Defamation Plaintiffs Must Plead Exact Words and Non-Privileged Publication

April 23, 2012,

The elements of a defamation claim in Virginia are (1) publication, (2) of an actionable statement and (3) the requisite level of intent. A statement regarding a person's professionalism may constitute defamation per se (meaning the plaintiff need not prove actual damage to reputation) if it implies that the person is unfit to perform the duties of his job, lacks integrity in performing those duties, or if it would tend to "prejudice" the plaintiff in his profession. Fairfax Judge Robert J. Smith, in a detailed opinion, recently made clear that to survive demurrer, a plaintiff must also state the exact words alleged to be defamatory, and must show that the defamation occurred in a non-privileged setting.

In Tomlin v. IBM, three former IBM employees brought defamation claims against IBM and five individuals. IBM received an anonymous letter alleging that Ms. Tomlin acted unethically by hiring her brother, Mr. Tomlin. After an investigation, IBM terminated the employees. Plaintiffs claimed that IBM and the individual defendants made the following false and defamatory statements to IBM colleagues: that Ms. Tomlin acted unethically in hiring her brother and that she and Mr. Tomlin and plaintiff Williams conspired to cover up the unethical hiring; that Mr. Tomlin falsely claimed to have certain skills in his job application and did not meet the minimum qualifications for his consulting position; and that Mr. Williams submitted a fraudulent hiring form regarding Mr. Tomlin. Plaintiffs alleged that defendant Ms. Minton-Package told IBM employees that Ms. Tomlin was fired because she had hired her brother and tried to "cover it up."

Although a plaintiff does not need to plead specifics such as the identity of the speaker and other details surrounding purportedly defamatory statements, the complaint must contain the exact words spoken or written. Tomlin's complaint, however, merely alleged the general nature of the defamatory statements; only the statements imputed to Ms. Minton-IBM_mouse.jpgPackage contained exact words. The court found that the plaintiffs failed to plead the defamatory statements with sufficient particularity except as to Ms. Minton-Package, and it proceeded to examine publication only as to her.

The publication requirement contemplates publication to a third party. An intra-corporate communication heard solely by those who have the duty or authority to receive the information has not been "published" for purposes of a defamation claim. Moreover, internal corporate communications are usually deemed privileged when made in the ordinary course of business. In Tomlin, the plaintiffs contended that Ms. Minton-Package communicated the allegedly defamatory statements to other employees at IBM. Plaintiffs did not claim that those employees did not have a duty or authority to receive the communication and therefore failed to establish publication or overcome the privilege.

The court dismissed plaintiffs' defamation claims for failure to plead any exact words constituting the allegedly defamatory statements by defendants other than Ms. Minton-Package, and it dismissed the claims against Ms. Minton-Package for failure to sufficiently allege publication. However, the court granted plaintiffs leave to amend their complaint.

Middleburg Writer Dee Dee Hubbard Turns Tables On Accusers with Defamation Suit

April 16, 2012,

Shortly after being found "not guilty" of embezzlement by a Loudoun County jury, Deanne "Dee Dee" Hubbard, editor of the Middleburg Eccentric, has filed a defamation action against her chief antagonists, Jack J. Goehring, III, and his wife, Mary Kirk Goehring, in Loudoun County Circuit Court.

For over a decade, Deanne "Dee Dee" Hubbard managed Middleburg, Virginia properties co-owned by Jack Goehring and his wife. She also lived in one of their rental properties with her son and daughter-in-law and she and her daughter rented space in one of the Goehrings' commercial buildings. Ms. Hubbard was responsible for collecting rents from the Goehring properties. When Mr. Goehring discovered several rent checks had found their way into accounts Ms. Hubbard controlled, rather than into his accounts, he urged the Commonwealth Attorney's office to prosecute Hubbard. Ms. Hubbard claimed she'd mistakenly marked the checks for the wrong accounts and set the accounts right as soon as the error was discovered.

Ms. Hubbard was prosecuted on fourteen felony embezzlement charges but was acquitted of all charges. Now, she and several family members have sued Goehring and his wife for waging "a campaign of malicious prosecution, libel, slander, and defamation." The complaint paints Mr. Goehring as a vindictive man intent upon securing the charges against Ms. Hubbard and ratcheting up the surrounding publicity so as to defame and humiliate her. It accuses Goehring of filing an affidavit with the Middleburg Bank accusing Hubbard and her family members of identity theft, using his personal identifying information to obtain money, goods, services and other benefits without his authorization. The plaintiffs claim Goehring made false statements to law enforcement authorities that led to Hubbard's arrest, arranged to have a friend photograph Hubbard being taken into custody in handcuffs, and then helped the photographer find a buyer for the photos. Ultimately, the photos appeared on television, in the local paper and on the Internet.

The complaint recites a series of allegedly libelous statements Goehring made, on behalf of himself and his wife, to the Assistant Commonwealth's Attorney handling the case. For example, in one email, Goehring reportedly called Hubbard a "crafty talented thief' and accused her of stealing $122,000 from him and his wife over a two-year period. In others, he allegedly called her a "master criminal/con artist" and accused the family of fraud, conspiracy, forgery, and embezzlement and referred to them as a "crime family."

The plaintiffs claim Goehring maliciously defamed them--and continues to do so--so he could evict them from his properties and obtain back rents from them to which he is not entitled. Each plaintiff seeks $500,000 in compensation as well as punitive damages for damage to reputation, emotional distress, embarrassment, humiliation and similar losses. Ms. Hubbard seeks an additional $500,000 against the Goehrings for malicious prosecution.

Virginia courts generally disfavor actions for malicious prosecution arising out of criminal proceedings so as to ensure appropriate criminal cases are brought without fear of civil reprisals. But the law allows such cases where the allegations were false and the individual instituted or cooperated in the criminal action maliciously, without probable cause, and the case terminated favorably for the plaintiff.


Slander of Pilot by Airline Results in $1.4 Million in Damages

April 14, 2012,

Workplace defamation suits can result in high damages awards. A former pilot and federal flight deck officer (FFDO), William Hoeper, successfully sued his former employer, Air Wisconsin, for defamation after one of its managers, Patrick Doyle, reported Hoeper to the Transportation Security Administration (TSA) as a potential threat to airline security. Last month, the Supreme Court of Colorado, applying Virginia law, upheld a $1.4 million jury verdict against Air Wisconsin.

Hoeper had been taking a test to fly a new plane. According to test administrators, Hoeper ended the test abruptly, raised his voice at the administrator, and used profanity. Afterwards, while Hoeper was waiting for his flight home, Doyle called TSA to report that Hoeper may be carrying his government-issued FFDO firearm and that he was concerned about Hoeper's mental stability because Hoeper had been terminated that day.

When a plaintiff alleges defamation involving a "matter of public concern," the defendant is entitled to First Amendment free speech protection unless the plaintiff can demonstrate that the statement was false and made with actual malice. Actual malice is present if the statement was made by the defendant with (1) knowledge of the statement's falsity or (2) reckless disregard as to the AW plane.jpgstatement's falsity. However, even before the plaintiff presents his case, an airline defendant may be able to avoid liability altogether under the Aviation and Transportation Security Act (ATSA), which provides immunity from civil suits to "an air carrier who voluntarily discloses any suspicious transaction relevant to certain aircraft security statutes." If the disclosures are made with actual knowledge or reckless disregard as to the statement's falsity, however, ATSA immunity is lost and the plaintiff can proceed to demonstrating that a statement was defamatory.

Holding that Air Wisconsin was liable for defamation, the Colorado Supreme Court first found that the ATSA immunity did not apply to Air Wisconsin because Doyle recklessly disregarded the truth when making his statement about Hoeper to TSA. Specifically, Doyle knew Hoeper had not been terminated that day and he lacked information to form an opinion on Hoeper's mental stability or to imply that Hoeper was armed. The court further pointed out that Doyle could not have been very concerned about Hoeper's mental state because he sent Hoeper to the airport that same day with another Air Wisconsin employee and did not initially write down any of his concerns in his notes. While his statements to the TSA suggested that Hoeper was so unstable that he might pose a threat to security, his actions demonstrated that he did not truly believe that to be the case.

Since Air Wisconsin was not immune to Hoeper's suit, the court went on to apply Virginia state law to find that Doyle made a false statement to TSA with actual malice. Air Wisconsin was therefore liable for damages.

Defamation Case Against Barbara Walters Dismissed

April 7, 2012,

A federal court in Massachusetts has dismissed a defamation case against Barbara Walters brought by a woman claiming to be the former lesbian lover of Walters' daughter. In Walters autobiography, Audition: A Memoir, she refers to the woman, Nancy Shay, by first name only in a two-sentence statement. Walters wrote that "Nancy" was kicked out of high school for "bad behavior" after being "found in a nearby town high on God-knows-what" with Walters' daughter. Shay did not deny being suspended from school but claimed the statements were defamatory because they falsely portrayed her as a user of illicit drugs. The court found the allegations were insufficient to state a claim for defamation and dismissed the case.

In Massachusetts, as in Virginia and every other state, there can be no defamation liability without "fault" on behalf of the defendant. For private plaintiffs (as opposed to public figures), this requires (at a minimum) an allegation that the defendant acted negligently with respect to determining the truth. Moreover, a statement is incapable of defamatory meaning unless it would tend to hold the walters.jpgplaintiff up to scorn, hatred, ridicule or contempt "in the minds of any considerable and respectable segment in the community." In other words, a statement will not be considered defamatory if only a very small group of persons would view it as derogatory.

In her brief, Shay argued that Walters was at fault for making a false statement as to the reason for her suspension and that the statement damaged her reputation amongst the former faculty and students of the high school from which she was suspended. Alternatively, Shay suggested that, even if the statement that she was expelled for "bad behavior" was true, the allusion to drug use was made maliciously.

The court found that Shay failed to make any showing of fault beyond her self-serving and conclusory allegations. It found further that the segment of the population who would read the statements in Walters' book and draw negative inferences from them about Shay was too small to sustain a finding of defamatory meaning. Those few people who would recognize the reference to "Nancy" in Audition as alluding to Shay would likely also know the real circumstances of the situation and would not have their opinions of Shay influenced by the memoir, the court found.

Duck Creek Energy Says Fracking Accusations Defamatory

March 30, 2012,

Duck Creek Energy, an Ohio oil and gas development company, has sued two local environmental activists, Tish O'Dell and Michelle Aini, for various claims arising from their publication of statements characterizing Duck Creek's product as "a product of fracking." Duck Creek claims the defendants are liable for (1) defamation per se; (2) tortious interference with existing business relationships; and (3) tortious interference with prospective business relationships. According to Duck Creek, the activists acted with malice and/or negligently disseminated false information, even after being apprised of the true facts.

Duck Creek manufactures and distributes AquaSalina, a salt solution used for de-icing roads. AquaSalina is made from raw brine, a byproduct of oil and gas exploration, which Duck Creek purifies at a plant in Cleveland. It has been used for years because its heavy salt concentration works on surfaces in temperatures as low as -10 degrees Fahrenheit. In contrast, a liquid solution made with rock salt only works in temperatures down to about twenty three degrees Fahrenheit. AquaSalina was environmentally tested in 2004 and found to be safe.

The Complaint alleges that shortly after an article appeared on Cleveland.com discussing the effectiveness of AquaSalina, O'Dell sent a "Dear Neighbors" email to various recipients, including the mayor of Brecksville, Ohio. Brecksville was an AquaSalina customer. In her Fracking.jpgemail, O'Dell characterized AquaSalina as "waste fracking fluids" and criticized the reporter for failing to mention toxic chemicals and radioactive material in liquid from fracking. She encouraged the email recipients to read other articles she attached, which, Duck Creek claims, had nothing to do with AquaSalina. O'Dell allegedly continued to claim, at public meetings, that AquaSalina was environmentally unsafe. Brecksville thereafter decided not to use the product. O'Dell and another member of an environmental group also allegedly warned a second city to "stop spreading carcinogens on our streets" which, Duck Creek asserts, refers to AquaSalina.

Whether this is a case of overzealous environmentalists or merely concerned citizens exercising their right of free speech remains to be determined. However, this litigation should serve as a reminder to activists and other public speakers to always be careful to check their facts before making public accusations.

Defamation Per Se By Former Judge Yields $350,000 in Damages

March 21, 2012,

Earlier this month, the Virginia Supreme Court affirmed the decision of the Williamsburg Circuit Court to uphold a jury verdict against former circuit court judge Verbena Askew in the amount of $350,000 for defamation. Askew had made a comment to The Daily Press that plaintiff Brenda Collins, who had worked in the court over which then-judge Askew presided, "was institutionalized - that's the only way you qualify for family leave." The Daily Press did not actually publish the statement, but the Court found that the defamation occurred when the statement was made to the press.

A private individual claiming defamation must prove by a preponderance of the evidence (1) that the defamatory publication is false and (2) that the defendant "either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief or acted negligently in failing to ascertain the facts on which the publication was based." If the publication amounts to defamation per se, such as defamatory statements that impute an unfitness to perform official duties, the plaintiff is presumptively entitled to compensatory damages.

Askew first argued that she should not have to pay damages because her statement about Collins was never published by The Daily Press and thus did not proximately cause any injury to Collins. The Virginia Supreme Court rejected this argument, holding that theWburgCt.jpg evidence supported the jury's finding that Askew made a defamatory statement to the press either knowing it was false or negligently failing to ascertain the facts. Because the jury found the statement amounted to per se defamation, it was entitled to presume that Collins suffered damages as a result, regardless of whether The Daily Press republished the statement.

The court also rejected Askew's argument that the verdict should be reduced by the amount of a settlement with other defendants. The court pointed out that Section 8.01-35.1(A)(1) of the Virginia Code only provides for such an offset when two or more defendants are liable for the same injury. In this case, Askew was found liable for the injury caused by her own statement, not by any injury caused by her co-defendants.

Libel Per Se? Libel Per Quod? Neither, Says Virginia Court

March 14, 2012,

Professional Timothy B. Hanks is a professional tax preparer who took offense at a television segment aired by WAVY Channel 10 in the Hampton Roads area that promised to inform viewers "how to avoid unscrupulous tax preparers," then proceeded to tell a story involving an admitted mistake made by his company, Reliable Tax & Financial Services. Hanks sued the station for libel, libel per se, and libel per quod, seeking five million dollars in damages. Judge Doumar (Norfolk) rejected all three theories and, last month, dismissed the entire case with prejudice.

Libel per se and libel per quod are variations of a defamation cause of action. Under Virginia law, a claim for libel per se may exist for certain categories of defamatory statements deemed serious enough to warrant presumed damages. This includes statements such as those accusing a plaintiff of committing a crime involving "moral turpitude," of being infected with a contagious disease, or, more commonly, of being unfit to perform the duties of his profession. Libel per quod, on the other hand, refers to statements the defamatory nature of which is not readily apparent, but which are understood by the recipient to be of a defamatory nature in light of extrinsic facts known by that person.

Hanks claimed the "unscrupulous" remark constituted defamation per se in that it imputed to him "an unfitness to perform the duties of office or employment for profit, a lack of integrity in the discharge of duties of such office, and the commission of a criminal Taxes.jpgoffense." The court disagreed for several reasons, holding that the statements (1) are not "of or concerning" Hanks, (2) are not capable of defamatory construction, and (3) are constitutionally-protected opinion. The court also found that Hanks failed to sufficiently plead actual malice or special damages.

First, the court pointed out that Hanks failed to explain why he was suing personally, rather than Reliable Tax, the company mentioned in the broadcast. Rather than dismiss the case for lack of standing, however, the court took judicial notice of the fact that Hanks was the president of Reliable Tax and proceeded to address the merits.

The court found that Hanks failed to show that the statement about "unscrupulous tax preparers" as a class was directed at him. Hanks never pleaded any facts to show how he was personally affected by this story or that it would be plausible for viewers to know that the story was about Hanks merely from the reference to tax preparers as a class.

The court also ruled that the term "unscrupulous" was not of a defamatory nature in that it was broad, unfocused, and constituted wholly subjective opinion. It did not, as Hanks argued, imply criminal behavior.

Lawyer's Tortious Interference Claim Against Former Lovers Dismissed

February 27, 2012,

A federal judge in the Southern District of New York has dismissed a claim by a lawyer who claims that his ex-lovers tortiously interfered with his prospective business relationships by posting allegedly defamatory material on the Internet. In Matthew Couloute, Jr. v. Amanda Ryncarz and Stacey Blitsch, the judge held that the lawyer failed to state a claim upon which relief could be granted and denied his motion for leave to amend.

Couloute had previously dated both Ryncarz and Blitsch. After the relationships ended, Ryncarz and Blitsch posted comments on an Internet site, www.liarscheatersrus.com, painting Couloute in an unfavorable light. Both women expressed their views that Couloute was a liar and a cheater, that he was manipulative and that he used the people in his life to get what he wanted. Couloute sued them both, arguing that these statements were defamatory and that they caused him damage by interfering with his law practice in New York. He claimed that the woman made the statements with the specific purpose of causing him financial trouble. The court disagreed.

Applying New York law (which closely parallels Virginia law in this area), the court said that the plaintiff's complaint could not stand because it did not contain all of the elements for a claim of tortious interference with prospective business relations. To state a proper claim, the plaintiff would have to allege: "(1) business relations with a third party; (2) the defendant's interference with those business relations; (3) the defendant acted with the sole purpose of harming the plaintiff or used dishonest, unfair, or improper means; and (4) injury to the business relationship." In this case, Couloute failed to allege a specific business relationship with which the defendants interfered.

The court also denied Couloute's request to add a count for defamation, reasoning that the defendants' statements amounted to opinions and nothing more. "Loose, figurative or hyperbolic statements, even if deprecating the plaintiff, are not actionable," the court wrote.

Defamation by Implication in Virginia

February 13, 2012,

Is truth an absolute defense to a defamation claim? Despite what you may have read elsewhere, the answer (here in Virginia) is no. Aside from the fact that falsity is an element of the claim that needs to be proven by the plaintiff (rather than an issue to be raised as a defense), "defamation by implication" is a developing area of the law in which liability can be based on a statement that is literally true.

In Virginia, before a defamation claim will get to a jury, a judge will need to make a threshold determination regarding whether the statement in question can be reasonably interpreted as defamatory under applicable legal principles. A statement you might interpret as defamatory isn't going to cause much damage to your reputation, and therefore will not support a defamation claim, if people reading or hearing the statement don't understand what it means. Sometimes, the context in which a statement is made makes all the difference as to how it will be interpreted and understood. When considering all the surrounding facts and circumstances, an undeniably true statement may nevertheless convey a false and defamatory impression.

This is where inferences come into play. Sometimes the true meaning of a statement comes not only from the actual words spoken, but from inferences fairly attributable to those words. In other words, a defamatory statement can be expressedmisdirection.jpg indirectly rather than directly. Determining whether an implied statement is capable of supporting a defamation claim can be tricky.

In Louisa County Circuit Court, Judge Sanner was recently called upon to analyze the following statement: "I personally did not inspect the retaining wall but I relied on Allen Roger's description of the wall's construction when I prepared the letter." To readers not familiar with the circumstances of the case, or the context in which the statement was made, the statement does not appear to convey a defamatory meaning. Judge Sanner, however, applying the defamation by implication rules, found that the statement was capable of supporting a defamation action and allowed the claim to go forward.

Examining the context of the alleged statement, the court found that the statement "can be understood as alleging that Sulzen is contending that the plaintiff who constructed the wall and who would be familiar with its construction, knowingly misrepresented the nature of the faulty construction, inferentially for purposes of passing any inspection conducted by Sulzen." Thus, while the alleged statement may have been literally true, the court found that it could nevertheless reasonably be understood to convey a false and defamatory implication, harming the plaintiff's reputation.

Jeremy Mayfield's Defamation Claims Against NASCAR Heard on Appeal

February 6, 2012,

The Fourth Circuit Court of Appeals is poised to rule on the appeal of NASCAR driver Jeremy Allen Mayfield, who is appealing the dismissal of his case involving claims of defamation, breach of contract, and deceptive trade practices. The trial court had dismissed the case based in large part on contractual release and indemnification provisions, including a release of liability arising from the publication of the results of any substance-abuse test.

Mayfield entered into a written contract with NASCAR in which he agreed to submit to random drug testing. On May 1, 2009, NASCAR asked Mayfield to submit to such a test. He complied and informed David Black, the president of Aegis, the chemical company performing the test, that he had taken Claritin and Adderall just prior to submitting a sample for testing. On May 7, 2009, Mayfield was informed that his test came back positive for amphetamines. After some confusion about the number of samples and whether Aegis tested the correct sample, NASCAR informed Mayfield that he was suspended as a driver and as the owner of a team. The president of NASCAR, Brian France, then held a press conference announcing to the world that Mayfield had been suspended for taking either performance-enhancing or recreational drugs.

After the press conference, Black informed reporters that the positive test result had nothing to do with any over-the-counter medication. As a result of these public statements, Mayfield and his corporate NASCAR team filed suit against NASCAR, NASCAR.jpgFrance, Aegis, and Black, claiming that they were responsible for publicly defaming him. Mayfield argued in the suit that the statements were "intentional, malicious, reckless and false."

The big question the Fourth Circuit will need to address (assuming it gets past the release) is the level of specificity required in a defamation complaint. Plaintiffs argued that Rule 9 of the Federal Rules of Civil Procedure does not specify a heightened pleading standard for defamation claims and that it allows states of mind, including the malice required for a defamation claim, to be pleaded generally, rather than bolstered with specifics. The Fourth Circuit, after all, has ruled that notice pleading applies to defamation actions. Did the trial court short-circuit the case unfairly? Should Mayfield have been given the opportunity to prove his claims at trial? We may soon know what the Fourth Circuit thinks, but the questions may be moot if the release language is enforced as written.

Virginia Defamation Lawyer's Arguments Rejected in Warren County

June 10, 2011,

When SolAVerde's attorney spoke to the media about his client's defamation claims against the Town of Front Royal and certain councilmen, he sounded pretty confident. The court, however, disagreed with his arguments and dismissed the Town from the lawsuit, finding it to be immune. The court also dismissed the defamation claims against the other defendants, but left the door open for SolAVerde, a Virginia solar energy company, to amend its claims against them.

The Complaint alleged that the defendants, in effect, accused the owners of SolAVerde of offering a bribe to public officials in connection with the bidding on a contract for a solar energy processing and production facility. According to plaintiff, a member of the Front Royal town council, whom they were unable to identify specifically, leaked a memorandum to the news media that raised the question of whether certain proposed monetary incentives were actually bribes. The plaintiffs sought $30 million in reputational damages.

However, in a May 26, 2011, opinion, Judge Paul Peatross Jr., sitting by designation in the Warren County court, dismissed the defamation claim. He found that the town was entitled to sovereign immunity because whatever the council members had done in connection with the bids and the possible contract, they were making a governmental decision. "The doctrine of sovereign warren_courthouse.jpgimmunity protects municipalities from tort liability arising out of the exercise of governmental functions," he wrote. Judge Peatross concluded that the acts alleged by the plaintiffs, including the alleged leak of the document, "amount to a governmental function by the Town of Front Royal acting in its legislative capacity regarding the consideration of solar power for the Town of Front Royal," and that the town is thus immune from defamation liability.

Regarding the defamation claims against the other defendants, the judge dismissed those too. Citing the Model Jury Instructions, he recited the elements of a defamation claim as "(1) a defendant made a statement of fact; (2) about the plaintiff; (3) that was heard or seen by someone other than the plaintiff; (4) which statement was false; and the defendant knew the statement was false or, believing it to be true, lacked reasonable grounds for such belief or acted negligently to ascertain the facts on which the statement was based." It was not necessary to get beyond the first element, as the court found no allegation of a factual assertion. The statement at issue was a legal question posed to the Town Attorney, not a statement of fact. As such, it was insufficient to state a proper defamation claim.

In Lawyer's Defamation Action, Draft Complaint Afforded Absolute Privilege

May 25, 2011,

Virginia courts have long held that statements made in connection with judicial proceedings are entitled to absolute protection from defamation liability. To encourage truthfulness in litigation, Virginia public policy has extended an absolute privilege to statements made in a party's pleadings, statements made during depositions, and to the testimony of witnesses at trial, provided the statements are generally relevant to the proceeding. But what protection, if any, should be afforded to pre-litigation statements, such as those contained in a demand letter to a prospective defendant?

Fairfax Circuit Court Judge R. Terrence Ney recently had the opportunity to consider whether a defamation claim could be based on allegedly defamatory statements made in a draft complaint forwarded to a small group of prospective defendants for purposes of exploring settlement opportunities prior to filing suit. The issue has not yet been decided by the Virginia Supreme Court, and is particularly interesting because the ethical rules that prohibit lawyers from making frivolous claims arguably do not apply to statements made outside a judicial proceeding. As a result, when drafting pre-litigation demand letters, many lawyers are far less assiduous in their fact-checking than they would be when filing an actual pleading with the court.

In a sense, the situation is similar to the question of whether to grant a privilege to a law firm's statements in a press release announcing a lawsuit. If a complaint contains defamatory statements, they would not be actionable, even if made with knowledge of their falsity, due to the absolute privilege for statements made in judicial proceedings. A press release discussingFairfax_courthouse.jpg the lawsuit, however, is made outside the judicial proceeding, so it does not enjoy the same level of protection. Like a press release, a demand letter containing a draft complaint is very closely related to a judicial proceeding, or at least a contemplated one, but is not part of the proceeding itself.

Judge Ney found that the threatened complaint was substantially similar to the actual complaint filed eight days later and that it was published only to the prospective defendants having a legitimate interest in the matter. Consequently, he held that the content of the draft complaint was entitled to absolute protection and he sustained the defendants' demurrer.

Judge Ney ultimately adopted the approach of the Restatement (Second) of Torts Section 586, which states that "An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding...if he [sic] has some relation to the proceeding." Building on that foundation, the court followed the two-part test established by an earlier circuit court case from Norfolk, which provided a two-step process to determine whether pre-litigation statements should be afforded an absolute privilege: (1) the court should determine whether the statement was made "preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of a judicial proceeding"; and (2) if so, it should then determine whether the statement "has some relation to a proceeding that is contemplated in good faith and under serious consideration."

This is a good rule, as it not only provides protection for statements made in connection with contemplated litigation, but also because it will discourage the practice of sending frivolous demand letters threatening litigation the sender has no intention of ever bringing before a court.

Lawyer Review Leads to Defamation Lawsuit

April 21, 2011,

Consumer review sites continue to grow in popularity. Sites like Angie's List, Avvo, and Yelp (to name but a few) allow people to post their experiences with lawyers, doctors, hairdressers, restaurants, roofers, and just about anyone else, and assign a rating to the service provider they used. When used honestly, these sites can provide a benefit to consumers. But they can also provide a mechanism for bogus reviews intended to maliciously destroy a business's reputation. Here in Virginia, negative reviews are often the subject of defamation lawsuits.

In general, the First Amendment protects expressions of opinions on these sites. All legitimate reviews, both positive and negative, can help consumers come to well-informed conclusions. Negative reviews, however, cross the line if they include false statements of fact. Consumers are free to express unfavorable opinions regarding their experiences with a service provider, but the First Amendment does not allow them to defame the service provider by posting false information.

A Texas lawyer recently filed a defamation action, claiming that a negative review that he received on Citysearch.com was not only derogatory but false and was the result of a conspiracy to defame him, evidently in retaliation for his decision to fire a paralegal at report card.jpghis law firm. Attorney Michael Weston sued his former paralegal and the man believed to be her husband.

Weston says in his complaint that he fired the paralegal for insubordination on November 6, 2010, after she had been on the job less than a month. A couple of weeks later, he claims, the paralegal and/or her husband wrote a review on Citysearch.com, claiming to be former clients of the firm and stating that they had "found him to be condescending to my situation and cold in demeanor," adding that "if you are looking for a factory that turns out debt settlements then this attorney is for you."

Weston claims in his lawsuit that the statements were false in that neither his paralegal nor husband had ever been clients of his law firm. He contends that he lost business because of the review, and he is seeking lost profits of $250,000 and reputational damages of $1 million.

AP Reporter Accused of Libel by Tweet

March 31, 2011,

Did an Associated Press reporter commit a foul against an NBA referee earlier this year by defaming him on Twitter during a league game? On March 14, 2011, National Basketball Association official Bill Spooner filed a federal defamation case against Associated Press sports beat reporter Jon Krawczynski for a brief item that Krawczynski wrote on his Twitter account that suggested Spooner was officiating a game dishonestly. During an NBA game between the Minnesota Timberwolves and the Houston Rockets on January 24, 2011, Krawczynski tweeted (twote?) that Spooner told Minnesota coach Kurt Rambis after an allegedly bad call against a Minnesota player that Rambis would "get it back," and that Spooner went on to compensate for the incorrect call with a "make-up" call against Houston.

Spooner says that although he had a brief verbal exchange with Rambis about the foul call, he said nothing to the coach about giving anything back to the Timberwolves. His lawsuit, filed in the U.S. District Court for the District of Minnesota, says Krawczynski defamed him by telling Krawczynski's Twitter followers in effect that Spooner had engaged in a "form of game fixing." Spooner discusses in his complaint that the NBA was recently caught up in a controversy involving former ref Tim Donaghy, who pleaded guilty in federal court in 2007 after being accused of betting on games that he officiated.

The NBA itself discouraged the lawsuit, although it doesn't believe Spooner actually cheated either. According to a league spokesman, "We investigated the content of the tweet when it appeared, found it to be without substance, and informedBball.jpg Mr. Spooner that we considered the matter closed. We subsequently advised Mr. Spooner's lawyer that we did not think suing a journalist over an incorrect tweet would be productive."

The lawsuit raises plenty of interesting questions. First, is Spooner a "public figure" for libel purposes, or, alternatively, did Krawczynski's tweet implicate a matter of "public concern"? Spooner's defamation lawyers clearly don't want him to be treated as a public figure, cognizant of the higher hurdles public-figure plaintiffs must overcome in defamation actions. They make a point of stating in the complaint that Spooner "does not grant media interviews" and that he "eschews contact with the public." If the court treats Spooner as a public figure, the First Amendment would protect Krawczynski's statement unless it was made with knowledge that it was false, or with reckless disregard for its truth or falsity.

Did Spooner suffer any harm from the tweet? The NBA says it disregarded the statement. Moreover, Twitter is an ephemeral medium, and Krawczynski had only about 2,000 followers at the time. Was there any measurable damage to Spooner's reputation? Some say the lawsuit is ill-advised due to the lack of harm. But you know what? If what Spooner alleges is true, this is a solid case. Defamation law does not require him to prove actual damage to his reputation. In circumstances such as this, where an allegedly false statement relates directly to a plaintiff's fitness to perform the duties of his job, harm to reputation is presumed and requires no proof.

It's not only basketball fans who will be watching to see how this one turns out.

"Girls Gone Wild" Defamation Suit Nets $3 Million

March 24, 2011,

Kids these days. The use of fake IDs by teens is nothing new, but when that ID contains the name of a real person, and the imposter goes on to do naughty things while posing as someone else, the law of defamation can come into play. And if you're inclined to post a YouTube video of that identity thief engaged in acts of questionable moral character, you'd better conduct some due diligence to ensure you don't destroy someone's reputation. That's a lesson that Joe Francis, the entrepreneur behind the risqué "Girls Gone Wild" videos, may have just learned as a result of a $3 million default judgment entered against him earlier this month in New Jersey federal court.

In a complicated scenario typical of the Internet age, in 2008 Francis wanted to take advantage of that year's scandal involving New York Gov. Eliot Spitzer and a prostitute named Ashley Alexandra Dupre. He offered Dupre $1 million to appear in a magazine spread and participate in a promotional tour for "Girls Gone Wild," but withdrew his offer when he found that he already had useful footage of Dupre from five years before, when she was 17 years old.

After Francis used the footage, Dupre sued him, claiming that she was underage and did not understand the release she had signed. However, Francis was able to come up Fake IDs.jpgwith a video of Dupre providing consent to appear in "Girls Gone Wild," stating that she was 18, and showing the driver's license of another woman who was of legal age. Dupre then dropped her suit against Francis.

But Francis's legal troubles weren't over. The other woman whose driver's license was held aloft by Dupre was Amber Arpaio, who was in no way involved in "Girls Gone Wild." Arpaio sued Francis, Dupre, and the companies that produce the DVDs for defamation, invasion of privacy, misappropriation of her name, and conspiracy.

The judge wrote that a person is liable for defamation if he makes a statement regarding a private person (as opposed to a public figure) with knowledge that the statement is false, reckless disregard of its truth or falsity, or negligence by failing to determine the truth or falsity of the statement. He noted that Arpaio had alleged that the defendants produced a video in which Dupre represents herself as Arpaio, and thus by implication states that Arpaio is affiliated with the "Girls Gone Wild" franchise, a false statement. Arpaio also alleged that the defendants knew the statement was false or acted in reckless disregard of whether it was true or false. The court therefore found it appropriate to enter a default judgment.

As for arriving at the $3 million figure, the judge referred to Arpaio's "distress from being mistaken as somehow affiliated with Dupre or 'Girls Gone Wild' " as well as her fear that she might lose job opportunities because a prospective employer would search for her name on the Internet and find her ID being brandished by Dupre. He also noted that if she were to have children, they too might suffer emotional damage from being exposed to the material. "Given the unique nature of the Internet," the plaintiff's Internet expert wrote, "this branding is for life."