E. Coast Test Prep LLC v. Allnurses.com, Inc. (309 F. Supp. 3d 644, 2017)

Citations

309 F. Supp. 3d 644

Full opinion text

JANIE S. MAYERON, United States District Court

The above matter came before the undersigned on the following motions: Plaintiffs' motion to Compel Discovery of the Identities of John Doe Defendants [Docket No. 167]; Plaintiffs' Motion for Leave to File a Third Amended Complaint [Docket No. 230]; LadyFree28's Motion for a Protective Order [Docket No. 189]; and Plaintiffs' Motion to Supplement the Record [Docket No. 251]. Richard L. Ravin, Esq. and Paul A. Grote, Esq. appeared on plaintiffs' behalf. John D. Reddall, Esq., Justin Taylor Quinn, Esq. and Keith John Miller, Esq. appeared on defendants' behalf. John Doe LadyFree28 is self-represented and did not appear at hearing. John Doe duskyjewel is self-represented and did not appear at the hearing. The Court, being duly advised in the premises, upon all of the files, records and proceedings herein, and for the reasons described in the Memorandum below now makes and enters the following Order.

IT IS HEREBY ORDERED :

1. Plaintiffs' Motion to Compel Discovery of the Identities of John Does [Docket No. 167] is DENIED in part as MOOT and DENIED in part on the merits.

2. ATP's request that it be allowed to conduct further discovery pertaining to the identities of the John Does based on information obtained from ATP's current and future discovery requests without requiring further orders of the Court is DENIED.

3. LadyFree28's Motion for Protective Order [Docket No. 189] is DENIED .

4. Plaintiffs' Motion for Leave to Serve a Third Amended Complaint [Docket No. 230] is GRANTED. Plaintiff shall immediately serve and file its Third Amended Complaint consistent with this Order. Defendants shall respond in the time described by the Federal Rules of Civil Procedure.

5. Plaintiffs' Motion to Supplement the Record [Docket No. 251] is DENIED.

MEMORANDUM

I. MOTION TO COMPEL DISCOVERY OF IDENTITIES OF JOHN DOE DEFENDANTS [Docket No. 167]

A. Introduction

Plaintiffs East Coast Test Prep, LLC, d/b/a Achieve Test Prep and Mark Olynyk (collectively, "ATP") have been seeking since the inception of this suit to learn the identity of five individual defendants who go by the user names of JustBeachyNurse, monkeyhq, LadyFree28, duskyjewel and Pixie.RN (collectively, "John Does") and who ATP claims posted defamatory comments on a website maintained by defendant Allnurses.com, Inc. ("Allnurses"). Recently, ATP has learned the identity of three of the five John Does (LadyFree28, duskyjewel and Pixie.RN), but still does not know the identity of the remaining two posters (JustBeachyNurse and monkeyhq). Allnurses knows the identity of JustBeachyNurse, but does not know the identity of monkeyhq. See Declaration of Richard Ravin filed on December 21, 2016, Ex. A-1 (Defendants' Amended First Set of Answers to Plaintiffs' First Set of Interrogatories) at pp. 3-4 (Answer to Interrogatory No. 1(ii) ) [Docket No. 254-1]. ATP believes that Allnurses possesses the Internet Protocol ("IP") addresses for each session when a John Doe posted comments on the Allnurses' website. Additionally, Allnurses has stated that it has information on one or more of its database files containing personal identifying information for each John Doe. Id., pp. 5-6 (Answer to Interrogatory No. 1(iii) ). ATP now seeks an order from this Court requiring Allnurses to reveal the identifying information, including the IP addresses, it possesses for JustBeachyNurse and monkeyhq. ATP intends to use this information to identify the third-party Internet Service Providers ("ISPs") and the Online Service Providers ("OSPs") used by these John Does when they made their postings. Armed with that information, ATP will then serve subpoenas on these ISPs and OSPs to learn the identities of JustBeachyNurse and monkeyhq.

Allnurses has objected to revealing any identifying information in its possession, including IP addresses, which could ultimately lead to the discovery of the identity of the John Doe posters, claiming that each such poster has a right under the First Amendment to speak anonymously and Allnurses should not be required to divulge this protected information in contravention of their rights. Two posters, LadyFree28 and duskyjewel, have also objected to ATP's efforts to obtain identity information from Allnurses. Today, this Court decides that ATP has not met its burden to obtain the identifying information regarding JustBeachyNurse and monkeyhq in the possession of Allnurses. Further, the Court concludes that ATP's motion to compel this identifying information from Allnurses as to LadyFree28, duskyjewel and Pixie.RN is moot as ATP already knows their identity.

B. Factual Background

The facts upon which ATP relied to support its motion to compel and that are relevant to the instant motions are set forth in the Second Amended Complaint ("SAC") and the declarations submitted on behalf of ATP by Richard Ravin, counsel for ATP, Mark Olynyk, plaintiff and owner of ATP, and James Roberts, Ph.D., an expert retained by ATP to opine on damages suffered by ATP as consequence of the alleged defamatory statements made by the John Does. See Docket Nos. 97, 159-161. These facts are as follows.

ATP provides test preparation services for individuals seeking entry into various careers, including nursing. SAC, ¶ 19; Declaration of Mark Olynyk ("Olynyk Decl."), ¶ 5 [Docket No. 159]. Allnurses is a Minnesota corporation founded by Brian Short. SAC, ¶¶ 3, 5 (collectively, "Allnurses"). ATP is not a college and does not issue degrees or give college credit. Id., ¶ 27; Olynyk Decl., ¶ 8. Instead, ATP's services are designed to prepare nursing students for standardized exams that enable them to get full credit for college courses without taking the courses, a process known as credit-by-examination. SAC, ¶ 28. The standardized exams are given by an independent college or an independent testing center, and enable the student to earn credit towards a nursing degree such as a Bachelor of Science in Nursing or Associates of Science in Nursing from such college. Id., ¶¶ 27, 29; Olynyk Decl., ¶ 9. This credit-by-examination method allows a student to "test-out" of certain required courses for a particular college to satisfy the credit requirements of the schools, and thus, save the student time and money by not having to pay for and take the required courses at the college. SAC, ¶ 63.

Excelsior College is one of the colleges for which ATP provides test preparation classes, as well as many other accredited colleges throughout the country. SAC, ¶ 62. Generally, students seeking a degree from colleges such as Excelsior College choose to either (i) enroll in a college, register for courses and attend classes for those courses with the goal of passing those courses and earning credit towards their degrees, or (ii) enroll in a test preparation program such as ATP and then challenge and pass the college equivalency exam. Id., ¶ 71. By enrolling in a college and taking courses, the students pay tuition, the amount of which is often determined by the number of course credits being taken by the student. Id., ¶ 72.

Excelsior College offers its students the option to earn credit-by-exam, and it also offers test preparation programs. SAC, ¶ 65 (citing SAC, Ex. A, pp. 37-40 (Screen Shot Set 10) ). ATP also provides test preparation programs for these test-out exams. Id., ¶ 70. By enrolling in a test preparation program such as that offered by ATP, students can save time and money because the test preparation programs usually cost less, and require less time, than enrolling in a course and completing all the course work that goes along with a regular college course. Id., ¶ 73. Excelsior College is a competitor of ATP because each competes for education dollars to be spent by students in pursuit of degrees. Id., ¶ 74.

Excelsior College announced on its website at URL http://www.excelsior.edu/nursing-theory-examination-changes that beginning in July 2015, it would offer registrations for its test-out exam preparation for its nursing degrees to start in Fall 2015. SAC, ¶ 75 (citing SAC, Ex. A, pp. 37-40 (Screen Shot Set 10) ).

Allnurses runs a website at "allnurses.com" which describes itself as "the collective voice of the nursing community, supporting the profession by providing a place where nurses can network, share and learn from their peers." (http://allnurses.com/aboutus-info.html, accessed on March 2, 2015). SAC, ¶¶ 4, 31; Olynyk Decl., ¶ 10. This website provides a platform for its members to post comments or questions and receive feedback and responses from members on a range of topics in the field of nursing, including but not limited to education and required coursework or exams for licensure. SAC, ¶ 34; Olynyk Decl., ¶ 14.

To post a comment or participate in the online discussion on the Allnurses' website, a user must register with Allnurses, but Allnurses' Terms of Service ("TOS") do not require registrants to use their real or legal names or to reveal their true identities when they register to use the website. SAC, ¶¶ 35, 78, 81; Olynyk Decl., ¶ 15. Rather, to register as a member on Allnurses, a user must create a unique username and provide a password, an e-mail address and check a box that states "I'm not a robot". SAC, ¶ 77 (citing SAC, Ex. A, pp. 43-44 (Screen Shot Set 12) ). The TOS also includes the following provisions governing the operation of the website by Allnurses and its members posting on the discussion boards:

(1) "We promote the idea of lively debate. This means you are free to disagree with anyone on any type of subject matter as long as your criticism is constructive and polite."

(2) "You are not allowed to post libelous information about a person, school, instructor, health care facility, or entity."

* * *

(4) "Any post which is violative of any law or is invasive of a person's privacy will be taken down immediately."

(5) "You will enjoy a great deal of freedom here, with the ability to freely debate upon a number of subjects, as long as you remain civil and polite to each other."

Id., ¶ 89 (citing SAC, Ex. A, pp. 54, 57 (Screen Shot Set 13) ).

Members of Allnurses are permitted to create discussion threads on the website discussion boards or publish comments on existing threads. SAC, ¶ 36; Olynyk Decl., ¶ 16. Discussion threads are initiated in pre-established forums on allnurses.com. SAC, ¶ 37. The Allnurses website hosted a discussion thread titled: "Achieve Test Prep.... anyone?" located at URL: http://allnurses.com/excelsior-college-online/achieve-testprep-815067.html. Id., ¶ 54 (citing SAC, Ex. A, pp. 58-82 (Screen Shot Set 14) ); Olynyk Decl., ¶ 18. The "Achieve Test Prep ... anyone?" thread appeared in the "Excelsior College Online Nursing" forum. SAC, ¶ 55; Olynyk Decl., ¶ 19. As of the date the SAC was filed (January 22, 2016), the "Achieve Test Prep ... anyone?" thread remained viewable on the Allnurses website. SAC, ¶ 56; Olynyk Decl., ¶ 20.

The thread entitled "Achieve Test Prep ... anyone?" was created on February 12, 2013, by poster Heavenly4505. SAC, ¶ 110. The thread consists of an extended discussion about the advantages and disadvantages of using ATP's test preparation services in conjunction with Excelsior's RN program. Id., ¶ 111. The thread had a large number of posts by many different Allnurses' members over a long period of time. Id., ¶ 115. The posts alleged by ATP to be defamatory and at issue in this law suit are as follows:

On February 12, 2013, Pixie.RN, stated in response to Heavenly4505's post:

* * *

I'd advise you to think twice before you add a lot of money to the bottom line of your education bill! Good luck, whatever you decide.

SAC, ¶ 165 (citing SAC, Ex. A, p. 60 (Screen Shot Set 14) ) (emphasis in original).

In response to a post by hardworkinggrn2, on August 22, 2014, JustBeachyNurse stated:

ATP and similar services will be redundant as of July 1, 2014 when all challenge exam candidates will be mandated to take the Excelsior online exam prep classes prior to becoming eligible to sit the challenge exams. The prep classes are not free (though prep class plus challenge exam should cost less than the online courses)[.]

SAC, ¶ 121 (citing SAC, Ex. A, p. 61 (Screen Shot Set 14) (emphasis in original) ).

User monkeyhq responded the same day to JustBeachyNurse's post:

As Beachy said, Test Prep companies for Excelsior Exams will be obsolete by July 1, 2015; so unless you plan to finish EVERYTHING by that time, it is a total waste of your investment.

SAC, ¶ 118 (citing (http://allnurses.com/excelsior-college-online/achieve-test-prep815067-page3.html, accessed on March 10, 2015) (emphasis in original) ).

On September 12, 2014, LadyFree28 posted the following on the "Achieve Test Prep ... anyone?" thread:

But the discussion is about THIS particular test-prep program that IS being investigated by the federal government and is under a current lawsuit; there are too many forums that have stated the Achieve "deceived" them with their practices; that is the MAIN focus of this discussion, NOT "other test prep companies."

SAC, ¶ 169 (emphasis in original).

On September 12, 2014, duskyjewel also posted to the "Achieve Test Prep.... anyone?" thread, stating that ATP was under federal investigation. SAC, ¶ 175. duskyjewel's post was in direct response to a post from learning-is-good, which had stated: "Duskyjewel, You are going to scare people by saying some test prep centers are under federal investigation, but my guess is it's just one." Id., ¶ 176. In response, duskyjewel posted: "Sounds like you should be scared. TCN + Achieve equals more than one." Id., ¶ 177.

ATP claimed that all of these statements by the John Does were false. For example, Pixie.RN's statement that Excelsior College warns about using third-party test prep companies and promotes Excelsior College, is false because Excelsior College did not "warn" students about third-party publisher test preparation companies. SAC, ¶ 166; Reply Declaration of Mark Olynyk ("Olynyk Reply Decl."), ¶ 4(q) [Docket No. 214].

Likewise, JustBeachyNurse's statement that ATP's services would be redundant as of July 1, 2014, and monkeyhq's statement that "Test Prep companies for Excelsior Exams will be obsolete by July 1, 2015 ... it is a total waste of your investment," were false. SAC, ¶¶ 118 (emphasis in original), 120, 123, 159; Olynyk Decl., ¶ 21. ATP alleged that there were material differences between ATP and Excelsior College test preparation instruction rendering ATP's test preparation not be redundant to Excelsior College's services or obsolete. SAC, ¶ 124. For example, ATP offers live instruction for its test preparation, while Excelsior College does not, and ATP students are provided with ATP's "911 support," where a student can request extra help in preparing to pass an exam, such as free course retakes, free refresher courses, and free one-on-one customized tutoring from an instructor. Id., ¶ 125.

Further, as of the date of the posts by JustBeachyNurse and monkeyhq, on August 22, 2014, and as of the date when ATP filed its First Amended Complaint (on May 7, 2015), the test preparation requirements for Excelsior College general education courses remained unchanged, and therefore, ATP's general education test preparation was not obsolete or redundant. Id., ¶¶ 126, 127; see also Olynyk Reply Decl., ¶ 4(k) ("At the time that the 'redundant' comment (on August 22, 2014 by JustBeachyNurse) and 'obsolete' and 'total waste of investment' comments (on August 22, 2014 by monkeyhq) were posted on the allnurses.com thread, those statements were false because it was not true that ATP's services would be obsolete, redundant or a total waste of investment as a result of any then-existing or changed policies, rules or criteria of Excelsior College."); ¶ 4(o) ("ATP had planned to continue to offer test prep services for nursing and general education classes at Excelsior College for all time relevant to the Second Amended Complaint, because Excelsior College did not announce any policy, rule or criteria that would have made any of ATP's test prep services obsolete, redundant or a total waste of investment.").

Additionally, by "liking" monkeyhq's post (which referenced JustBeachyNurse's post), Pixie.RN endorsed, approved, ratified, restated and republished the false and misleading statements posted by poster monkeyhq and JustBeachyNurse on August 22, 2014. SAC, ¶¶ 114 (citing SAC, Ex. A, p. 10 (Screen Shot Set 4); p. 62 (Screen Shot 14) ), 151-157.

Pixie.RN was a Senior Moderator working for Allnurses and was in charge of the discussion thread on the allnurses.com website, "Achieve Test Prep.... anyone?" thread. SAC, ¶¶ 97, 100. Pixie.RN has posted about Excelsior College and was considered an expert on all matters pertaining to Excelsior College in the Allnurses community, such as whether ATP's services would be "obsolete" or "redundant." Id., ¶ 148. When a Senior Moderator such as Pixie.RN "likes" a post, it is interpreted by the online community as endorsing the post on Allnurses' behalf. Id., ¶ 136. Pixie.RN's "like" is tantamount to an endorsement or certification by Senior Moderator Pixie.RN, on behalf of Allnurses (which holds itself out as fair and impartial), that what is stated in the post is factually correct. Id., ¶ 149. As a result of Pixie.RN's endorsement, readers of the thread who were prospective customers of ATP were scared away from doing business with ATP and current customers were susceptible of discontinuing doing business with ATP. Id., at ¶ 160.

ATP alleged that the posts by LadyFree28 and duskyjewel on September 12, 2014, on the "Achieve Test Prep ... anyone?" thread stating that ATP was under federal investigation were false, as ATP has not been investigated by the FTC or under federal investigation. SAC, ¶¶ 172-174, 179, 180; Olynyk Decl., ¶ 21; Olynyk Reply Decl., ¶¶ 4(b), (d), (f).

ATP alleged that all of the false statements about ATP by the John Does were made with negligence as to their falsity, with reckless disregard as to whether the statements were true or false, or with knowledge as to their falsity; the statements were made willfully or maliciously; the statements were made in bad faith; and as a result, ATP's business was harmed. SAC, ¶¶ 182-185.

ATP retained Dr. James Roberts to quantify the damages suffered by ATP as a result of the alleged defamatory postings by the five John Doe defendants. Olynyk Decl., ¶¶ 37-56; Declaration of Dr. James Roberts ("Roberts Decl.") [Docket No. 160], ¶ 1, Ex. A (expert report). Based on Dr. Robert's expert opinions, ATP estimated that it had already lost revenues in the range of $5,032,000 to $7,240,000 and lost profits ranging from $1.9 million to $2.7 million, and over the next two years, it will continue to lose customers (376 to 542 customers), revenue ($3,008,000 to $4,336,000) and profits ($1,140,000 to $1,620,000). Olynyk Decl., ¶¶ 43, 44, 52, 53, 55. In total, ATP estimated lost customers ranging from 1,005 to 1,447; lost revenues in the range of ($8,040,000 to $11,576,000); and lost profits in the range of $3,040,000 to $4,320,000. Id., ¶ 56.

C. Procedural History

ATP previously had moved for expedited discovery to obtain responses to its interrogatories and document requests for the purpose of acquiring information that would identify the John Doe defendants JustBeachyNurse, monkeyhq, LadyFree28, duskyjewel and Pixie.RN. [Docket No. 56]. Allnurses resisted the motion on the grounds that the information sought by ATP was protected by the First Amendment and that Allnurses had jus tertii standing to assert the constitutional rights of its website users. Order dated December 18, 2015 [Docket No. 85], pp. 8-9, 16. This Court rejected the standing argument, concluding that the John Does could assert their own First Amendment rights by moving to quash any subpoenas that ATP served on their respective ISPs or OSPs. Id., p. 28-29. Consequently, this Court granted ATP's motion in part and required Allnurses to respond to ATP's Document Request Nos. 1-4, which sought any documents containing the John Does' names, addresses, and IP address logs. Id., p. 31. Allnurses objected to the Order and the District Court (Chief Judge John Tunheim) sustained Allnurses' objections and denied ATP's motion to compel. East Coast Test Prep LLC v. Allnurses.com, Inc., 167 F.Supp.3d 1018 (D. Minn. 2016) (" Vacation Order").

First, the District Court found that Allnurses did have standing to assert the First Amendment rights of the John Does. Id. at 1022-23. Second, the Court concluded that the information sought by ATP-the IP addresses of the John Does-constituted personally identifying information and implicated the First Amendment interests of the John Does. Id. at 1023.

Third, the Court found that while the John Doe defendants' First Amendment rights to speech were clearly impacted by ATP's motion to compel, it did not mean that discovery of their IP addresses was not appropriate under certain circumstances. Id."The Court must balance the John Doe defendants' right to speak, and to speak anonymously, with the state's interest in regulating defamation and other forms of speech." Id. Noting that while neither the Supreme Court nor the Eighth Circuit had yet to provide direction on whether an anonymous speaker's right to speak should be protected in the context of discovery, other courts had provided guidance. Id. (citing In re Anonymous Online Speakers, 661 F.3d 1168, 1174-76 (9th Cir. 2011) ; Arista Records, LLC v. Doe 3, 604 F.3d 110, 118-19 (2d Cir. 2010) ; Enterline v. Pocono Med. Ctr., 751 F.Supp.2d 782, 787-88 (M.D. Pa. 2008) ; Doe v. Cahill, 884 A.2d 451, 457-58 (Del. 2005) ; Dendrite Int'l, Inc. v. John Doe No. 3, 342 N.J.Super. 134, 775 A.2d 756, 760-61 (N.J. App. Div. 2001) ; see also Nathaniel Gleicher, John Doe Subpoenas: Toward a Consistent Legal Standard, 118 Y.L.J. 320, 362-64 (2008) (proposing a test) ).

The District Court concluded that the "basic consensus" as to how "a court should protect rights to anonymous speech in the context of a request for production" was as follows:

First, the party seeking discovery of the information that might unmask the anonymous speaker must make reasonable efforts to notify the speaker by, for example, attempting notice via the same medium used by the speaker to send or post the at-issue message. Doe I v. Individuals, 561 F.Supp.2d 249, 254 (D. Conn. 2008) ; Dendrite, 775 A.2d at 760 (2001) ; see also Gleicher, 118 Y.L.J. 363. This requirement gives the speaker the opportunity to seek to quash the discovery request on their own. Doe I v. Individuals, 561 F.Supp. at 254. Second, the plaintiff must produce prima facie support for all of the elements of his or her case that are within his or her control. Arista Records, 604 F.3d at 119 ; Doe I v. Individuals, 561 F.Supp.2d at 255-56 ; Highfields Capital Mgmt. L.P. v. Doe, 385 F.Supp.2d 969, 976 (N.D. Cal. 2005). "Requiring at least that much ensures that the plaintiff is not merely seeking to harass or embarrass the speaker or stifle legitimate criticism." Krinsky v. Doe 6, 159 Cal.App.4th 1154, 72 Cal.Rptr.3d 231, 245 (Ct. App. 2008). Third, the Court must consider whether the plaintiff has identified specific statements made by the anonymous speakers and consider "whether there is an alternative means of obtaining the information." Doe I v. Individuals, 561 F.Supp.2d at 255 ; see also Dendrite, 775 A.2d at 760. Fourth and finally, if the above factors do not make it abundantly clear, the Court must determine whether the "party seeking discovery has 'demonstrated an interest in obtaining the disclosures it seeks ... which is sufficient to justify the deterrent effect ... on the free exercise ... of [the] constitutionally protected right.' " Perry v. Schwarzenegger, 591 F.3d 1147, 1164 (9th Cir. 2010) (alterations in original) (quoting NAACP v. Alabama, 357 U.S. 449, 463, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) ); see also Dendrite, 775 A.2d at 760-61 ; Gleicher, 118 Y.L.J. at 363.

Id. at 1024-1025. The Court gave ATP leave to file a renewed motion for discovery "in light of the applicable law described in this order." Id. at 1020.

Following the issuance of the Vacation Order, this Court worked with counsel for the parties to develop a procedure for ATP

to renew its motion to compel Allnurses to answer discovery bearing on the identities of the John Does, after notification of the motion to the John Does. Ultimately, after input and argument of the parties, the Court issued two Orders addressing the content and modality of the notice to the John Does, along with the timing of the briefing and hearing on ATP's renewed motion to compel. Order dated August 22, 2016 [Docket No. 153]; Amended Order dated August 31, 2016 [Docket No. 156].

In order to notify the John Does of the upcoming motion to compel, the Court required a "Banner" and "Legal Notice Page," (Exhibits A and B attached to the Order), to be placed on the Allnurses' website setting forth information regarding ATP's renewed motion and attaching copies of relevant pleadings. Order dated August 22, 2016, p. 6. The Legal Notice described the nature of ATP's suit and the substance of its motion to compel, notified the John Does of the time and date of the hearing on the motion, and informed the John Does how to object to plaintiffs' motion ("Any John Doe Defendant objecting to ATP's Motion to Compel Discovery must file with the Clerk of Court for the District Court of Minnesota a written response to the motion and serve a copy on all counsel of record by [date]."). Amended Order dated August 31, 2016, Ex. B. The Legal Notice then informed the John Does how to protect their identities in responding to ATP's' motion:

If you are not represented by a lawyer, you must include with your written response, your name, address and phone number. However, if you do not want to reveal your identity (name, address and phone number) to the parties, you may do this by (a) filing with the Clerk of Court and serving on counsel of record for the parties a written response that redacts (hides or removes) your name, address and phone number, and (b) by sending an unredacted version of the same written response to Magistrate Judge Mayeron at the address below.

* * *

Magistrate Judge Mayeron will not disclose your name, address and phone number to Plaintiffs, Allnurses or counsel of record for these parties. The Court will only use this information to communicate to you about the motion, including the outcome of the motion.

Id.

In compliance with these Orders, following service and filing of the instant motion to compel, Allnurses placed the Banner and Legal Notice Page on its website.

After ATP filed its renewed motion to compel and the Banner and Legal Notice Page were placed on the Allnurses' website, duskyjewel filed written objections to the motion. [Docket Nos. 180]. LadyFree28 also responded to the motion by filing a Motion to Dismiss [Docket Nos. 181, 188]; Motion for Protective Order, which was essentially an objection to ATP's renewed Motion to Compel [Docket Nos. 182, 189]; Counterclaim [Docket Nos. 184]; and a Letter directed to this Court [Docket Nos. 183, 187]. Both duskyjewel and LadyFree28 filed redacted objections with the Clerk of Court (i.e. hiding the name, address and phone number of the John Doe), and sent unredacted objections to the Court, revealing this identifying information to the Court only.

Shortly before the hearing on ATP's renewed Motion to Compel, ATP discovered through further investigation the identities of duskyjewel, LadyFree28, and Pixie.RN. As a consequence, on November 23, 2016, Allnurses sought permission to file a Motion for Reconsideration of this Court's August 22, 2016 Order. Letter to Court dated November 23, 2016 [Docket No. 237]. Allnurses claimed that the Court had "disregarded" its request that the John Does direct all correspondence to the Court and as a result, ATP had learned information from "court personnel and the John Does" sufficient to identify duskyjewel and LadyFree28. Id., pp. 1-2. Allnurses also claimed that the Court's process for notifying the John Does of the motion created an untenable choice. Id., p. 2 ("If this process is allowed to stand and Plaintiffs are permitted to take unjustified advantage of the Court's process, John Doe defendants in the District of Minnesota (and elsewhere throughout the nation) will effectively have to choose between (1) not responding to a motion seeking their identity, and thereby not fully addressing the merits, not filling out the record for the court, or, in the case of a party where there is no third party opposing disclosure, complete abandonment of any attempt to prevent disclosure and comply with the First Amendment; or (2) responding and knowing that such a response will allow the plaintiff to discover their identity without any showing that the claimed harm outweighs the substantial First Amendment interests in protecting anonymous speech. This is not a choice that any anonymous Doe should ever have to face.").

Following receipt of ATP's response to the request [Docket No. 242], the Court denied Allnurses request to file a motion for reconsideration, finding that there were "neither compelling or extraordinary circumstances, manifest errors of law nor newly discovered evidence that warrant granting this request." Letter by Court dated November 29, 2016 denying request for reconsideration ("Court Letter Denying Reconsideration Request"), p. 1 [Docket No. 244]. The Court explained that it had previously considered Allnurses' request for ex parte communications by the John Does to the Court and had created a mechanism that allowed the John Does to remain anonymous, and at the same time, gave ATP the opportunity to respond to any objections filed by a John Doe. Id., p. 4. The Court also rejected as meritless any suggestion that "Court personnel" divulged the John Does' identities and noted that ATP did not solely use the filings by duskyjewel and LadyFree28 to discovery their identities. Id., p. 5.

The Court found no merit to Allnurses' claim that the Court's Orders created an untenable Hobson's choice. Id., p. 5. The Court explained that the process described in its Orders did not set out a "take it or leave it" choice. Id. The John Does were given the option of filing fulsome objections to ATP's motion to compel and gave neither advice nor placed any constraints on the substance of their objections. Id. Further, the decision gave the John Does the opportunity to lodge those objections anonymously, if they so chose. Id. LadyFree28 and duskyjewel filed substantive objections that did not reveal their identities. Id. The fact that LadyFree28 and duskyjewel may have shared information in their substantive responses that assisted ATP's efforts to discover their identities was not the result of the process set out in the Order. Id."In short, the Court created a procedure that would allow the anonymous John Does to oppose plaintiffs' motion without having their identities revealed; it did not create a process in which it could guarantee that a John Doe's identity would not ultimately be discovered based on the substance of their objections or through other means." Id.

D. ATP's Renewed Motion To Compel Discovery of Identities of John Does

ATP has now renewed its motion to compel Allnurses to respond to those portions of Interrogatory Nos. 1, 3-5, 11, 13 and 19 and Document Requests Nos. 1-5 and 9-12 that seek information and documents bearing on the identities of the John Does. ATP's Memorandum in Support of Motion ("ATP Compel Mem."), p. 2 [Docket No. 168]. ATP also sought an order allowing it to conduct further discovery pertaining to the identities of the John Does based on information obtained from ATP's current and future discovery requests without requiring further orders of the Court. Id., pp. 2-3.

At the hearing on the motion to compel, ATP took the position that its motion was moot as to Pixie.RN, duskyjewel and LadyFree28 as it already knew their identities. As for JustBeachyNurse and monkeyhq, ATP submitted that it had met each of the four factors identified by the District Court in its Vacation Order to obtain information bearing on their identity. Id., pp. 11-28. ATP maintained that the first prong-making reasonable efforts to notify the speaker-was satisfied by the Court's Orders of August 22 and August 31, 2016, which resulted in the placement of the Banner and Legal Notice Page on Allnurses' website. Id., p. 15.

As to the second prong-the production of prima facie support for all of the elements of the case that are within the plaintiff's control-ATP contended that, whether the Court applied New Jersey or Minnesota law, it had made out a prima facie case of defamation for the statements made by JustBeachyNurse and monkeyhq on August 22, 2014 on the allnurses.com website. ATP Compel Mem., pp. 15-25 (citations omitted); see also SAC, ¶¶ 117-127, 159; Olynyk Decl., ¶ 21.

ATP contended that these statements by JustBeachyNurse and monkeyhq on August 22, 2014, constituted mixed opinions and were therefore, actionable under either New Jersey or Minnesota law. Reply Memorandum in Support of Plaintiffs' Motion to Compel Discovery of Identities of John Doe Defendants ("ATP Compel Reply"), pp. 8-20 (citations omitted) [Docket No. 213]. In a "mixed opinion" statement, the speaker generally implies that he or she is aware of undisclosed facts supporting his or her opinion and these facts are false and defamatory. Id., pp. 9-11 (citations omitted). In this case, the comments by monkeyhq and JustBeachyNurse that ATP's services "will be redundant" and that ATP "will be obsolete" unquestionably implied the existence of undisclosed defamatory facts. Id., pp. 15-16. Specifically, JustBeachyNurse's comment that "ATP and similar services will be redundant as of July 1, 2014," suggested that the poster believed that ATP's services would be "unnecessary" or "duplicative" based on some undisclosed knowledge relating to the challenge exams, effective July 1, 2014. Id., pp. 16-17. According to ATP, the statement implied a verifiable factual assertion, the truth of which ATP has denied and has demonstrated that it was harmed by the comment. Id., p. 17.

Similarly, ATP monkeyhq's statement that "Test Prep companies for Excelsior Exams will be obsolete by July 1, 2015," was an actionable "mixed opinion" statement because it began with the phrase "As Beachy said," implying that it was based on facts unknown to the reader. Id., p. 15. Further, the ordinary meaning of the term "obsolete" is that something is "no longer in use or no longer useful," leading a reader to conclude this was the case based on monkeyhq's further statement "so unless you plan to finish EVERYTHING by that time, it is a total waste of your investment ." Id., pp. 15-16 (emphasis in original) (quoting Merriam-Webster Collegiate Dictionary, 10th ed. (1993) ).

ATP further asserted that both Minnesota and New Jersey apply a negligence standard and that it had made out a prima facie case of negligence based on the evidence that was in its control. ATP Compel Mem., p. 17 (citing Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 491 (Minn. 1985) ; G.D v. Kenny, 411 N.J.Super. 176, 984 A.2d 921, 927-28 (N.J. Ct. App. 2009) ). ATP acknowledged that in some circumstances, a more stringent "actual malice" standard may apply pursuant to New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and its progeny. Id. Here, however, actual malice did not apply because Allnurses is not a media defendant and ATP is not a public figure, nor is this case a matter of public concern or of public interest. ATP Compel Reply, pp. 3-6. Thus, negligence is the correct standard. Nevertheless, "the Court need not make a determination as to that (and consequently, what standard applies) at this juncture" because, based on the standard adopted by the District Court, it was only required to submit prima facie proof of elements under its control, and knowledge of whether the posters had the requisite degree of fault involved proof of items beyond its control. ATP Compel Mem., pp. 17-18, 20 (citations omitted); ATP Compel Reply, pp. 3, 7-8 (citations omitted).

ATP posited that under the law of New Jersey and Minnesota, statements are defamatory when they are false and harm the reputation of another. ATP Compel Mem., p. 18 (citations omitted). Further, under the law of both states, when statements are defamatory per se, there is no requirement to submit proof of actual damages. Id., p. 19 (citing Becker v. Alloy Hardfacing & Eng'g Co., 401 N.W.2d 655, 661 (Minn. 1987) ). These statements include those that falsely accuse a person of committing a crime or improper or incompetent conduct involving a person's business. Id. (citations omitted). ATP submitted that "all of the statements are defamatory on their face." Id., p. 20. But even if they were not, ATP suffered actual damages through the loss of potential customers (and associated lost revenues and profits), injury to reputation and loss of good will. Id. (citing Roberts Decl., Ex. A (expert report) ). According to ATP, Dr. Roberts studied the impact of the allegedly defamatory statements and found that a very significant percent of the LPNs surveyed would not use ATP's services after hearing they were obsolete, ATP was under federal investigation, and that Excelsior College had warned students against using third party test services. ATP Compel Mem., p. 7 (citing Roberts' Decl., Ex. A). Dr. Roberts also opined that "it is likely that substantial injury has occurred to the reputation and good will of ATP as a result of a substantial number of ATP's prospective customers being exposed to the 'Achieve Test Prep ... anyone?' thread." Id., p. 8 (citing Roberts Decl., Ex. A, pp. 25-26, ¶¶ 1, 2). Mark Olynyk, the owner of ATP, estimated that ATP had lost between $5,032,000 and $7,240,000 in revenue, and lost profits ranging from in excess of $1,900,000 to more than $2,700,000 as a result of the defamatory statements. Id. (citing Olynyk Decl., ¶¶ 41-44; Roberts Decl., Ex. A, p. 33, ¶¶ N, P). According to ATP, "[e]ven these damages will pale in comparison to the long-term injury to Plaintiffs so long as the 'Achieve Test Prep.... anyone?' thread remains accessible to the public and subscribers of Allnurses." Id., p. 10.

As to the third prong articulated by the District Court-the identification of specific statements and consideration of alternative means of obtaining the information-ATP submitted that the Second Amended Complaint identified the specific defamatory statements by the John Does at issue, and Olynyk attested that these statements were false and defamatory. Id., pp. 20-25 (citing SAC, ¶¶ 117-123, 163-172, 175-180), Olynyk Decl., ¶ 23. Further, as set forth in Olynyk's declaration, ATP has no alternative means for identifying the Does. Id.

Regarding the fourth prong-whether ATP has demonstrated an interest in obtaining the disclosures from Allnurses sufficient to justify the deterrent effect on the John Does' First Amendment rights-ATP

urged that it met this burden as it had no alternative means to identify the John Does and that without the discovery necessary to unmask them, it could not add them as parties and "hold them responsible" for their statements. ATP Compel Mem., p. 26. ATP also contended that it had shown a sufficient interest in seeking the identities of the John Does because the First Amendment does not shield individuals from the consequences of defamatory speech, even anonymous speech. ATP Compel Reply, pp. 21-25. ATP cited to numerous extra-jurisdictional cases in which courts have weighed an anonymous speaker's First Amendment rights against the right of an aggrieved party to seek redress for defamatory speech, and have concluded that former must give way to the latter. Id. (citations omitted).

In opposition to ATP's motion, Allnurses did not claim that ATP failed to exercise reasonable efforts to notify the speaker. Defendants' Memorandum in Opposition to Plaintiffs' Motion to Compel Discovery of Identities of John Does ("Allnurses' Opp. Compel Mem."), p. 4 [Docket No. 202]. However, as for the second prong of the District Court's Order, Allnurses argued ATP had failed to establish prima facie support for its defamation claims. Id., pp. 4-23. Allnurses contended that under New Jersey and Minnesota law, a defamatory statement is one that is factual and false. Id., p. 7 (citation omitted). Further, opinions are by definition non-defamatory-only provably false statements are actionable. Id., pp. 8-9 (citations omitted). Allnurses submitted that the alleged defamatory statements by JustBeachyNurse and monkeyhq were not statements of fact; at most, they were statements of opinion. Id., p. 9 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) ; Price v. Viking Penguin, Inc., 881 F.2d 1426, 1432 (8th Cir. 1989) ; Janklow v. Newsweek, Inc., 788 F.2d 1300 (8th Cir. 1986) ; Kotlikoff v. Community News, 89 N.J. 62, 71, 444 A.2d 1086 (1982) ).

Applying these precepts to the statements at issue by JustBeachyNurse and monkeyhq, Allnurses first argued that ATP had taken their statements out of context and had only quoted a portion of each post. Id., pp. 16. 18. For example, JustBeachyNurses' full post was:

If you need in person classes and support it would be more economical (plus the potential for financial aid & scholarships) to attend a local brick & mortar school rather than the challenge exams of ATP and doubling your costs with a tutoring service. (Neither covered by federal financial aid).

Id., p. 18.

Similarly, user monkeyhq's post-in-full read:

As Beachy said, Test Prep companies for Excelsior Exams will be obsolete by July 1, 2015; so unless you plan to finish EVERYTHING by that time, it is a total waste of your investment.

Keep in mind as well that TCN-a major player in test prep-is under investigation by the Federal Trade Commission. There is a reason for that. Quite often, test prep companies charge you far more than taking the course through the issuing college or at a local brick and mortar, and give you far less.

My personal belief is that you need to study what the SCHOOL requires you to study (and Excelsior is VERY helpful in this!), not some so-called equivalency program. There isn't a real short-cut to becoming a nurse ... you need to know the entire contents of a course, not the Cliff Notes. It will make you a better nurse (in most cases).

Best of luck!

Id., pp. 16-17.

Allnurses then argued JustBeachyNurse's statement was not defamatory because it was a statement of opinion, it did not lower the opinion of anyone in the community as to ATP, and it was not false. Id., p. 18. Allnurses maintained that to say something was "redundant" meant only that in a person's opinion it is duplicative or unnecessary; it is not a statement of fact capable of verification. Id.

In the same vein, monkeyhq's statement was not defamatory because it was a statement of opinion, it was not a statement about ATP, it did not lower the opinion of anyone as to ATP, and it was not false. Id., p. 17. According to Allnurses, there is "no method to verify the obsolescence of a company's services nor does the statement provide the requisite specificity as to what obsolescence means or how it is being asserted." Id. Moreover, ATP's own agent, GRN77 posted immediately after monkeyhq on the Allnurses' website, stating that "Test prep will no longer be available for Nursing classes." Id. (citing http://allnurses.com/excelsior-college-online/achieve-test-prep-815067-page3.html ). ATP's statement that it would no longer offer these classes, "was telling as to its own estimation of the value of its courses after the changes to the Excelsior program." Id., p. 17.

Allnurses also disagreed with ATP's assertions that as a private individual, it was not required to show actual malice, or even if negligence was the proper standard, ATP did not have to present evidence of negligence because the elements are not within its control. Id., pp. 12-13. Allnurses maintained that "negligence is a reasonable person standard and is readily demonstrable without knowing the actual poster's subjective intent, state of mind, or identity. Accordingly, it is an element within the control of Plaintiffs and they must make the requisite showing." Id., p. 13.

As to damages, Allnurses contended none of the statements were defamatory per se and ATP had provided no actual evidence of damages. Id., p. 14. There was no evidence presented that ATP had lost one customer, just as there was no evidence of any potential customer communicating to ATP that the customer had formed a negative opinion of ATP based on the allegedly defamatory comments. Id. Allnurses dismissed Dr. Roberts' statements about lost revenues and profits as "speculative," and pointed to contrary evidence that ATP's marketing agency had posted in which the agency touted its success in marketing ATP's services by increasing the monthly visitor traffic on ATP's website and conversions to customers during the relevant timeframe. Id., p. 15 (citing Declaration of John Reddall, Ex. B (blog post by Precision Marketing Group, LLC dated February 18, 2016) [Docket No. 203] ).

Lastly, even if ATP could make out claims of defamation, Allnurses contended that based on the fourth factor identified by the District Court, ATP had failed to demonstrate an interest sufficient to justify the deterrent effect on anonymous speech. Id., pp. 24-29. According to Allnurses, the Internet provides a uniquely important forum for the free exchange of ideas, and there was a general acknowledgement by Congress, through the enactment of the Communications Decency Act ( 47 U.S.C. § 230 ), that this is so. Id., p. 25 (citation omitted). Therefore, the Court must consider the significant societal benefits of anonymous Internet speech when assessing ATP's claims. Id., p. 27-29.

E. Decision

1. Impact of ATP's Discovery of Identities of Pixie.RN, duskyjewel and LadyFree28 on Motion

The Court concludes that ATP's instant motion is moot with respect to Pixie.RN, duskyjewel and LadyFree28 because ATP has already discovered their identities, and consequently, there is no need for this Court to determine if their First Amendment rights are implicated by the discovery directed to Allnurses. To the extent that Allnurses suggested in its opposition to ATP's motion to amend the Second Amended Complaint that the procedures employed by the Court to notify and permit responses by the John Does to the motion to compel "resulted in the unforeseen violation of the First Amendment [and] required protections of the Does," this "suggestion" is rejected. Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for Leave to File Third Amended Complaint, p. 2 [Docket No. 235]. First, the Court has already determined that the process employed to notify the John Does of the motion to compel was sufficient to protect their anonymity. Court Letter Denying Reconsideration Request. Second, the First Amendment issues raised by ATP's motion to compel bear only on anonymous speakers and not on those whose identities are known to the moving party. Therefore, the Court overrules Allnurses' argument that Pixie.RN, LadyFree28 and duskyjewel continued to enjoy First Amendment protection even though they were no longer anonymous.

Accordingly, for the balance of this Order, the Court considers the issues raised by ATP's motion to compel as they bear on the two remaining anonymous posters-JustBeachyNurse and monkeyhq.

2. The "Achieve Test Prep ... anyone?" Thread

As stated previously, the thread entitled "Achieve Test Prep ... anyone?" was created on February 12, 2013, by poster Heavenly4505. The thread consists of a discussion by many different Allnurses'

members over a long period of time about the advantages and disadvantages of using ATP's test preparation services in conjunction with Excelsior's RN program, along with other alternative services and options. ATP did not set out the full text of thread in the Second Amended Complaint. However, as discussed in the next section, the law of defamation requires the Court to consider the context of and circumstances surrounding any alleged defamatory statements. Therefore, to understand the context of the alleged defamatory statements by JustBeachyNurse and monkeyhq at issue in this case, it is necessary to read the entire thread found at http://allnurses.com/excelsior-college-online/achieve-test-prep-815067.html. Below, the Court sets forth the pertinent portions of the thread, including the allegedly defamatory statements by JustBeachyNurse and monkeyhq.

The initial post on February 12, 2013 by Heavenly4505 reads:

Hello, I'm wondering if anyone out there has tried Achieve Test Prep to help them get their RN through Excelsior? I've been a LPN for 2 years and work full-time in long-term care, plus have two young children. I really want to get my RN, but going to a traditional "brick and mortar" program is not going to be possible for me. I enrolled in Excelsior back in 2011, right after I got my LPN license. However, I lost motivation, got bored with it, and felt lost in the huge amount of reading I had to do with no guidance. So I dropped out of the program. Now, I'm thinking about doing it again. I am also considering Indiana State's online LPN-BSN program, but I still need two pre-reqs plus the TEAS, challenge exams, etc. And I know they've had some problems with their program lately (just in California from what I understand but who knows how it will affect their entire program in the future).

Long story short, I'm considering trying Achieve Test Prep to help me finish Excelsior's program. I do NOT want to even try College Network or any of those other places. I'd love to hear input from anyone who's tried Achieve's program. Do you feel prepared? How much is the total cost, monthly payment amounts, etc.? How long will it take you to finish? I've had most of the general education courses, but with Excelsior's new rule about A & P and Microbiology being completed in the last 5 years, I will most likely need to retake those along with all the nursing courses, FCCA, and CPNE. Thanks to anyone who can help!

There were several posts that same day, which generally discussed the pros and cons of third party test prep companies (including ATP) and Excelsior College, including the posts by JustBeachyNurse and Pixie.RN,

In this regard, JustBeachyNurse responded to Heavenly4505 stating:

Achieve Test Prep is a test prep company, just like The College Network BUT they offer classroom review sessions. Their costs are on top of the registration, enrollment, exam (and practice exam) fees and any other charges levied by Excelsior. In my limited experience, it's akin to taking a review class for the NCLEX (you still have to pay for your nursing education, NCLEX fees and BoN fees) for some it works for others it does not. If you need an in person tutor in a group environment and can afford the extra costs on top of the Excelsior costs, then it may be beneficial to you.

Excelsior College is NOT for everyone. You must be internally motivated to be successful in the program. Have you looked to see if any of your local community colleges offer an onsite-online LPN to RN bridge program? These programs are gaining in popularity (online classes and in person clinicals once a week or so) to cater to the working professional who wishes to advance their education.

Good luck with whatever you choose.

Edited to add: It is NOT cheap, but you cannot get an exact cost and time plan without meeting with an enrollment counselor from Achieve Test Prep either online or in person. I understand that it isn't a hard sell and if it is out of your price range they often recommend that you not pursue their program. Unlike TCN who pushes enrolles to sign up right away with a credit card or for one of their affiliated high interest private loans.

Heavenly4505 wrote back to JustBeachyNurse:

Thank you JustBeachyNurse. I actually have an appointment "online" at 1PM today to talk with an admissions counselor from Achieve. I am not even going to consider College Network. They are way too pushy. I filled out an online information request form on Indiana State's website for their LPN-BSN program, and since then, College Network calls me daily-sometimes 2 or more times a day! I never requested any information at all from College Network-the form I filled out was on Indiana State's site (I made sure of that before I filled it out). I've told them I'm not interested and that need to stop calling, but they continue to call frequently.

I am not aware of any hybrid programs in my area. I live in Cincinnati, OH. If anyone knows of a program with online coursework and onsite clinicals once or twice a week, please let me know. It would have to work with my schedule, though. I work full-time nightshift in a nursing home, and cutting down to part-time or quitting my job is NOT an option at all. Thank you!

JustBeachyNurse responded to Heavenly4505:

Check with your state Board of Nursing or just look into some of your local community college nursing programs directly (sometimes the information does not show up on Google).

Prepare a list of questions before you appointment this afternoon: such as hidden costs, financing options (if any), scheduling of prep-classes vs. exam scheduling, recommended timeline, etc. Most states you must apply & enroll directly with Excelsior, and pay EC directly for the exams.

As far as TCN/ISU there is a relationship there. If you did not agree to the contact, look at the "Do Not Call" regulations as you do not have a business relationship with them. You can always file a complaint or check with your phone service provider about blocking what amounts to harassing calls. (hence why I don't give my phone number out on online forms, but I have call blocking capabilities on my home phone number. You could always do what I did when my child was younger, if they didn't get the message of "DO NOT CALL ME ANYMORE" they got an invitation to speak with my yippy dog who like to shriek at the phone or my then toddler. usually solved the problem quickly.)

Heavenly4505 responded to JustBeachyNurse:

LOL @ the yippy dog! I don't have one of those but I do have 3 meow-y cats who are very vocal when they want their dinner. Maybe I'll put one of them on next time LOL

The phone calls from the College Network appear to have died down thankfully. I know there's a connection between them and ISU, but I didn't expect to get a million calls after just filling out ISU's information request form. I have checked in to some college programs in my area. The ones I've looked at don't work with my work schedule. One of my former LPN classmates is doing Galen. They have a "hybrid" program, but the clinicals run late into the evenings, and I have to be at work at 7 PM. If Achieve's program is too expensive, I will most likely just try Excelsior again on my own. My life is in a better place now than it was 2 years ago when I tried it the first time, so maybe I will be successful this time.

That post followed by another post by Heavenly4505:

JustBeachyNurse, are you doing Achieve's program, or have you done it? Or are you an Excelsior student/grad?

Then Pixie.RN responded to Heavenly4505's post:

EC warns students about third-party publishers and test prep companies-they are not affiliated with EC, nor does EC endorse their use (http://www.excelsior.edu/about-test ... ation-services). EC's program is set up to provide an outline/syllabus for each class in the form of a free exam content guide that you can download. There are plenty of people out there looking for study buddies, both in person and through other media like Skype, if you need some external motivator to keep you on track. I'd advise you to think twice before you add a lot of money to the bottom line of your education bill! Good luck, whatever you decide.

Heavenly4505 wrote back to Pixie.RN:

I know Achieve is not affiliated with EC. I was just trying to get some motivation to stay on track, and I thought having an instructor and classmates might do that for me. In the end, I decided against Achieve. It's going to cost me over $7000 total for the program, which she said would be a $222 payment per month. And that's on TOP of Excelsior's payment plan for the enrollment fee/tests. It would end up being around $500 per month total, and I don't have that kind of money. I graduated from LPN school with a 4.0 GPA, so it's not a question of whether I can do it or not. I know I can do it; I just need some direction and motivation.

The next post was July 11, 2013, which generally discussed Excelsior College, ATP and the limited seats available for in-person nursing education at a community college.

There were no posts until October 2-8, 2013. These posts generally discussed the earlier comment by Pixie.RN, that Excelsior College had "warned" students about third-party test prep companies and the pros and cons of working with the third-party companies.

Again there was another gap in the thread. The next posts were between February 8-24, 2014, which generally discussed the costs and benefits of Excelsior College, test prep companies and the posters' various strategies for passing their exams.

There were no posts for six months on the thread, until August 22, 2014, when three posts appeared. First, user hardworkinggrn2 stated:

There are a lot of great ways to get your LPN-RN and one thing to really consider is how you learn best. Mystudygroup101 can certainly be a great resource but they just provide you with more materials that you need to go through on your own. ATP's classes provide the structure and visual learning that so many people need to be successful. The classes are taught by RN's whose personal knowledge and experience can be a great support system during this journey. I find that the best investment is always whatever is going to help you be most successful in reaching your goals.

On the same day, JustBeachyNurse responded to hardworkinggrn2's post stating:

On the same day, monkeyhq followed with this response to JustBeachyNurse's post:

As Beachy said, Test Prep companies for Excelsior Exams will be obsolete by July 1, 2015; so unless you plan to finish EVERYTHING by that time, it is a total waste of your investment.

Keep in mind as well that TCN-a major player in test prep-is under investigation by the Federal Trade Commission. The