Lumina's legal threats and my about-face
trevorklee.substack.com
trevorklee.substack.com
One thing about libel that many people don't understand is that retraction and editing of the content isn't a defense. So where it says "note the libel-friendly phrasing" and "now edited to avoid any possible threats of libel" and "[editor’s note: removed a possibly incorrect claim]" he could still be found guilty of libel if previously published assertions contained non "libel-friendly" phrasing. As long as a defamatory assertion was published at some point, you can still be found guilty of libel.
It probably goes without saying, but it is also not a defense to libel to say that you asserted something to be true merely because there was no evidence to the contrary. Absent a contractual or legal obligation, Lumina had no duty to engage with him and answer his questions. So if Lumina can provide evidence that Trevor asserted things that are demonstrably false, and they damaged Lumina's business, then Trevor can't argue as a defense that he merely had no way of knowing that they were false.
Finally, Trevor seems to be saying in his update that he was merely asking questions -- but it's possible for a court to find that merely phrasing false, defamatory assertions in the form of a question is not an absolute protection against a libel claim.
The only thing that rubs me the wrong way about Trevor's post is only giving 48 hours to respond. I've had serious nonfactual information published about me because I didn't respond to an email in a timely fashion, and then when I asked for corrections (kindly), was met with a hostile reporter.
In my mind, if Lumina was in the right (and had good lawyers), they would have not responded to Trevor, mic-dropped his claims, and moved on with their lives. Trying to wrestle with something like this is not generally a good idea, and the CEO's approach seems unwise at best.
• You assumed we'd never gene sequenced the bacteria, even though I posted the sequence publicly.
I assumed you did not regularly sequence the bacteria because you did not say that you did and you did not report anything about following manufacturing regulations. I’m glad that you did and do. Sequencing the bacteria regularly is critical to make sure what people are putting in their mouths is what they think is putting in their mouths. And by “post the sequence publicly”, you mean on Manifold, rather than on your company’s website, for whatever reason. Sorry I didn’t check all of Manifold.
really doesn't paint Trevor Klee favorably to me. I'm not sure how you go from "they didn't say anything about it" to "I can assert they aren't doing it". Even if you ask a question directly and don't get an answer, all you should feel comfortable asserting without evidence otherwise is "they did not address this when asked directly". In this case it's unclear whether they didn't address a question asked or the question wasn't really asked at all.
> Especially the whole idea that they wouldn't answer any questions over email, which is a red flag for me about them not wanting a record of a discussion about this.
Or it could just be that they wanted to make sure their statements were taken in context and they got a chance to explain if they thought the other person was misinterpreting the question. I'm not sure it's a *good( idea then, but I can at least imagine scenarios where they think it might be, especially if they've had prior experience with reporters misreporting because of that problem. Sometimes over-corrections happen and cause their own problems.
Even if he is found to be a public figure, I believe the "actual malice" standard would be determined by the defendant's knowledge and regard/disregard for the truth at the time of writing -- meaning it doesn't matter whether the CEO later believed the defamatory statements were made in good faith.
Although in some cases, libel can rise to the level of a criminal offense: https://firstamendment.mtsu.edu/article/criminal-libel/
You can't even get around it with negation, like "John Doe -- who is surely not a child molester, even though many people think he is."
The simple way to think about libel (which is the written form of slander, which are both types of defamation) is that if you publish false information about a person or business, and that false information causes actual damages, then it is potentially libelous, and you can't disclaim it away or edit it away or do verbal gymnastics to try to wriggle out of that liability.
Libel is written defamation. Slander is spoken defamation.
> Lumina likely aren’t following the Best Practices Guidelines for Probiotics, which require you to state how much of each strain in CFUs is in each batch that you send out on your packaging.
But in the new article it says:
> Lumina’s manufacturing process follows legally mandated GMP protocols, if not the probiotic trade association’s voluntary best practices.
Because that does sound to me like the original claim was wrong?
I understand that it's weird that it didn't get revealed until he was pressed on it but then so is stating that he likely wasn't following the best practices, right?
Furthermore, the first article doesn't mention that it's voluntary to follow the best practices guidelines but the second one does. To me that sounds kind of like "okay fine you were right, but it's voluntary anyway, so whatever". Why not mention that in the original claim?
In fairness, the original article also has some great points, like the concerns about this particular BCS3L-1 strain that Lumina uses. I wish he had focused more on that.
I feel like both of them could have gone about this in a better way.
I don't think so. At least in my reading, it appears both of these things can be true at the same time if you ready carefully:
> Lumina likely aren’t following the Best Practices Guidelines for Probiotics, which require you to state how much of each strain in CFUs is in each batch that you send out on your packaging.
> Lumina’s manufacturing process follows legally mandated GMP protocols, if not the probiotic trade association’s voluntary best practices.
These are saying the same thing - it looks like the probiotic best practices aren't being followed, but they appear to not be legally mandated.
Lumina's court threats, however, would definitely make me shy away. I imagine for myself (and many others) that this would be the case.
I don't know who is ultimately in the right here (but at least one of Trevor's defenses of his assertions seems flimsy at best to me, namely the "you didn't say otherwise so I assumed this was true" one), and it would have been better if they could come to an agreement without the legal system about how best to handle this (Lumina does seem to be going harder at this than possibly needed), but I think we should assess the situation on the merits, not that there is a legal case at all.
If the company thinks the journalist isn't working in good faith, are they not then justified in that?
Context is everything. I think there's poor behavior on both sides, but to my eyes it starts with a journalist making unfounded assertions. Would Lumina have gotten upset and threatened over poor press even if it wasn't to the point where someone was making statement of fact that were both wrong and perceived as hurtful to their business? We'll never know, because it appears those statements were made.
We can dumb this down and make it very simple. If someone interviews me, and asks if I beat my wife and I don't answer (for whatever reason. Maybe I perceive it as a joke that doesn't need a response, maybe I don't want to engage with bad-faith questions), and they then print that I'm a wifebeater, should I not be upset enough to threaten to sue initially? Should I assume they're working in good faith, or is that enough to assume bad faith? Personally, I think my choices would be to assume bad faith or that the person is inept and uneducated at the job, and if the person didn't seem stupid, that seems unlikely.
The original nastygram from the company opens up with an acknowledgement of believing good faith and talks about trying to cooperate, while also including terms like 'defamation' and 'libel', so I don't know if I'm missing something here or you're just talking hypothetically about those acting in bad faith.
In general I'd say there's a strong division between working with someone in good faith to correct misunderstandings, and threatening a lawsuit. The original letter could (and should) have said "this is wrong in your post" and asked for it to be updated. Then if the journalist is refusing to engage and/or retract, it's reasonable to start wondering if there really is good faith and escalate to legal threats. But doing both at once is effectively just bullying while trying to cloak it.
• You assumed we'd never gene sequenced the bacteria, even though I posted the sequence publicly.
I assumed you did not regularly sequence the bacteria because you did not say that you did and you did not report anything about following manufacturing regulations.
That is a very weird defense to take in my opinion, and is the crux of my problem with the author in this argument. It is not acceptable to make a negative inference and then express it publicly as fact because the other party didn't mention something. That is not responsibly journalism, and to me it explains why the CEO was struggling to see good faith initially. That's not usually the behavior you see when people are communicating in good faith.
From how I saw, libel cases go in California as an innocent observer - nearly impossible to prove. Which makes me think Trevor hit Aaron's nerve. That makes me shy away from Lumina because that is some thin skin from the CEO.
Also, I've only ever heard such threats from people that aren't going to sue and only seen courtrooms in Suits.
At least in California, Lumina would have to prove every claim as false (probably not a good for business...) and then, moreover, prove that Trevor was acting in malice.
Defamation cases deal with fact, not opinions, and IMO the first post was full of opinions and scientific facts. (yeah yeah, saying "I think" before a statement doesn't turn it into an opinion, IMO not the case)
Reasons not to take Lumina's anticavity probiotic - https://news.ycombinator.com/item?id=40369084 - May 2024 (149 comments)
What antibiotic do the probiotics in kefir produce? (Antimicrobial != antibiotic.)
I hope Mr. Silverbrook understands how hollow that reasoning is in the post-OceanGate era.
Is there anyone who is seriously contesting the "it is intended to cure/prevent a disease, therefore it is a drug, therefore it needs FDA approval to be sold legally" line of reasoning?
More humoristically: https://xkcd.com/2475/ and https://xkcd.com/2530/
Less humoristically: https://en.wikipedia.org/wiki/Thalidomide
For example, fecal transplants are regulated by the FDA. Rebiotix Inc is developing a bacterial fecal transplant, RBX2660, and Seres Therapeutics is developing an oral version (also live bacteria) called SER-109. Both of these are being regulated by the FDA.
There are hundreds of other live biotherapeutic products (LBPs) regulated by the FDA.
[1] https://www.hhs.gov/immunization/basics/types/index.html
Yeah, that's totally not something a company that's completely full of shit from the top down and bottom up would threaten. Now we can be sure this product functions as advertised.
Another one of those things that as soon as you start throwing legal threats around it get much much more interesting.
It is also kinda hilarious that the guy is related to the most overrated escort in the Bay Area and is using her to further his product.