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Metabolife's Lawyer Assures C'box He Won't Sue

Timothy NoahPosted Tuesday, Oct. 12, 1999, at 6:57 PM ET

A warning to Chatterbox's critics in the Fray: This item, like its predecessor, will not inform you about whether Metabolife's herbal diet suppliment is safe and effective, or unsafe and ineffective. If you want that kind of consumer information, try this piece in Newsweek.

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Chatterbox spent most of today continuing to quake with fear at the prospect of getting sued for doing precisely what Metabolife says it wants everyone in America to do: Namely, log on to its Web site. As Chatterbox explained yesterday (see "Metabolife: Read This! No, Wait, Don't Read This!"), Metabolife makes a diet pill that ABC News' 20/20 is expected to report on in a forthcoming (but as yet unscheduled) report. Believing that 20/20 is out to do a story that is both highly critical and unfair, Metabolife put its own videotape of the unedited 20/20 interview on a special Web site and (in an advertisement in the New York Times) urged the public to compare that with "what is actually broadcast" when the program airs. But when Chatterbox actually went to the Web site, he was confronted by an elaborate "user agreement" that essentially threatened to sue anyone who used the information on the Web site for journalistic purposes. Chatterbox then phoned Metabolife's public relations firm, and was told to ignore the bullying legal language and proceed.

But Chatterbox wasn't going to do anything without talking to a lawyer. He phoned Metabolife's attorney, Steve Mansfield, who works for Akin, Gump in Los Angeles. Did Mansfield intend to sue Chatterbox if he quoted from the Metabolife Web site? "I shouldn't be in a position of providing legal advice to you," Mansfield said. "I don't think that's appropriate for you and for me." Chatterbox explained that he couldn't very well take up Metabolife's invitation to consider the information it had gone to some expense to publicize without some assurance that Metabolife was not going to punish him for sharing said information with his readers. Mansfield said he would have to check with the other lawyers and get back to Chatterbox.

When Mansfield phoned back, he said, "You can certainly quote portions of the transcript under the fair use doctrine, and you also can certainly take still frames, make still frames, of the videotaped interview under the fair use doctrine as well." He said Chatterbox could also link to the Web site, which was a great relief to hear, because Chatterbox had already done that in the earlier item. Mansfield declined, however, to tell Chatterbox what the rationale was behind all the legal mumbo-jumbo on Metabolife's Web site, or why Metabolife was (according to its PR firm) unwilling to let ABC News' broadcast rivals help themselves to the unedited videotape of the 20/20 interview, or how Metabolife could own the copyright on an interview conducted by someone else (incorporating, Chatterbox might have added, audio fed to Metabolife from ABC's technicians). To do so, he said, would violate attorney-client privilege.

Chatterbox couldn't resist asking: How much did Akin, Gump charge Metabolife to write up the elaborate legal warning on its 20/20 Web site, which he was now more or less telling Chatterbox to ignore?

"I don't know what possible basis you would have for that question," he said.

Was it more than $5,000?

"I'm not going to respond to that," Mansfield answered.

Mansfield called back a little later to tell Chatterbox that the legal language on the Metabolife Web site hadn't kept it from receiving more than a million hits on the first day it was up. He also said that if Slate was going to criticize the legal terminology on Metabolife's Web site, it ought to acknowledge its own "much lengthier, more intimidating set of disclaimers that goes on page after page after page." Chatterbox had no idea what Mansfield was talking about (which should give you some idea about how little prominence Slate's table of contents page gives these "terms of use"; look for the teensy blue type at the very bottom). Mansfield acknowledged Slate's growly legal language was much harder to find, but said that when you read it, it was "frankly more ominous" than Metabolife's growly legal language. Well, judge for yourself. Chatterbox thinks that the few obsessives who wander onto this page, which enunciates terms of use for all Microsoft Web sites, and not just Slate, will realize that Slate is out to protect its published material from being stolen or plagiarized, but, like every other publication in the world, on the Web or elsewhere, is more than happy to have its published material quoted in accordance with fair use.

By now it was dinnertime, and Mrs. Chatterbox and the Chatterchildren were urging Chatterbox to come home. Chatterbox will report on his visit to Metabolife's Web site tomorrow.

E-mail Timothy Noah at .

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Timothy Noah is a senior writer at Slate.

COMMENTS

The Fraymaster responds:

Chatterbox's items on Metabolife have received many responses. Here are a few:

Like others, my first response to the news that Metabolife was resorting to the Web to defend themselves was, "What the hell have they got to hide?" So I did an Internet search on Metabolife to see what was happening.

Chatterbox does a terrific job of pointing out the essential lunacy of trying to control information in this era, where anyone with a computer can read, watch, or hear something in the mass media, then get onto the Internet, find 400 versions of the truth, and make up their own mind. (Just now I read a Chatterbox's second Metabolife item, which said the person who'd bought Metabolife couldn't get a refund and received no warnings about the danger of adding caffeine. Information is EVERYWHERE.)

Access to all this data makes us all a little crazier. On the other hand, it helps guarantee that the days of media moguls and politicians controlling our thoughts and opinions (Citizen Kane: "People will think what I tell them to think!") are fading fast. Unlike my parents, I won't buy a brand of cake flour or vote for a candidate just because that lovely Mary Margaret McBride tells me to on her radio show. Not when I can go to a cake flour chat room on the Web and get the real lowdown.

(To reply, click here.)

Trouble is, [Metabolife's] Michael Ellis had more than an hour to come up with a reasonably good answer to the question, why do you say it's safe when you can't prove it. The "correct" answer is that we've complied with all regulatory requirements as to product safety and we've had no (few/whatever) post-marketing indications of safety issues, and we would act on those, if they existed. There are side effects in x% of the population and people have to take it as directed, all of which is clearly on the labeling. Period, and keep repeating that you've answered the question, as long as [ABC's] Arnold Diaz cares to ask it.

What Chatterbox has provided is a wryly humorous way to make the point that the company has now drawn its wagons in a circle, warning anyone who wants to enter their Web site of all the ways they might be sued. Funny way to make your case to a wider public. Then, Chatterbox calls to ask what they mean by this, and he is told, Ho, ho, you don't think we really mean that 12-page warning? Please, you be our guest--but not NBC!

(To reply, click here.)

20/20 does not all always tell it like it is. They edit and air what they want and leave out most of the truth. They did the same to another company, Equinox International. I saw the raw [interview] footage and 20/20 cut out most of the answers and it was not the real interview.

(To reply, click here.)

One thing that really stood out to me, was Diaz's numerous questions in reference to Ellis' drug conviction in 1989. From what I've read, Ellis received 5 years probation for this, and that was 10 years ago. Does ABC think that someone with a drug conviction 10 years ago should never be allowed to own their own business? Should they live the rest of their lives working for someone else, or would they prefer they go back to dealing illegal drugs?

I am not affiliated with Metabolife, don't have any drug convictions, don't use herbs, and don't need to lose weight. I am just offering a completely unbiased opinion against ABC's interview techniques. I also look forward to seeing just what ABC is going to include in its story.

(To reply, click here.)

I was interviewed by a network news show concerning educational practices. They claimed to be doing a story on how good schools educated, and convinced me to do an interview. Instead they were doing a story on "how terrible education was because it was training people wrongly." I was amazed. They had lied about their premises. And they took quotes and activities out of context to make their own journalistic point, which they had decided on before collecting the information. So although I cannot comment on Metabolife, it is certainly true from my perspective that 20/20 and other news shows can bend the truth and get footage in a less-than-forthright way. My advice if approached: Get editing rights for your interview and get rights to permit or not permit broadcast of anything you are involved in or DO NOT do the interview.

(To reply, click here.)

--Michael Brus (10/12)

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