Paul Brodeur's Lawsuit Against Columbia Pictures

November 24, 2014,

So you may have heard that environmental scientist Paul Brodeur is seeking $1 million in damages for libel, defamation, slander and false light against the movie studios behind 2013's highly acclaimed film American Hustle. Why? Because according to him, the movie damaged his reputation by "attributing...a scientifically unsupportable statement" to him. Had this action been filed in Virginia rather than California, it would not likely go very far.

Here's the scene: it's the late 1970s or early 1980s, and the two characters played by Christian Bale and Jennifer Lawrence are arguing about the new microwave oven that just exploded in their kitchen:

Irving Rosenfeld: I told you not to put metal in the science oven! What did you do that for?

Rosalyn Rosenfeld: Don't make such a big deal! Just get another one.

Irving Rosenfeld: I don't want another one, want the one that Carmine gave me.

Rosalyn Rosenfeld: [mocking] Oh, Carmine! I want the one that Carmine gave me! Carmine! Carmine! [serious] Why don't you just marry Carmine? Get a little gold microwave and put it on a chain around your neck! You wanna be more like Carmine? Why don't you build something, like he does? Instead of all your empty deals; they're just like your fuckin' science oven. You know, I read that it takes all of the nutrition out of our food! It's empty, just like your deals. Empty! Empty!

Irving Rosenfeld: Listen to this bullshit.

Rosalyn Rosenfeld: It's not bullshit! I read it in an article. Look: By Paul Brodeur.

[hands Irving the article]

Rosalyn Rosenfeld: Bring something into this house that's gonna take all the nutrition out of our food and then light our house on fire? Thank God for me.


Funny, isn't it? And therein lies the defense.

Paul Brodeur is an investigative science writer who actually did author a piece entitled The Zapping of America in which he wrote of the dangerous of microwave radiation. In a 1978 interview with People Magazine, he explained, "For 25 years the military-electronics industry complex has suppressed, ignored or failed to pursue evidence that people were being injured by microwave radiation." When asked during that same interview about whether there was "any danger" in eating food cooked by microwaves, he replied "none that is known." His lawsuit claims he never, ever said that microwaves drain the nutrition from food.

But does the movie actually attribute those words to him in a manner intended to convey to the viewing audience that Mr. Brodeur is an incompetent scientist? First of all--and this is important--the movie begins by displaying the message, "Some of this actually happened." That's a far more honest introduction than the more common "based on a true story," and tells the viewers right off that bat that most of what they are about to see is pure fiction. Sure, Paul Brodeur is a real person and the movie refers to him by his real name, but he will have a difficult time convincing a judge or jury that an inaccurate reference to his scientific findings was among the "stuff" that "actually happened," particularly when his supposed article was being used to comedic effect in an argument over a mysterious "science oven."

Language will not carry defamatory meaning when used in a context that shows it is not intended to be interpreted literally. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 16-17 (1990) (explaining constitutional prohibition against imposing defamation liability in cases where circumstances of speech indicate defendant's statement not intended literally). This is as true in California as it is in Virginia. Therefore, if the court finds that the hypothetical reasonable viewer would not conclude from this particular bit of dialogue that Paul Brodeur actually wrote an article claiming that microwaves suck the nutrition out of food, the claim will likely fail for lack of defamatory meaning and/or lack of actual harm to reputation.

No Intra-Corporate Immunity Against Defamation Claims

November 7, 2014,

Workplace defamation actions face a number of obstacles. The one that probably comes up the most is the issue of qualified privilege. Employees often claim that a manager or supervisor defamed them in the course of a termination or negative performance evaluation. These statements are usually protected from defamation claims, as a limited privilege applies to communications made on any subject matter in which the person communicating has an interest, or with reference to which he has a duty, if made to another person having a corresponding interest or duty. In other words, in situations where it is necessary or expected that one employee will make statements concerning the performance of another (such as a performance evaluation), a qualified privilege will apply.

Another defense that is sometimes raised in the employment context is that of "intra-corporate immunity." This is a defense borrowed from the law of conspiracy. Because a conspiracy, by definition, requires at least two legally distinct persons, and because two employees acting within the scope of their employment duties are both acting as agents of their employer, a conspiracy cannot be formed between those two employees due to the unity of interest and absence of a second entity. "A corporation cannot conspire with itself," is the oft-used way of describing the reasoning behind the doctrine.

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The Benefits of Apologizing for Libel or Slander

October 22, 2014,

Suppose you've spoken your mind about someone you don't like and have been accused of defamation. Should you apologize? If you intentionally defamed the character of another person out of ill will or spite, you're probably not going to want to apologize. But if you've either had a change of heart or a sudden realization that you're about to get sued, there are some good reasons to say you're sorry.

For one thing, apologizing--if done right--can mitigate the plaintiff's damages. Plaintiffs who sue for libel or slander in Virginia aren't just limited to recovery of out-of-pocket pecuniary losses; they can also recover damages for pure emotional distress. Even without proof of actual reputational harm, Virginia courts have allowed plaintiffs to recover compensation for mental anguish, embarrassment, and humiliation. In essence, the worse the plaintiff feels, the higher the potential for a large damages award. In the business world, studies of disgruntled customers have shown that they are more than twice as likely to forgive a company that performs poorly but then apologizes than one that offers payment in lieu of an apology. It stands to reason, then, that a plaintiff's emotional distress will likely be diminished if you make a sincere, timely apology, and publish that apology to the same group to whom you made the defamatory remarks.

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Fresenius Medical Care Sued for Allegedly Defamatory Statements of Employee

September 15, 2014,

As a business owner, you can't control everything your employees will do or say. What if one of them defames the character of another employee while on the job? Can the business be held responsible? If the employee uttered the defamatory words while performing the employer's business and acting within the scope of his or her employment, then yes, the employer can be held liable for defamation. How does one determine whether an employee's statements were made with the "scope of employment"? In Virginia, an act will be considered within the scope of employment if it was (1) expressly or impliedly directed by the employer, or is naturally incident to the business, and (2) performed with the intent to further the employer's interest, or from some impulse or emotion that was the natural consequence of an attempt to do the employer's business, and did not arise wholly from some external, independent, and personal motive on the part of the employee to do the act upon his own account. (See Kensington Assocs. v. West, 234 Va. 430, 432 (1987)). If a plaintiff alleges the existence of an employment relationship, it becomes the employer's burden to prove that the statement was not made within the scope of employment. Absent such proof, the employer is on the hook.

Last week, a defamation case against Bio-Medical Applications of Virginia, Inc. (doing business as Fresenius Medical Care Dominion) was allowed to go forward. The Amended Complaint filed in the case alleges that a Fresenius employee emailed to coworkers various false statements suggesting that the plaintiff (a registered nurse) had a complete disregard for patient welfare. For example, the alleged emails attributed to the plaintiff statements such as "[the patient] just needs a little bleach in his lines" and, in reference to another patient, "all she needs is a good shot of air. That'll take care of her." Another email accused the plaintiff of saying, "Well isn't it about time?" after another patient had died. Fresenius Medical Care filed a motion to dismiss the case, arguing that the complaint failed to plead sufficient facts to hold the employer liable for the statements of its employees, and that the elements of defamation had not been satisfied. The court disagreed on both counts and denied the motion.

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One Yelp Review = One Publication

August 29, 2014,

Once upon a time, each separate copy of a defamatory statement was considered a separate publication, giving rise to a separate cause of action for defamation. Back then, if a defamatory article was published in a newspaper and the newspaper printed a million copies, the plaintiff could argue successfully that he had been defamed a million times. That is no longer the law, at least not in Virginia. Take Yelp reviews. If a new cause of action was created each time a consumer clicked a link leading to a defamatory review, the one-year statute of limitations would potentially never expire. Such a rule would likely allow plaintiffs to endlessly harass defendants by filing a new lawsuit with each new click. For reasons like these, Virginia follows the "single publication rule," which treats an online post as a single publication despite the fact that it may be read over and over again by different people all over the world. The number of views may be relevant to assessing the plaintiff's damages, but does not re-start the running of the statute of limitations or create new causes of action.

A Virginia law firm learned this lesson recently in Westlake Legal Group v. Yelp and Christopher Schumacher. Mr. Schumacher hired Westlake attorney Thomas K. Plofchan, Jr., back in 2009 and, according to his Yelp review, was not pleased with the representation he received. His review, posted on July 7, 2009, accused Westlake of "blatant incompetence and lying" and of having "a history of messing up cases." Westlake sued for defamation, not only against Mr. Schumacher, but against Yelp itself. The firm did not file the lawsuit, however, until May 11, 2012, well after the one-year limitations period had expired.

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Familiar Rhetorical Devices May Not Carry Defamatory Meaning

August 11, 2014,

Extortion is a crime. Statements that falsely accuse another of committing a crime often constitute defamation per se in Virginia, particularly where the crime is one involving "moral turpitude." Does it follow, then, that false accusations of extortion will automatically qualify as defamation per se? The answer, which will undoubtedly surprise many of you, is no. The reason lies in the importance of context in defamation actions.

A good illustration comes from the Tenth Circuit, which issued its decision in Hogan v. Winder a few days ago. Chris Hogan worked as a consultant for the Utah Telecommunications Open Infrastructure Agency ("UTOPIA"), a state agency charged with upgrading high-speed Internet access. In the spring of 2011, Hogan began to suspect that UTOPIA's executive director unfairly favored a bid for a contract from the company where the director's brother worked, and he expressed his suspicions to UTOPIA's plant manager. He was terminated shortly thereafter. Believing that his termination was retaliatory, he hired a lawyer and sent UTOPIA a draft complaint along with certain settlement demands, pointing out that the public scrutiny that would result from filing the lawsuit would essentially destroy the company. In a response, UTOPIA's attorney characterized Hogan's demands as "extortion" and "blackmail."

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Virginia Lawyer Says TV Report of Criminal Conviction Defamatory

July 29, 2014,

According to The Virginian-Pilot, Portsmouth attorney Sterling H. Weaver was "convicted in Portsmouth General District Court of assault" in June 2006. A new lawsuit filed by that attorney alleges that a WAVY-TV report, broadcast in February 2014, reported similarly that "in 2006, a Chesapeake judge sentenced [Mr. Weaver] to 30 days in jail for grabbing a prosecutor by the throat after she asked to postpone a case." (The quote is from the complaint, not the WAVY-TV report). Mr. Weaver says that he heard the report while in jail, where he was staying after being "indicted for assault on a law enforcement officer and sexual battery of that officer." The report was defamatory, the lawsuit claims, because "the 2006 charge of assault was dismissed."

Those of you who share with me an unnatural interest in Virginia defamation law are naturally curious as to what the issues in this case are going to be. There are several in my mind, but here are the first few that jump out:

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Forced Apology and Admission of Inappropriate Conduct Held Not Defamatory

July 14, 2014,

Defamation claims arise frequently in employment settings. Employees often disagree with their performance reviews and, if they feel particularly aggrieved, resort to the courts to extract a modicum of revenge. Unfortunately for them, statements relating to employee discipline and termination made by managers and supervisors usually enjoy a qualified privilege against defamation claims. The privilege generally insulates such statements from liability absent clear and convincing evidence of malice or some other indicator that the privilege has been abused. When an employer makes a false and defamatory statement about an employee, but that statement is protected by a qualified privilege that has not been lost or abused, the statement is not actionable.

Of course, before the question of privilege even comes into play, there is the matter of whether the statement at issue is defamatory in the first place. In Regina M. Zarrelli v. City of Norfolk, Ms. Zarrelli sued the City of Norfolk, Virginia (her former employer) along with the City's Commonwealth's Attorney, Gregory D. Underwood, based in part on being required to apologize to a vendor. It didn't work, and the case was dismissed both because the statements were not defamatory, and because even if they were, they were protected by qualified privilege.

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Anonymous Online Critic Will Remain Anonymous Absent Defamation

July 2, 2014,

Virginia practitioners will know more about this topic in a few months, when the Supreme Court of Virginia decides Yelp, Inc. v. Hadeed Carpet Cleaning, but for now, we have an opinion from Fairfax Circuit Court applying the six-part test established by Yelp for uncovering the identity of anonymous Internet speakers.

The case is Geloo v. Doe, decided June 23, 2014. Fairfax attorney Andaleeb Geloo filed a defamation action against various anonymous posters to the Fairfax Underground site and sought to uncover their identities by issuing subpoenas to Time Warner Cable, Verizon, and Cox Communications. At issue were statements referring to Ms. Geloo as a "run of the mill court appointed attorney" and a "fat Paki," and a statement accusing Ms. Geloo herself as being the secret author of a discussion thread entitled "Andi Geloo - Bullshit Artist."

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Defamatory and Scandalous Material as Grounds to Seal Record

June 27, 2014,

In bankruptcy court, the presumption in favor of public access to judicial records can be overcome if "scandalous or defamatory matter" is contained in a paper filed therein. (See 11 U.S.C. Section 107). Curiously, there is an absolute judicial privilege for statements made in connection with and relevant to a judicial proceeding, so normally one wouldn't expect to find "defamatory matter" in a court filing. Still, there is a relevance requirement to be entitled to the privilege, and there's always a possibility that potentially defamatory or scandalous statements will be made in a court filing that have nothing to do with the underlying merits. And that's exactly what happened in the recent case of Robbins v. Tripp.

Attorney John W. Tripp was handling a case in bankruptcy court when certain issues arose relating to perceived problems with his practice. The court ordered him to prepare and file a report containing details relating to his organization of files, supervision of staff, communication with clients, and related matters. The bankruptcy court instructed that the report be written "candidly and not as an advocate for any party to this matter." Mr. Tripp moved for leave to file the report under seal, based in part on Section 107's "scandalous or defamatory" provision. The motion was granted, and the trustee appealed.

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To Sue or Not to Sue

May 17, 2014,

Before rushing to the courthouse to sue someone for libel or slander, there are a number of things one should consider. For one thing, even if no counterclaim is filed, filing a defamation action opens the door to all kinds of personal details about your life that you may prefer to keep private. To prevail, a plaintiff needs to prove that the defamatory statement was false. The defendant--the person who made the statement--doesn't need to prove anything. Think about what that means as a practical matter. If someone Tweeted to a million followers that you are some kind of sexual deviant and that you had sex with a wildebeest (and assuming that the Tweet was understood and believed by readers as a literal statement and not as mere rhetorical hyperbole), and you decide to sue for defamation, you will need to prove that you did NOT actually have sex with a wildebeest. How does one prove such a thing? Well, generally by presenting evidence to the jury about what kind of sex life you DO have so that they can see that you are not the sort of person who would do such a thing. Or maybe you throw in some evidence about your documented fear of antelope. Either way, it could be embarrassing.

There's also the libel-proof doctrine to consider. Because the tort of defamation is concerned primarily with damage caused to one's reputation, some courts have held that when a plaintiff's reputation is already so tarnished at the time a defamatory statement is published that it would be virtually impossible to make the reputation worse, the plaintiff will be deemed "libel proof" and the case will be dismissed prior to trial. If the defendant claims you are libel proof, think of what fun the discovery process will be for you, as the defendant goes about digging for evidence about how bad your reputation already is.

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Insurer's Duty to Defend Held Triggered by Defamation Claim

May 13, 2014,

Insurance against defamation claims is often found in policies providing coverage for liability arising from "personal and advertising injury." In State Farm Fire and Casualty Co. v. Franklin Center for Government and Public Integrity, for example, the United States District Court for the Eastern District of Virginia examined a business liability insurance policy to determine whether State Farm was required to defend the insured in a lawsuit alleging claims for defamation and tortious interference. The court considered the plain language of the policy and its exclusions and ultimately held that State Farm had an obligation to defend its insured.

Franklin Center for Government and Public Integrity ("FCGPI") operates the Watchdog.org website. GreenTech Automotive, Inc., filed a civil action against FCGPI alleging defamation and intentional interference with business and prospective business relations stemming from two articles posted on Watchdog.org. FCGPI was insured by a State Farm business liability policy, and State Farm brought a declaratory judgment action seeking a declaration of non-coverage based primarily on various policy exceptions.

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Defamation Action Against 50 Cent Unlikely to Get Dismissed Early

May 5, 2014,

If Sally Ferreira's allegations are true, she has a valid claim for defamation per se against rapper 50 Cent which could possibly result in a seven-figure damages award. Ms. Ferreira, an actress, model, and dancer, sued 50 Cent (real name Curtis J. Jackson, III) for defamation and emotional distress in federal court in New York, making the following allegations:

Ms. Ferreira has appeared in music videos for various artists such as 50 Cent, Kanye West, Jay Z, Nicki Minaj, Missy Elliot, and Lil' Kim. In March, Ms. Ferreira participated in 50 Cent's music video for the song "Big Rich Town," filmed on the subway in the Bronx. Shortly after the video shoot, leaked photographs of Ms. Ferreira and 50 Cent taken during the shoot appeared on Hip Hop Weekly and MediaTakeOut.com, along with commentary speculating (erroneously) that the two were spotted riding the subway together and that they were romantically involved.

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Nude Model Not a Porn Star; Photo Altered to be Pornographic Defamatory Per Se

April 21, 2014,

In James M. Tharpe, Jr. v. Rudy K. Lawidjaja, currently pending in the Lynchburg Division of the Western District of Virginia, plaintiff James Tharpe, a professional soccer coach and part-time model, alleges that photographer Rudy K. Lawidjaja persuaded him to pose nude after assuring him that no photographs showing Tharpe's genitals or buttocks would be distributed. Lawidjaja took numerous nude photos of Tharpe and promoted him as a model. Eventually, the parties' relationship deteriorated. Tharpe refused Lawidjaja's invitation to quit his job as a soccer coach to relocate to the Washington, D.C. area and serve as Lawidjaja's "house model." Instead, he moved to Tennessee, where he coached soccer for a year, and later accepted a coaching position with Central Virginia United Soccer Club ("CVUS") in Lynchburg.

In August 2011, CVUS notified Tharpe that an Internet search of his name returned inappropriate and embarrassing photographs of which parties associated with the soccer club did not approve. According to the court's examination of the record, Lawidjaja had posted nude photographs of Tharpe on his website as well as other sites, identified Tharpe as a "porn star," and digitally altered the photographs to depict Tharpe with an erection and ejaculating for the camera. The court found that Lawidjaja tagged these pornographic photographs with keywords to link the photos to CVUS (Tharpe's employer, which had nothing to do with the photos) so that any Google search for CVUS would return the photographs. Tharpe sued Lawidjaja for defamation, intentional infliction of emotional distress, and other torts.

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Ripoff Report Maintains Section 230 Immunity Despite Lawyer's Novel Challenges

April 7, 2014,

Concerns that freedom of online speech would be chilled if Internet Service Providers were liable for allegedly defamatory remarks made by posters to their sites led Congress to pass the Communications Decency Act (the "CDA"). The CDA shields companies serving as intermediaries for other parties' potentially injurious speech from tort liability arising from users' comments. Section 230 of the CDA provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Although the CDA is interpreted broadly in light of Congress' intent in passing the statute, an interactive computer service provider remains liable for its own speech.

To benefit from CDA immunity, (1) the defendant must be a provider or user of an interactive computer service; (2) the plaintiff's claim must be based on information provided by another information content provider; and (3) the claim must treat the defendant as the publisher or speaker of the allegedly harmful speech. In Small Justice LLC v. Xcentric Ventures LLC, a federal court in Massachusetts found that Ripoff Report should not lose its CDA immunity even if it was found to have copyright ownership of the allegedly defamatory content, and even if, as the plaintiff alleged, it "intentionally caused...two defamatory per se publications to be prominently and frequently featured on Google...and other search engines."

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