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.

To prove a claim for defamation under Virginia law, a plaintiff must show (1) publication (2) of an actionable statement (3) with the requisite intent. A false statement must be defamatory; that is, it must tend to so harm the reputation of the plaintiff as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. A statement may be classified as defamatory per se if it imputes the plaintiff is torso.jpgunfit to perform the duties of his job or prejudices the plaintiff in his profession or trade. A photograph can constitute a defamatory "statement."

The court found that the photographs--taken in the context of their ordinary and common acceptance as the average citizen would understand them, and with every fair inference attributed to them--could be deemed defamatory under Virginia law. The court went further to hold that the photographs were defamatory per se as they arguably impute unfitness for Tharpe to perform the duties of a youth soccer coach and prejudice him in his profession or trade. Additionally, the court found that Lawidjaja "arguably intended to impute that unfitness," as indicated by his tagging the photos with the name of Tharpe's employer.

With respect to the claim for intentional infliction of emotional distress, the court noted that IIED claims in Virginia require a showing that (1) the wrongdoer's conduct was intentional or reckless; (2) the conduct was outrageous or intolerable; (3) there was a causal connection between the wrongdoer's conduct and the resulting emotional distress; and (4) the resulting emotional distress was severe. IIED claims require proof of conduct intended to cause "personal, emotional damage to an individual, rather than conduct intended to cause economic damage to a business."

Here, the court found sufficient evidence in the record to deny Lawidjaja's motion for summary judgment. Intent to cause emotional distress was evident from certain exculpatory clauses in release agreements he asked Tharpe to sign, which Lawidjaja believed gave him the right to use the photographs "for any purpose whatsoever," along with other evidence of bad faith. The court also found that a jury could reasonably conclude that falsely identifying Tharpe as a "porn star" was sufficiently "outrageous" to satisfy the tort, and that Tharpe had suffered severe emotional distress.

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."

Ripoff Report is website operated by Xcentric Ventures LLC on which registered users post complaints about companies and individuals. In January 2012, Christian Dupont posted an allegedly defamatory report about Richard Goren's conduct as an attorney and certain behavior outside of professional activities. In February, Dupont posted a second report containing similar allegations. In March, Xcentric got a registered copyright for Ripoff Reports from January to March.

In July 2013, Goren and Small Justice, a company asserting a copyright interest in the reports at issue, sued Xcentric in Massachusetts federal court, stating several causes of action including libel and intentional interference with prospective contractual relations. Xcentric moved to dismiss pursuant to Federal Rules of Civil brickwall.jpgProcedure 12(b)(1) and (6), arguing that Section 230 gave it immunity from these tort claims. Plaintiffs responded that Section 230 immunity was not available because Xcentric (1) asserted ownership of the copyrights in the reports, and (2) intentionally submitted the posts to Google and other search engines, thereby adopting the content of the posts as its own.

The issue here was whether the allegedly defamatory content was provided by "another information content provider" or by Xcentric itself. The CDA defines an information content provider as "any person or entity responsible in whole or in part for the creation or development of information provided through the Internet or another interactive computer service." For Section 230 immunity to apply, the allegedly defamatory postings must have been provided by an information content provider other than Xcentric because Xcentric would be liable for its own speech under the CDA.

Plaintiffs argued that Xcentric's asserted copyright ownership in the Reports transformed it from an intermediary to the actual provider of the disputed content. According to plaintiffs, Xcentric adopted the Reports as its own speech and subjected itself to liability by holding itself out as the copyright owner. The court rejected this argument. Plaintiffs did not cite any authority holding that an Internet Service Provider adopts content by virtue of copyright ownership, and courts that have addressed the issue have held that an Internet Service Provider is not a content provider unless it specifically encourages the development of the offensive content. Xcentric's acquisition of an exclusive license to the content was not sufficient involvement in the development of the content to nullify Section 230 immunity.

Plaintiffs then argued that Xcentric surrendered its immunity by instructing search engines such as Google to make copies of the two reports under its claimed exclusive ownership of the reports and authorizing the search engines to display the copies. Plaintiffs asserted that by doing this, Xcentric adopted the content of the reports as its own and caused them to be republished. The court rejected this argument as well. Although the CDA allows Interactive Service Providers to be held liable for content they create themselves, the court found here that the alleged conduct did not rise to the level of "creation or development" of information that would render Xcentric an information content provider under the CDA. Plaintiffs did not argue that Xcentric augmented or changed the reports' content in any way, and they conceded that Xcentric's actions were designed to maximize the number of times the reports appeared among Google's search results. Merely endeavoring to increase the prominence of its site among search results does not make Xcentric an information content provider under the CDA.

The court held that Section 230 shielded Xcentric from liability based on publication of the allegedly injurious Ripoff Report posts, so it dismissed plaintiffs' claims for libel and tortious interference.

The Unintended Consequences of Filing a Lawsuit

March 31, 2014,

Defamation law affords remedies to plaintiffs whose reputations have been tarnished by the false and damaging statements of others. But defamation plaintiffs face a particular dilemma: because legal proceedings are generally open to the public, filing a lawsuit over the libel or slander usually results in further publicity of the very statements the plaintiff wants to suppress. This has become known as the Streisand Effect, and is the same dilemma faced by plaintiffs seeking to enforce contracts containing non-disparagement provisions.

A vivid example is provided by the case of Dr. Steven A. Guttenberg v. Dr. Robert W. Emery, currently pending in District of Columbia federal court. Doctors Guttenberg and Emery were joint shareholders of an oral surgery practice for roughly 20 years, but their relationship soured and litigation ensured in 2008. The doctors settled that case with a settlement agreement containing a non-disparagement provision that restricted each of them from making statements concerning the other that might be harmful to reputation.

In November 2013, Dr. Guttenberg filed another lawsuit against Dr. Emery, this time alleging that Dr. Emery violated the non-disparagement provision. Dr. Guttenberg's amended complaint claims that Dr. Emery's wife, while in the waiting room of a veterinary office, told a dental hygienest "that Dr. Guttenberg was a sexual deviant, received oral sex under the table at his office and cheated on his wife. She also stated that he had other affairs, including sexual intercourse at the office." Dr. Guttenberg moved to seal the case, arguing that the public had no legitimate interest in hearing the salacious details of "a private dispute between private individuals." The court disagreed and unsealed the complaint, ensuring that the allegedly disparaging statements would be shared with an audience far greater than would have been the case had the lawsuit never been filed.

Public access to judicial proceedings is central to our system of justice and helps ensure the integrity of judicial proceedings. In determining whether to seal records, courts start with a strong presumption in favor of public access and then consider six factors: (1) the need for public access to the documents; (2) the extent of previous streisand.jpgpublic access to the documents; (3) the fact that someone has objected to disclosure and the identity of that person; (4) the strength of any property or privacy interest asserted; (5) the possibility of prejudice to those opposing disclosure and (6) the purposes for which the documents were introduced during the judicial proceeding.

Although Dr. Guttenberg was certainly correct that the case is a "private dispute," the court noted that the vast majority of civil cases are private disputes but that does not diminish the importance of the public's right to access. The public's access to court proceedings serves as an important check on the judiciary, regardless of whether the case concerns matters of public concern. "Because judicial proceedings are by default public," the court explained, "litigants can be confident that they will be treated fairly and justly."

The more relevant a pleading is to the central claims of the litigation, the less likely a court will agree to keep it a secret. In this case, the statements at issue were central to the case: Dr. Guttenberg could not prove that Dr. Emery and his wife violated the non-disparagement provision without identifying the statements claimed to be disparaging. The specifics of the statements would play a central role during every stage of the litigation, from motions to dismiss to summary judgment to trial.

Upon consideration of the six factors, the court found that the only one weighing in favor of sealing the case was the fact that Dr. Guttenberg himself objected to making the information public. All other factors favored unsealing the allegations, so the court denied the motion to seal.

Preliminary Injunctions Against Defamatory Speech Seldom Justified

February 17, 2014,

Courts grant temporary injunctions sparingly and only after the moving party has alleged and proved facts entitling it to relief. Injunctive relief generally is not available to prohibit the making of defamatory statements as prior restraints on speech violate the First Amendment to the United States Constitution. Injunctions may sometimes be granted, however, where the defamatory words are made in the furtherance of the commission of another intentional tort. Care must be taken to ensure that any injunction is narrowly tailored to achieve the pin-pointed objective of the needs of the case, as prior restraints on speech are considered the most serious and least tolerable infringement on First Amendment rights.

In Chevaldina v. R.K./FL Management, Inc., a Florida appellate court found that the trial court had abused its discretion in granting an injunction against defamatory speech. Irina Chevaldina was an unhappy former tenant of R.K. Management which owned and managed commercial properties in South Florida. When R.K. discovered that Ms. Chevaldina was the author of anonymous, unflattering blog posts about it, it added several tort claims to its already pending action for defamation per se and libel against the previously anonymous blogger. The tort claims included counts for tortious interference with contractual and advantageous business relationships.

In order obtain a temporary injunction in Florida, the moving party must show: (1) a likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; (4) that the threatened injury to the petitioner outweighs the possible harm to the respondent; and (5) that the granting of the temporary injunction will not disserve the public interest . The trial court determined that Ms. Chevaldina had gagged.jpgblogged extensively about R.K. and that many of the postings were arguably defamatory. The court enjoined Ms. Chevaldina from interfering with R.K.'s advantageous or contractual and business relationships either directly or indirectly, in person, orally, in writing or via blog or other posts on the Internet or in any media. In support of its order, the trial court found that R.K. had a substantial likelihood of ultimately prevailing on the merits, a substantial threat of irreparable injury to R.K. existed , the threatened injury to R.K. outweighed whatever damage the injunction would cause Ms.Chevaldina and the injunction would not be adverse to the public interest.

On appeal, the Third District Court of Appeal cited two Florida cases dealing with the limited exception to the general rule that injunctive relief is not available to prohibit defamatory speech. Both cases involved statements made as part of alleged tortious interference with advantageous business relationships. In Zimmerman v. D.C.A. at Welleby, Inc., an injunction was appropriate because the moving party demonstrated that the damages were incalculable which constituted a special harm of irreparable injury. In Murtagh v. Hurley, injunctive relief was available because the defamatory statements caused current medical patients to end their relationships with Dr. Murtagh. However, because the doctor failed to present evidence that the defendant's conduct had a deleterious effect on his business, he was not entitled to an injunction.

Here, R.K. alleged defamation and intentional interference with advantageous business relationships. However, the court found that the record did not support an inference that the allegedly defamatory blog posts were having a deleterious effect on R.K.'s business. The only real evidence presented was the testimony of a real estate broker about a call he received from the director of real estate for Subway expressing concern about Ms. Chevaldina's blog posts. However, the witness testified that Subway had not withdrawn any leases and had not stopped doing business with R.K. after reading the blogs.

R.K.'s other evidence consisted of requests for judicial notice of affidavits and testimony about search engine optimization techniques and word stuffing on the Internet. The court found that these materials did not constitute competent substantial evidence that any blog post interfered with R.K.'s business or contractual relationships. As there was no real evidence of unjustified interactions with specific parties known to be involved or likely to be involved in an advantageous business or contractual relationship with R.K., the trial court should have denied the temporary injunction for failure to show with reasonable certainty the elements of tortious interference.

Additionally, an injunction should never be broader than is necessary, and here the injunction was over broad. The injunction improperly burdened Ms. Chevaldina's speech more than necessary, attempted to enjoin future defamation and failed to put Ms. Chevaldina on notice as to what she may or may not do under the injunction.

In conclusion, the court noted that Internet rants are common today and are the electronic successors to persons holding posters on a public sidewalk in front of a business warning customers not to do business there. If such a protestor walked into the business and harangued customers or threatened violence, his previously protected opinion would become business interference. Similarly, a blogger may complain about a business and face liability for defamation if warranted, but injunctive relief to prohibit such complaining is another matter altogether.

Defamatory Sting

February 10, 2014,

To be actionable as libel or slander, a statement must not only be false, but must also be defamatory in nature. To have defamatory meaning, a statement must carry a sufficient degree of "sting"; merely offensive or unpleasant statements are not defamatory. See Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993) (noting that falsity of statement and defamatory sting must coincide). A communication that is merely unflattering, annoying, irksome, or embarrassing, or that hurts the plaintiff's feelings, without more, is not actionable in Virginia. See R. Sack, Libel, Slander and Related Problems 45 (1980). So how much of a sting is enough to state a claim?

While the Virginia Supreme Court has not spoken recently on the requisite degree of "sting" required to support a defamation action, federal courts applying Virginia law have held that a statement may be actionable only if it contains a false assertion of fact that "tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." See Wolf v. Fed. Nat. Mortg. Ass'n, 830 F. Supp. 2d 153, 168 (W.D. Va. 2011). This is also the position taken by the Virginia Model Jury Instructions and the Restatement (Second) of Torts. See Va. Model Jury Instr. 37.010; Restatement (Second) Torts § 559 (1977).

The most recent pronouncement by Virginia's highest court on the issue appears to be the 1904 case of Moss v. Harwood, in which the court held that to be actionable as defamation, the words must be such that would tend "to injure one's reputation in the common estimation of mankind, to throw contumely, shame, or disgrace" upon the plaintiff, or which would tend "to hold him up to scorn, ridicule, or contempt, or which [are] calculated to render him wasp.jpginfamous, odious, or ridiculous." Moss v. Harwood, 102 Va. 386, 46 S.E. 385, 387 (1904).

When analyzing a particular statement to determine whether it might be sufficient to state a cause of action for defamation, ask yourself these questions: Is the statement the type of statement that would have a tendency to harm reputation? Would reasonable people hearing the statement be deterred from associating or dealing with the subject of the statement if they believed it to be true? Does the statement pertain to the subject's honesty, integrity, or virtue, or is it a mere insult? The answers to these questions may not be clear. If necessary, I can help you. What is clear is that only those statements with a sufficient degree of sting will be deemed actionable in Virginia.

Absolute Judicial Privilege Extends Outside the Courtroom

January 23, 2014,

Otherwise defamatory statements made in connection with and relevant to a judicial proceeding are absolutely privileged against defamation claims. The so-called "judicial privilege" is broad and applies to all forms of communication during litigation. The doctrine encourages unrestricted speech in litigation which in turn promotes compromise and settlement. The United States Bankruptcy Court for the Eastern District of Virginia recently held that not only does the privilege extend to communications outside the courtroom, but that when litigation is pending, the communication need not be made to an interested party to qualify for protection.

The case is Chesapeake Trust v. Chesapeake Bay Enterprise, Inc. (In re Potomac Supply Corp.), decided December 31, 2013. The bankruptcy court had approved the debtor's sale of its operations to an unrelated entity called Potomac Supply, LLC. Chesapeake Bay Enterprise (CBE), an entity who had also negotiated to buy the debtor's operations, filed a motion to reconsider. Potomac Supply's attorney sent an email to CBE's attorney, asking for two exhibits that were missing from the reconsideration motion and making a reference to "all of the fraudulent financing proposals we received from your client..." CBE responded with a third-party complaint alleging that the email was defamatory. The third-party defendants moved to dismiss, relying on the absolute judicial privilege.

CBE offered various arguments in support of its position that judicial privilege did not apply. First, it argued that the privilege is limited to statements made in pleadings, hearings, or depositions. Additionally, it argued that the statements about "fraudulent financing proposals" were gratuitous and irrelevant to the proceedings. CBE also Richmond3.jpgargued that the privilege should not apply to statements made to third parties with no interest in the judicial proceeding, and that the court lacked sufficient information to determine whether the requirements of judicial privilege had been satisfied. The court rejected all of these arguments and granted the motion to dismiss.

After finding that the third-party complaint alleged sufficient facts to enable it to rule on the applicability of the privilege, the court noted that Virginia case law does not limit the application of the judicial privilege to statements published only to interested parties. The Virginia Supreme Court's holding in Mansfield, imposing a condition that the statement be made only to interested persons, applies only to pre-litigation communications, not statements made after a judicial proceeding has commenced. In any event, the court found that the recipients of the email--the debtor, its investment banker, the bank and the committee--were all interested parties.

The court also found that the email was sufficiently related to the litigation to warrant protection, as it referenced the motion for reconsideration. For purposes of applying the privilege, the court held, the concept of relevancy is to be liberally construed.

The fact that the statements were made in an email rather than in a deposition or pleading was irrelevant. The purpose of the privilege is to encourage unrestricted speech in litigation, so courts have extended it well beyond the actual courtroom and have applied it specifically to all forms of written correspondence made during the course of litigation.

How to Unmask Anonymous Yelp Reviewers Who Defame Your Business

January 20, 2014,

The First Amendment protects anonymous speech, including online reviews of products and services written by people using fake names. The right to anonymous speech, however, is not absolute. Defamatory speech, whether or not anonymous, is not entitled to protection, as there is no constitutional value in false statements of fact. If someone pretending to be a former customer writes a defamatory review on Yelp, Amazon, or some other consumer-review site, but doesn't disclose his or her real name, how does the business owner go about identifying the individual so that the individual can be held accountable? The answer lies in Section 8.01-407.1 of the Code of Virginia, which sets forth a specific procedure for uncovering the identities of people who communicate anonymously over the Internet.

The proper application of this statute was recently discussed in Yelp v. Hadeed Carpet Cleaning, a case arising out of Alexandria. As of October 2012, Yelp's site contained seventy-five reviews about Hadeed Carpet Cleaning, many of them critical. Included among these reviews were assertions by anonymous authors claiming to have been charged for work never performed and claiming that "precious rugs were shrunk." Hadeed sued the anonymous authors for defamation, alleging that the reviewers were never actual customers of Hadeed.

After filing the lawsuit, Hadeed promptly issued a subpoena duces tecum to Yelp, demanding the production of documents that would enable Hadeed to identify the authors of the allegedly defamatory reviews. Yelp objected, arguing that Hadeed had not complied with the requirements of Section 8.01-407.1. Hadeed revised its subpoena to comply with the statute, but Yelp continued to object and refused to comply. On a motion to compel compliance, the Circuit Court for the City of Alexandria held that Hadeed's subpoena satisfied the requirements of both the statute and the First Amendment, and ordered Yelp to disclose the information. Yelp refused, and was held in contempt. It then appealed that ruling to the Virginia Court of Appeals (which has jurisdiction to consider appeals of civil contempt orders), arguing that the First Amendment requires a showing of merit on both the law and facts Rugs.jpgbefore a subpoena duces tecum to identify an anonymous speaker can be enforced. The Court of Appeals disagreed, holding in a case of first impression that Section 8.01-407.1 is not unconstitutional and that it alone provides the unmasking standard in Virginia.

The statute provides that a plaintiff seeking to uncover the identity of an anonymous Internet speaker must show that (1) he gave notice of the subpoena to the anonymous communicator via the Internet service provider; (2) either (a) communications made by the anonymous communicator are or may be tortious or illegal, or (b) the plaintiff has a legitimate, good faith basis to contend that such a party is the victim of conduct actionable in the jurisdiction where suit is filed; (3) other reasonable efforts to identify the communicator have proven fruitless; (4) the identity of the anonymous communicator is important, is centrally needed to advance the claim, is related to the claim or defense, or is directly relevant to the claim or defense; (5) no motion challenging the viability of the lawsuit is pending; and (6) the entity to whom the subpoena is addressed likely has responsive information.

The parties agreed that Hadeed had met the first prong by giving the requisite notice to Yelp. In order to meet the second prong, Hadeed needed to show either that the communications are or may be tortious or that it had a legitimate good faith basis for its belief that the communications are tortious. The court held that Hadeed had done both. The court explained that even statements expressed as personal opinions could be defamatory if written by people who weren't really customers, as the supposed opinions would be based on a false "underlying assumption of fact," i.e. that the reviewer was a customer and that the opinion was based on personal experience with the business. Hadeed had attached sufficient evidence to its subpoena to show that it had thoroughly reviewed its customer database and found that it was unable to match the anonymous reviewers with the names of actual customers.

As to the third prong, the court found that Hadeed took reasonable but fruitless efforts to identify the anonymous communicators. Hadeed contacted Yelp to obtain their identities, but Yelp refused. Hadeed was then forced to resort to a subpoena duces tecum to obtain the reviewers identities. Considering the fourth prong, the court held that the identity of the anonymous defendants was not only important, but necessary to move forward with the defamation action. The fifth and sixth prongs were likewise met as there were no dispositive motions pending when the circuit court entered its ruling, and Yelp did not dispute that it possessed responsive information.

The court affirmed the trial court's ruling and held that Yelp could be compelled to produce the requested information.

Implication Not Defamatory if Not Reasonably Drawn

January 10, 2014,

The Supreme Court of Virginia issued an opinion today in which it addressed the concept of defamation by implication. Building on its 1954 decision in Carwile v. Richmond Newspapers, the court reiterated that although defamatory meaning can sometimes be implied with literally true statements, the inferred meaning cannot be extended beyond the ordinary and common acceptation of the words used. Innuendo cannot be used to introduce new matter or extend the meaning of the words used by the speaker. In short, "the alleged implication must be reasonably drawn from the words actually used."

In Webb v. Virginian-Pilot Media Companies, LLC, Phillip D. Webb, an assistant principal at Oscar Smith High School in Chesapeake, sued Virginian-Pilot and reporter Louis Hansen for its handling of a story about the school's disciplinary process. Webb's son, a student of a neighboring school where Webb previously coached pole vaulting, had been charged with a felony for assaulting another student's father but received no punishment from the school. Webb's lawsuit acknowledged that the reporting of the story was truthful, but claimed that the story implied that Webb abused his position of authority to obtain preferential treatment for his son. Webb argued that when the reporter wrote that the student "did not get preferential treatment because of his dad's position," the implied meaning was "exactly the opposite." The court did not agree.

While acknowledging that the article insinuated that Webb's son may have benefited from special treatment, the court held that there was nothing in the article to suggest that Webb solicited or otherwise procured such treatment. Therefore, the article was not reasonably capable of the defamatory meaning Webb ascribed to it and Jury.jpgthe jury should never have been permitted to even consider the claim.

Trial courts perform an essential threshold, gatekeeping function when it comes to defamation claims. Their job is to determine, as a matter of law, whether a statement alleged to be defamatory is reasonably capable of the defamatory meaning the plaintiff ascribes to the statement. This function, the court held, is to ensure that "defamation suits proceed only upon statements which actually may defame a plaintiff, rather than those which merely may inflame a jury to an award of damages." If the inference urged by the plaintiff cannot be reasonably drawn from the actual words used, the trial court should sustain any demurrer filed and dismiss the case. In this particular case, the trial court failed to do that, which decision the Virginia Supreme Court held to be in error.

Defamed Business Entitled to Presumed Damages, But No Injunction

January 6, 2014,

In Virginia, a statement may constitute defamation per se if it imputes an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties, or if it prejudices the plaintiff in its profession or trade. Corporations, like people, can be defamed in this manner. To prejudice a plaintiff in its profession or trade, the statements must relate to the skills or character required to carry out the particular occupation of the plaintiff. Examples include statements that cast aspersions on the target's honesty, credit, efficiency, or its prestige or standing in its field of business. The advantages to a plaintiff when the words at issue are declared defamatory per se (as opposed to per quod) are significant: compensatory damages will be presumed and need not be proven, and punitive damages may be awarded even if compensatory damages are not.

The United States District Court for the Eastern District of Virginia applied these principles in JTH Tax, Inc. v. Grabert. JTH Tax (better known as Liberty Tax Service) franchises tax preparation centers throughout the United States. Trisha Grabert had signed four franchise agreements but was terminated by Liberty due to her alleged failure to submit required reports and pay monies owed. A disgruntled Grabert resorted to www.unhappyfranchisee.com and Facebook, where she posted numerous statements asserting, among other things, that (1) Liberty's quarterly results were "lies and sloppy;" (2) Liberty "bribed" an individual "to testify falsely;" (3) Liberty was engaged in "unlawful actions" that "interfered with [Grabert's] success;" (4) Liberty "steal[s]" tax stores from franchisees; (5) Liberty is "dirty and getting sloppy so they will take your first born to save their tail right now from crippling losses and a shutdown;" and (6) "Liberty Tax, as a whole" are "crooks."

Liberty sued Grabert for defamation per se, as well as for breach of the notes and franchise agreements. The court found that the statements imputed a lack of integrity to Liberty, prejudiced Liberty in its profession, and cast aspersions on its honesty, efficiency, prestige and standing in its field. Because Grabert failed to appear and defend the accuracy of her statements, the court held that the exhibits were sufficient to demonstrate defamation taxes.jpgper se. (Note: Oddly, the court did not address whether the statements could be interpreted as mere rhetorical hyperbole or other non-actionable opinion).

The court then moved to the question of whether Liberty was entitled to recover punitive damages. Even in defamation per se cases, a recovery of punitive damages requires a clear and convincing showing that the defendant made the statements with actual malice, i.e. with knowledge of their falsity or with reckless disregard of their truth. A plaintiff can rely on circumstantial evidence and motive to prove actual malice. The court found sufficient evidence of malice.

For one thing, one of Grabert's online postings read, "I don't think for a second that they promote anything illegal. Unethical? Maybe if you interpret it that way." Second, the court found that Grabert published numerous statements on multiple website attributing sinister motives to Liberty's actions that she could have no way of knowing.

Thus, the court held that Liberty was entitled to both compensatory and punitive damages and set a hearing to establish the amount at a later date. While Liberty had also sought an injunction to compel Grabert to remove her Internet postings, the court declined to award injunctive relief because Liberty failed to demonstrate either that any harm that may have resulted from such postings was "irreparable" or that a monetary award would be inadequate.

The Importance of Context

December 11, 2013,

To be actionable as libel, a statement must reasonably imply false and defamatory facts when read in context. Context is important because the setting of the speech makes its nature apparent and helps determine how its intended audience would have interpreted the statement. In some cases, a literally false statement will not be actionable because contextual factors demonstrate that the true meaning of the statement is something other than what the words alone might suggest. In other words, the statement that a plaintiff must prove false to prevail in a defamation case is not necessarily the literal phrase published but rather what a reasonable reader would have understood the author to have said. In Farah v. Esquire Magazine, the United States Court of Appeals for the District of Columbia Circuit discussed the importance of these principles in a case involving political satire.

Jerome Corsi is the popular author of several New York Times bestsellers and the book "Where's the Birth Certificate? The Case that Barack Obama is Not Eligible to be President" published by WND Books. Joseph Farah is the Editor and CEO of WND's parent company, WorldNetDaily.com, a competitor of Esquire Magazine. On the day after "Where's the Birth Certificate" was released, Esquire published an online article on "The Politics Blog" entitled "BREAKING: Jerome Corsi's Birther Book Pulled from Shelves!" A copy of the Drudge Siren, a symbol of sensationalistic news, appeared above an image of the book's cover. The article claimed that Farah had announced plans to recall and "pulp" the entire first run of the book and to refund purchaser's money because three weeks earlier, Obama had produced his long form birth certificate indicating he was born in Hawaii. Later, Esquire published an update clarifying that the article was satirical, but the writer of the article referred to Corsi as an "execrable piece of shit" in an interview published on another online publication, The Daily Caller.

Farah and Corsi sued for defamation and other torts. According to the complaint, after the article was published, Farah received numerous requests for confirmation of the story and comment, and consumers began requesting refunds. The plaintiffs also claimed that they were attacked by book supporters and that book stores pulled the book from their shelves or refused to sell it. Farah and Corsi contended that Esquire only published the update after Farah indicated that he was exploring legal options and that the update was likewise false and defamatory. The district court granted Esquire's motions to dismiss under both Federal Rule of Civil Procedure 12(b)(6) and D.C.'s Anti-SLAPP Act, D.C. Code § 16-5501 et seq.

On a de novo review, the Court of Appeals upheld the district court's dismissal of the complaint for failure to state a claim, declining to address the Anti-SLAPP issue. The court held that the article was protected political satire and that the update and writer's comments were non-actionable statements of opinion. The court noted that the United States Supreme Court has repeatedly extended First Amendment protection to statements that do not reasonably state or imply defamatory falsehoods when read in context. Satire is a broad and complex genre that is sometimes funny and other times cruel and mocking or even absurd. The court gave the example of Jonathan Swift's famous jonathanswift.jpgsatire "A Modest Proposal" in which he suggested killing and eating Irish children to solve the problem of Irish poverty. Although satirical speech is literally false, it enjoys First Amendment protection.

To qualify as defamatory, a plaintiff must prove not that the literal published phrase is false but that what a reasonable reader would have understood the author to have said is untrue. Satire is not actionable if it cannot reasonably be interpreted as stating actual facts. Farah and Corsi did not disagree that satire is protected, but they asserted that this attempt at satire was actionable because reasonable readers would take the fictitious blog post literally.

The court held that to determine how a reasonable reader would have understood a particular satirical statement, courts should assess the hypothetical reader's "well-considered view," formed after time for reflection, rather than her "immediate yet transitory reaction." Thus, even if some actual readers don't "get" the satire and mistake it for actual news, satire that, taken in context, would be understood (upon reflection) as satire by a reasonable reader, enjoys First Amendment protection and will not support a defamation action.

The court also noted that an article's "indicia of satire" can be subtle. In this case, for example, the body of the article "did not employ the sort of imitation and exaggerated mimicry that are typical of parody." The court explained that satire can incorporate a wide variety of literary forms and devices to achieve its intended effect, such as "ridicule, derision, burlesque, irony, parody, or caricature." The fact that an article's satirical nature may not be immediately obvious does not remove it from First Amendment protection.

Considering this particular article in context, the court held that a reasonable reader could not understand it to convey real news about the plaintiffs. The intended audience consisted of readers of "The Politics Blog" who would have been familiar with Esquire's history of publishing satire. They were also politically informed readers who would have been familiar with WorldNetDaily and its positions on the birther controversy.

Reasonable readers would have recognized the signs of satire in the article such as the substance of the story itself, i.e., that Farah, a leader of the movement to challenge Obama's eligibility to serve, had suddenly and without warning decided to recall and "pulp" Corsi's book. The humorous and outlandish elements in the article also suggest satire. For example, the article claims Corsi wrote a book entitled "Capricorn One: NASA, JFK, and the Great 'Moon Landing' Cover-Up." Additionally, the article contained quotes using foul language which would not likely appear in a serious news story. Stylistic details such as the exclamatory headline and the use of the Drudge Siren symbol similarly alerted readers that the article was not to be taken seriously.

The court held that because a reasonable reader could not understand the blog post to convey actual facts about the plaintiffs, it was not actionable as defamation. Rather, almost everything about the article indicated that it was political speech aimed at criticizing the plaintiffs' public position on Obama's eligibility to hold office. The article was protected by the First Amendment and the district court properly dismissed the defamation claim.

No Defamation Liability for Statements made to FBI During Background Check

December 2, 2013,

In most (but not all) cases, absolute immunity applies to statements made by government contractors to government investigators in the course of an official investigation. The United States District Court for the Eastern District of Virginia recently addressed this issue in Kolakowski v. Lynch and found that statements made to the FBI in the course of an employment background check could not form the basis of a defamation action.

Daniel Kolakowski filed an employment discrimination charge with the EEOC against his former employer, MITRE Corporation, alleging he had been harassed because of his Polish ancestry. Kolakowski and MITRE eventually signed a mediation agreement resolving the dispute. Under the agreement, MITRE agreed to not discriminate or retaliate against Kolakowski for filing the charge.

When Kolakowski later applied for a job with the Federal Bureau of Investigation, he signed a form authorizing the FBI to investigate his background and allowing former employers to release information about him. The FBI interviewed three of Kolakowski's former supervisors at MITRE. The three employees allegedly told the FBI that FBI seal.jpgKolakowski took excessive days off work, exaggerated how much worked, lied about his wife having cancer, and was generally untruthful. When the FBI did not hire Kolakowski, he sued MITRE and the three supervisors for breach of contract and defamation. The defendants removed the case to federal court and moved to dismiss for failure to state a claim.

Kolakowski argued that the supervisors' statements to the FBI amounted to defamation and retaliation and therefore breach of his agreement with MITRE. Defendants argued that the statements were protected by absolute immunity necessitating dismissal of Kolakowski's complaint.

In Mangold v. Analytic Serv. Inc., the Fourth Circuit considered whether absolute immunity shielded a government contractor from liability arising from statements made in response to government investigators during an official investigation, and it outlined a balancing test in which courts consider the extent to which the public interest would be served by granting or refusing immunity. The Fourth Circuit held that a government contractor receives absolute immunity only insofar as necessary to shield statements and information, whether truthful or not, given by a government contractor and its employees in response to queries by government investigators engaged in an official investigation.

Here, MITRE is a government contractor, and Kolakowski admitted that the defendants were responding to an inquiry by government investigators. The only question was whether the FBI background check was part of an "official investigation" or, as Kolakowski argued, a routine employment inquiry. The court found it clear that the FBI inquiry was an official investigation since it was conducted by an official government agency. Additionally, the FBI's website described the form that Kolakowski signed as a standard background investigation form used by the entire U.S. intelligence community. Because the defendants were government contractors responding to an official inquiry, Mangold applied and provided them absolute immunity against defamation and retaliation charges. The court also dismissed the breach of contract claim because it was based entirely on the court finding the defendants defamed and retaliated against Kolakowski.

The court granted the defendants' motion to dismiss and dismissed Kolakowski's complaint with prejudice.

What Is Defamatory Meaning?

November 25, 2013,

A false and disparaging statement will not be grounds for a defamation claim unless the words are capable of sustaining a defamatory meaning. Not every insult will be actionable. What is "defamatory meaning"? Well, you should really consult a lawyer on that one as there is no easy answer. Virginia courts have tried to define it as words calculated to render the plaintiff "infamous, odious, or ridiculous." (See Moss v. Harwood, 46 S.E. 385, 387 (Va. 1904)). Does that help? Not much. In New York, they look to whether the words "tend to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or to induce an evil opinion of one in the minds of right-thinking persons, and to deprive one of their confidence and friendly intercourse in society." (See Kimmerle v. New York Evening Journal, 186 N.E. 217, 218 (N.Y. 1933)). That seems specific enough, but try applying that test in the real world. How is a court to determine whether one statement tends to expose one to public ridicule but not another?

The Western District of Virginia had a chance to grapple with this question a little bit in AvePoint, Inc. v. Power Tools, Inc. In that case, the court was asked to consider whether a statement falsely describing AvePoint as a Chinese company was defamatory in meaning. Ultimately, the court found that the plaintiff's allegations were sufficient to survive a motion to dismiss.

AvePoint and its subsidiary are American corporations and providers of infrastructure management and governance software platforms for Microsoft SharePoint products and technologies. AvePoint's competitor, Axceler, offers similar software for Microsoft SharePoint products. AvePoint sued Axceler and its Regional Vice President of Sales for Western North America, Michael Burns, alleging that they made false and defamatory comments about AvePoint and its products and services on Twitter and in email communications with customers and potential customers. AvePoint alleged that Axceler and Burns made false statements describing AvePoint as a "Chinese company" whose products are "maintained in India," and claiming falsely that Microsoft recommends Axceler's software over AvePoint's, that AvePoint's customers were abandoning their contracts early in order to buy Axceler's software, and that Axceler uses maintenance revenue in a way superior to AvePoint.

The court first examined whether statements concerning the origin of AvePoint products could support a defamation claim. Axceler employees allegedly posted messages on Twitter referring to AvePoint as the "Red Dragon," a term long associated with the People's Republic of China, and claiming that the SharePoint "Red Dragon" is made in China. An employee also allegedly emphasized in an email that AvePoint software was china_flag.jpgdeveloped in China and maintained in India. Did these statements carry defamatory meaning? AvePoint contended that the origin of its products had an impact on its customers' willingness and sometimes ability to buy the products. AvePoint pointed to messages that Axceler employees posted on Twitter indicating that customers had switched to Axceler after being led to believe that AvePoint was not developed in the United States. Conversely, Axceler argued that the alleged statements were not defamatory as a matter of law because most Americans no longer believe that Chinese products are inferior or that conducting business with China is unpatriotic. The court allowed the claim to go forward, noting that the federal government has long had a preference for domestically manufactured products.

Next, the court considered whether an Axceler representative's email to an AvePoint customer stating that Microsoft recommended Axceler's software over AvePoint's supported AvePoint's defamation claim. Axceler argued that this statement was not necessarily harmful since both companies could have high ratings with Microsoft. But the court found that construing the facts in the light most favorable to AvePoint required it to interpret the statements as suggesting that Microsoft had affirmatively recommended that customers buy Axceler's product over AvePoint's and that such a statement could prejudice AvePoint in its business. This statement therefore supported a cause of action for defamation per se.

Defendant Burns posted the statement that "U know things are bad when the Evil Avenue's customers are dumping out of 3 year deals in year 2 to buy Axceler's [product]" on Twitter. Axceler argued that the statement was not defamatory because it did not mention AvePoint by name. However, it is enough that the publication was of and concerning AvePoint and construing the allegations in the light most favorable to the plaintiffs, it is possible that this statement was intended to refer to AvePoint and that it would be so understood by people reading it who are familiar with AvePoint since it is plausible that "Evil Avenue" referred to AvePoint which produces and sells software called DocAve.

Axceler also argued that this Twitter post offered an opinion, but the court found that the statement did not necessarily depend on Burns' point of view and contained a factual assertion capable of being proven true or false. Axceler then argued that the statement wasn't necessarily prejudicial since Axceler could simply be offering deals that are too favorable for AvePoint customers to turn down. Considering the statement in its entirety, the court could not conclude that it lacked the necessary defamatory sting.

The final allegedly defamatory statement was that Axceler uses its maintenance revenue to improve its customers' existing product whereas AvePoint uses theirs to develop new products to which its customers have no access. AvePoint asserted that this statement was made to a potential customer who relied on it in deciding to buy from Axceler instead of AvePoint. Axceler argued that the statement was not actionable since some customers might prefer the way AvePoint uses maintenance fees. Again, construed in the light most favorable to AvePoint, the statement implies that AvePoint misuses its maintenance revenue and could be defamatory. Therefore, the claim was sufficient on its face.

So, does this mean that the American public views foreigners as "infamous, odious, or ridiculous"? Tweet me if you can answer that.

Why Suing Your Critics Is Not Always a Good Customer-Relations Strategy

November 4, 2013,

Emily Hughes is an unhappy customer of Johnson Utilities, which supplies water to parts of Arizona. Emily posted various complaints to a Facebook group in which she described "yellow water" coming from her faucets and expressed dismay about low water pressure. Until recently, I had never heard of Emily Hughes, Johnson Utilities, or the allegations about yellow water being supplied to certain residents of Arizona. But Johnson Utilities decided that the appropriate means to address the situation was to sue Emily for defamation. That caused the story to show up in my news feed, mostly in the form of opinion pieces mocking the lawsuit.

The reason the lawsuit strikes so many as silly is that Emily Hughes didn't just write about the yellow water entering her home, she took a video of it. The video clearly shows yellow water coming out of a faucet. She uploaded the video to a Facebook page entitled "Citizens Against Johnson Utilities"--a page ostensibly formed by citizens concerned with the local water provider's environmental practices as well as low water pressure in the area. The site was renamed "The San Tan Valley Safe Water Advocates" in August. CBS 5 News included Emily's video in a televised report about consumer complaints regarding the water supplied by Johnson Utilities.

At first glance, the complaint appears to have very little merit. Johnson Utilities complains about things that are generally not actionable in a court of law, like Emily expressing "extreme hostility" towards Johnson Utilities, going on a "ceaseless vendetta," and posting various "disparaging statements" on Facebook. Johnson even makes the yellow water.jpgodd allegation that Emily's opposition to a rate increase was part of a scheme to defame the company. The lawsuit suggests she would "oppose any rate changes that could be beneficial" to the utility company, without recognizing the possibility that Emily might just prefer not to have to pay more money for water.

There is, however, more to the lawsuit than first meets the eye. Johnson Utilities claims it is "impossible" that they delivered yellow water to Ms. Hughes. After the story aired, Johnson says it tested the water of its customers surrounding Ms. Hughes and also interviewed them. Johnson found only acceptable water, and no customer reported having yellow water. Based on this investigation, Johnson claims that Ms. Hughes "deliberately staged" the yellow-water demonstration to CBS 5 News for the purpose of harming Johnson's reputation, or that the discoloration was "caused by Defendant's own pipes or appliances." The former is a pretty bold allegation, but if Johnson can prove that Ms. Hughes manipulated the water color herself, then that could very well support a claim.

The complaint also alleges that Ms. Hughes stated that "George Johnson does not run an honest business," that he "used bribery and intimidation to shut down groups and individuals opposed to his business," and that she falsely implied that the water is poisonous and causes miscarriages. These statements may also be sufficient to survive a motion to dismiss.

Still, Johnson Utilities is going to have an uphill battle. News reports suggest that numerous other people have complained about the quality of the water supplied by Johnson Utilities. Johnson is going to have to prove that Ms. Hughes did more than just post a video showing what the water looks like in her home. They will have to prove that she is spreading false information about the company. Whether they can do that remains to be seen.

SCoVA Clarifies Law of Qualified Privilege

November 1, 2013,

Sometimes the context in which a statement is made provides the speaker with a qualified privilege against defamation claims. A qualified privilege generally attaches to communications between persons on a subject in which the persons share an interest or duty. If such a privilege applies, the speaker will not be liable for slander unless the plaintiff can show by "clear and convincing" proof that the privilege has been lost or abused. In a published opinion released yesterday by the Supreme Court of Virginia, the court reversed its prior decisions mandating that the speaker have acted in good faith as a prerequisite to the privilege attaching, and clarified the situations in which the privilege can be lost or abused.

The case involved a dispute between Dr. Robert Smith, a trauma surgeon, and Dr. Bradley Cashion, an anesthesiologist. In November of 2009, the two were part of an emergency operating team providing care to a critically injured patient. The patient did not survive the procedure, and Dr. Smith blamed Dr. Cashion. In the presence of other members of the operating team, Dr. Smith claimed the patient "could have made it with better resuscitation" and directly accused Dr. Cashion of purposefully failing to resuscitate him. "You just euthanized my patient," he allegedly told Dr. Cashion.

The trial court sustained Dr. Smith's demurrer to the statements that the patient "could have made it with better resuscitation" and "[y]ou determined from the beginning that he wasn't going to make it and purposefully didn't resuscitate him," finding them both to be non-actionable expressions of opinion. The Virginia Supreme Court disagreed, finding that both statements attributed the patient's death to Dr. Cashion's action or inaction, which it found to be an allegation of fact capable of being proven true or false. The latter statement was held to be the equivalent of the "you just euthanized my patient" statement, which the trial court correctly found to be a surgery.jpgstatement of fact. (Note: Justice McClanahan, however, found the euthanasia references to be mere rhetorical hyperbole, and wrote a detailed dissenting opinion explaining why she would find the statements not actionable).

On the matter of privilege, the Supreme Court agreed with the trial court's determination that Dr. Smith's euthanasia statements were qualifiedly privileged as a matter of law. All persons hearing the statements had a continuing interest in the level of care that had been provided and the cause of the patient's death. Good faith, the Court clarified, is not a prerequisite for attachment of the privilege. Good faith is a matter to be submitted to the jury, for its consideration in determining whether the privilege has been lost or abused.

Finally, the Court explained that the trial court erred by ruling that a qualified privilege may be lost only by clear and convincing evidence of personal spite or ill will. Such common-law malice is but one of numerous ways in which the privilege can be lost or abused. Among other ways, the privilege can be lost upon a showing that (1) the statements were made with knowledge that they were false or with reckless disregard for their truth; (2) the statements were communicated to third parties who have no duty or interest in the subject matter; (3) the statements were motivated by personal spite or ill will; (4) the statements included strong or violent language disproportionate to the occasion; or (5) the statements were not made in good faith.

The Virginia Supreme Court reversed the trial court's entry of summary judgment for the defendant and sent the case back for further proceedings.

Mere Suspicion of Negative Job Reference Insufficient to Support Defamation Claim

October 28, 2013,

Having trouble finding a new job? That doesn't necessarily mean that your former employer is spreading defamatory disinformation about you. Any defamation claim you might file against your former employer in federal court is going to be dismissed unless you can both identify exactly what was said about you, and produce evidence of those statements sufficient to support a jury verdict in your favor. On October 8, 2013, the Eastern District of Virginia granted the defendant's motion for summary judgment in Gierbolini v. SAIC, illustrating these principles.

Catherine Gierbolini was working for Science Applications International Corporation (SAIC) as a Personnel Coordinator in Kuwait under the supervision of Raymond Mattes and alongside subordinate Heather Hudson when her poor relationship with Hudson eventually led to her termination. Gierbolini accused Hudson of disobeying orders and reporting false claims of misconduct to management. Gierbolini and Hudson frequently bickered, and each submitted complaints about the other to Mattes who issued them both a written reprimand for unprofessional conduct. Mattes eventually gave Gierbolini a written memo terminating her employment.

Gierbolini was unable to secure employment after her termination and suspected that SAIC issued a "letter of release" - a document that the military uses to bar personnel from returning to an active theater of war. She also surmised that Mattes and Hudson gave poor references to potential employers. Gierbolini sued SAIC for defamation and other claims. SAIC moved for summary judgment on the defamation claim, arguing that it was time-barred and that Gierbolini had failed to produce sufficient evidence of the statements claimed to be defamatory.

A court will grant summary judgment where no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. If the evidence indicates that a reasonable jury could return a verdict in favor of the non-moving party, a genuine issue of material fact exists and the court will deny the motion. The court views the record in the light most favorable to the non-moving party, but the disputed facts must be material to an issue necessary for proper resolution, and evidence in support of a jury verdict for the non-moving party must be of sufficient quality and quantity.

The court categorized the statements alleged in the complaint as follows: (1) comments that Hudson made between June and October 2010 regarding Gierbolini's poor conduct and performance; (2) comments Mattes made in February 2011 to a government representative regarding the reason for Gierbolini's termination; and (3) a "letter of release" that SAIC allegedly provided to the government around February 2011 that barred Gierbolini from obtaining employment. SAIC also identified allegedly defamatory statements from Gierbolini's deposition testimony: (1) a 2010 memo from Mattes warning Gierbolini that her conduct violated SAIC's policy; (2) a 2010 memo notifying Gierbolini of her early termination; and (3) a negative reference that Hudson and Mattes allegedly gave to potential employers at unspecified times.

The court found that the statements allegedly made prior to December 2011 were time barred because, in Virginia, a plaintiff must bring a defamation claim within one year after defendant published the allegedly defamatory statement, and Gierbolini did not bring her action until December 2012. The court rejected Gierbolini's argument that her filing of an EEOC charge tolled the statute of limitations.

The court held that the remaining statements that Gierbolini relied on to support her defamation claim were based on pure speculation, which is insufficient to support a claim. Gierbolini contended that Hudson and Mattes gave negative phone references to potential employers, but her only evidence of these references was her difficulty obtaining new employment. One potential employer indicated that SAIC never returned its call, but the court found such evidence insufficient to support a jury verdict in Gierbolini's favor. No reasonable inference of defamation could be drawn from the scant evidence presented. Additionally, Gierbolini was unable to plead the exact words spoken or written, which Virginia law requires. For these reasons, the court granted SAIC's motion for summary judgment.