply – that Pacific Telecom contracts with telemarketers violating the law – is posed throughout
the Blog as Fredericks’s theory. Even in this post, he quips that “Pacific Telecom claims that
they do not initiate any outbound telemarketing calls, so it’s not their fault that their ‘contractors’
engage in illegal unsolicited telemarketing, right?” Id.
Fredericks argues that it is impossible to complete the final two steps in the Underwager
analysis because Accuardi has not identified any specific statements that imply false facts. The
thrust of Accuardi’s claim is indeed based on the cumulative effect of the Blog, but paragraph 6
of the First Amended Complaint does quote the Blog and paraphrase other language used by
Fredericks as allegedly false statements:
(A) “Antone Accuardi is engaged in a world wide conspiracy to
perpetuate, encourage, profit and engage in illegal telemarketing for
reasons that range from ‘to steal personal information’ from unsuspecting
consumers or to receive CNAM (Caller Name) revenue or ‘dip’ fees from

12 – OPINION AND ORDER

other telecommunications providers for access to various information data
bases.”
(B) “F. Antone Accuardi is an owner, officer, employee and or
general counsel (referring to salaried corporate counsel) of each of the
companies alleged to have engaged in and or conspired to engage in
patterns of illegal telemarketing and that has devised a global scheme to
funnel ill-gotten gains to a series of offshore companies and bank accounts
in effort to hide his and his co-conspirators true identities and to avoid
prosecution from authorities.”
(C) “Antone Accuardi is being prosecuted by the Federal Trade
Commission (‘FTC’) and state agencies, most notably the North Dakota
Attorney Generals Office, for his alleged participation is [sic] such illegal
telemarketing schemes and various violations of state law relating to
illegal telemarketing.”
(D) “Antone Accuardi recently closed down PTCG and is now
currently owner and operator of CallerID4U and unrelated CLEC
(‘Competitive Local Exchange Carrier’) licensed as such in the state of
Washington and owned by Louis Martinez, Mr. Accuardi’s new ‘puppet’
and continues to engage in illegal telemarketing.” That Accuardi engages
in conduct detrimental to the administration of justice and otherwise
ignores his bar organizations Rules of Professional Conduct by engaging
in and directing illegal activity.
(E) Antone Accuardi engages in a systematic pattern of violating
Federal laws including, but not limited to, the Telephone Consumer
Protection Act (“TCPA”), the Telemarketing Sales Rules (“TSR’s”) by,
among other things, placing calls in, or encouraging other to place calls in
violation of state and Federal “Do Not Call Lists” et. al.
(F) Antone Accuardi posted a reply to one of Defendant’s
published statements using an email address with an ftc.gov extension
(Federal Trade Commission) and is currently being sued in a class action
law suit in Southern California.
(G) FTC receives nearly One Million Telemarketing complaints
involving F. Antone Accuardi.
(H) Accuardi is the mastermind behind various illegal
telemarketing “schemes.”
The court has been unable to find any of the alleged language, quoted or not, in the Blog,
and Accuardi does not provide the dates when any of these statements were posted in the Blog.
Even so, the alleged statements mirror some of the Blog’s content. Therefore, as all the evidence
beyond the pleadings must be considered, the court will scrutinize the specific context and
content in Fredericks’s treatment of the topics falling within these allegations.

13 – OPINION AND ORDER

As Fredericks correctly notes, the statute of limitations for a false light claim is one year,
the same as for a defamation claim. ORS 12.120(2); Magenis v. Fisher Broad., Inc., 103 Or App
555, 559, 798 P2d 1106, 1109 (1990). Because this case was filed on October 14, 2013, only the
Blog posts after October 14, 2012, are actionable. However, the Blog posts after its inception in
May and before October 14, 2012, may be considered as evidence to support Accuardi’s claims
as to the falsity of the postings that fall within the one-year statute of limitations.
Accuardi generally argues that Fredericks’s use of hypothetical language should be
ignored because all his defamatory statements are based on incomplete or erroneous sources. In
support, he cites the following statement by the United States Supreme Court:
Even if the speaker states the facts upon which he bases his opinion, if
those facts are either incorrect or incomplete, or if his assessment of them
is erroneous, the statement may still imply a false assertion of fact.
Simply couching such statements in terms of opinion does not dispel these
implications; and the statement, “In my opinion Jones is a liar,” can cause
as much damage to reputation as the statement, “Jones is a liar.”
Milkovich, 497 US 18-19.
The Ninth Circuit is guided by section 566 of the RESTATEMENT (SECOND) OF TORTS
“which distinguishes between two kinds of opinion statements: those based on assumed or
expressly stated facts, and those based on implied, undisclosed facts.” Yagman, 55 F3d at 1439.
The rationale behind this rule is straightforward: When the facts
underlying a statement of opinion are disclosed, readers will understand
they are getting the author’s interpretation of the facts presented; they are
therefore unlikely to construe the statement as insinuating the existence of
additional, undisclosed facts. Moreover, an opinion which is unfounded
reveals its lack of merit when the opinion-holder discloses the factual
basis for the idea; readers are free to accept or reject the author’s opinion
based on their own independent evaluation of the facts.
Id (citations and internal quotation omitted).

14 – OPINION AND ORDER

All of Fredericks’s statements about Accuardi’s alleged involvement with illegal
telemarketing are based on disclosed sources and facts. Thus, those statements are defamatory
only if the facts relied on are false and demeaning.
First, Accuardi alleges that Fredericks improperly relies on the affidavit of Tracy Hetzler,
the investigator for the North Dakota Attorney General’s Office (Sexton Decl., Ex. 2), in
asserting that Accuardi has violated federal and state law as an agent of the Telemarketing
Entities. First Amended Complaint, ¶ 6(A)-(B), (E). Fredericks obtained that affidavit in
October 2012 when he downloaded public documents pertaining to Pacific Telecom case PU-12750 from the North Dakota Public Service Commission’s website. Fredericks Decl., ¶ 9.
According to Accuardi, Hetzler misstated facts in her affidavit which Fredericks further
misrepresented.
On October 2, 2012, Fredericks posted a link to Hetzler’s affidavit, stating that: “The
Attorney General’s office describes conduct that suggests a willful and blatant disregard for State
and Federal law,” including that “Pacific Telecom was notified of the illegal activities associated
with their services as far back as February 3, 2011, yet has failed to halt activity in any
meaningful way. Their facilitation of this activity constitutes a violation of N.D.C.C. § 51-1502.3.” Blog, p. 119. Accuardi contends that this statement is false.
In her October 3, 2012 affidavit, Hetzler stated as follows:
The North Dakota Attorney General’s Office has repeatedly notified
Pacific Telecom that its clients are engaging in violations of N.D.C.C. ch.
51-28 and 51-15. On February 3, 2011, January 26, 2012, and May 18,
2012, the Attorney General’s Office wrote Pacific Telecom and provided
copies of the complaints filed against Capital Solutions Group, S.A. and/or
International Telephone Corporation. Pacific Telecom was warned that it
was facilitating and assisting violations of North Dakota law in violation
of N.D.C.C. § 51-15-02.3 by continuing to provide telephone numbers to
clients that were violating North Dakota’s Do Not Call law.

15 – OPINION AND ORDER

Sexton Decl., Ex. 2, ¶ 4.
Her affidavit further stated that “based on information and belief, Pacific Telecom has
continued to facilitate and assist its clients in making telephone calls in violation of N.D.C.C.”
Id, ¶ 5.
Two of the three notices referenced by Hetzler dated February 3, 2011, and May 18,
2012, are not in the record. One notice dated January 26, 2012, is in the record and reads as
follows: “We are advising [Pacific Telecom] that conducting business with these clients, after
they are aware that they have violated North Dakota law, may be considered facilitating and
assisting and would be a violation of North Dakota law.” Accuardi Decl., Ex. 3, p. 2 (emphasis
added). Although that notice is better characterized as warning Pacific Telecom of potential
violations of North Dakota law, rather than stating, as Hetzler does, that Pacific Telecom “was
facilitating and assisting violations of North Dakota law,” Fredericks did not mischaracterize any
fact. He correctly stated, based on Hetzler’s affidavit, that the Attorney General’s office notified
Pacific Telecom of activities that would constitute a violation of North Dakota law.
Specifically with respect to Accuardi, the Blog cites Hetzler’s affidavit for the statement
that “Oregon attorney F Antone Accuardi ‘is responsible for a large percentage of the illegal
telephone calls made using Pacific Telecom’s telephone numbers.’” Id. Hetzler later retracted
the statement in her affidavit that “based on information and belief, Accuardi is a principal owner
of International Telephone Corporate located in Belize, who is responsible for a large percentage
of the illegal telephone calls made using Pacific Telecom’s telephone numbers.” Sexton Decl.,
Ex. 2, ¶ 6. But her retraction occurred on September 16, 2013, long after Fredericks’s post, and
was communicated to Accuardi through a private letter from Hetzler. Accuardi Decl., Ex. 5.

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Thus, at the time of his post, Fredericks had no reason to believe that any portion of Hetzler’s
affidavit was false.
According to Accuardi, that same Blog entry contains another false statement that
“Pacific Telecom is now operated by F Antone Accuardi.” Blog, p. 119. On December 12,
2012, the Blog repeated that Pacific Telecom “is operated by Oregon attorney F Antone
Accuardi,” relying once again on the Hetzler affidavit. Blog, p. 123. Hetzler’s affidavit states
that “based on information and belief, it appears that the company is now being operated by
individuals who are located outside the United States, including F. Antone Accuardi.” Sexton
Decl., Ex. 2, ¶ 6. Although Fredericks slightly rephrased this statement by Hetzler, he did not
mischaracterize it. Again Fredericks disclosed the fact that formed his opinion and, at the time,
that disclosed fact was reliable.
Second, Accuardi alleges that the Blog falsely states that the federal government and the
North Dakota Attorney General’s office are prosecuting Accuardi. First Amended Complaint, ¶
6(C). The court can find no statements in the Blog implying that the FTC opened an
investigation of or was prosecuting Accuardi’s conduct. As to the North Dakota Attorney
General’s office, the Blog correctly notes that it had opened an investigation as evidenced by the
Hetzler affidavit. However, the court can find no statements that the investigation had developed
into a prosecution. Therefore, as far as this court can ascertain, the Blog does not state any false
facts on this topic.
Third, Accuardi alleges the Blog implies that one million telemarketing complaints
implicate him as the violator. Id, ¶ 6(G). On December 12, 2012, the Blog cited FTC data that
“the FTC received 982,999 consumer complaints against telephone numbers belonging to Pacific
Telecom.” Blog, p. 122. Fredericks obtained that data from the FTC pursuant to a Freedom of

17 – OPINION AND ORDER

Information Act request. Fredericks Decl., ¶ 7. The Blog cited a disclosed fact which Accuardi
has not proven to be false. The Blog also links to its previous report that “the North Dakota
Attorney General’s office found that Pacific Telecom Communications Group is operated by
Oregon attorney F. Antone Accuardi.” Blog, p. 123. Again, this statement is based on Hetzler’s
affidavit, a disclosed fact that she has not retracted.
Fourth, Accuardi alleges that Fredericks reported facts on another website, 800notes.com,
falsely implying that he engaged in money laundering. First Amended Complaint, ¶¶ 5-6. The
statement at issue was made in a comment by “JD”4 who wrote on the Blog that “F. Antone
Accuardi, the apparent leader behind Pacific Telecom, is alleged to use his attorney trust bank
account to move money to a foreign account controlled by him in the country of Belize. . . . This
appears to be blatant criminal act of money laundering.” Accuardi Decl., Ex. 7. Fredericks
claims he did not write the post, and Accuardi offers no proof that he did. The post links to the
Blog entry on August 17, 2012, which quoted the website of the Accuardi’s former law practice,
Interlaw Group. That particular entry describes a “possible Accuardi telecom business based in
Belize” that “could be totally unrelated to the unsolicited telemarketing calls associated with
Pacific Telecom’s phone numbers” or “reveals insights into how Pacific Telecom’s services can
be sold to telemarketers through the secrecy of a foreign shell company.” Blog, p. 82.
Fredericks concludes the entry with a hypothetical description of how this shell operation would
be set up, preceded by the disclaimer: “Once again, we have no specific knowledge of a
conspiracy (criminal or otherwise), but theorize that it’s possible.” Id. Whether or not it can be
proven that Accuardi committed a crime by laundering money, the weight of the evidence
considered in the second step weighs heavily in Fredericks’s favor. The specific discussion is

4

Although Accuardi believes that Fredericks refers to himself on 800notes.com as “JD” (Accuardi Decl., ¶ nnn),
Fredericks has offered no evidence to support this belief.

18 – OPINION AND ORDER

clear that any shell operation is Fredericks’s theory, and any reasonable reader would heed his
direct request to “evaluate this information from a skeptical viewpoint and carefully draw your
own conclusions.” Id.
Fifth, Accuardi alleges that the Blog falsely implied he had violated ethical rules. First
Amended Complaint, ¶ 6(D). On October 22, 2012, Fredericks posted: “The mounting evidence
of F Antone Accuardi’s active involvement in this scheme to profit from illegal telemarketing is
of particular significance: as a licensed member of the Oregon State Bar, this conduct represents
a serious violation of the rules of professional conduct,” referring to a previous post in which he
quoted Rules of Professional Conduct 4.1 and 8.4. Blog, p. 119. However, the “mounting
evidence” cited is the Hetzler affidavit to which the Blog links. Also, that same posting
concludes by reminding the reader that “no sanctions have been issued against Mr. Accuardi. . . .
Any reports of professional misconduct involving F Antone Accuardi should include factual
information relating to his activities, such as the affidavit from the investigator with the North
Dakota Attorney General’s office.” Id, pp. 119-20. Thus, Fredericks was expressing his opinion
based on disclosed facts that Accuardi had violated professional ethics rules.
Sixth, Accuardi alleges Fredericks’s falsely implied that the owner and operator of
CallerID4U, Louis Martinez, is Accuardi’s “new puppet.” First Amended Complaint, ¶ 6(D).
The only mention of an association between CallerID4U and the Accuardi family is the posting
dated January 22, 2013: “According to the Minnesota Attorney General’s Office, CallerId4u is
affiliated with Telephone Management Corporation, which is operated by Fred Accuardi of
Pacific Telecom.” Blog, p. 127. Luis Martinez declares that sometime in January or February
2013, the Blog contained the false statement “that CalleriD4U was Mr. Antone Accuardi’s new
conduit to engage in and profit from illegal telemarketing, with me as his new puppet of front

19 – OPINION AND ORDER

man.” Martinez Decl., ¶ 9. That post no longer appears on the Blog. Id. Although Accuardi
accuses Fredericks of deleting this statement from the Blog, Fredericks certifies that he produced
to Accuardi in discovery all of the backup files containing all deleted material from the Blog.
Second Fredericks Decl. (docket #33), ¶ 7. Accuardi has not submitted any deleted material
from those backup files to prove that the allegedly false statement was ever posted.
Finally to the extent that Accuardi alleges that the Blog falsely implies he is “dishonest, a
crook and incompetent attorney” (First Amended Complaint, ¶ 6), and the “mastermind” behind
illegal telemarketing schemes (id, ¶ 6(H)), such implications are not susceptible to objective
verification. As the Ninth Circuit said of the reference to an attorney as “shady,” “[t]he inference
that [Accuardi’s] morality or legal abilities were doubtful, or that he was unreliable and
disreputable, is a broad, unfocused, wholly subjective comment.” Lewis v. Time Inc., 710 F2d
549, 554 (9th Cir 1983). Although Lewis was decided before Milkovich, which delineated the
contours of protected opinion, the Ninth Circuit reaffirmed its holding in Yagman, 55 F3d at
1440.
The only allegation in the Complaint based on a potentially actionable factual statement
is the posting on January 28, 2013, that “[o]n December 19, 2012, a class action lawsuit was
filed against Pacific Telecom Communications Group, F Antone Accuardi, Steve Hamilton and
other associated entities.” Blog, p. 174; see First Amended Complaint, ¶ 6(F). Accuardi has
submitted evidence that his father, Fred Accuardi, and not he, was a named defendant in that
action. Fred Accuardi Decl., ¶ 19.
The ultimate issue is whether Accuardi has submitted substantial evidence to support a
false light claim. To state a claim for false light Accuardi must show “(a) the false light in which
the other was placed would be highly offensive to a reasonable person, and . . . (b) the actor has

20 – OPINION AND ORDER

knowledge of or acted in reckless disregard as to the falsity of the publized [sic] matter and the
false light in which the other would be placed.” Dean v. Guard Pub. Co., 73 Or App 656, 659,
699 P2d 1158, 1160 (1985). The posting includes a link to the full class action complaint in
Astrahan v. Pac. Telecom Commc’n Grp., and an image of the caption. Blog, p. 174. The
defendants in the caption include “Fred Anthony Antone Accuardi.” Id. The complaint
describes this defendant as the “principal owner, chief executive officer and general counsel of
defendant International Telephone. Defendant Accuardi is also general counsel for Pac
Telecom.”5 While Accuardi can now show that the complaint erroneously described his father as
legal counsel for Pacific Telecom, Fredericks was hardly reckless in relying on this court filing.
Accuardi’s name is almost identical to his father’s name, and Fredericks had received
correspondence from Accuardi in which he identified himself as Pacific Telecom’s “general
legal counsel.” Accuardi Decl., Ex. 26, p. 1. Thus, the only statement that asserts a false fact
does not constitute substantial evidence of a false light claim.
B.

Intentional Infliction of Emotional Distress (Count Two)

Accuardi alleges that Fredericks’s Blog caused him to receive dozens of telephone
complaints from consumers, including death threats, resulting in high blood pressure and
headaches. First Amended Complaint, ¶¶ 31-32; Accuardi Decl., ¶ ii. He blames this
harassment on Fredericks intentionally making false allegations against Accuardi “without any
meaningful research into the veracity of such allegations” and “in retaliation for [Accuardi’s]
threat to sue Defendant as a result of their dissemination of false statements.” First Amended
Complaint, ¶¶ 32-33.

5

While Accuardi only submitted the first page of the complaint in Astrahan v. Pac. Telecom Commc’n Grp., the
Blog links to the full complaint. See http://telemarketerspam.wordpress.com/ (last visited Feb. 20, 2014).

21 – OPINION AND ORDER

“To state a claim for intentional infliction of severe emotional distress, a plaintiff must
plead that (1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the
defendant’s acts were the cause of the plaintiff’s severe emotional distress, and (3) the
defendant’s acts constituted an extraordinary transgression of the bounds of socially tolerable
conduct.” McGanty v. Staudenraus, 321 Or 532, 543, 901 P2d 841, 849 (1995).
Intent means that a defendant desires to inflict severe emotional distress or knows that
such distress is certain or substantially certain to occur. Id at 550. Fredericks’s stated intent in
publishing the Blog was to put pressure on the Telemarketing Entities and end illegal robocalling practices, not to cause any injury to Accuardi. Fredericks Decl., ¶ 3. Fredericks never
championed acts of violence or harassment of Accuardi himself. Instead, he repeatedly
encouraged readers to make complaints to the appropriate authorities. E.g., Blog, p. 195
(“PLEASE take 10 minutes of your time to submit an online complaint to State and Federal
regulators so we can put an end to the damages that is being inflicted on the public.”).
Nonetheless, Accuardi argues that the court can infer Fredericks intended to ruin his
reputation as an attorney based on Fredericks’s offer to negotiate a financial settlement before
filing a formal complaint with the Vermont Attorney General for illegal telemarketing. Accuardi
Decl., Ex. 26, p. 4. In fact, Accuardi initiated the correspondence with Fredericks that led to the
settlement offer. He wrote to Fredericks on April 19, 2012, that he would file a lawsuit and levy
his wages if Fredericks did not retract his complaint to the Oregon DOJ. Id, p. 1. Fredericks’s
complaint to the Oregon regulators that instigated this correspondence, as well as his threat to
file a second complaint in Vermont, only confirms his intent to expose the illegal telemarketing
in which he believed Accuardi was involved. Thus, this court cannot reasonably infer that
Fredericks desired to inflict emotional distress on Accuardi.

22 – OPINION AND ORDER

The question then is whether Fredericks knew that such distress was certain or
substantially certain to occur as a result of his Blog. Fredericks did not post Accuardi’s
telephone number on his Blog. He posted the contact information for federal and state
authorities who received complaints of alleged illegal conduct. E.g., Blog, pp. 5-6. Accuardi
presents no evidence that Fredericks knew Accuardi was receiving harassing telephone calls, and
Accuardi did not complain about the harassment during their communication in April and May
of 2012. When Fredericks learned that readers of his Blog were harassing CallerID4U, he
denounced the practice:
For the record, no representative of the Telecom Compliance News Press
has made any threats of physical harm, violence, or any other unlawful
threats against CallerId4U. . . . We encourage our readers to refrain from
any direct or perceived threat of violence towards CallerId4U or anyone
else. Instead put your energy into complaining loudly and frequently to
the regulators listed on this web site, who are responsible for enforcing
telemarketing laws.
Blog, pp. 211-12.
Even if Fredericks’s knowledge of the CallerId4U harassment made it substantially
certain that other entities referenced in his Blog, including Accuardi, would receive similar
treatment, Fredericks’s conduct did not exceed the bounds of social tolerable conduct. The court
must consider “whether the offensiveness of the conduct ‘exceeds any reasonable limit of social
toleration,’” which is “a judgment of social standards rather than of specific occurrences.”
House v. Hicks, 218 Or App 348, 358-59, 179 P3d 730, 736 (2008). Regardless of how farfetched Fredericks’s theories were about Accuardi’s professional involvement, he presented
them in a widely accepted way: through a personal Blog open to public commentary. He
directed his frustration towards public discourse in a way that is constitutionally protected. Most

23 – OPINION AND ORDER

notably, he advocated for his readers to limit their action outside the Blog to available regulatory
avenues. Thus, Accuardi fails to meet his burden on this claim.
C.

Interference with Economic Relations (Count Three)

Accuardi’s last claim is that Fredericks’s portrayal cost him prospective clients and
professional relationships within the legal community. In particular, a prospective client sought
counsel from Accuardi in a medical malpractice case, causing Accuardi to solicit over a dozen
attorneys with more experience in that area of law to associate with him as co-counsel. Accuardi
Decl., ¶ y. After none would agree, a former classmate told Accuardi that he had refused
because his law partners “did not want the association with an alleged criminal attorney.” Id.
To state a claim for intentional interference with economic relations, 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.” McGanty, 321 Or at 535, 901 P2d at 844.
Fredericks argues that Accuardi fails to identify any prospective economic relationship
other than hypothetical ones. The essential purpose of the tort is to protect “voluntary economic
relationships, both commercial and noncommercial, that would have very likely resulted in a
pecuniary benefit to the plaintiff but for the defendant’s interference.” Cron v. Zimmer, 255 Or
App 114, 127, 296 P3d 567, 576 (2013) (emphasis in original). Accuardi is not required to name
the prospective relationships. It is enough that he had the expectancy of future attorney-client
relationships that would have very likely benefitted him. See Allen v. Hall, 328 Or 276, 281, 974

24 – OPINION AND ORDER

P2d 199, 202 (1999) (en banc), citing McGanty, 321 Or at 535, 901 P2d at 844 (purely
prospective interests, such as the expectancy of inheritance, are protected by the tort).
However, Accuardi fails to provide any evidence that Fredericks’s Blog caused him to
lose any expected attorney-client relationships. The record does not show the source of his
former classmate’s information about Accuardi’s alleged criminality. Even if that information
came from the Internet, it could have just as easily come from other websites that, according to
Accuardi, contain false information about him. Accuardi cites numerous complaints filed with
the Oregon State Bar about his conduct, blaming Fredericks’s Blog as the “tip.” However, none
of these complainants identify themselves as prospective clients or Oregon attorneys, and the
Oregon State Bar never initiated an investigation based on these complaints. As a result, only
the Oregon State Bar, Accuardi, and the complainants could have known about them.
In short, Accuardi cannot meet his burden because the conduct of which he complains
arises from constitutionally protected speech. He cannot demonstrate that Fredericks acted
through improper means because there is “nothing improper, as a matter of law, about making
statements that are protected by the common law and by the First Amendment.” Gardner v.
Martino, CV-05-769-HU, 2005 WL 3465349, *12 (D Or Sept. 19, 2005), citing Unelko Corp. v.
Rooney, 912 F2d 1049, 1058 (9th Cir 1990).
ORDER
Fredericks’s Amended Special Motion to Strike (docket #10) is granted, and Accuardi’s
claims are dismissed without prejudice.
DATED March 4, 2014.
s/ Janice M. Stewart
Janice M. Stewart
United States Magistrate Judge

25 – OPINION AND ORDER