Case 1:17-cv-00070-BR Document 46 Filed 04/13/18 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANTHONY L. MARFIONE and :

MICROTECH KNIVES, INC. :
:
vs. : Civil Action No. 1:17-cv-00070-BR
:
KAU U.S.A., LTD. and KALE BEYER :

BRIEF OF DEFENDANT, KAI U.S.A., LTD., IN OPPOSITION

TO PLAINTIFFS’ MOTION FOR RECONSIDERATION

I. THE AUGMENTED RECORD STILL FAILS TO STATE A

PLAUSIBLE FACTUAL BASIS FOR THE PLAINTIFFS’ CLAIMS

The defendant respectfully submits that the factual allegations of the plaintiffs’ amended
complaint, even when augmented by extrinsic documents in the form of an e-mail communication
and a typewritten statement purportedly prepared and signed by the author of the offending article,
still fail to state a plausible claim that KAI USA either created, or developed the allegedly tortious
content of that article, as would be necessary to defeat that defendant’s immunity from suit under
the CDA as an interactive computer service provider.
At the Court’s invitation, the plaintiffs have attempted to enhance their deficient complaint
allegations by offering a signed, unsworn, hearsay statement from the original author of the article
(knife enthusiast, internet blogger, and New Hampshire criminal defense attorney Anthony
Sculimbrene) a document which the author apparently created as part of the consideration
underlying his non-monetary settlement agreement with the plaintiffs, who withdrew their separate
lawsuit against Sculimbrene in return, and agreed to defend and indemnify him when he is joined
as a third-party defendant to this suit. [A copy of the Settlement Agreement and Release relating
to the plaintiffs’ separate action against Sculimbrene and calling for him to prepare such a
document is attached as Exhibit “A”].
The first two pages of that written statement offer a seemingly innocuous account of
Sculimbrene’s past history of communicating with KAI’s Sales Director, Thomas Welk, regarding
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new product information and reviews starting in 2012 (nearly five years before the publications
giving rise to this litigation occurred,) none of which appears to have any bearing upon the issue
presently before the Court, or suggests that either party to those communications was guilty of
behavior that would have been in any way unethical, unexpected, or improper in terms of the
relationship between the sales director of a product manufacturer and an individual engaged in the
business or hobby of reviewing such products.
Nor does the statement appear to suggest that Messrs. Welk and Sculimbrene maintained
an unusually close relationship as inferred by plaintiffs’ counsel. If anything, the first two pages
of the statement [Paras. 1-12] would indicate that the two individuals maintained an independent,
friendly, arms-length relationship, and that Welk and Sculimbrene had freely exchanged not only
product information, but conflicting opinions in the past.
Apart from providing Sculimbrene with production prototypes of two knives that he wished
to review in 2015 (which he later returned) and sending him a pen and a pad of paper bearing the
“ZT” brand name [Para. 11] there is no indication in the statement that Sculimbrene was ever paid
by KAI to write reviews of its products, or those of any competitor, or was offered any financial
incentives or rewards based upon the content of his articles or the favorable quality of his opinions.
Sculimbrene would later confirm that he “did not derive any monetary gain from KAI for
publishing the article” in question [Para. 22].
Mr. Sculimbrene’s statement then essentially indicates that he reached out to Mr. Welk at
the end of 2016, advised him that he intended to write some new product reviews, and asked Welk
for early access to KAI’s new product catalogs, which was freely given with the understanding
that Sculimbrene would not go public with the information prior to a forthcoming knife show
[Paras. 12-13].
Later, Mr. Sculimbrene’s statement indicates that he commented upon the name given to
KAI’s “Natrix” knife during an e-mail exchange with Mr. Welk. Sculimbrene then offers a
patently inaccurate account of what followed [Para. 14] falsely attributing his own statement
regarding a “double pun of the snake in the grass” and his own stated intention to buy one for the
laughs to Mr. Welk, when it is obvious on the face of those communications that it was
Sculimbrene himself who made those comments. [A more complete copy of the e-mail exchange
in question than that which accompanied the motion for reconsideration was previously filed as

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Exhibit “A” to the plaintiffs’ amended complaint, Document 45-2, and accompanies this response
as Exhibit “B”.]
Finally, at Paragraph 22 of the signed statement, Sculimbrene offered the following
narrative on which the plaintiffs’ chiefly rely in augmenting their complaint allegations, essentially
indicating (1) that Sculimbrene’s article of January 20, 2017 was based upon the conversations
and communications outlined previously in his statement (none of which would support the
plaintiffs’ claim that KAI created or developed the offending content of the article without
resorting to unreasonable inferences or distortion); (2) that, in retrospect (after having been sued
by the plaintiffs,) Sculimbrene now thinks, though he did not see it at the time, that Mr. Welk had
dropped “breadcrumbs” of information for him to find in order to “manipulate” him into forming
his own negative opinion of Microtech and Marfione, and (3) that he would never have written
any of the statements that he made about Mr. Marfione absent his communications with Mr. Welk:

22. It was based upon these conversations and communications with Mr. Welk that I
wrote the article about Microtech and Mr. Marfione. I did not have any personal axe to
grind with Microtech and Mr. Marfione, no personal motive in attacking Mr. Marfione or
Microtech and did not derive any monetary gain from KAI for publishing the article.
While at the time I did not see or otherwise recognize what was happening, now, after
reviewing the emails as a whole and rethinking my conversations with Mr. Welk,
including the emails regarding loyalty, I believe that Mr. Welk was dropping these
“breadcrumbs” of information for me to pick up along the way and manipulate me into
adopting a negative opinion of both Mictrotech and Mr. Marfione. As someone who
enjoys knives and feels a responsibility to the knife industry, I believed that I was doing
the knife industry a service by writing the article and “exposing” what I perceived to be,
based upon my communications with Mr. Welk, a disservice to the industry. That was
the sole reason for publishing the article and was based, in large part upon the
information fed to me by Mr. Welk in the above referenced emails and conversation. I
would never have written any of the statements about Mr. Marfione absent my
communications with Mr. Welk.

Sculimbrene’s statement confirms that he was the sole author of the article and that the
opinions expressed in the article, though he now regrets offering them, were entirely his own.
Although the statement would indicate that Sculimbrene relied upon the largely unspecified
information provided by Mr. Welk, it does not say that Welk was the source of the allegedly
defamatory opinions, or the terms of personal invective expressed in his article.

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Most significantly, the factual assertions appearing in the Sculimbrene statement in

no way suggest that KAI “created” or “developed” the offending content of his article. The
statement does not suggest that Mr. Welk, or any other KAI representative, had any advance
knowledge regarding the intended content of Sculimbrene’s article prior to its publication.
There is absolutely no indication that he and Mr. Welk discussed the content of the article in
advance, that anyone at KAI offered suggestions or proposed changes, or that anyone at KAI
knew, before Sculimbrene published the article, that he intended to review the Natrix knife,
or to attack, or insult the plaintiffs in the process, let alone encouraged him to do so, or had
a hand in writing it. Nor does the statement provide any factual support for the plaintiffs’
conclusory allegation that KAI directed Sculimbrene to publish the offending article, or that
they colluded to injure the plaintiffs. In short, the statement is like the amended complaint
in the sense that it offers conclusions without any the facts to support them.
Mr. Sculimbrene’s conclusory pronouncement that he would not have written the
statements which appeared in his article about Mr. Marfione had he not communicated with Mr.
Welk is left completely unexplained, and that is something which might very well be true for a
variety of reasons having nothing to do with KAI’s purported involvement with the article or its
immunity from suit under the CDA. For just one example, Sculimbrene would not have been in a
position to review any of KAI’s new products, including the “Natrix” knife, had Mr. Welk not
provided him with an advance copy of the company’s new catalog as requested. Whatever was
meant by Sculimbrene in offering that bare assertion, his statement does not elaborate on the
subject, and falls considerably short of offering any facts which might establish the necessary
causation between the defendant’s acts and Sculimbrene’s publication of any particular statement
or statements appearing in the article, or their allegedly defamatory content.
Of course, to the extent that it is averred in the amended complaint that the plaintiffs were
disparaged or defamed by not only by Sculimbrene’s article, but also by unspecified statements
offered after the initial publication of Sculimbrene’s article by other third parties in the public
“comments” section [Amended Complaint, Para. 49] neither the amended complaint, nor Mr.
Sculimbrene’s signed statement, offers any factual basis to suggest that the defendants authored,
altered, or materially contributed to their content in any way. See, Collins v. Purdue University,
703 F.Supp.2d 862, (N.D.Ind. 2010).

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Finally, although the plaintiffs did not choose to augment their complaint allegations with
this document, it should be noted that Mr. Sculimbrene was also required to publish a written
retraction as part of his settlement agreement with the plaintiffs, a copy of which was produced by
the plaintiffs in discovery and is attached as Exhibit “C”. In that retraction, Mr. Sculimbrene
takes full credit for his article, for all of the opinions expressed in the article, and for his completely
unprofessional failure to seek any comment or input from Mr. Marfione before writing it, stating
that he was embarrassed and ashamed to have personally disparaged Mr. Marfione, that his
comments served no purpose, and that they were his own rank, crass and ill-informed opinions,
which he said were motivated by his own “zeal for a zinger,” as opposed to any purported
manipulation on the part of Mr. Welk.

II. THERE IS STILL NO PLAUSIBLE BASIS FOR THE PLAINTIFFS’ BALD

ASSERTION THAT THE DEFENDANTS CREATED, OR MATERIALLY
CONTRIBUTED TO THE ALLEGED ILLEGALITY OF THE PURPORTEDLY
DEFAMATORY STATEMENTS APPEARING IN SCULIMBRENE’S ARTICLE

The plaintiffs have argued that “the Sculimbrene Statement, taken together with the
evidence attached to the Amended Complaint, is sufficient to state a plausible claim that KAI
jointly created and developed the Sculimbrene Article.”
Nothing could be farther from the truth.
As the Court is already aware from the parties’ original briefing, an interactive computer
service provider (such as the defendant through its website) is immune from civil tort liability
based upon its posting or republication of content provided by third parties such as Mr.
Sculimbrene under Section 230 of the Communications Decency Act (“CDA”) unless it is shown
that the defendant also functioned as an “information content provider,” a term defined as referring
to an entity that “is responsible, in whole or in part, for the creation or development” of the
information provided. 47 U.S.C. Section 230.
That statutory language has consistently been interpreted as requiring something more
involved than merely displaying or facilitating access to content created and originally published
by a third party. Jones v. Dirty World Entertainment Recordings, LLC, 755 F.3d 398, 410 (6th Cir.
2014).
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To remain subject to tort liability under the statute, a defendant must have “created or
developed the particular information at issue,” or have taken an “active role” in causing a particular
statement, or perhaps its actionable content, to be made. Carafano v. Metrosplash.com, Inc., 339
F.3d 1119, 1125 (9th Cir. 2003); Chicago Lawyers’ Comm. For Civil Rights Under Law, Inc. v.
Craigslist, 519 F.3d 666, 671 (7th Cir. 2008).
Under the “material contribution” standard adopted by most courts and advanced by the
plaintiffs in their pending motion for reconsideration, the term “development” has been defined as
not merely augmenting the content of a third-party posting, but “materially contributing to its
alleged unlawfulness,” or being responsible for what makes the displayed content allegedly
unlawful. Dirty World, supra; Fair Housing Council v. Roomates.com., LLC, 521 F.3d 1157,
1167-68 (9th Cir. 2008).
Merely encouraging disparaging or defamatory posts, or expressing post hoc agreement
with their content is not sufficient to avoid CDA immunity. Dirty World, supra at 415; Global
Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F.Supp.2d 929, 933 (D.Ariz. 2008); Ascentive,
LLC v. Opinion Corp., 842 F.Supp.2d 450, 476 (E.D.N.Y. 2011), (noting that there is simply no
authority for the proposition that encouraging the publication of defamatory content renders a
website operator responsible for the creation or development of every posting on the site); La Park
La Brea A LLC v Airbnb, Inc., 2017 U.S. Dist. LEXIS 213721 (C.D.Calif. 2017); Russell v.
Implode-Explode Heavy Industries, Inc., 2013 U.S. Dist. LEXIS 133358, 2013 WL 5276557
(D.Md. 2013); Best Western Int’l. v. Ferber, 2008 U.S. Dist. LEXIS 7052, 2008 WL 4182827
(D.Ariz. 2008), (suggesting that visitors should make statements defaming the plaintiff was
insufficient to avoid immunity); Shiamili v. Real Estate Group of New York, Inc., 17 N.Y.3d 281,
952 N.E/2d 1011, 1018 (NY 2011), (implicit encouragement does not make a website operator an
information content provider for the purpose of immunity).
Although the case law offers numerous examples of conduct that has been viewed as the
“development” of content for the purpose of avoiding CDA immunity, none of those examples
bear any resemblance to the present situation, and the plaintiffs have not really attempted to explain
how it is that KAI purportedly developed the allegedly defamatory content of Sculimbrene’s
article.

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One recognized example of the “development” of content falling outside of CDA immunity
involves the selective editing or alteration of third party content, changing its meaning and
transforming an innocent message into a libelous one. Roomates.com, supra at 1163; Implode-
Explode, supra; General Steel Domestic Sales, LLC v. Chumley, 2015 U.S. Dist. LEXIS 108789
(D.Colo. 2015). This can also be accomplished without changing the original content of a third
party publication simply by adding disparaging titles, headings or editorial messages which
become part of the website content. MCW, Inc. v. Badbusinessbureau.com, LLC, 2004 U.S. Dist.
LEXIS 6678 (N.D.Tex. 2004). There are no allegations suggesting that KAI did any of those
things.
Another example of “development” occurs where an interactive computer service provider
pays for someone else to write the offending article. See, e.g., Advantafort Co. v. Int’l. Registries,
Inc., 2015 U.S. Dist. LEXIS 62125, 2015 WL 2238076 (E.D.Va. 2015), (holding that the plaintiffs
had failed to plead facts sufficient to support a plausible inference that the defendant was
responsible for the creation or development of an article, and suggesting that they might overcome
that hurdle if the defendant had paid the author of the article to write it, or had done so in the past);
FTC v. Accusearch, Inc., 570 F.3d 1187 (10th Cir. 2009), (no immunity where defendant paid third
party researchers to obtain confidential telephone records for its website, intended to display such
information unlawfully, and affirmatively solicited the information). As noted previously, Mr.
Sculimbrene has indicated that he was not paid by KAI for his publication of the article, and there
is nothing in his statement or in the complaint allegations to suggest that there was any past practice
or understanding between Sculimbrene and KAI that payment would be made if he wrote a review
that was favorable to KAI, or disparaged one or more of its competitors.
A defendant can also be viewed as having been responsible in part for the “development”
of third party content where the structure of its website requires users to input the unlawful content
on which a plaintiff’s claims are based. Roomates.com, supra. Again, that is not what happened
here, where Sculimbrene published the offending article all by himself, and the defendant merely
linked that existing article to its website.
There is simply no authority suggesting that a company that agrees to provide an
independent and unpaid product reviewer with advance copies of its catalogs, product samples, a
telephone interview, and unspecified ”information,” can be considered “responsible” for the
creation or development of the content of that third party’s resulting article, or for the reviewer’s

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own admittedly rank, crass and ill-informed opinions, especially where the content of the article
was not shared with, or known to the company prior to publication, or in any way altered when it
was later linked to the company’s website.
Although research has not disclosed any authorities holding that a defendant must be aware
of the allegedly defamatory content of an article before it has been published in order to be
considered “responsible” for its creation, or development, that would appear to be rather obvious.
While some of KAI’s representatives were undoubtedly pleased or amused by Mr.
Sculimbrene’s article when they first saw it after the fact, as were a number of readers apparently,
there is absolutely nothing here to indicate that anyone other than the author himself knew
beforehand what the content of that article would be, let alone took an active role in creating or
developing any actionable portions of that content.

III. PLAUSIBILITY CANNOT BE PREMISED UPON UNWARRANTED

INFERENCES OR THE MISCHARACTERIZATION OF EVIDENCE

The Court has already thoroughly addressed the plaintiffs’ past reliance upon unsupported
and unreasonable inferences, as well as misstatements of the evidence, when responding to the
defendants’ motions to dismiss in its Order of March 27, 2018, and that pattern of behavior has
not changed significantly with their motion for reconsideration, in which the plaintiffs have again
done both repeatedly, stepping at least slightly across the line between poetic license or acceptable
legal advocacy and misleading conduct. As before, however, the Court’s careful examination of
the actual documents involved should serve to resolve the problem.
Among them, the plaintiffs have referred at Page 2 of their motion to what they have
characterized as “Sculimbrene’s admission that KAI contributed and jointly developed the
Sculimbrene article,” when Mr. Sculimbrene’s hearsay statement actually says nothing of the sort.
On the same page, the plaintiffs have also misrepresented the content of the e-mail
exchanges between Sculimbrene and Welk on January 5, 2017, in stating that “Welk informs
Sculimbrene that the use of the name ‘Natrix’ is meant not only as a play on words in reference to
Microtech’s ‘Matrix’ knife, but also that the term ‘Natrix’ refers to certain types of grass snakes
– i.e., Microtech and /or Anthony Marfione is a snake in the grass.” As an examination of the
actual e-mail exchanges plainly indicates, Mr. Welk did not say that at all. Instead, the e-mail

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thread would indicate that Sculimbrene cleverly pieced that together and arrived at that conclusion
himself.
As previously explained in this Brief, Sculimbrene also misstated the evidence himself
with regard to the same e-mail exchanges in his signed statement, where he falsely attributed some
of his own statements to Mr. Welk, as is clear from the face Exhibit “A” to the amended complaint,
which is also attached as Exhibit “B” to this Brief.
At Page 2 of the plaintiffs’ motion, they also misleadingly suggest that Mr. Welk sent
Sculimbrene an e-mail offering his account of the history between KAI and Microtech and that
this was one of the communications on which Sculimbrene relied in writing his article, whereas
Paragraph 16 of Sculimbrene’s statement instead indicates that the e-mail in question was not sent
to him by Welk until three days after the offending article was published, a fact also evident from
face of the e-mail itself.
Moreover, as the Court has already ably explained in its Order granting the defendants’
motions to dismiss, even assuming that the “snake in the grass” statement in Sculimbrene’s article
was intended to refer to the plaintiffs and is legally actionable (insults, opinions and terms of
personal invective are not ) there is nothing in the complaint allegations to indicate that Mr. Welk
knew beforehand that Sculimbrene intended to include that particular statement (or anything else)
in his upcoming article, let alone put him up to it, and nothing about that is changed by Mr.
Sculimbrene’s signed statement.

IV. IMMUNITY IS BROADLY CONSTRUED AND MUST BE AFFORDED

AT THE FIRST LOGICAL POINT OF THE LITIGATION PROCESS

The plaintiffs not only contend that reconsideration is appropriate based upon “new
evidence” in the form of Sculimbrene’s signed statement (dated over two weeks before the
amended complaint was filed on May 19, 2017) but also on the basis that the Court erred in
granting KAI’s motion to dismiss at the pleadings stage.
While it is true that some courts have been hesitant to do so, the seemingly prevailing view
is that immunity under the CDA is meant to be given a very broad scope to further the policies
underlying the statute, and should be afforded “at the earliest logical point in the litigation
process.” As noted by the U.S. Court of Appeals for the Fourth Circuit in Nemet Chevrolet, Ltd.

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v. Consumeraffiairs.com, 591 F.3d 250, 254-55 (4th Cir. 2009) when upholding the dismissal of
an action against an internet service provider pursuant to a motion to dismiss for failure to state a
claim pursuant to Rule 12(b)(6):

To further the polices underlying the CDA, courts have generally accorded Section 230
immunity a broad scope. [citations omitted]. This Circuit has recognized the “obvious
chlling effect” the “specter of tort liability” would otherwise pose to interactive computer
service providers given the “prolific” nature of speech on the Internet. [citation omitted].
Section 230 immunity, like other forms of immunity, is generally afforded at the first
logical point in the litigation process. As we have often explained in the qualified immunity
context, “immunity is an immunity from suit rather than a mere defense to liability” and “it
is effectively lost if a case is erroneously permitted to go to trial.” [citation omitted]. We
thus aim to resolve the question of Section 230 immunity at the earliest possible stage of
the case because that immunity protects websites not only from “ultimate liability,” but
also from “having to fight costly and protracted legal battles.” Roomates.com, 521 F.3d at
1175.

Consistent with that broad scope of immunity, it has also been held that even “close cases”
must be resolved in favor of immunity, “lest we cut the heart out of Section 230 by forcing websites
to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged –
or at least tacitly assented to – the illegality of third parties.” Roomates.com, supra, 521 F.3d at
1174; Dirty World, supra, 755 F.3d at 408.
As stated in the Court’s prior Order, Rule 8 “does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions,” and that is particularly true where the
plaintiffs have already been supplied with all of the private communications exchanged between
Sculimbrene and the only individual at KAI with whom he allegedly communicated before
publishing his article, Thomas Welk, yet still cannot manage to offer a factual predicate for their
claims.
The Court’s Order granting the defendants’ motions to dismiss afforded the plaintiffs the
opportunity to augment the deficient factual allegations of their amended complaint with evidence
produced in discovery to support their bare and conclusory assertions that the defendants created
or developed the allegedly tortious content of the Sculimbrene article, and from the hundreds of
pages of documents available, the plaintiffs chose to present only a copy of Sculimbrene’s signed

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statement and an incomplete e-mail exchange, neither of which is sufficient to solve the problem,
in that neither provides any factual basis to support their allegations.
Under the circumstances, there is no justification for allowing this suit to proceed,
subjecting the parties and the Court to a protracted legal battle over purportedly defamatory
communications that were authored and originally published by someone other than the
defendants, who merely linked that existing article to their website.

Respectfully submitted,

/s/ Andrew J. Gallogly

Andrew J. Gallogly (PA I.D. No. 34554)
MARGOLIS EDELSTEIN
170 S. Independence Mall West, Suite 400E
Philadelphia, PA 19106
(215) 931-5866
agallogly@margolisedelstein.com

Emily E. Mahler (PA I.D. No. 310058)

MARGOLIS EDELSTEIN
525 William Penn Place, Suite 3300
Pittsburgh, PA 15219
(412) 355-4923
emahler@margolisedelstein.com

Attorneys for Defendants

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CERTIFICATE OF SERVICE

I, Andrew J. Gallogly, hereby certify that a true and correct copy of the foregoing Brief
was served upon counsel of record for the plaintiffs upon its filing and acceptance through the
electronic case filing system.

/s/ Andrew J. Gallogly

Andrew J. Gallogly

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