FILED: NEW YORK COUNTY CLERK 12/04/2014 11:45 AM INDEX NO. 161978/2014 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/04/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK H MART, INC., Index No. Plaintiff, Purchased: 12-4-2014 V. NEWSKANN.COM, MINHO LEE, JOY LEE, ABC COMPANY 1, ABC COMPANIES 2 THROUGH 5, and JOHN DOES 1-5, Venue: Based upon defendants' transaction of business Defendants. To the above-named defendant(s): You are hereby summoned to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the plaintiffs attorney within 20 days after service of this summons, exclusive of the day of service (or within 30 days after the service is complete ifthis summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgement will be taken against you by default for the relief demanded herein. Dated: December 4, 2014 Defendants' addresses for service: 1. N ewskann.com 2100 Linwood Ave, 4B Fort Lee, NJ 07024 2. Minho Lee 2100 Linwood Ave, 4B Fort Lee, NJ 07024 3. Joy Lee 2100 Linwood Ave, 4B Fort Lee, NJ 07024 m, Esq. (Admitted in NY) Thomas W. ark, Esq. (Admitted in NY) Sung H. Jang, Esq. (PHV) · KIMM LAW FIRM 333 Sylvan Avenue, Suite 106 Englewood Cliffs, NJ 07632 201-569-2880 Attorneys for plaintiff
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FILED: NEW YORK COUNTY CLERK 12/04/2014 11:45 AM INDEX NO. 161978/2014
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/04/2014
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
H MART, INC., Index No.
Plaintiff, Purchased: 12-4-2014 V.
NEWSKANN.COM, MINHO LEE, JOY LEE, ABC COMPANY 1, ABC COMPANIES 2 THROUGH 5, and JOHN DOES 1-5,
Venue: Based upon defendants' transaction of business
Defendants. ~ummons
To the above-named defendant(s):
You are hereby summoned to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the plaintiffs attorney within 20 days after service of this summons, exclusive of the day of service (or within 30 days after the service is complete ifthis summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgement will be taken against you by default for the relief demanded herein.
Dated: December 4, 2014
Defendants' addresses for service:
1. N ewskann.com 2100 Linwood Ave, 4B Fort Lee, NJ 07024
2. Minho Lee 2100 Linwood Ave, 4B Fort Lee, NJ 07024
3. Joy Lee 2100 Linwood Ave, 4B Fort Lee, NJ 07024
m, Esq. (Admitted in NY) Thomas W. ark, Esq. (Admitted in NY) Sung H. Jang, Esq. (PHV) · KIMM LAW FIRM 333 Sylvan Avenue, Suite 106 Englewood Cliffs, NJ 07632 201-569-2880 Attorneys for plaintiff
SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK
H MART, INC.,
Plaintiff, v.
NEWSKANN.COM, MINHO LEE, JOY LEE,ABC COMPANY 1, ABC COMPANIES 2THROUGH 5, and JOHN DOES 1-5,
Defendants.
Index No.Date Purchased:
Complaint With Jury Demand
Plaintiff H Mart, Inc., brings this complaint for defamation and other claims against
the above-named defendants and alleges:
THE PARTIES
1. At all relevant times, H Mart, Inc. (HMI), is a business entity organized under
Delaware law and operates a supermarket chain at 44 locations throughout the United States
including various locations in New York and New Jersey. Operating under the brand name
“H Mart,” HMI sells a full array of American products and Asian products which number in
tens of thousands of actual products among thousands of product categories.
2. At all relevant times, defendant Newskann.com holds itself out to be a business
entity organized under New Jersey law and states that the principal place of business is
located at 2100 Linwood Ave, 4B, Fort Lee, New Jersey.
3. At all relevant times, upon information and belief, defendant Minho Lee, whose
residential address is unknown but may be served at his business address at 2100 Linwood
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Ave, 4B, Fort Lee, New Jersey, holds himself out to be an editor-in-chief of defendant
Newskann.
4. At all relevant times, upon information and belief, defendant Joy Lee, whose
residential address is unknown but may be served at her business address at 2100 Linwood
Ave, 4B, Fort Lee, New Jersey, holds herself out to be a publisher of defendant Newskann.
5. At all relevant times defendant ABC Company 1 is the actual legal entity operating
the Newskann.com website at 2100 Linwood Ave, 4B, Fort Lee, New Jersey, but plaintiff
is presently without knowledge as to the true and accurate corporate status of this entity and
therefore this entity is identified here as ABC Company doing business as newskann.com.
6. Defendants ABC Companies 2 through 5 are unknown possible business entities
who are acting in concert or participation with the named defendants who are believed to
exist but whose identities are not known to plaintiff at this time. Upon information and
belief, defendants ABC Companies 2 through 5 are believed to have participated with the
named defendants in the manufacture of false facts or “articles” that are implicated in this
action in concert and participation with the named defendants and therefore may be liable
jointly and severally to plaintiff.
7. Defendants John Does 1 through 3 are individuals who are believed to exist but
whose identities are not known to plaintiff at this time. Upon information and belief,
defendant John Does 1-3 are believed to have participated with defendants in the
manufacture of false facts or “articles” that are implicated in this action in concert and
participation with the defendants and therefore may be liable jointly and severally to plaintiff.
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COMMON ALLEGATIONS
8. Newskann.com holds itself out to be an online “newspaper” serving the Korean
community of New York and New Jersey. At the bottom of its masthead, and at the bottom
of every page of its website, the following notation is displayed:
SPECIALS,” “SHARING,” and “COMMUNITY.” Under the “NEWS” tab, which is
subdivided into these categories, “All,” “Society,” “Politics,” “Economy,” “Culture,” “Video
News,” “Photo News,” and “English [News]”; and under the “LIFE” tab which reveals
“Sports” and “Entertainment,” substantially all materials are, upon information and belief,
plagiarized from third-party sources and third-party owners of copyright. Countless photo
and video images are displayed with large “NEWSKANN.COM” superimposed in large
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characters inside in the images; some images are shown with other source identification
marks but wholesale used in defendants’ website. News and other stories, too, are either
wholesale copied and posted in defendants’ website, such as an Associated Press story about
the two Americans released from North Korea’s prisons:
14. As is readily apparent from the face of the alleged lead sentence, the source of the
“article” is Associated Press “(AP)” yet it appears that defendants superimposed their
“NEWSKANN.COM” mark on the photo and presented the article as their own so that their
readership would think the article was, in fact, their work in whole and in part. Upon
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information and belief, defendants never visited the two prisoners inside North Korea; did
not take the photograph; but rather plagiarized from the confines of their office.
15. The following news from defendants’ “Society” page shows the “Philae,” a
European stellar vehicle landing on the moving comet, making history on November 12,
2014. Here too the photo inset is identified as “NEWSKANN.COM” when in fact, upon
information and belief, defendants were not physically or otherwise within photographic
access of the Philae vehicle or imagery. Indeed, the entire “article” was essentially copied
in whole or material part from other, legitimate news sources, despite the lead identification
of the byline as “[Newskann=Joy Lee Reporter]” in the opening line.
16. Upon information and belief, defendants willfully, knowingly, wantonly,
recklessly and far beyond negligently plagiarize third-party materials and engage in
wholesale copying of third-party copyrights and moral rights to create, operate, and maintain
their website newskann.com so as to generate revenue from their advertisers who are led to
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believe that real news stories and photo journalism is practiced.
17. Not only do they plagiarize “news” stories and photos, upon information and
belief, defendants also use the names and likenesses of celebrities whose photographs are
sold and bought by real publications for significant sums of money, including the following
of George Clooney. The following is an article claimed to have been written by “Joy Lee
Reporter” and is presented among many postings in defendants’ “Entertainment” section
where countless celebrities and sports figures’ names and likenesses are used, upon
information and belief, by simply taking those materials from third-party sources.
18. Based upon the foregoing examples and extensive others found in defendants’
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website, it appears defendants are not operating a “newspaper” but rather a website which
is self-proclaimed to be a “newspaper” but which presents plagiarized stories and uses
intellectual properties of third-parties.
19. Such wholesale copyright infringement acts have been the focus of precedential
decisions of federal courts having exclusive jurisdiction over disputes involving copyrights
under the U.S. Copyright Act of 1976, as amended, 17 U.S.C. §§ 101 et seq, as well as the
Digital Millennium Copyright Act of 1998, 17 U.S.C. §§ 512, 1201–1205, 1301–1332; 28
U.S.C. § 4001, which implemented the copyright treaties executed under the auspices of the
World Intellectual Property Organization.
20. In the precedential decision of Associated Press v. Meltwater U.S. Holdings, Inc.,
931 F. Supp.2d 537 (S.D.N.Y. 2013), the facts were virtually identical to the business model
of the defendants here, where that defendant operated an online news clipping service which
copied third-parties’ news and photos wholesale and re-posted those materials which were
then claimed to be their news stories. This appears to be the very business model of the
defendants in this action, as they claim to be the originators of much of the writing and
photos that are found on their website newskann.com. Presumably they claim their conduct
constitutes “fair use” of third-parties’ intellectual properties for “news purposes.” In
Associated Press, at 561, the Court held however:
Examining the four factors individually, and consideringthem as a whole in light of the purposes of the Copyright Actand the fair use defense, Meltwater has failed to raise a materialquestion of fact to support its fair use defense. Meltwater'sbusiness model relies on the systematic copying of protected
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expression and the sale of collections of those copies in reportsthat compete directly with the copyright owner and that owner'slicensees and that deprive that owner of a stream of income towhich it is entitled. Meltwater's News Reports gather and delivernews coverage to its subscribers. It is a classic news clippingservice. This is not a transformative use. As significantly, the rejection of the fair use defense here will further the ultimateaim of the Copyright Act, which is to stimulate the creation ofuseful works for the public good. Harper & Row, 471 U.S. at558.
21. By reason of their self-proclaimed “newspaper” status, defendants believe that
they are above the law. In fact long lines of authority from the U.S. Supreme Court, which
has been regulating first amendment defamation cases since at least New York Times v.
Sullivan, 376 U.S. 254 (1964), from the various federal Courts of Appeals, and state courts
of all 50 states show that when defamation is committed, whether by the “news media” or
ordinary citizen, the actors are held liable for the injurious consequences of their conduct.
THE FALSE AND INACCURATE OCTOBER 16, 2014, “ARTICLE”
22. On October 16, 2014, Newskann.com reported, in its “Society” section, an
“article” entitled, “Radioactive Contamination-Suspected Fish Arrives on the Dinner Tables
of Korean-Americans,” annexed hereto as Exhibit 1, purporting to describe H Mart’s sale of
fish contaminated from the Fukushima, Japan, tsunami-caused nuclear plant accident of June
2, 2011. The Newskann.com piece states as follows:
Fishery products that are not consumed even in Korea are beingsold by H Mart led (affiliated entity Flushing's Captain Blue) imports by air (cargo) twice a week in large volumes (15,000tons) such that Korean [American] tables are in a state oftension.
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H Mart entered into a contract for Jeju fisheries products, suchas abalones, sea cucumbers, sea squirts, tile fish, live octopus,fluke, and others, then on the afternoon of the 15th at New YorkKennedy Airport the first arrival (about 5,000 pounds) of thefishery products cleared through customs.
H Mart began distribution on the 16th at its New York, NewJersey and Virginia (currently being transported) and other U.S.locations, [but] in the aftermath of the 2 years earlier Fukushimanuclear plant accident Koreans have been avoiding fisheryproducts believed to be contaminated which cannot be sold, andthe sale of such products to the Korean-Americans isquestionable and is the focus of anti-H Mart voices for H Martboycott.
When radiation contaminated fishery products are consumed,illnesses can develop 5 years after exposure, such as thyroidcancer, hemophilia cancer and other forms of cancer, etc., withsignificant injury. So Koreans due to their concerns oversuspected radiation contamination of Korea's fishery productsurged themselves to not buy and absolutely not consume them.
H Mart, knowing that Koreans refused to consume thoseproducts, seized the opportunity to purchase those products atdirt cheap prices so as to sell them to Korean-Americans at apremium, which is a way of treating Korean-Americanslaughingly, and H Mart shows no concern at all for localKoreans, only as a shameless, greedy merchant, and thereforethe Korean-American community should condemn this practice.
When radiation contamination spreads, after 3 years, the placenearest to Japan, Korea's seas (East Sea, Southern Sea, WesternSea) will be spread of the contamination and also Russia'sKamchaka region will face the contamination as this is thefrightening reality.
According to one expert, seriousness of the radiationcontamination from Japan would engulf the Pacific Ocean in 10years from when the contamination began.
Recently in the vicinity of California the topic was a tuna that
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was caught had been contaminated by the Fukushima radiationdisaster and the important matter was not it was not knownwhere the tuna was exposed to radiation contamination but afterthe Fukushima radiation was absorbed through its food chain thetuna had migrated 10,000 kilometers.
A Korean residing in New York whose last name is Kimsuspected “Could the fish on the table be safe enough?” andasked, “Does H Mart really have consideration forKorean-Americans, or do we trust them and consume theproducts?” said, as the main issue.
According to one expert’s post-Fukushima accident simulation,one by one facts will unfold by coming 2022 that all the way tothe front oceans of Russia contamination will spread. <Photo notrelated to article. grilsheloved tstory>
23. The October 16, 2014 “article” essentially states that H Mart “quickly acquired”
“suspected radioactive, contaminated fish products” at “dirt cheap prices and sold them at
premium prices” constituting plaintiff’s “arrogant sales practice.” Numerous specific factual
attributions are simply unsupported and incorrect. Included among the false facts are:
a) Contrary to the phony “article,” H Mart has never imported fish products that are
“not even consumed in Korea” (twice weekly, 15,000 tons of volume);
b) Contrary to the “article,” H Mart has never contracted to purchase the enumerated
“Jeju Fishery” products in any “cooperative setting”;
c) Contrary to the “article,” H Mart has never purchased or ordered some “5,000
pounds of substandard fishery products” which arrived at Kennedy Airport on October 15
by air freight;
d) Contrary to the “article,” H Mart has not purchased “fishery products that were
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rejected in Korea,” “to be sold at its locations in New York, New Jersey, Virginia and
elsewhere”; and
e) Contrary to the “article,” H Mart has never acquired product distribution rights to
fishery products that cannot be sold to the consumers of Korea, among other allegations.
24. The “article” was presented with a lead-in photograph which had nothing to do
with it. This fact is revealed at the bottom of the “article,” where it state, “Photograph is
unrelated to the story”; but this fact is not even disclosed in the photo inset, where it was used
to grab the readers’ attention but used as a “bait and switch” tactic. Defendants
manufactured a story rather than reporting one.
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25. This photograph too appears to have been taken by someone other than
defendants. Defendants intentionally used an unrelated photograph knowing it is unrelated
simply as a marketing tool to induce readers’ attention rather than reporting some related
facts. Both specific parts of the “article” and its overall tenor is one of contempt and ridicule
by falsely stating that H Mart sold contaminated, radioactive products borne of the
Fukushima disaster which were acquired overseas because of over-supply stemming from
the locals’ rejection of contaminated products, which were then purchased “dirt cheap”
through an unseemly secret contract then “fraudulently” imported into the United States and
sold as “premium fishery products” to unknowing consumers in the United States. Such
statements were not matters of opinion or puffery but statements of fact intended to place
plaintiff in a hostile light, especially in relation to the customers of H Mart, and they
immediately had the intended effect, to damage plaintiff’s business activity.
26. Material portions of the foregoing phony "article" were demonstrably false;
defendants were totally indifferent to the truth and they published the phony story so as to
cause alarm and panic.
27. Defendants engaged in their acts of malice, without justification, so as to cast
plaintiff in a bad light publicly and to ruin plaintiff’s business standing everywhere they are
known. As a result of defendants’ actions, plaintiff has suffered damage to its good name
and reputation, to its prospective income and advantage, and to the value of its trade name
and standing for which plaintiff have been working hard and diligently for decades.
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THE FALSE AND INACCURATE OCTOBER 22, 2014, “ARTICLE”
28. On October 22, 2014, Newskann reported, in its “Society” section, an “article”
entitled, “Unified New Jersey H Mart, Jeju Speciality Products Permanent Sale,” annexed
hereto as Exhibit 2, purporting to confirm its previous article of October 16, 2014
concerning H Mart’s sale of fish contaminated from the Fukushima, Japan, nuclear plant
accident of June 2, 2011, which states as follows:
Yon-hap News reporter Hong Jeong Pyo carried a wholestatement of the report (12/2013) that the Jeju specialityproducts would be sold at the H Mart Ridgefield branch in NewJersey.
Jeju Province and Jeju Farming Fisheries Associationannounced that they have contracted with H Mart in America tofurnish a permanent sales corner that keeps such as frozendisplay boxes and fresh water tanks at the H Mart Ridgefieldbranch in New Jersey and launching an operation from 21st.
H Mart imported around 80 Jeju speciality products whichinclude fluke, red lip croakers, cutlass fish, mackerels, citrus icecream, green tea and Shiitake mushrooms and will be marketedat the permanent sales corner.
Jeju province and Jeju Farming Fisheries Association hold asales promotion event of the Jeju speciality products includingfluke, cutlass fish, mackerels and dried brackens, Shiitakemushrooms and a tea category in time of the opening of thepermanent sales corner at the 5 branches of the H Mart in NewYork, New Jersey, Virginia from 20th to 22nd.
H Mart is a huge Korean mart that has the greatest scope of adistribution net among Asian grocery chain in America. Thereare 41 branches operated in 13 states such as New York, NewJersey and California and annual sales volume reaches $1.2billion.
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H Mart started to import $485,000.00 worth of Jeju farm raised,flounders and wintering radish, in 2011 and imported$1,662,000.00 worth of agriculture and fishery products in 2012.
In the meantime H Mart sent explanatory articles to newspaperslike Korea Times (full page box advertisement), and New YorkIlbo (full page advertisement) and these local press carried thearticle repeatedly like parrots.
NEWSKANN has already obtained definitive evidence that theJeju fishery products cleared through U.S. Customs in NewYork, and has already begun distribution. Upon a court’sruling, the import license will be disclosed to the public.
In addition, NEWSKANN is planning to refer the H Martattorney who sent a threat email to NEWSKANN to New JerseyState Ethics Committee and file a complaint about his action ofinterfering with the freedom of speech concerning the reportingof the rights of the Korean-Americans.
The NEWSKANN’s report presented accurate information andit is H Mart that should take responsibility for condemning thetrue reporting as false.
H Mart, having removed Newskann name, has sent aninformation notice(photo) to Korean restaurants and so onstating that it will take legal actions and claim damages by allmeans.
(Emphasis added.)
29. Material portions of the foregoing phony "article" were demonstrably false;
defendants were totally indifferent to the truth and they published the phony story so as to
cause alarm and panic.
30. Defendants engaged in their acts of malice, without justification, so as to cast
plaintiff in a bad light publicly and to ruin plaintiff’s business standing everywhere “H Mart”
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is known, which is essentially across much of the United States. As a result of defendants’
actions, plaintiff has suffered damage to its good name and reputation, to its prospective
income and advantage, and to the value of its trade name and standing for which plaintiff
have been working hard and diligently for decades.
THE FALSE AND INACCURATE OCTOBER 24, 2014, “ARTICLE”
31. October 24, 2014, Newskann reported, in its “Society” section, an “article”
as Exhibit 3, purporting to confirm its previous article of October 16, 2014 concerning H
Mart’s sale of fish contaminated from the Fukushima, Japan, nuclear plant accident of June
2, 2011, which states as follows:
A c c o r d i n g t o t h e F i s h e r y N e w s p a p e r([email protected]) last May 30, [2014] as the JejuFishery Products Association and Jeju Agricultural and FisheryFoods clarified that they have shipped the products to U.S.based H Mart for a cooperative export, and NEWSKANN’s(10/16) report has been confirmed as a fact.
This round of exported products are $200,000.00 worth of fluke,belt fish, red tilefish, samdasoo, bracken, tot and citrus cookiesamong 34 kinds that will be sold at the opening exhibition ofJeju speciality products at the 4 different branches of H Martstores in the Central United States such as in Texas in themiddle of July.
Jeju Fishery Products Association is seeking to utilize H Mart'sentry in the central-U.S. region as an opportunity to set Jeju'sagricultural and fishery products foods $10 million in exportsand planned to ship significantly more products in the secondhalf of the year, as reported by the Fishery Newspaper. <Photo=mirror.enha.kr>
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(Emphasis added.)
32. The “article” was told with a lead-in photograph which had nothing to do with
the story. This fact is revealed at the bottom of the “article,” where it is stated, “Photograph
is unrelated to the story” and is not disclosed in the photo inset as would be expected.
33. Material portions of the foregoing phony "article" were demonstrably false;
defendants were totally indifferent to the truth and they published the phony story so as to
cause alarm and panic.
34. Defendants engaged in their acts of malice, without justification, so as to cast
plaintiff in a bad light publicly and to ruin plaintiff’s business standing everywhere they are
known. As a result of defendants’ actions, plaintiff has suffered damage to its good name
and reputation, to its prospective income and advantage, and to the value of its trade name
and standing for which plaintiff has been working hard and diligently for decades.
THE FALSE AND INACCURATE OCTOBER 26, 2014, “ARTICLE”
35. On October 26, 2014, Newskann reported, in its “Society” section, an “article”
entitled, “Fishery Products Suspected of Radiation Poisoning Served at Korean-American
Tables,” annexed hereto as Exhibit 4, purporting to confirm its previous article of October
16, 2014 concerning H Mart’s sale of fish contaminated from the Fukushima, Japan, nuclear
plant accident of June 2, 2011, which states as follows:
NEWKANNKorean American New York New Jersey
[Society] Refutation by Korean-American Association of JejuCitizens Unseemly
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Date: October 26, 2014 20:07
[photo inset]
While H Mart insisted that it did not import and sell Jejuproducts to Korean-Americans, a Seattle Korean-Americanresident sent to NEWSKANN a full size air cargo directmarketing advertising circular.
[NEWSKANN=Min Ho Lee Reporter] As the ‘Jeju FisheryProducts Suspected of Radiation Contamination Served atKorean-American Tables,' ‘Japanese Radiation Aftershock JejuFishery Products Unstable,' ‘H Mart $10 Million Jeju ProductsImport,' and etc. were published, a group calledKorean-American Association of Jeju Province published arefutation on a local gossip paper, but the refutation wascriticized as being out of mind on the 25th and 26th.
Contents of the refutation also were silly and unseemly. Whenradiation contaminated substances are consumed illness candevelop 5 years after exposure, such as thyroid cancer,hemophilia cancer and other forms of cancer, etc., withsignificant injury, according to an expert. While many mediasources reported on the high risks from the radiation, the KoreanAmerican Association of Jeju Citizens and Jeju SpecialSelf-Governed Province attacked the internet by a psudynym Kwhich was hardly convincing.
Re-reporting what was already reported by Yonhap Press andFishery Products Newspaper was a duty and mission of [this]press. They were accurate facts, and it was a special report thatblew the whistle revealing the import schedules, etc., but theKorean American Association of Jeju Citizens recklesslyasserted it would seek ‘civil and criminal action' and enragedKorean-Americans, suspecting bribery. As a result eveninnocent Jeju fishermen have been humiliated.
America’s largest internet news media NEWSKANN is wellknown press even in Korea and fulfills its responsibility sayingof what it has to be said. Countless exclusive coverages arepopular and applauded by Korean-Americans. But the Korean
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American Association of Jeju Citizens failed to differentiatebetween opinion and factual reporting and acted as if it wereadvocating on behalf of a sleezy merchant, for which it will becriticized for a long time, according to Mr. Kim (45) residing inPalisades Park, New Jersey.
Currently in Korea, due to the aftershock of Japanese radiationproblem, it is a fact that hundreds of different fishery productsincluding Jeju products have vanished and are shunned fromtables, as reported in hundreds of daily news reports. [We]revealed that the sleezy merchant has taken advantage of theprice crash of Jeju products which it bought at dumping prices(dirt-cheap) and is selling at premium prices toKorean-Americans.
Due to the radiation effects Jeju fishery products cannot evenrecover the cost of fishing operations while the productioncompanies do not even have any future operational plans. Allthey do is sigh. The sales levels of distribution companies havesank. The last Choo-Seok, the most important period of themarketing, was the worst in 10 years.
Because Jeju products crashed and suspected radiationcontaminated fish have been imported and being sold toKorean-Americans, it is [our] press' mission to publish warningsto people. So distressed were Korean-Americans who had readthe NEWSKANN's news articles that ‘Jeju Products SuspectedContaminated Substances On Korean-American Table' wasposted countless times on MissyUSA, and Katalk was used tospread texts from 1 person to 3 people across America and thesleezy merchant was struck by media for the fist time in 30years.
The Association of the Jeju Citizens should not merely look atwhat is under their feet but judge reality correctly to see fartherbefore they can progress.
The Korean-American Association of Jeju Province shouldadmit honestly that its refutation was wrong, and it should postanother explanation in the gossip papers. Also they should notuse silly and unseemly words when refuting.
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In particular, like the refutation of the 25th, when passionatewords are used, it can reveal a state of mental retardationdisease, it must not be forgotten. <Photo=Korean-American inSeattle informed that Jeju produced fluke (H Mart full pageadvertisement's green part on the right side) Korea air cargodirect shipped fishery products advertisement exhibit 10/17Gyo-Cha-Ro newspaper>
36. Material portions of the foregoing phony "article" were demonstrably false;
defendants were totally indifferent to the truth and they published the phony story so as to
cause alarm and panic.
37. Defendants engaged in their acts of malice, without justification, so as to cast
plaintiff in a bad light publicly and to ruin plaintiff’s business standing everywhere they are
known. As a result of defendants’ actions, plaintiff has suffered damage to its good name
and reputation, to its prospective income and advantage, and to the value of its trade name
and standing for which plaintiff have been working hard and diligently for decades.
THE FALSE AND INACCURATE NOVEMBER 3, 2014, “ARTICLE”
38. On November 3, 2014, Newskann reported, in its “Society” section, an “article”
entitled, “H Mart Selling Japanese Dried Anchovy as Korean Product,” annexed hereto as
Exhibit 5, purporting to describe H Mart’s mislabeling the origin of dried anchovy products
as Korean when such products were actually from Japan, which states as follows:
While nightmares are increasing concerning Japanese fisheryproducts that pose radiation contamination possibility, Japaneseanchovy disguised as Korean products that was sold in Americawas posted on the internet and is creating a storm as reported byGookminilbo (9-3-13) reprinted below.
On the 3rd, MISSYUSA that mainly used by women residing in
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America carried a photo of a packed anchovy product with anarticle, "Anchovy, Disguised from Japanese to Korean."
On the bottom of the photo, under a sticker marked "Product ofKorea (Produced in Korea)" shows "Product of Japan(Produced in Japan)." Also on the top part a sticker is attachedand marked in Korean, 'Anchovy (Origin; Korea, Organic). Inother words, a Japanese product has transformed to a Koreanproduct.
A netizen who posted the article with a photograph said,"anchovy bought at H Mart in U.S.," "Underneath sticker wasshowing 'Product of Japan' on it." "Aren't they cheating as if itis a Korean product because Japanese product would not beselling due to the radiation?"
Regarding this other “netizens” commented, "U.S. was thoughtto be inspecting thoroughly," "if radiation contamination isdetected wouldn't it leave the wrong impression on the Koreanproducts as if they are contaminated?", "H Mart is a Koreanmart, so in other words those products are not consumed byAmericans but by Koreans living in America", "H Mart has beennotorious for fraudulently substituting the country-of-origin," ofproducts, and other comments, and manifested their anguish.
Approaching Korean Thanksgiving Day, even the Koreangovernment is taking the lead and saying that the Japanesefishery products are safe, but the citizens are increasinglyhorrified of suspected radiation contaminated sea foods.
Meanwhile the Korean government will enforce rigidregulations of the marking of the origin of fishery products for15 days from the 3rd. The targets of the regulations includeJapanese sea foods, croakers, pollacks, harvest fish of traditionalpurposes, and anchovy, dried croaker sets of gift purposes. <Photo=Gookminilbo>
39. The “article” was told with a lead-in photograph which was a reprint from a past
article originally published on September 3, 2013, by another news agency as to mislead
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readers to believe it was a recent event. Worse, the “article” as a whole implicitly tells the
reader that it was H Mart who used “Made in Korea” labeling to cover the “Made in Japan”
original labeling. Even though defendants knew or should have known that real news
gathering and reporting would have enabled them to know, and H Mart certainly would have
provided facts, that a company called Haitai America, wholly owned by Haitai Korea, was
the importer and that H Mart was nowhere in the zone of knowing about, much less having
control over, the labeling process, defendants intentionally equated H Mart with alleged
“notoriously fraudulent” substitution of country-of-origin practices that are simply unknown
to H Mart.
40. Material portions of the foregoing phony "article" were demonstrably false;
defendants were totally indifferent to the truth and they published the phony story so as to
cause alarm and panic.
41. Defendants engaged in their acts of malice, without justification, so as to cast
plaintiff in a bad light publicly and to ruin plaintiff’s business standing everywhere they are
known. As a result of defendants’ actions, plaintiff has suffered damage to its good name
and reputation, to its prospective income and advantage, and to the value of its trade name
and standing for which plaintiff has been working hard and diligently for decades.
DEFENDANTS’ VIOLATIONS OF LONG-ESTABLISHEDJOURNALISTIC STANDARDS “101”
42. Defendants’ website newskann.com provides no disclosure as to the standards
that are applied to fact-gathering, fact-checking, and reporting or filing news articles, and
22
certainly no standard for verifying or checking facts with the targets of the “articles.” In fact,
defendants clearly are not interested in presenting a factually accurate story; when H Mart’s
corporate counsel wrote to advise them of their inaccuracy, they mocked the corporate
counsel’s correction/retraction request by stating that they will be filing a complaint with the
Office of Attorney Ethics for interfering with a member of the press.
43. While the news industry, as such, is not regulated by law, there exist known and
long-adhered standards for journalism, journalists, newspapers, and operators of such
businesses that are set and promulgated by various organizations. The principles of
truthfulness, accuracy, objectivity, impartiality, fairness and public accountability are
common to many such journalism standards and are practically self-evident necessities for
a fair and balanced reporting of stories.
44. The American Society of Newspaper Editors (ASNE)
http://www.asne.org/kiosk/archive/principl.htm, states, among other things:
ARTICLE IV - Truth and Accuracy. Good faith with the readeris the foundation of good journalism. Every effort must be madeto assure that the news content is accurate, free from bias and incontext, and that all sides are presented fairly. Editorials,analytical articles and commentary should be held to the samestandards of accuracy with respect to facts as news reports.Significant errors of fact, as well as errors of omission, shouldbe corrected promptly and prominently.
ARTICLE V - Impartiality. To be impartial does not require thepress to be unquestioning or to refrain from editorial expression.Sound practice, however, demands a clear distinction for thereader between news reports and opinion. Articles that containopinion or personal interpretation should be clearly identified.
23
ARTICLE VI - Fair Play. Journalists should respect the rights ofpeople involved in the news, observe the common standards ofdecency and stand accountable to the public for the fairness andaccuracy of their news reports. Persons publicly accused shouldbe given the earliest opportunity to respond. Pledges ofconfidentiality to news sources must be honored at all costs, andtherefore should not be given lightly. Unless there is clear andpressing need to maintain confidences, sources of informationshould be identified.
45. As amended in 1986, the International Federation of Journalist (IFJ)
http://www.ifj.org/en/, the world’s longest running journalism organization, organized in
1954 as the World Congress of International Federation of Journalists, provides the following
principles, among others:
This international Declaration is proclaimed as a standard ofprofessional conduct for journalists engaged in gathering,transmitting, disseminating and commenting on news andinformation in describing events.
1. Respect for truth and for the right of the public to truth is thefirst duty of the journalist
2. In pursuance of this duty, the journalist shall at all timesdefend the principles of freedom in the honest collection andpublication of news, and of the right of fair comment andcriticism
3. The journalist shall report only in accordance with facts ofwhich he/she knows the origin. The journalist shall not suppressessential information or falsify documents.
4. The journalist shall use only fair methods to obtain news,photographs and documents.
5. The journalist shall do the utmost to rectify any publishedinformation which is found to be harmfully inaccurate.
24
* * *
46. Minimal journalistic standards were not applied through defendants’ abject failure
to interview anyone from H Mart, from governmental authorities that have safety and
regulatory authority over fishery imports, including the U.S. Food and Drug Administration
and the U.S. Department of Agriculture, both of which are easily accessible from the Internet
and the phones, before defendants disseminated the purported “articles” using passionate
headers and lead lines; and they used conjecture and supposition to fill fact-gaps of
significant proportions in their reckless abandonment of journalistic integrity and societal
responsibility. These are not the proper actions of a bona fide “newspaper” or “news media”
but rather rogue individuals scandalizing an unfortunate accident to cause havoc among
consumers so as to enhance their own sense of prestige.
DEFENDANTS’ VIOLATION OF THE LAW OF LIBEL DEFAMATION
47. Defendants purport to have “reported” events “uncovered” by them from U.S.
Customs records out of the JFK Airport facilities where plaintiff Captain Blue allegedly
imported nuclear contaminated products. The allegations involve New York events and were
made from defendants’ offices in New Jersey, and thus both the laws of New York and New
Jersey are potentially implicated.
48. Under New York law a plaintiff must establish five elements to recover in libel
or written defamation: (1) a written statement of fact (not opinion) concerning the plaintiff
which is claimed to be defamatory; (2) publication or dissemination to a third party; (3) fault
(either negligence or actual malice depending on the status of the claimed injured party); (4)
25
falsity of the statement; and (5) special damages or per se basis of action (facially
defamatory). Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 176 (2d Cir. 2000)
(summarizing New York law). “[A] writing which tends to disparage a person in the way
of his office, profession or trade is defamatory per se and does not require proof of special
damages.” Id. (internal quotation marks and citations omitted).
49. As the New York Court of Appeals stated in, a complaint states a valid cause of
action for libel per se under these circumstances:
The common law of libel in New York makes any libelous written wordspublished or concerning another which are false and tend to injure another'sreputation and discredit that person in the estimation of the public. To makean article libelous per se the charge must impeach the honesty, virtue orcharacter of the complaining party or expose that person to public hatred,contempt, ridicule or obloquy or injure the person in his business or occupation(1 Seelman, Law of Libel and Slander in State of NY, par 11, pp 10-11).
Rupert v. Sellers, 65 A.D.2d 473, 481 (4th Dept. 1978).
50. New Jersey law is essentially identical in that the same five elements are required
to prove defamation. See e.g., Monroe v. Host Marriot Services Corp., 999 F.Supp. 599, 603
(D.N.J. 1998) (five elements of defamation); Feggans v. Billington, 291 N.J. Super. 382,
391, 677 A.2d 771 (1996) (five elements of defamation):
In order to state a claim for defamation, a plaintiff must satisfyfive elements: (1) a defamatory statement of fact, (2) concerningthe plaintiff, (3) which was false (4) communicated to a personor persons other than the plaintiff, and (5) damages.
Defendants’ actions implicate the third defamation per se standard, as defendants have
attacked plaintiff’s business practices as being dishonest; as posing consumer safety concerns
from nuclear contaminated products, as their “articles” have asserted.
52. Defendants’ actions constitute defamation per se because their actions subject
plaintiff to ridicule, hatred, or contempt or which “clearly ‘sound to the disreputation’ of an
individual are defamatory on their face” Id. at 459, meaning they are libel per se, and
actionable without further proof. See also Hoagburg v. Harrah’s Marina Hotel Casino, 585
F. Supp. 1167 (D.N.J. 1984); Dijkstra v. Westerink, 168 N.J. Super. 128 (App.Div. 1979),
certif. den. 81 N.J. 329 (1979).
53. Defamation arises from falsity of facts; “only ‘facts’ are capable of being proven
false, ‘it follows that only statements alleging facts can properly be the subject of a
defamation action.’” Gross v. New York Times Co., 82 N.Y.2d 146, 152-153 (1993). In
distinguishing between facts and opinion, the following factors guide the conclusion — (1)
whether the specific language has a precise meaning that is readily understood, (2) whether
the statements are capable of being proven true or false, and (3) whether the context in which
the statement appears signals to readers that the statement is likely to be opinion, not fact.
27
See Mann v. Abel, 10 N.Y.3d 271, 276 (2008), cert denied 555 U.S. 1170 (2009); Steinhilber
v. Alphonse, 68 N.Y.2d 283, 292 (1986). “The dispositive inquiry . . . is whether a reasonable
reader could have concluded that the [statements were] conveying facts about the plaintiff.
Gross v. New York Times Co., 82 N.Y.2d at 152; Millus v. Newsday, Inc., 89 N.Y.2d 840,
842 (1996), cert denied 520 U.S. 1144 (1997). Defendants have repeatedly asserted that they
reported only “facts” in relation to plaintiff.
54. The Restatement (Second) of Torts, § 568 (1977), although not “law,” as such,
is applied as authoritative and effectively into common law decisions. The Restatement
(Second) of Torts, Section 568 distinguishes between slander (verbal defamation) and libel
(written defamation) as follows:
(1) Libel consists of the publication of defamatory matter by written orprinted words, by its embodiment in physical form or by any other form ofcommunication that has the potentially harmful qualities characteristic ofwritten or printed words.
(2) Slander consists of the publication of defamatory matter by spokenwords, transitory gestures or by any form of communication other than thosestated in Subsection (1).
DEFENDANT’S “NEWS MEDIA” STATUS DOES NOT CONFER ANY LICENSE TO “REPORT” FALSE FACTS
55. Defendants are of the view that the mere fact that they are self-proclaimed
members of the “news media” somehow confer upon themselves some license to present
demonstrably false facts as “news” in their online facility. Because of the importance of
speech and free speech and indeed it is the very first amendment among the set of
Constitutional principles known as the Bill of Rights, there is no question that the United
28
States is a nation of freedom of expression and ideas. This basic reality does not displace the
concomitant legal and constitutional principle that false facts that result in harm cannot be
shielded by the “first amendment” freedoms. Indeed, almost a hundred years ago, the United
States Supreme Court provide the example repeated countless times that someone who yells
inside a crowded movie theater, “fire!,” when in fact there is no fire, has no protection under
the first amendment to create havoc in the society, stating:
The most stringent protection of free speech would not protecta man in falsely shouting fire in a theater and causing a panic. .
Schenck v. United States, 249 U.S. 47,52 (1919).
56. As the U.S. Supreme Court has also observed time and time again, false facts are
simply not protected regardless of who utters them:
the press has an obvious interest in avoiding the infliction ofharm by the publication of false information, and it is notunreasonable to expect the media to invoke whatever proceduresmay be practicable and useful to that end. Moreover, givenexposure to liability when there is knowing or reckless error,there is even more reason to resort to prepublication precautions,such as a frank interchange of fact and opinion.
Herbert v. Lando, 441 U. S. 153,174 (1979).
57. The Supreme Court has repeatedly validated lawsuits against members of the
“news media,” even well known media that follow established journalistic principles as those
discussed above, where they have gone astray in their “reporting” of false information as
“facts” resulting in injury to the object of scorn, ridicule, or denigration in their “articles”:
But there is also another side to the equation; we have regularlyacknowledged the “important social values which underlie the
29
law of defamation,” and recognize that “[s]ociety has apervasive and strong interest in preventing and redressingattacks upon reputation.” Rosenblatt v. Baer, 383 U.S. 75, 86(1966). Justice Stewart in that case put it with his customaryclarity:
“The right of a man to the protection of hisown reputation from unjustified invasion andwrongful hurt reflects no more than our basicconcept of the essential dignity and worth ofevery human being - a concept at the root of anydecent system of ordered liberty.
“The destruction that defamatory falsehood canbring is, to be sure, often beyond the capacity ofthe law to redeem. Yet, imperfect though it is, anaction for damages is the only hope forvindication or redress the law gives to a manwhose reputation has been falsely dishonored.”Id., at 92-93 (concurring opinion).
Milkovich v. Lorain Journal, 497 U.S. 1, 22-23 (1990).
From then until now, the tort action for defamation hasexisted to redress injury to the plaintiff’s reputation by astatement that is defamatory and false. See Milkovich v. LorainJournal Co., 497 U.S. 1, 11 (1990). As we have recognized, “thelegitimate state interest underlying the law of libel is thecompensation of individuals for the harm inflicted on them bydefamatory falsehood. Gertz v. Robert Welch, Inc., 418 U.S.323 (1974).
The common law of libel takes but one approach to thequestion of falsity, regardless of the form of the communication.See Restatement (Second) of Torts § 563, Comment c (1977);W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser andKeeton on Law of Torts 776 (5th ed. 1984). It overlooks minorinaccuracies and concentrates upon substantial truth.
Masson v. New Yorker Magazine, Inc., 501, 515-517 U.S. 496 (1991).
30
58. Indeed, even real “news media” defendants face liability when their articles cause
reputational injury when false information is reported as “facts” or “news.” See e.g.,
article, “Korea and World Fear Fukushima’s Radiation: Early Protections Have Led to
Tighter Rules after Leaks Continued,” Korea Joonang Daily reported of the fears of
contaminated fishery products, among neighboring Asian countries, in part:
Despite being the nation nearest to Japan, Korea remainedrelatively calm after the March 2011 disaster at the FukushimaDaiichi nuclear plant.
But more than two years after the nuclear plant’s meltdown, thefear of radiation has increased in Korea after a series ofrevelations about contaminated water flowing into the Pacific.
The Korean government is trying to say that consumer anxietyover the safety of Japanese products in particular is beingwhipped up by irresponsible postings on the Internet andthrough social network services.
Prime Minister Chung Hong-won even said he would directsevere punishment at people who spread unfounded,radiation-related rumors.
But fear continued to rise and fish consumption fell regardlessof where the fish came from, affecting local fishermen and fishretailers. As a result, the Korean government decided on Sept.6 to ban fish imports from eight prefectures surrounding thecrippled Fukushima Daiichi nuclear complex to calm peopledown.
Korea had banned 26 agricultural products from 13 prefectures,but the import of fish products was relatively unaffected,according to the Ministry of Food and Drug Safety.
Exhibit 6.
64. The article discussed western fears including voices of fears in the United States
and European Union, which resulted in import bans of Japanese fishery products. The
Korean government has never identified any nuclear fallout concern within the waters of the
34
South Korean peninsula that justifies the kind of fear-mongering being instigated by
defendants under the facade of their “news media” status.
65. The Center for Research on Globalization (CRG) is an independent research
organization that presents highly aggressive views, even controversial, concerning nuclear
fallout and contamination and general environmental issues. CRG’s website shows
numerous “research articles” and “scientific data” presented from its viewpoint. Even CRG,
with its anti-nuclear advocacy platform, has virtually no substantive adverse commentary on
the fishery of South Korea in the aftermath of the Fukushima, Japan accident. Indeed, in a
nuclear fallout “computer imagery,” CRG posits that nuclear fallout spread east to west
(following the ocean current pattern) from eastern Japan to North America:
35
PLAINTIFF’S CLAIMS FOR RELIEF
Count One – Libel Per Se – October 16, 2014
66. Plaintiff incorporates the preceding paragraphs by reference.
67. As stated above, defendants and each of them committed libel per se by writing
and publishing an “article” containing defamatory statements of fact, concerning the plaintiff
which was false, which was communicated to many individuals other than plaintiff, and
which caused damage.
68. Defendants and each of them targeted plaintiff concerning its business practices
which defendants intended to defame and therefore defendants and each of them committed
libel per se.
69. As a direct and proximate result of defendants’ conduct, plaintiff suffered damage
to its good name and reputation, and plaintiff is entitled to damages.
Count Two – Libel Per Se – October 22, 2014
70. Plaintiff incorporates the preceding paragraphs by reference.
71. As stated above, defendants and each of them committed libel per se by writing
and publishing an “article” containing defamatory statements of fact, concerning the plaintiff,
which was false, which was communicated to many individuals other than plaintiff, and
which caused damage.
72. Defendants and each of them targeted plaintiff concerning its business practices
which defendants intended to defame and therefore defendants and each of them committed
libel per se.
36
73. As a direct and proximate result of defendants’ conduct, plaintiff suffered damage
to its good name and reputation, and plaintiff is entitled to damages.
74. The October 22, 2014 publication was a separate publication within the meaning
of Rinaldi v Viking Penguin, 52 NY2d 422, 433-435 (1991), as defendants consciously and
deliberately incorporated the October 16, 2014, initial “article” by referencing it in this
subsequent, separate “article” in which it referred to its previous “article” which was
defamatory.
Count Three – Libel Per Se – October 24, 2014
75. Plaintiff incorporates the preceding paragraphs by reference.
76. As stated above, defendants and each of them committed libel per se by writing
and publishing an “article” containing defamatory statements of fact, concerning the plaintiff,
which was false, which was communicated to a many individuals other than plaintiff, and
which caused damage.
77. Defendants and each of them targeted plaintiff concerning its business practices
which defendants intended to defame and therefore defendants and each of them committed
libel per se.
78. As a direct and proximate result of defendants’ conduct, plaintiff suffered damage
to its good name and reputation, and plaintiff is entitled to damages.
79. The October 22 publication was a separate publication within the meaning of
Rinaldi v Viking Penguin, 52 NY2d 422, 433-435 (1991), as defendants consciously and
deliberately incorporated the October 16, 2014, initial “article” by referencing it in this
37
subsequent, separate “article” in which it referred to its previous “article” which was
defamatory.
Count Four – Libel Per Se – November 3, 2014
80. Plaintiff incorporates the preceding paragraphs by reference.
81. As stated above, defendants and each of them committed libel per se by writing
and publishing an “article” containing defamatory statements of fact, concerning the plaintiff,
which was false, which was communicated to many individuals other than plaintiff, and
which caused damage.
82. Defendants and each of them targeted plaintiff concerning its business practices
which defendants intended to defame and therefore defendants and each of them committed
libel per se.
83. As a direct and proximate result of defendants’ conduct, plaintiff suffered damage
to its good name and reputation, and plaintiff is entitled to damages.
84. The November 3, 2014 publication was a separate publication within the meaning
of Rinaldi v Viking Penguin, 52 NY2d 422, 433-435 (1991), as defendants consciously and
deliberately incorporated the October 16, 2014, initial “article” by referencing it in this
subsequent, separate “article” in which it referred to its previous “article” which was
defamatory.
Count Five – Libel Per Se – MissyUSA.com October 16, 2014, Posting
85. Plaintiff incorporates the preceding paragraphs by reference.
86. Upon information and belief, defendants made and posted or caused to be posted
38
a wholesale copy of their defamatory “article” dated October 16, 2014, and re-posted it or
caused to be reposted on a website used by Korean-American “housewives” and others,
which is significantly more popular, with a significantly higher audience, than their
newskann.com website. Exhibit 7. They did so in order to indirectly use the missyusa.com
portal’s more-popular blog forum to cause readers to “pay attention” to their “newspaper”
substantially as a marketing artifice. Defendants’ intentions yielded fruit as numerous
individuals read the posting and engaged in comments that were decidedly adverse to the
plaintiff.
87. Defendants and each of them targeted plaintiff concerning its business practices
which defendants intended to defame and therefore defendants and each of them committed
libel per se.
88. As a direct and proximate result of defendants’ conduct, plaintiff suffered damage
to its good name and reputation, and plaintiff is entitled to damages.
89. The October 16, 2014 publication was a separate publication within the meaning
of Rinaldi v Viking Penguin, 52 NY2d 422, 433-435 (1991), as defendants consciously and
deliberately incorporated the October 16, 2014, initial “article” by referencing it in this
subsequent, separate “article” in which it referred to its previous “article” which was
defamatory.
Count Six – Libel Per Se – MissyUSA.com October 17, 2014, Posting
90. Plaintiff incorporates the preceding paragraphs by reference.
91. Upon information and belief, defendants made and posted or caused to be posted
39
a wholesale copy of their defamatory “article” dated October 16, 2014, and re-posted it or
caused to be reposted on a website used by Korean-American “housewives” and others,
which is significantly more popular, with a significantly higher audience, than their
newskann.com website. Exhibit 8. They did so in order to indirectly use the missyusa.com
portal’s more-popular blog forum to cause readers to “pay attention” to their “newspaper”
substantially as a marketing artifice. Defendants’ intentions yielded fruit as numerous
individuals read the posting and engaged in comments that were decidedly adverse to the
plaintiff.
92. Defendants and each of them targeted plaintiff concerning its business practices
which defendants intended to defame and therefore defendants and each of them committed
libel per se.
93. As a direct and proximate result of defendants’ conduct, plaintiff suffered damage
to its good name and reputation, and plaintiff is entitled to damages.
94. The October 17, 2014 publication was a separate publication within the meaning
of Rinaldi v Viking Penguin, 52 NY2d 422, 433-435 (1991), as defendants consciously and
deliberately incorporated the October 16, 2014, initial “article” by referencing it in this
subsequent, separate “article” in which it referred to its previous “article” which was
defamatory.
Count Seven – Libel Per Se – MissyUSA.com October 18, 2014, Posting
95. Plaintiff incorporates the preceding paragraphs by reference.
96. Upon information and belief, defendants made and posted or caused to be posted
40
a wholesale copy of their defamatory “article” dated October 16, 2014, and re-posted it or
caused to be reposted on a website used by Korean-American “housewives” and others,
which is significantly more popular, with a significantly higher audience, than their
newskann.com website. Exhibit 9. They did so in order to indirectly use the missyusa.com
portal’s more-popular blog forum to cause readers to “pay attention” to their “newspaper”
substantially as a marketing artifice. Defendants’ intentions yielded fruit as numerous
individuals read the posting and engaged in comments that were decidedly adverse to the
plaintiff.
97. Defendants and each of them targeted plaintiff concerning its business practices
which defendants intended to defame and therefore defendants and each of them committed
libel per se.
98. As a direct and proximate result of defendants’ conduct, plaintiff suffered damage
to its good name and reputation, and plaintiff is entitled to damages.
99. The October 18, 2014 publication was a separate publication within the meaning
of Rinaldi v Viking Penguin, 52 NY2d 422, 433-435 (1991), as defendants consciously and
deliberately incorporated the October 16, 2014, initial “article” by referencing it in this
subsequent, separate “article” in which it referred to its previous “article” which was
defamatory.
Count Eight – Libel Per Se – MissyUSA.com October 19, 2014, Posting
100. Plaintiff incorporates the preceding paragraphs by reference.
101. Upon information and belief, defendants made and posted or caused to be
41
reposted a wholesale copy of their defamatory “article” dated October 16, 2014, and re-
posted it or caused to be reposted on a website used by Korean-American “housewives” and
others, which is significantly more popular, with a significantly higher audience, than their
newskann.com website. Exhibit 10. They did so in order to indirectly use the missyusa.com
portal’s more-popular blog forum to cause readers to “pay attention” to their “newspaper”
substantially as a marketing artifice. Defendants’ intentions yielded fruit as numerous
individuals read the posting and engaged in comments that were decidedly adverse to the
plaintiff.
102. Defendants and each of them targeted plaintiff concerning its business practices
which defendants intended to defame and therefore defendants and each of them committed
libel per se.
103. As a direct and proximate result of defendants’ conduct, plaintiff suffered
damage to its good name and reputation, and plaintiff is entitled to damages.
104. The October 19, 2014 publication was a separate publication within the meaning
of Rinaldi v Viking Penguin, 52 NY2d 422, 433-435 (1991), as defendants consciously and
deliberately incorporated the October 16, 2014, initial “article” by referencing it in this
subsequent, separate “article” in which it referred to its previous “article” which was
defamatory.
Count Nine – Libel Per Se – MissyUSA.com October 26, 2014, Posting
105. Plaintiff incorporates the preceding paragraphs by reference.
106. Upon information and belief, defendants made and posted or caused to be posted
42
a wholesale copy of their defamatory “article” dated October 16, 2014, and re-posted it or
caused to be reposted on a website used by Korean-American “housewives” and others,
which is significantly more popular, with a significantly higher audience, than their
newskann.com website. Exhibit 11. They did so in order to indirectly use the missyusa.com
portal’s more-popular blog forum to cause readers to “pay attention” to their “newspaper”
substantially as a marketing artifice. Defendants’ intentions yielded fruit as numerous
individuals read the posting and engaged in comments that were decidedly adverse to the
plaintiff.
107. Defendants and each of them targeted plaintiff concerning its business practices
which defendants intended to defame and therefore defendants and each of them committed
libel per se.
108. As a direct and proximate result of defendants’ conduct, plaintiff suffered
damage to its good name and reputation, and plaintiff is entitled to damages.
109. The October 26 publication was a separate publication within the meaning of
Rinaldi v Viking Penguin, 52 NY2d 422, 433-435 (1991), as defendants consciously and
deliberately incorporated the October 26, 2014 initial “article” by referencing it in this
subsequent, separate “article” in which it referred to its previous “article” which was
defamatory.
Count Ten – Libel Per Se – MissyUSA.com November 1, 2014, Posting
110. Plaintiff incorporates the preceding paragraphs by reference.
111. Upon information and belief, defendants made and posted or caused to be posted
43
a wholesale copy of their defamatory “article” dated October 22, 2014, and re-posted it or
caused to be reposted on a website used by Korean-American “housewives” and others,
which is significantly more popular, with a significantly higher audience, than their
newskann.com website. Exhibit 12. They did so in order to indirectly use the missyusa.com
portal’s more-popular blog forum to cause readers to “pay attention” to their “newspaper”
substantially as a marketing artifice. Defendants’ intentions yielded fruit as numerous
individuals read the posting and engaged in comments that were decidedly adverse to the
plaintiff.
112. Defendants and each of them targeted plaintiff concerning its business practices
which defendants intended to defame and therefore defendants and each of them committed
libel per se.
113. As a direct and proximate result of defendants’ conduct, plaintiff suffered
damage to its good name and reputation, and plaintiff is entitled to damages.
114. The November 1, 2014 publication was a separate publication within the
meaning of Rinaldi v Viking Penguin, 52 NY2d 422, 433-435 (1991), as defendants
consciously and deliberately incorporated the October 22, 2014, and October 26, 2014 initial
“articles” by referencing them in this subsequent, separate “article” in which it referred to
its previous “articles” which was defamatory.
Count Eleven – Tortious Interference with Prospective Economic Advantage
115. Plaintiff incorporates the preceding paragraphs by reference.
116. By spreading false and defamatory public attacks against plaintiff’s’ lawful
44
business activity, defendants have repeatedly interfered with each plaintiff’s relationship with
its customers at large and with suppliers, domestic and overseas, and with each other, by
association with the severely adverse social stigma of selling supposed “nuclear
contaminated” fishery products.
117. Defendants are well aware that the consumers at large, plaintiff’s suppliers, and
all persons engaged in business relations with plaintiff are influenced by “news reports,” and
they deliberately launched attacks presented as “news reports” to wage a campaign adverse
to plaintiff to create hysteria and thereby attract new “readers” and enhance their self-prestige
and cause havoc in plaintiff’s relationships with suppliers and customers.
118. In 2008, it was widely reported all over the world that when American beef
products were to be permitted to be imported into South Korea, mass hysteria over concerns
of “mad cow diseases” resulted in mass rioting and even suicide by Koreans who were
antagonized by anti-import forces. See Exhibit13 (NY Times, “Beef Protest Turns Violent
in South Korea,” 6-30-08); such provocation of mass hysteria, then as now, is far worse than
shouting “fire” inside a crowded theater, as exponentially large numbers of persons are
harmed from the mass hysteria created by false “facts.” With years having passed since
American beef was permitted importing into Korea, with no mad cow diseases evident, only
those who perished or were injured from the mass hysteria are victims who suffered
irretrievable losses. Defendants in this case are using the severely negative stigma of the
Fukushima nuclear disaster stemming from the Tsunami of 2011 to create pure hysteria
rather than reporting the facts. They are creating hysteria so as to enhance their own prestige
45
in the Korean-American community and the fact that they are interfering with the prospective
and pending economic advantage of plaintiff is their means of achieving their end. By reason
of those facts, defendants and each of them committed tortious interference with prospective
economic advantage against plaintiff.
119. As a direct and proximate result of defendants’ malicious acts, plaintiff suffered
injury.
Count Twelve – Declaratory Judgment
120. Plaintiff incorporates the preceding paragraphs by reference.
121. Plaintiff requests declaratory judgment that defendants’ website newskann.com
is not a bona fide “newspaper” as is self-claimed in defendants’ website. Defendants claim
that their website is a “newspaper”; “media” and that they engaged in fair news-gathering
and dissemination services and plaintiff maintains they are not a newspaper and they did not
report the facts fairly and accurately. There is therefore a dispute as to this issue and
declaratory judgment is appropriate.
Count Thirteen – Declaratory Judgment
122. Plaintiff requests declaratory judgment that defendants’ website newskann.com
holds no “copyright” to third-party works of authorship which themselves constitute
wholesale copyright infringement of third-parties’ intellectual property rights. Defendants
claim that their website owns all “copyright” as of 2010 and plaintiff maintains defendants’
claim of copyright is false and unlawful. There is therefore a dispute as to this issue and
declaratory judgment is appropriate.
46
Count Fourteen – Declaratory Judgment
123. Plaintiff requests declaratory judgment as to the following issues contained in
defendants’ October 16, 2014 “article” which purport to provide certain factual claims which
plaintiff maintains are false, which then spawned other similar “articles.” There is therefore
a dispute as to these issues and declaratory judgment is appropriate as to the following:
A. That H Mart has never imported fish products that are “not even consumed
in Korea” (“twice weekly”; “15,000 tons of volume”);
B. That H Mart has never contracted to purchase the enumerated Jeju Fishery
products in any cooperative setting;
C. That H Mart has never purchased or ordered some 5,000 pounds of
“substandard” fishery products which arrived at Kennedy Airport on October 15 by air
freight;
D. That H Mart has not purchased fishery products that were rejected in Korea,
to be sold at its locations in New York, New Jersey, Virginia and elsewhere; and
E. That H Mart has never acquired product distribution rights to fishery
products that cannot be sold to the consumers of Korea, among other allegations.
WHEREFORE, plaintiff demands judgment against all responsible defendants jointly
and severally:
A. compensatory damages in a sum to be proved at trial;
B. punitive damages in a sum to be determined at trial;
C. appropriate provisional and final injunctive relief;
47
D. attorneys' fees and costs and other expenses incurred by plaintiff;
E. any other relief the Court deems just and proper under the circumstances.
Dated: December 3, 2014 KIMM LAW FIRM
By: __________ -H __ _L __________ _
MichaelS. Kimm, E . (Admitted in NY) Thomas W. Park, Esq. (Admitted in NY) Sung H. Jang, Esq. (PHV) Attorneys for Plaintiff H Mart, Inc.
48
PART 130 CERTIFICATION
I hereby certify that the foregoing paper( s) that I have served, filed or submitted to the court in this action are not frivolous as defined in Section 130-1.1 (c) of the Rules of the Chief Administrator of the Courts.
DATED: December 3, 2014 imm, Esq. (Admitted in NY)
Thomas ark, Esq. (Admitted in NY) Sung H. Jang, Esq. (PHV) Attorneys for Plaintiff H Mart, Inc.
49
EXHIBIT 1
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12/3/2014 Beef Protest Turns Violent in South Korea- NYTimes.com
Asia Pacific WORLD U.S. HEALTH SPORTS OPINION
AFRICA AMERICAS ASIA PACIFIC EUROPE MIDDLE EAST
Beef Protest Turns Violent in South Korea By CHOE SANG-HUN Published: June 30, 2008
SEOUL, South Korea -The government of President Lee Myungbak sealed off major rallying points in central Seoul on Sunday after hundreds of citizens and police officers were injured during a protest against United States beef imports.
Police buses cordoned off plazas and intersections where large crowds have gathered almost daily since early May to demand that the government renegotiate the deal. Police officers blocked subway entrances and alleys leading to those rallying points.
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Still, protesters broke into several groups of hundreds and marched Sunday evening, engaging in sporadic shoving matches with the police.
Justice Minister Kim Kyung-han said in a statement on Sunday, "W.e will chase those who instigate violent protests and those who use violence to the end and bring them to justice."
Mr. Kim warned that the police would use liquid tear gas, which they have refrained from using in the past decade. They commonly used liquid tear gas against antigovernment demonstrators during the military dictatorships of the 1970s and '8os and against labor activists of the 1990s.
The Korean Metal Workers' Union, which represents workers at 240 companies, including the country's four major automakers, said 76 percent of its voting members had agreed to a two-hour work stoppage on Wednesday to demand a new beef deal and better working conditions.
TI1e Catholic Priests' Association for Justice, an influential religious group known for its struggle against the dictatorships, said it would lead an outdoor Mass on Monday to lend its moral support to the protesters.
A protest that began Saturday evening and continued until Sunday morning attracted more than 18,ooo people, the largest crowd since a rally on June 10 brought together at least wo,ooo people.
Police officials reported that 112 officers had been injured and 35 police vehicles had been damaged. About so protesters were detained on charges of assaulting police officers, they said.
Organizers of the protest said that 300 to 400 people had been hurt "because of police brutality."
In April, South Korea agreed to lift the ban on American beef, first imposed in 2003 after a case of mad cow disease was detected in the United States. Officials in Seoul persuaded the United States this month to revise the terms of the April deal to placate the protesters.
But the protests continued, dashing Mr. Lee's hopes for an early end to what has become the biggest political crisis of his four-month-old government.
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12/3/2014 Beef Protest Turns Violent in South Korea- NYTimes.com
Past Coverage
15,000 Protesters DefY Government in Seoul (June 29, 2008) South Korea lifts Ban on U.S. Beef (June 26, 2008) South Korea Close to Allowing U.S. Beef Imports to Resume (June 25, 2008) South Korea Warns Against Further Beef Protests (June 25, 2008)