"Dirtiest Hotels" List is Rhetorical Hyperbole and Not Grounds for Defamation Action

September 11, 2012,

Kenneth M. Seaton, sole proprietor of the Grant Resort Hotel and Convention Center in Pigeon Forge, Tennessee, brought a defamation action against TripAdvisor after the hotel was identified by the travel site as the dirtiest hotel in America. The United States District Court for the Eastern District of Tennessee, however, found that TripAdvisor's list of "2011 Dirtiest Hotels" could not support a defamation claim and dismissed the case on August 22, 2012.

TripAdvisor relies solely on customer reviews to compile its "Dirtiest Hotels" list - it does not conduct an independent investigation of each hotel. Seaton claimed that TripAdvisor attempted to assure the public that its list is factual, reliable and trustworthy by including the following statements along with its list: (1) "World's Most Trusted Travel Advice"; (2) "TripAdvisor lifts the lid on America's Dirtiest Hotels"; (3) "Top 10 U.S. Crime-Scenes Revealed, According to Traveler Cleanliness Ratings"; (4) "Now, in its sixth year, and true to its promise to share the whole truth about hotels to help travelers plan their trips, TripAdvisor names and shames the nation's most hair-raising hotels"; (5) "This year, the tarnished title of America's dirtiest hotel goes to Grand Resort Hotel and Convention Center, in Pigeon Forge, Tennessee." The list quoted a TripAdvisor user: "There was dirt at least ½ inch thick in the bathtub which was filled with lots of dark hair." The list also featured a photograph of a ripped bedspread.

Defamation claims require proof of false statements or false implications. Seaton contended that by publishing its "2011 Dirtiest Hotels" list, TripAdvisor was implying that the Grand Resort Hotel and Convention Center was, in fact, the dirtiest hotel in the United States and that a reasonable person reading the list would consider this supposed fact in making their travel plans. Seaton argued that the list was not mere hyperbole because it dirtyhotels.jpgcontained actual numerical rankings with comments suggesting that the rankings were based in actual fact.

The court agreed that a reasonable person might consider the list when making hotel plans, but found that "propensity to initiate negative mental contemplation on behalf of a potential patron" is not the test for defamation. In determining whether TripAdvisor's list is defamatory, the court would not consider whether the list is compelling but rather whether a reasonable person could understand the language in question as an assertion of fact or instead merely hyperbolic opinion or rhetorical exaggeration.

The court found that neither the fact that TripAdvisor numbered its opinions one through ten nor that it supported its opinions with data converts its opinions to objective statements of fact. A reasonable person would not confuse a ranking system based on consumer reviews for an objective assertion of fact. Rather, a reasonable person would know that the list reflected the opinions of TripAdvisor's online users. Seaton did not plead any facts that would lead the court to find that TripAdvisor made a statement of fact or of opinion that it intended readers to believe was based on facts. Finally, the court found that although unverified online user reviews are a poor evaluative method, the system is not sufficiently erroneous so as to be labeled defamatory. For these reasons, the court held that TripAdvisor's "Dirtiest Hotels" list is unverifiable rhetorical hyperbole and could not form the basis of a defamation action.

Defamation in the Virginia Workplace

September 7, 2012,

Defamation claims arise frequently in the employment context. Your boss and your co-workers are subject to the same libel and slander laws that apply outside the workplace, and they need to be careful not to exceed the boundaries of fair criticism. The employment relationship, however, does present special challenges to a contemplated defamation lawsuit. As any good defamation lawyer will tell you, a primary obstacle in establishing defamation liability in the employment context is the existence of qualified privilege.

Workplace defamation suits often involve statements made during performance evaluations, tenure review, or employee terminations. These statements will often be deemed privileged, as a limited privilege applies to communications made in good faith 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. Performance evaluations, tenure reviews, and employee terminations all typically involve situations where it is necessary or expected to make statements about another individual that could potentially affect another's professional standing or reputation.

The protection offered by qualified privilege can be lost, however, if it is abused. If statements are made to a third party having no business hearing the information, they lack the requisite "corresponding interest or duty" and the privilege may be lost. Similarly, the qualified "interest or duty" privilege can be defeated if the plaintiff shows the defamatory statements were made with malice.

"Publication" is another potential issue in the employment context. An essential element of the cause of action for defamation, it is generally defined as communication to a person other than the plaintiff and other than the table.jpgspeaker. Internal corporate communications are considered by some courts to lack this "third party" requirement, as internal statements can be viewed as a corporate entity speaking to itself. Most Virginia courts, however, refuse to afford absolute immunity to all intra-corporate communications. (See, e.g., Larimore v. Blaylock, 259 Va. 568, 575 (2000)).

In Virginia, statements suggesting someone is unfit to perform his or her job requirements or lacks integrity in the job, and statements that tend to "prejudice" someone in his or her profession are considered defamation per se. A plaintiff need not prove actual harm to reputation in such cases and compensatory damages for injury to reputation, humiliation, and embarrassment are presumed. In the context of defamation in the workplace, the defamatory statement will almost always constitute defamation per se because most statements arising in this context will consist of an attack on the plaintiff's competency in his or her business, trade, or profession.

Other issues that typically come up in workplace defamation cases are whether the employer can be held accountable for the defamatory statements of its employees, whether the statements made during the performance review constitute protected opinion, whether they are too vague to be considered defamatory, and whether they contain defamatory innuendo understood by the recipient even if not apparent to an outsider.

Fraud Accusations Prompt Michael Mann's Lawyers to Threaten Litigation

September 3, 2012,

Climate change scientist Dr. Michael Mann is threatening legal action against the National Review magazine for a blog post that appeared in "The Corner" section of its online publication. In the article, journalist Mark Steyn quoted writer Rand Simberg's observation that Dr. Mann "could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data..." Mr. Steyn went on to call Mann "the man behind the fraudulent climate-change 'hockey stick' graph, the very ringmaster of the tree-ring circus."

In a demand letter to the National Review, Dr. Mann's attorney, John Williams, contends that Mr. Steyn's statements amount to accusations of academic fraud and constitute defamation per se. He argues that the statements were false and were made with the knowledge that they were false. He cites several inquiries into his research which concluded that he has not engaged in academic fraud as proof that Mr. Steyn's statements are false. Dr. Mann demands that the National Review retract the article and apologize or face legal action.

Dr. Mann may have a valid complaint, but he is going to have his work cut out for him. Dr. Mann is a well-known, much published and often quoted figure in the climate change debate. In fact, Dr. Mann has written a book on the climate change controversy. Courts have held that scientists who inject themselves into public controversies over scientific and political debates are public figures. As a public figure, Dr. Mann would have to prove by clear and convincing evidence that the National Review published a provably false statement with knowledge that it was false or with reckless disregard of whether it was false or not.

His lawyers are also going to have to convince a judge that the use of the term "fraudulent," in the context of the article, should be treated as an assertion of fact rather than subjective opinion. The court could plausibly rule either way on this issue. Mr. Steyn's piece was commentary on a highly debatable topic - climate change - and a controversial graph - the "hockey stick" graph which depicts changes in the Earth's temperature from the year 1000 onward. In an effort to encourage the free exchange of ideas, courts have allowed the press much leeway when writing about public controversies, and the difference of opinion over the science behind climate change is the type of debate that the First Amendment protects. Great scientific minds can reasonably disagree where the climate change debate is concerned.

While the court might indeed find that the term was used to suggest Dr. Mann engaged in academic fraud, it might conceivably find instead that the statement would more reasonably be interpreted as a protected expression of opinion. Moreover, if the court considers the "fraudulent" characterization to be rhetorical hyperbole, rather than an assertion of literal fact, it will dismiss the claim.

It is rarely easy for a public figure to prevail in a defamation case, especially when the statements at issue relate to matters of public concern. At a minimum, if Dr. Mann decides to file suit, it will at least bring more attention to the climate-change debate.

Virginia's Insulting-Words Statute

August 31, 2012,

Freedom of speech is not without limitations. Under the "fighting words" exception, speech is unprotected if it tends to incite an immediate breach of the peace (i.e., it is inherently likely to provoke a violent reaction). Virginia is one of few states that has essentially codified the fighting words doctrine. Its "insulting words" statute is found at Section 8.01-45 of the Virginia Code.

The insulting words statute was first passed as part of the 1810 Anti-Dueling Act. The Anti-Dueling Act provided that "All words which, from their usual construction and common acceptation, are construed as insults, and tend to violence and breach of the peace, shall be actionable." Today, over 200 years later, the language of the statute is virtually unchanged. Times have changed, but Virginia law still prohibits the utterance of words that are so insulting and offensive that the average person, upon hearing them, is likely to react with violence. Insulting-words jurisprudence has evolved over the years as a form of defamation law.

To recover in a private lawsuit brought under § 8.01-45, the words used must not only be insults, but they must be fighting words that "tend to violence and breach of the peace." The United States Supreme Court has defined fighting words as "those personally abusive epithets which, when addressed to the ordinary citizen, are, as a duel.jpgmatter of common knowledge, inherently likely to provoke violent reaction." Cohen v. California, 403 U.S. 15, 20 (1971). The Supreme Court later expanded the definition by clarifying that provocation of "immediate" or "imminent" violence was required before mere insults could fall outside the protection of the First Amendment. N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 928 (1982).

Like defamation claims, alleged violations of the insulting-words statute must be measured by standards that satisfy the First Amendment and its protection of the freedom of speech. Constitutional limitations applicable to defamation claims apply with equal force to insulting-words claims. In essence, the First Amendment applies any time a plaintiff seeks damages for reputational, mental, or emotional injury allegedly resulting from a defendant's speech.

Not every harsh insult is going to be actionable. To satisfy the Constitution, Virginia courts can generally only apply the insulting-words statute to situations involving a clear and present danger of imminent harm. Most courts therefore require a verbal attack directed at a particular individual in a face-to-face confrontation that presents a clear and present danger of an immediate and violent physical response. Insults communicated over the phone, or made in an online forum, or sent via email, will usually not be sufficient.

A review of Virginia Supreme Court decisions interpreting the insulting-words statute demonstrates that the only language it has found sufficient to "tend to violence and breach of the peace" is language falsely accusing someone of the commission of a crime involving moral turpitude. Absent such false allegations, Virginia courts expect most people in modern society to be able to deal with being called most other four-letter words without resorting to dueling (or other violence) as a part of everyday life.

Section 230 Immunizes Users Who Link to Defamatory Statements of Others

August 27, 2012,

Under § 230(c)(1) of the Communications Decency Act (47 U.S.C. § 230(c)), "No 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." Federal courts in Virginia have held that § 230 creates federal immunity to any cause of action that would make service providers (as opposed to content providers) liable for information originating with a third-party user of the service. For example, Section 230 has been found to bar claims for defamation, tortious interference with business expectancy, and trademark infringement. In Directory Assistants, Inc. v. Supermedia, LLC, the court clarified that Section 230 immunity applies not only to providers but also to users.

Directory Assistants is an advertising consulting agency that helps businesses advertise in yellow page directories. SuperMedia also sells advertising solutions. Directory Assistants had been the subject of allegedly false and defamatory postings on consumer review websites such as RipOffReport.com, ScamInformer.com, and YellowPages.com. According to Directory Assistants, SuperMedia sent an email to a prospective customer that included links to the allegedly defamatory postings. Directory Assistants sued SuperMedia for defamation, and SuperMedia moved to dismiss, arguing protection under Section 230.

Reviewing relevant case law and the statutory language, the court found that Section 230 protects users equally as it does providers, and it held that although a person who creates unlawful content may be held liable, a user of 230.jpgan interactive computer service who finds and forwards via e-mail content that others have posted online in an interactive computer service is immune from liability.

The court then examined whether the websites providing the various reports in the instant case qualified as interactive computer services and whether SuperMedia qualified as a user under the statute. The complaint alleged that RipOffReport and the other websites allowed many people access to a portal on the internet to post information about products and services. Courts have ruled that these types of websites are not internet content providers because they do not create the content that is posted.

Unlike some other federal decisions, the court applied a dictionary definition to the term "user," interpreting it to mean "someone who uses." The court found that SuperMedia, by going to websites like RipOffReport, reading postings and compiling links to these posts in an email, was "using" an interactive computer service. Therefore, the court held that SuperMedia was entitled to Section 230 immunity from defamation liability.

In its conclusion, the court noted that if Directory Assistants had some evidence that SuperMedia had a hand in creating the allegedly defamatory posts, it may have had a case, but current case law does not allow downstream users of content created by others to be held liable for defamatory statements.

Defamation By Implication Theory Prevents Dismissal of Art Analyst's Case

August 23, 2012,

In Virginia, defamation liability can be based on a statement that is literally true, if the true meaning of the statement arises from reasonable inferences attributable to it rather than the actual words used. Some jurisdictions refuse to recognize this "defamation by implication" or "implied defamation" theory, but on August 9, 2012, the Southern District of New York issued an opinion demonstrating that New York is among the states that recognize the doctrine.

Peter Paul Biro is in the business of art restoration and authentication and is well known in the art world for having developed scientific approaches to art authentication through fingerprint analysis. In July 2011, The New Yorker published an article titled "The Mark of a Masterpiece: The man who keeps finding famous fingerprints on uncelebrated works of art." (Note: a full copy of the article is attached to the opinion). Biro sued the magazine, investigative journalist David Grann, and others for defamation, claiming that various passages in the article damaged his reputation to the tune of two million dollars.

In Biro v. Condé Nast, the court adopted the Fourth Circuit's approach to defamatory implication claims, holding that a plaintiff must make an "especially rigorous showing" that (1) the language may be reasonably read to impart the false innuendo, and (2) the author intended or endorses the inference. Where an implication arises fingerprint.jpgdue to the omission rather than the expression of facts, the court will examine whether the omission would materially change the alleged implication.

On the other side of the coin, the court noted that if a statement is substantially true according to the understanding of the average reader, it will generally not be deemed defamatory. For example, the article stated that Biro "pioneered a radical approach to authenticating pictures." Biro claimed this statement was defamatory because he says there is nothing "radical" about fingerprints. Biro characterized the use of fingerprint analysis in art authentication as an "emerging field." The court found that the truth according to Biro would not have a different effect on the mind of the reader than the idea that fingerprint authentication is "radical." The court therefore dismissed those claims based on substantially true statements.

On the topic of fact vs. opinion, the court wrote that while expressions of opinion are generally not actionable as defamation, a statement of opinion that is based on undisclosed facts might be actionable because a reader may reasonably infer that the writer knows certain facts which support the opinion. For example, statements alleging that Biro had been caught in lies and was a "phony" suggest facts undisclosed to the reader, the court found. The court declined to dismiss claims based on these statements.

In the final analysis, just four of the original 24 counts survived the motion to dismiss.

Doctor's Defamation Claim Reconsidered by Judge Roush

August 13, 2012,

Judge Jane Marum Roush of the Fairfax Circuit Court has allowed Dr. Adel Kebaish to amend his complaint against Inova Fairfax Hospital to include four additional statements claimed to be defamatory. Judge Roush had previously found the alleged statements non-actionable but was persuaded by the plaintiff's attorneys to partially reconsider her earlier ruling.

Dr. Kebaish was an orthopedic and spine trauma surgeon at Inova Fairfax Hospital. Dr. Kebaish claims that Inova and several of its doctors and physician assistants defamed him and that Inova terminated him for objecting to substandard care and fraudulent billing practices. He filed a complaint against Inova, one of its administrators and ten of its doctors and physician assistants alleging causes of action for defamation per se as well as other business torts. The defendants demurred on various grounds.

The court reviewed each of the allegedly defamatory statements in the complaint and agreed with Inova that most of the statements were either statements of opinion, not actionable as defamation, or made by persons who were not named as defendants. To successfully state a claim for defamation in Virginia, a plaintiff must show that the ER.jpgdefendant published a false factual statement that harms the plaintiff or the plaintiff's reputation. Expressions of opinion are constitutionally protected and are not actionable as defamation.

The court initially sustained the demurrer to the defamation claim except as to two alleged statements: (1) that Dr. Kebaish had once operated on a patient with a "do not resuscitate" order without the family's consent; and (2) that Dr. Kebaish's privileges at Inova's emergency room had been revoked. Dr. Kebaish moved the court to reconsider its ruling as to the other statements.

Upon reconsideration, the court found that four additional allegations were statements of fact that, if proven to have been made and proven to be false, may be defamatory: (1) a doctor's statement that Dr. Kebaish turned away Medicaid patients; (2) a defendant's statement that Dr. Kebaish had caused a sciatic nerve injury to a patient treated for pelvic fracture and was hiding this fact; (3) a defendant's statement to an investigator for the Virginia Board of Medicine that Dr. Kebaish had operated on patients without taking x-rays, had caused complications, and had missed fractures on patients; and (4) a defendant's statement to potential patients that Dr. Kabaish's "hands shake."

Target of Online Griping Files Defamation Action

August 6, 2012,

Fairfax-based Direct Connect, LLC, a credit card processing company, has sued Inkthis, LLC, and its owner, Debra Sachs, for alleged defamation and tortious interference with contract. Direct Connect is upset about certain statements posted on Inkthis' Facebook wall, including one that referred to Direct Connect as "a bunch of thieves." The defendants recently removed the case from Fairfax Circuit Court to federal court in Alexandria.

The Facebook posts describe the author's frustration with certain business practices of Direct Connect, including what the author believed to be excessive charges debited from Inkthis' bank accounts. Direct Connect says the statements are false, that the defendants knew the statements were false when they made them and, by publishing descriptions of the company that included words like "inept," "horrible," and "thieves," the statements harmed Direct Connect's reputation.

Statements that are relative in nature and depend largely upon the speaker's viewpoint are generally considered expressions of opinion. Opinions cannot form the basis of a defamation action as they are protected by the First Amendment and generally cannot be interpreted as stating a provably false fact, a prerequisite for any thief.jpgdefamation claim. Thus, referring to Direct Connect as "inept" and "horrible" will likely be deemed non-actionable opinion. Referring to the company as "a bunch of thieves" presents a closer question.

Like opinions, rhetorical hyperbole cannot reasonably be interpreted as a statement asserting actual facts. In one often-cited Virginia case, the Virginia Supreme Court held that referring to a university executive as the "Director of Butt-Licking" was mere hyperbole and could not be reasonably interpreted as a factual statement.

The interesting question here is whether referring to a group as a "bunch of thieves" should be interpreted differently than referring to a specific individual as a "thief." Calling someone a thief is unquestionably defamatory, but notice the subtle change in meaning when (1) the statement is applied to a group of people, and (2) "thief" is replaced with "bunch of thieves." Is the speaker actually asserting that each and every member of Direct Connect is a thief? I expect the court will dismiss the defamation claim.

Absolute Judicial Privilege Extends to Demand Letters Sent in Good Faith

July 30, 2012,

Earlier I wrote about the case of Mansfield v. Bernabei, in which Fairfax Circuit Court Judge R. Terrence Ney sustained demurrers to a defamation claim based on statements made in a draft complaint forwarded to a small group of prospective defendants for settlement purposes. Judge Ney ruled that the statements were privileged from defamation liability because they were preliminary to a proposed judicial proceeding and sent in good faith. The Virginia Supreme Court has now affirmed that decision and set forth a new test for determining applicability of the judicial privilege in Virginia.

Under the new test, communications made outside of court but preliminary to proposed judicial proceedings will be absolutely privileged from defamation liability where (1) the statement is made preliminary to a proposed judicial proceeding; (2) the statement is "material, relevant or pertinent" to the proceeding; (3) the proceeding is contemplated in good faith and is under serious consideration; and (4) the communication is disclosed only to persons having an interest in the proposed proceeding.

(Note: The court enumerated only three elements, combining (2) and (3) above. Because the test contains four distinct concepts, I find it easier to think of this as a four-part test. But that's just me.)

The plaintiffs argued that to protect communications that are not part of an ongoing judicial proceeding would encourage abuse of the legal system by aggressive lawyers, who would be free to defame others in non-judicial VSC.jpgsettings without meaningful restraint. The court downplayed this concern, finding that adherence to the elements of the test would offer adequate protection against unbridled defamation. The court also emphasized the importance of encouraging compromise and settlement by facilitating free and open communication by parties and their counsel.

Applying the test to the facts of this case, the court found that the communication at issue was privileged and that the demurrers were properly sustained. The draft complaint and demand letter were marked "For Settlement Purposes Only," and the letter warned that "formal legal action" would follow if a response were not received. Formal legal action did, in fact, follow, and the actual complaint filed was substantially similar to the draft complaint. The communications were sent only to the potential defendants who were clearly interested persons. The court therefore affirmed the judgment of the circuit court.

No Defamation Claim for Medical Resident's Poor Performance Evaluation

July 22, 2012,

Employment reviews often lead to libel allegations due to the fact they often contain harmful statements perceived by the employee to be false and defamatory. In most cases, however, even if the performance review contains a false statement, no defamation claim will lie because (1) statements of opinion are not actionable under Virginia law (or the United States Constitution); and (2) communications between people on a subject in which they both have an "interest or duty" are deemed privileged.

The Fourth Circuit Court of Appeals recently considered--and rejected--the defamation claims of Claudine Nigro, a former medical resident at the Shenandoah Valley Family Residency Program. After a semiannual performance review in 2009, Nigro was notified that she would not be renewed for another year of residency with the program. measuring_tape.jpg Nigro appealed this decision, but then resigned a few months later. She brought an action against the residency program's director and the hospital itself, claiming that she was defamed during the appeals process by the director of the program, who discussed her perceived shortcomings with the faculty appeals committee, and by employees of the hospital, who reported Nigro for allegedly recording her conversations with physicians.

Nigro alleged the Program Director defamed her with statements he made in various meetings and notices, including "There has been no evidence of improvement or intention to improve in weak areas," "There is no change in apathetic/disinterested approach or demonstrated interest in learning despite 3-4 months of discussion and coaching," and "There is faculty consensus that [Nigro] may be suffering from depression or poor career choice." The court found that all the alleged statements were either opinion, factually true, not defamatory, or were protected by the qualified privilege applicable to statements made to another with a corresponding interest or duty.

One alleged statement was that Nigro had "failed NICU." The Court acknowledged that the statement was technically false, but opined that the statement lacked sufficient sting to be defamatory. Not all false statements about a person will support a defamation action. The words must be sufficient harmful in that they would tend to deter third persons from associating or dealing with the subject of the statement. The court found that a false allegation that Nigro failed the Neonatal Intensive Care Unit was "not sufficiently harmful" to be defamatory.

Court Excludes Unreliable Expert Testimony in Defamation Case

July 5, 2012,

A court's role is to act as a "gatekeeper" where evidence is concerned, and under Federal Rule of Evidence 702, a court should exclude expert testimony that is not reliable and helpful to the jury. Rule 702 provides that an expert's opinion is reliable if (1) it is based upon sufficient facts; (2) it is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case. The United States District Court for the District of Columbia recently applied this three prong test and granted a defendant's motion to exclude expert testimony in a defamation case.

In Parsi v. Daioleslam, Dr. Trita Parsi, president of the National Iranian American Council (NIAC) and NIAC filed a defamation action against Seid Hassan Daioleslam alleging that Daioleslam published numerous false and defamatory statements on internet websites characterizing plaintiffs as members of a subversive and illegal Iranian lobby. Plaintiffs alleged that defendant's statements injured their reputations, hampered NIAC's effectiveness as an advocacy group, and damaged their fundraising efforts. In support of their claims, plaintiffs proffered two experts. Plaintiffs hoped that the testimony of Debashis Aikat, a journalism professor, would establish that defendant's writings did not meet the standard of care for journalists. Plaintiffs submitted the testimony of Joel Morse, a financial economist, to establish plaintiff's economic damages suffered as a result of the alleged defamation. Defendant moved to exclude both men's testimony, arguing that neither expert's testimony met the standards of admissibility.

The court found all three reliability prongs of Rule 702 lacking in Aikat's testimony. First, the "sufficient facts" Aikat relied on were defendant's articles and sources cited therein. Because Aikat read only a haphazard selection of defendant's sources and no background material, the court found the "facts and data" Aikat relied on to be teacher.jpginsufficient. Second, the court found Aikat's testimony was not the product of reliable principles and methods. Aikat refused to give any description of his methodology beyond reading and viewing. The court noted that Aikat's methodology could have been to compare defendant's performance to applicable professional standards, which would have been an acceptable methodology.

However, the court concluded that Aikat's view of the applicable professional standard was driven less by objective sources and more by his personal views which is not an acceptable methodology. Finally, the court held that even if Aikat identified an objective professional standard, he failed to reliably compare defendant's writings to that standard. He did not systematically review defendant's source materials, and he decided inexplicably that secondary materials were insufficient. He opined that defendant had not allowed plaintiffs to respond to claims made in defendant's writings, but did not explain this conclusion, and he ignored evidence that subjects had been given the opportunity to respond. Because none of the three Rule 702 prongs were met, the court did not examine whether Aikat's testimony would be helpful to the jury.

The court went on to examine the testimony of Joel Morse to determine whether it was relevant and reliable under Rule 702. The court found troublesome Morse's assumption that defendant's writings alone were responsible for NIAC's financial position, particularly when evidence indicated that NIAC's finances were affected by increased expenses and general economic conditions in the country. The court also had concerns about some of Morse's calculations--he used seemingly arbitrary baselines which he did not explain yet which aided plaintiffs' damages calculations. Morse did not discount any of his damages figures to their present value which the court found to be inexplicable as tort awards must be so discounted. The court found that "[g]iven the multiple factual, arithmetical, and theoretical errors," Morse's calculations were not reliable enough to put before a jury. The court therefore granted both of defendant's motions to exclude plaintiffs' expert testimony.

Breach of Non-Disparagement Agreement Leads to Defamation Claim

June 29, 2012,

The United States District Court for the Western District of Virginia has found that negative comments a customer service representative made to a customer may form the basis of a defamation action.

Charles and Donna Bates operate a school photography business. They entered a contract with Strawbridge Studios, Inc., also a school photography business, under which Strawbridge purchased the Bates' accounts and employed them to handle certain accounts. The relationship deteriorated and ended in the Bates filing a breach of contract action again Strawbridge. The parties resolved their dispute and entered a settlement agreement which included a non-disparagement clause providing that neither party would "say, write, publish, broadcast, or in any other way participate in negative or disparaging comments about the other."

Later, when a customer called Strawbridge looking for a photograph she believed the Bates had taken, Strawbridge's customer service representative told the customer that the Bates were "not reputable" and "could not be trusted." The representative also stated that "things got so bad" that Strawbridge "had to get involved in a lawsuit." The Bates filed a second suit against Strawbridge and included a claim for defamation.

Strawbridge moved for summary judgment on the defamation claim, arguing that (1) the Bates failed to prove that the customer service representative made the alleged statements, (2) the Bates failed to produce evidence that the statements were false, (3) the statements were expressions of opinion, and (4) a qualified privilege protects the statements.

The court rejected all of Strawbridge's arguments, first finding that the Bates' customer declaration describing the customer services representative's negative comments was sufficient evidence to establish that the allegedly defamatory statements were made. The court then noted that the issue of whether a plaintiff has sufficiently proven the falsity of allegedly defamatory statements is a question to be decided by a jury. Strawbridge submittedstudio light.jpg third party declarations stating that the Bates were not trustworthy and did not have a good reputation, and the Bates proffered declarations from individuals that cast them in a positive light. Given this evidence, the court found that reasonable minds could differ on the issue of truth or falsity and therefore the issue must go to the jury.

Whether an allegedly defamatory statement is fact or opinion, however, is a question of law to be determined by the court. The court noted that in making such a judgment, it must consider the statement as a whole. The court found that the statements could be reasonably understood to imply the existence of defamatory facts given the context in which they were made and the fact that the customer service representative referred to the lawsuit between the parties. Therefore, the court was unable to conclude as a matter of law that the statements at issue were pure expressions of opinion.

Finally, the court rejected Strawbridge's qualified privilege argument. A communication made in good faith on a subject matter in which the person communicating has an interest or owes a duty is qualifiedly privileged if made to a person having a corresponding interest or duty. For the privilege to apply, Strawbridge must show that its representative and the customer had corresponding duties or interests in the subject matter. Here, Strawbridge failed to show that the customer had any interest in learning about Strawbridge's failed business relationship with the Bates. In fact, the customer stated in her declaration that she "had no interest in hearing these backbiting comments."

Lawyer Files Defamation Action Against Television Stations for Faulty Report

June 17, 2012,

Indiana lawyer Mark K. Phillips has filed a libel and slander action against two media outlets, Nexstar Broadcasting Group and Mission Broadcasting, for mistakenly identifying him as a child molester. In 2011, Mark S. Birge, Phillips' client, pleaded guilty to child molestation in an Indiana court. When the local news companies reported this story during the next two days, they mistakenly announced instead that Birge's attorney, Mark Phillips, had been convicted of child molestation and would be sentenced to up to 16 years in prison. The media companies published a correction to the story over a month later, but Phillips filed suit anyway for slander per se, libel per se, and defamation. He seeks more than $1 million in compensatory and punitive damages.

Likely issues will include whether the lawyer is a "public figure" required to prove malice, the extent to which the media outlets are at fault for the mistaken report, and the legal effect of the subsequent correction.

Phillips asserts that the defendants are liable for defamation because they falsely identified him as the child molester knowing the statements to be false. As a result, he claims he "has suffered ridicule, damage to his TV.jpgprofessional and personal reputation within the community and the tri-state area, emotional and physical pain, disgrace, and stress within his marriage and with his family, embarrassment, and loss of opportunity to achieve his potential as a professional." Phillips suggests that the severity of the impact of these stories on him is a result of the fact that he is an active member of the community. He has coached a Special Olympics basketball team for over 18 years, is a member of multiple legal professional groups and country clubs, and maintains an active legal practice in multiple states.

In addition, Phillips claims that the stories posted on the Internet amount to libel per se and the televised broadcasts to slander per se because the stories falsely (and with reckless disregard for the truth) claimed that he committed a crime of moral turpitude. He seeks both compensatory damages and punitive damages for the malice, fraud, and gross negligence committed in the course of this reporting.

The defendants removed the case to federal court and have yet to file an answer. Phillips is representing himself.

Virginia Law Firm's Defamation Claim Dismissed As Opinion

June 11, 2012,

When several law firm clients were vocally unhappy about the firm's work product and billing practices, and expressed their views to a Virginia legal newspaper, the firm slapped them with a defamation suit in Richmond federal court. However, finding the allegedly defamatory statements to be subjective statements of opinion, the court dismissed the claim.

The Virginia law firm of Cook, Heyward, Lee, Hopper & Feehan, P.C. ("Cook Heyward") entered into a contract for legal services with Trump Virginia Acquisitions LLC, Trump Vineyard Estates, LLC, and The Trump Organization, Inc. Cook Heyward provided the Trump Entities with invoices itemizing fees and costs over the course of the representation. The Trump Entities requested Cook Heyward to reformat the invoice but did not object to the amount billed, and they continued to request legal services from Cook Heyward.

After a second updated invoice, the Trump Entities indicated that they had no problem with the quality of the legal work, but thought the bills were "too high" and suggested Cook Heyward reduce its fees by approximately seventy percent. Cook Heyward informed the Trump Entities that they intended to file a motion to withdraw as counsel. trump.jpgThe Trump Entities asked Cook Heyward to reconsider, then informed them that they "should expect very bad publicity" regarding their withdrawal as counsel. After repeated requests for payment, Cook Heyward filed a motion to withdraw which the court granted.

The Trump Entities' General Counsel gave an interview to Virginia Lawyers' Weekly in which he stated that the Trump Entities were "very, very disappointed" in Cook Heyward's work quality and billing practices. He also claimed that he had to redo Cook Heyward's work multiple times. Cook Heyward filed a suit against the Trump Entities which included a count for defamation per se. The Trump Entities moved to dismiss the defamation claim.

In Virginia, a plaintiff claiming defamation must prove that the defendant published an actionable statement with the requisite intent. An actionable statement is one that is false and harms the plaintiff's reputation. If the statements are objectively true or are protected expressions of opinion, there is no actionable defamation. Words which injure a person in his profession or trade are actionable as defamation per se, meaning that the plaintiff need not show harm to reputation.

Cook Heyward argued that the Trump Entities published false, factual statements which prejudiced them in their legal profession, thus constituting defamation per se. The Trump Entities responded that the statements at issue were statements of pure opinion protected by the First Amendment.

In determining whether the statements were fact or opinion, the court first examined whether the language the Trump Entities used was "loose, figurative or hyperbolic"-- traits that would suggest the statement was not one that could reasonably be interpreted as one intended to convey actual facts. The court also considered the context and general tenor of the Virginia Lawyers' Weekly article, noting that a statement expressing a subjective view rather than an objectively verifiable fact does not constitute defamation, and that pure expressions of opinion and rhetorical hyperbole are constitutionally protected because they cannot be objectively characterized as true or false.

Based on the tenor, language, and context of the article, the court found that the statement that the Trump Entities were "very, very disappointed" in Cook Heyward's work quality and billing practices was a subjective expression of opinion. The court noted that statements of unsatisfactory job performance generally do not rise to the level of defamation and that the concept of being "disappointed" is a relative one, contingent on the speaker's internal viewpoint.

The court also found that the Trump Entities' statement that they needed to redo Cook Heyward's work represented a relative concept requiring the exercise of discretion and individualized judgment. The alleged necessity of redoing the work depended on the Trump Entities own evaluation and assessment. Finding both statements to be protected expressions of opinion and not actionable as defamation, the court dismissed Cook Heyward's defamation claim.

Libel Case Filed by Laurie Fine Against ESPN

June 4, 2012,

Laurie Fine, the wife of Bernie Fine, former Associate Coach of the Syracuse University men's basketball team, has filed a libel and defamation action against ESPN and two of its employees, Mark Schwarz and Arthur Berko. ESPN published several stories about her relating to her husband's alleged molestation of minors. She seeks compensatory and punitive damages.

In the 1980s, the Fines took in a Syracuse basketball 'ball boy,' Robert Davis, who later accused Bernie Fine of molesting him while he lived there. Davis also accused Laurie Fine of knowing about the molestation and allowing it to continue. He also claims to have had a sexual relationship with Laurie while he was in high school.

The complaint paints a picture of a troubled young man who financially took advantage of the Fines, often fabricating stories to trick them into giving him money. It asserts that, to elicit sympathy and funding, Davis told Laurie that Bernie had molested him in the 1980s but that the couple continued to enable him. The complaint portrays the plaintiff as suffering through conversations with Davis in hopes he would outgrow his problems, using sarcasm to keep from 'going off' on him and asking questions to 'test' how far the young man would go. These allegations appear to offer a different interpretation of statements attributed to her in a 2002 taped recording Davis made.

According to the complaint, Davis offered his molestation story to a Syracuse newspaper in 2002. The paper did not publish it due to lack of corroboration. He then approached ESPN and gave Schwarz and Berko a taped recording of a conversation he'd made, purportedly of a conversation he'd had with Laurie in which Laurie discusses her husband's activities. ESPN did not publish the story, but Ms. Fine says the ESPN reporter and producer remained interested and kept in touch with Davis.

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Ms. Fine claims Davis used the publicity surrounding the Penn State child abuse scandal to reignite his story. She says the reporters had developed ill will toward the Fines and had become so personally invested in the story that they accepted questionable corroboration of a recanting witness and sent another potential corroborating witness to Davis for coaching on what to say and then leaked the story to a newspaper to bolster the story.

In late 2011, ESPN published excerpts from Davis' taped recording and published over 40 minutes of it last month. ESPN published several stories about Laurie Fine including one in February 2012 that quoted a Davis affidavit stating it was openly known that multiple Syracuse basketball players had engaged in sexual relationships with her.

Ms. Fine maintains that all these stories are false and ESPN's publication of them with actual malice and reckless disregard for the truth constitutes libel and defamation. Her claims could depend on whether she was a public figure at the time of disclosure. Public figures do not enjoy the same level of privacy in their personal lives and carry higher burdens of proof when bringing defamation suits.

Ms. Fine was an active member of the Syracuse community, raising money for various charities that sought her out, especially child-related charities. She seeks damages for her damaged reputation, emotional distress, mental pain and suffering, permanent impairment of employability and related losses.