Lumina's legal threats and my about-face(trevorklee.substack.com)
trevorklee.substack.com
Lumina's legal threats and my about-face
https://trevorklee.substack.com/p/luminas-legal-threats-and-my-about
51 comments
Libel is tricky, especially with public companies. A libel suit opens you up to discovery, which is pretty much never good in the court of public opinion. There's also a (relatively) high bar, even when the author is an SME (Trevor seems like an SME).
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.
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.
To wit, I now know about this where before I had no idea, and it leaves enough of a stink that I wouldn't touch their product with a ten foot pole. 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. You do that when you think there might be controversy or you're not totally certain about your claims and don't want that uncertainty reflected in a back-and-forth.
Although this part (as noted above):
• 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.
• 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.
Doesn't defamation of a public figure require "actual malice"? If so, doesn't the CEO's admission in writing that "I believe your post was made in good faith" severely undermine any claims of defamation?
That depends on whether every startup CEO is considered a public figure by default. Does this guy have much name recognition outside of his niche? I would wager not.
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.
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.
In some jurisdictions, there is the concept of a limited purpose public figure. Libeling a CEO for his work as CEO might fall therein, while libeling him in the context of pro wrestling might not.
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Agreed. As a lawyer who occasionally works in this area, my primary reaction to the post was: he should have gotten advice from a lawyer and not just "fellow bloggers." The "wink wink" going on in this post would really not work to his advantage if he is sued for defamation and any of his statements turn out to be false.
Just a nit pick, but it's "found liable", not "found guilty", as he's talking about a civil matter.
Thank you, you are correct.
Although in some cases, libel can rise to the level of a criminal offense: https://firstamendment.mtsu.edu/article/criminal-libel/
Although in some cases, libel can rise to the level of a criminal offense: https://firstamendment.mtsu.edu/article/criminal-libel/
Can someone avoid all accusations of libel or defamation (not sure what the difference is) by just posting a generic disclaimer on every post they make that this is their opinion, and includes speculation, and stuff like that?
No. Courts see through that.
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.
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.
Defamation is false speech published to others without requisite care for the truth.
Libel is written defamation. Slander is spoken defamation.
Libel is written defamation. Slander is spoken defamation.
Not trying to stir anything up, but one can't not recognize the disparity of consequences for saying something "false" that "may affect a business" between Trevor and basically any politician who's done the same (even without going into good/bad intent)
> Dude, if the product wasn't safe, I wouldn't be using it myself, giving it to my girlfriend, and giving it to my friends.
I hope Mr. Silverbrook understands how hollow that reasoning is in the post-OceanGate era.
I hope Mr. Silverbrook understands how hollow that reasoning is in the post-OceanGate era.
Regardless of all the "he said, she said", libel or not libel, email response times, GMP, threats and whatever drama:
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
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
Seems like a stretch to argue a biological organism qualifies as a drug.
Except it's not at all. The FDA regulates plenty of live organisms as drugs if they're claimed to be used to treat diseases.
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.
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.
It's not a stretch at all.
Live-attenuated vaccines (see [1]) seem to fit that role, and have been around for ages. I'd be very surprised if they didn't count as drug.
[1] https://www.hhs.gov/immunization/basics/types/index.html
[1] https://www.hhs.gov/immunization/basics/types/index.html
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[0]Barbra Streisand
Wooo, wooo, wooo-ooh, wooo, wooo, wooo-ooh
Wooo, wooo, wooo-ooh, wooo, wooo, wooo
Another one of those things that as soon as you start throwing legal threats around it get much much more interesting.
[0]: https://www.youtube.com/watch?v=9VQdVA2hjsA
Another one of those things that as soon as you start throwing legal threats around it get much much more interesting.
[0]: https://www.youtube.com/watch?v=9VQdVA2hjsA
Great write up. I hadn't seen the original post, and now I have. Mutacin and ethanol production does sound problematic. It is a product that I would have tried otherwise.
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.
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.
May I ask what makes aella overrated? I mean, I didn't understand whether it was in a sense of purely related to escort activity or for her writings, surveys (...), I'm asking because this isn't the first time I read about aella being not reputable. Searching on hn.algolia a user came - pun intended - up with a script to hide certain website on hn, and aella's substack was one of them. I glanced at her Twitter/substack in the past and I found content varying from crappy to at least interesting or quite interesting
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Apparently the former CEO of Reddit, Yishan Wong, is trying it and is an investor? He posted a series of long tweets/Xs whatever:
https://x.com/yishan/status/1780131189753569310
https://x.com/yishan/status/1780131189753569310
The current CEO as well, IIRC.
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Look into "anti-SLAPP laws". California has strong enough ones to make people back down from threats like that.
I don't have any skin in this game but this is confusing to me because in the article that he put back up it (still) says:
> 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.
> 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.
> Because that does sound to me like the original claim was wrong?
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.
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.
Best Practices Guidelines for Probiotics != Good Manufacturing Practices (GMP)
The writing by Trevor didn't make me shy away from Lumina's product, I was still quite excited. It would have been good to see scientific debate which could hopefully improve or clarify processes and safety.
Lumina's court threats, however, would definitely make me shy away. I imagine for myself (and many others) that this would be the case.
Lumina's court threats, however, would definitely make me shy away. I imagine for myself (and many others) that this would be the case.
That's probably true, but I think that's actually kind of sad. We've seen enough legal threatening to prevent the truth from getting out that I think our reactions are to assume that's the case. If indeed this is Lumina being upset that a journalist went to far and made false claims about them as they indicate, and the truth is better than indicated, would we not expect a legal proceeding if the journalist would not retract false claims?
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.
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.
No. Good faith conversations with truth as their goal don't come out swinging with legal threats, period. It's certainly possible that taking it there was a regrettable mistake. But without those threats being publicly walked back, I don't see why we should just assume that's the case.
And good faith conversations don't come away with one party publishing assertions of fact just because the other side didn't directly refute the assertion in question.
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.
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.
I can't read the original post due to the takedown from the legal threat, but it sounded to me like a ham-fisted expression of what could have been a reasonable inference. And I'm not going to judge them too hard for failing to beat around the bush with enough weasel words to make their statement airtight technically correct.
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.
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.
I'm mostly going by the author's own notes on how they responded, in which they state this:
• 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.
• 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.
Yeah, when I read Trevor's post, I saw assumptions that aren't that of a stretch and some science facts. I also totally forgot about his first post and this one.
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)
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)
Recent and related:
Reasons not to take Lumina's anticavity probiotic - https://news.ycombinator.com/item?id=40369084 - May 2024 (149 comments)
Reasons not to take Lumina's anticavity probiotic - https://news.ycombinator.com/item?id=40369084 - May 2024 (149 comments)
Now I'm curious to read the edited sections.
Antibiotic-resistant bugs is a tragedy of the commons. We may need a blanket requirement for FDA approval for products, including probiotics, which create antibiotics.
The anti-biotic production portion of this bacteria is naturally occurring, including in strains that naturally occur in people's mouths.
Got a prescription for that kefir?
> kefir
What antibiotic do the probiotics in kefir produce? (Antimicrobial != antibiotic.)
What antibiotic do the probiotics in kefir produce? (Antimicrobial != antibiotic.)
philipwhiuk(1)
spending years in and out of a California courtroom
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.
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.
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.