IPVM Rejects Feevr's Improper Threats And DemandsBy: John Honovich, Published on May 04, 2020
IPVM 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.