Before You Post That Bad Review....

By Alice Giordano

Lubbock businessman Timothy Castleman has paid out more money than OJ Simpson for posting a bad review of an online company and not only has he not killed anyone, he didn't even have a trial.

Adding insult to injury is the fact that Castleman is from the same town as nationally infamous auto dealership fraudster Bart Reagor who finally after more than three years following a $250 million judgement against him just recently had his bank accounts seized to pay his debts.

"I want people to understand I have paid out more than someone who killed two people and had my money seized quicker than a guy who pulled off one of the biggest cases of fraud in U.S. history.," said Castleman who had $60,000 taken out of his bank account before his trial even started. In another unprecedented move, the court allowed the seizure of his two investment properties before he was even close to being done exhausting his legal avenues in a libel suit against him.

Adding insult to injury is the fact that the Texas court ruled against one of its own residents in favor of someone operating out of a foreign country.

All told, Castleman's bad review has so far cost him nearly $500,000. He is now down to one last front to reverse the judgement in a motion for what's called a Bill of Review with the Texas Appellate Court.

It is a case that comes at the heels of unprecedented censorship in our nation and what some see as a rabid, unconstitutional movement to stymie First Amendment rights.

As the Texas case takes a legal stage on the global hot topic issue, many online users might want to keep an eye on its final outcome before they jump on Google and complain about that cold cup of latte they just purchased from the corner coffee shop.

The case is also a cautionary tale in times of the fast growing infinite sea of online, startup companies including ones based in foreign countries that can set up a virtual shop in the U.S. and collect money with little to no accountability.

For Castleman, his woes as an online reviewer started back in 2015 when he posted a Youtube video slamming the services of an Ireland-based company called The Offline Assistant.

Castleman alleges that the company, which provides virtual assistant services, botched a job he hired it to do for his company Castleman Consulting. Castleman hired The Offline Assistant to fulfill customer orders. He alleges the company had an 85 percent error rate and over ordered products, an expense he had to eat.

After Castleman posted his review, Kevin O'Connor, the owner of TheOfflineAssistant and also then owner of another online company called Internet Money Limited sued Castleman for libel under Texas's SLAPP law. SLAPP stands for Strategic Lawsuit Against Public Participation and is aimed at stopping negative comments like bad online reviews about a business.

O'Connor, who has listed address in Dublin, could not be reached and his attorney Paul Manning declined to make any comment on the case.

According to court pleadings, O'Connor filed suit against Castleman after Castleman refused O'Connor's demands to take down his video review, retract his claims, issue a public apology, and also pay him $315,000. a O'Connor had to approve himself and had to remain online for a year.

In response, Castleman hired an attorney to file what's called an Anti-SLAPP action under the Texas Citizens Participation Act (TCPA), which protects First Amendment rights to free speech.

But Castleman never got his day in court and what unfolded next may very well make him the unluckiest man on earth and yes, someone who seemingly had the scales of justice tilted inexplicably against him.

Castleman's first downfall came when his lawyer who had filed an answer to O'Connor complaint, withdrew from the case before the trial and took a job with an insurance company. With digital notices being sent to the lawyer's former law firm, the trial in the case came and went without anyone on Castleman's side even knowing about it.

O'Connor, therefore, won by default.

Castleman then hired a new lawyer to file an appeal of the court's decision. However, while Castleman was out of the country, that lawyer withdrew from the case.

Once again, a trial took place without Castleman even knowing about it and once again he lost by default.

In the meantime, the same judge who had six months earlier denied O'Connor's request for $57,000 in legal fees, not only granted the fees in a new petition filed by O'Connors lawyers, but gave them the go ahead to seize the money before a trial even took place.

Even Castleman's bank showed him no mercy, helping itself to $3,000 from his bank account for 'handling fees" in processing the transfer of their customer's money over to O'Connor.

"This one man with some bad luck," said Texas attorney Mark McBrayer, "the result has deprived him of his most fundamental rights, especially concerning is that we can't see anywhere in the record where my client ever received any notice of the trial."

McBrayer of the Lubbock firm Crenshaw, Dupree & Milam, is representing Castleman on the bill of review motion pending before the state appellate court.

If granted, Castleman will get a whole new bite at the apple to defend claims his online review was defamatory.

It will also put the spotlight on Texas's controversial TPCA law, itself an entangled legal mess in need of sorting out what constitutes free speech and what doesn't when it comes to things like -- bad reviews.

At the crux of the issue is the TPCA's commercial exemption provision, which in so many words says that the Anti-SLAPP statute doesn't protect commercial speech under certain types of exchanges of goods and services.

A trial judge in a preliminary review of Castleman's case admitted the law is hard to interpret, stating "The Texas courts of appeals are divided on the proper interpretation and application of this exemption."

Many states including California have similar commercial speech protection exemptions.

Northwestern University Law and Public Policy professor Martin Redish, believes it unconstitutional to exclude commercial free speech as protected speech under the First Amendment rights.

In an in-depth analysis he did on the subject for the Cato Institute, Reddish concluded:
"It is time for the Court to expressly acknowledge that commercial speech properly stands on an equal footing with all other kinds of expression given full protection by the First Amendment."

What, of course, has added to the litigious nature of free speech is the fast growing popularity of online reviews on such high profile social media outlets like Yelp, Amazon, Google, TrustPilot, and Angie's List.

In their highly-marketed invitation to consumers speak up about their experiences with a business, they have unwittingly put wouldbe reviewers including those with good faith intentions between a principled rock and potentially libelous hard place.

In other words, don't speak up and you leave others prey or speak up and potentially become prey.

That's exactly how Castleman said he felt about O'Connor who he even once went out for beers with Connor when he was in town. "We talked about our families," he said,"I over trusted him."

O'Connor does seem to be trying his hand at a myriad of startup companies.

TheOfflineAssistant.com website was copyrighted in 2017 and it is unclear from the website if it is still in operation. Then there is HandleMySupport.com that O'Connor copyrighted in 2018. Another online company copyrighted in 2021 called cradleplay.com lists the same phone number and address listed on The Offline Assistant and Handlemysupport.com. Each is a fairly rudimentary one-page website that captures personal information to submit.

And then is caloriesnipers.com, which lists Kevin O'Connor as its founder and promotes Kevin's personalized how-to program to achieve better health. The website, which was copyrighted in 2020 states that the program "guarantees to lose weight in 30 days or your money back. Guaranteed."

There's no contact or customer support information listed on the website. It features short snippets about Kevin's personal transformation and items to buy including a one time subscription fee of $39 to caloresnipers.com along with workout videos by Kevin for $38.94 and also meal plans by Kevin for $15.54.

To be fair to O'Connor, there seems to be no other bad reviews on line against him.

The ultimate irony of the whole case is Castleman lost half a million dollars over a $7,897.68 bill. He spent at least ten times that in legal fees, an accrual that was essentially out of his hands since Texas law prohibits anyone from representing themselves in a lawsuit against a business they own.

Castleman can't help but compare his case to high profile judgements especially the $33.5 million civil judgement against OJ Simpson after a jury in a civil suit found him responsible for killing Rob Goldman and Nicole Simpson.

Since the 1997 judgement, Kim Goldman, Rob's sister has said in published reports that the family has only collected one percent of the judgement, which is about $330,000, which is yes, less than what Castleman has paid -- for posting a review.

Alice Giordano is a former reporter for The Associated Press and The Boston Globe. She is a freelance writer and covers national topics include politics, consumerism, government corruption, and business affairs. She is the owner of the digital marketing firm The Professional Pen.