IPVM Rejects Feevr's Improper Threats And Demands
By John Honovich, Published May 04, 2020, 11:31am EDTIPVM categorically rejects Feevr's improper threats and demands submitted April 22, 2020, via their counsel Wilson Sonsini.
IPVM retained Gibson Dunn's famed First Amendment Attorney Anne Champion who in 2018 successfully defended CNN and Jim Acosta in their suit against the Trump administration for revoking Acosta's White House Press Pass.
IPVM Feevr Reporting
As part of IPVM's world-leading research and testing into "fever detection" technologies, now at 30+ articles, IPVM has reported on X.Labs (Feevr) in a few of them, including:
- USA's Feevr Thermal Temperature System Examined
- Beware Of Feevr
- FDA "Does Not Intend to Object" To Unapproved Fever Detection Cameras
Threats And Demands
Wilson Sonsini's Edward Poplawski sent a letter titled "Re: IP Video Market Info Inc. Unfair Competition", citing those articles, alleging that IPVM:
conduct constitutes, among other things, false, deceptive, and misleading statements about X.Labs’ commercial activities; trade libel and disparagement; infliction of reputational and business harm; and intentional, reckless, and negligent interference with X.Labs’ contractual and customer relations and with its prospective economic advantage and business under federal and state laws.
The letter concluded with a series of 11 demands, including:
Issue a public retraction of the aforementioned articles
[Require any future reporting have] the explicit advance written approval and authorization of X.Labs
Identify with specificity in writing any and all third parties (including name, address, telephone number, and e-mail address) from whom IPVM acquired any information for any of the aforementioned articles;
Identify in writing (including name, address, telephone number, and e-mail address) every individual at FLIR with whom IPVM has communicated concerning the Feevr system and any of the aforementioned articles [Note: FLIR is Feevr's thermal supplier]
Provide in writing a complete and accurate accounting of the identities and the number of individuals and businesses (including name, address, telephone number, and e-mail address) which have accessed any of the aforementioned March 31, 2020, April 14, 2020, and April 17, 2020 articles, whether as subscribers or otherwise.
Wilson Sonsini's Poplawski says if those demands are not met:
X.Labs will be left with no recourse but to seek appropriate enforcement of its legal rights. This enforcement will include seeking injunctive relief and damages, including punitive damages, through the courts.
Rejected Improper Demands
On May 4, 2020, IPVM's counsel, Gibson Dunn's Anne Champion responded in this letter, explaining:
I will first address your attacks on IPVM’s reports, which are without merit. You take issue with IPVM’s characterization of X.Lab’s marketing materials as “misleading.” (3/31 Art.) Not only is this non-actionable opinion but the basis for this opinion is apparent based on X.Lab’s own statements. Ltr. at 1. For example, the product is called “Feevr,” an obvious play on the word “fever,” and X.Lab’s marketing materials describe the product as “a Thermal Temperature System.” (3/31 Art.) Moreover, in an attempt to capitalize on the Covid-19 pandemic, the website for the product states, “[t]he solution enables the user to identify individuals with a fever efficiently and effectively. A fever is an indicating symptom of an infectious disease like COVID19 (Coronavirus).” Yet elsewhere, you acknowledge that “Feevr is not a medical device and is not intended for any diagnosis or clinical measurements,” and “Feevr can not detect internal core temperature.” Indeed, FLIR, the maker of the FLIR Pro One camera which Feevr utilizes, explicitly disclaims the use of that model for medical or health-related purposes and says that the FLIR Pro One is not among the cameras that the company markets “for elevated skin temperature screening.” (3/31 Art.) FLIR has stated flat out that it “do[es] not recommend the FLIR ONE Pro . . for this use case.” (4/14 Art.) There is thus ample basis for characterizing the marketing of Feevr as “misleading.”
And based on IPVM's further investigation, Champion addressed the arrest warrant for X.Labs / Feevr's CEO:
Finally, you complain that IPVM “personally attack[ed] X.Labs’ founder, Barry Oberholzer,” in its April 14 article and that IPVM was “aware” that charges against Mr. Oberholzer were dropped. (Ltr. at 2). In fact, our inquiries with the National Prosecuting Authority in South Africa demonstrate that criminal charges are still pending against Mr. Oberholzer there, and an arrest warrant is outstanding.
Champion's letter concludes:
Your attacks on IPVM’s statements, which are protected by the journalist and common interest privileges, as well as ordinary defamation law, are thus factually and legally baseless. But most disturbing, your letter contains a number of harassing demands, including for contact information for IPVM subscribers, anyone with whom IPVM “communicated” or obtained information regarding Feevr, or who has viewed any of the articles, as well as regarding IPVM’s testing and the credentials of the persons who authored the articles. These demands are wholly improper.
Accordingly, while IPVM does not intend to cease and desist from fulfilling its mission to provide impartial and accurate assessments of video technology, we must ask that you cease and desist your improper threats and demands.
IPVM Commitment Remains
IPVM remains committed, as always, to fair and accurate research and reporting. If X.Labs / Feevr, or any other company, has objections to our reporting, we are happy to listen to them, include their input, and analyze its accuracy. However, we will not be bullied by improper legal threats.
Comments (66)
I wonder if Shooter Detection Systems will still try to sell this device to their customers, or if they will finally realize that Feevr is not the kind of company or product they should be associating themselves with.
Good for IPVM!!!!
Threats by "Snake Oil" manufacturers show just how scared of the truth they are.
Nice reporting team IPVM. I spent the weekend with a bunch of ER nurses who brought up technology like this. I was able to clearly articulate the issues with it thanks to IPVM.
They just want everyones contact information because I made fun of Oberholzer‘s hair.
On the X.Labs / Feevr CEO arrest warrants still being open, after they claimed it was dropped, we reached out to the South Africa NPA, correspondence and confirmation copied below:
And:
Eric Ntabzalila is the NPA spokesperson and he is widely cited on the Internet in this role.
This issue came up because we cited the 2019 Daily Beast article - He’s a Wanted Man in South Africa. Now He’s Pushing an App to Help Solve School Shootings in America.
i have always wished that I could have a job where I could write scathing rebuttals to pathetic examples of weak 'cease and desist' threats.
imo, Ms. Champion filleted Mr. Poplawski's position - and flipped the script on him by issuing her own 'cease and desist' against his (pathetic) cease and desist claim.
#awesome
If I had any interest in them before (and I did not), the threats to IPVM and also demanding you surrender my contact information to them would have killed all interest in dealing with them.
According to the Daily Beast...
”Oberholzer, while operating a South African aviation company, allegedly offered to sell a married couple a lightly-used helicopter. When the helicopter arrived, however, the couple discovered that Oberholzer had sold them a significantly more beat-up model, and only refunded a portion of the money. Some of the money from the helicopter sale was used on Oberholzer’s “upkeep,” “cosmetic products,” and “general expenses,” according to the charging papers provided by South African prosecutors.”
Do you suppose Feevr’s product can detect his Botox and fillers?
Great reporting, Great Job John and IPVM team!!
Seriously - how cool is having a lawyer named Champion?
It's like having an optometrist named Dr. See
She was fantastic. Highly recommended!
I hope this isn't causing you financial difficulties. Her résumé makes her seem pretty expensive.
Although given how flimsy of a case Feevr has, this may not take very long.
We will see what Feevr and Wilson Sonsini does next. We do not think they have a case and I think having someone as prestigious as Anne Champion signals to them that they won't be able to bully us.
Or a doctor that also installs security.
Dr. Contact
It's like having an optometrist named Dr. See
or like if you were in the military :)
that's funny.
cuz due to my lack of funds at ~20 yrs of age I was bamboozled by those GI Bill commercials that flooded the early 80s airwaves - and enlisted in the US Army for 3 years because they were the only service that would guarantee me a specific job title.
keep in mind that when you walk around any Army base, you wear your last name above the left breast pocket of your BDUs.... and over those 3 years, 5000+ people noticed my last name and went into their own pea-brained versions of "you know - if you went to OCS..." etc.
The Sensitive Drill Sergeant - Will Ferrell
...due to my lack of funds at ~20 yrs of age I was bamboozled by those GI Bill commercials that flooded the early 80s airwaves - and enlisted in the US Army for 3 years...
So you LIVED "Catch-22" (except, of course, for the "mediocrity" part).
Seriously - how cool is having a lawyer named Champion?
It's like having an optometrist named Dr. See
or how about a pilot named "Max Power"?
I used to have a doctor name Dr. Pain. He was actually pretty good and he's still in practice.
First there was Fyre, now there is Feevr. I can't wait for the documentary.
I want to personally thank you for this comment and making me spit out my drink.
It could be called - "Feevr: After the Fyre!"
That is an awesome documentary. There will always people who have the guts to mislead everyone. You need to be always informed and looking for info. Thanks for posting.
Major respect lost for SDS by promoting this terrible company.
This is why we need a "loser pays" litigation system.
That's more cultural than anything though. One of the things I like about doing business in Canada is that litigation is not thought of as the first step in resolving a grievance here.
litigation is not thought of as the first step in resolving a grievance here.
In our 12 years, IPVM has only received such letters a few times. It's very rare. Companies who believe in their products generally respond productively to questions, not with legal threats.
There are actually conditions where the looser does pay legal fees; usually in egregious cases where the plaintiff recklessly pushes forward after being made clear there wasn't merit. There was recently a case with a popular YouTuber being sued for copyright infringement for using video from another YouTuber. The plaintiff pushed forward even after their first lawyer dropped the case. Fortunately you can always find some lawyer to take your money, so the plaintiff kept on pursuing the case.
The court came back siding with the defendant and because the case was considered so egregiously pursued without merit, the plaintiff had to pay all legal fees of the defendant.
Thank you for not only standing up for your first amendment rights but standing up for our right to free association and privacy. Feevr is doing themselves even more harm by attempting to bully IPVM into surrendering the personal information of its' subscribers. Feevr, Recall you fraudulent product and build one based on a camera that can actually do what you claim!
JH
I'm 73. been in business 35 years. I avoid lawyers but have had my run ins, including with Wildon Sonsini. They are expensive.
You are doing it right. Don't let them bully you. This is BS . We need you to evaluate objectively and call out the fakers.
This is a scare tactic to try to get you to back off. If you push back they will have to make a decision about whether it is worth all that money knowing it won't work.
Only the lawyers make money in this game. Keep it up. We are with you.
Provide in writing a complete and accurate accounting of the identities and the number of individuals and businesses (including name, address, telephone number, and e-mail address) which have accessed any of the aforementioned March 31, 2020, April 14, 2020, and April 17, 2020 articles, whether as subscribers or otherwise.
I'm surprised they didn't ask for the names of the individuals and businesses friends and families too, being as it's such a reasonable demand./s
Wouldn't complying with this demand be like slamming a car door on your dick? Might even hurt more than that.
Seems to me there is some sort of U.S. Amendment that guarantees FREEDOM OF THE PRESS. This is the most stupid demand I have ever seen. Remember, a guilty dog (X.Labs) always barks the loudest.
Freedom of the press is not freedom to libel. Think to the case of the Covington Kids. But I don't see what IPVM did as being libelous, nor do I think a court will.
Think to the case of the Covington Kids.
i'm thinking they didn't get jack. do you know differently?
Did CNN Settle the Covington High Lawsuit for $275 Million?
Bottom line, nobody knows what the settlement was.
bottom line, they settled.
the amount settled on is almost always shielded.
actually, i feel sorry for the kid if they settled for a nuisance fee (< $50,000) and everybody thinks he's got 275 million.
if the lawyers were suing for $275M, and they settled - you can be pretty sure that they would not accept <$50K as their settlement offer.
I'm thinking $2M is the lowest they would agree to - though I have no knowledge of what/how/why they settled.
- you can be pretty sure that they would not accept <$50K as their settlement offer.
wouldn't it depend how strong their case was? they had to prove actual malice, which is tough...
"wouldn't it depend how strong their case was?"
absolutely.
which is why I low-balled the actual figure - at least compared to what I would have demanded to settle this case.
imo, malice was inherent in CNNs reporting of this incident when it happened.
however, it fit their narrative and they ran with it - sans any kind of actual perspective.
I would have demanded $100M to settle the case.
#IANAL
Agreed. But it is one thing to demand the article be taken down as libelous (it is not since it is true), it is an entirely different thing to demand the contact info for anyone who may have read the report. FOUL.
John, good job standing up for your integrity and for us subscribers. It's sad that you have to pay to defend against such a frivolous demand.
I always liked this quote from Charles Koch's father.
"Son, never sue. The lawyers get a third, the government gets a third, and you get your business destroyed."
We would all be better off if everyone wasn't so litigious these days.
Thank you John and team. I've had numerous inquiries from my sales team about capitalizing on COVID-19 to create "fever detection" solutions. Because I understand the limits of FLIR's technologies as stated above, I've fervently refused to take part in benefitting from an unethical play on customer's fears.
I will continue to hold my ground. Thank you for holding yours.
So let's say Jon weren't so stubborn and did hand over the customer list. Couldn't we turn around and sue IPVM for violating their own privacy policy? I think Feevr is developing a fever.
"Who We Share Data With
We may share your Data with the following groups of people for the following reasons:
- our employees, agents and/or professional advisors - Information is shared with employees for customer support and for moderation of comments made on the site.;
- third party payment providers who process payments made over the Website - We use Stripe to securely process payments.;
in each case, in accordance with this privacy policy.
Who We Do NOT Share Data With
We do not do accept not run any advertising so we do not share any of your data with any advertisers as is typical with media websites."
While feevr does not pay for advertising they are being covered by the publication and have presented their product in the product showcase and said coverage might be considered unpaid advertising.
I dont even know whats going on, but go ahead and give em my name and number. They’ll regret it.
just curious
have you threatened to counter sue for harassment?
Earlier this month, we filed a motion to strike and dismiss the case under California's anti-SLAPP law. The hearing on this is scheduled months from now.
