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Defamation Claim Against Maritime Lawyer Goes Forward

May 26, 2015,

The case of AdvanFort Co. v. International Registries, Inc. involves a defamation claim brought by AdvanFort and its owners against their former attorney, maritime lawyer John Cartner, and The Maritime Executive, a maritime industry journal. According to the complaint, shortly after AdvanFort complained about getting billed over $28,000 for less than two weeks' worth of legal services, Cartner wrote an article entitled "Self-Described AdvanFort 'Billionaire' May Not Be" in which he made numerous assertions allegedly calculated to lower AdvanFort in the estimation of the maritime community. Cartner responded that his article amounted to mere rhetorical hyperbole, which is not actionable, and that the article was not written with malice.

Defamation requires either a provably false factual assertion or a statement that can be reasonably interpreted as stating or implying actual facts about a person. Rhetorical hyperbole is protected under the First Amendment and cannot form the basis of a defamation claim. (See Milkovich v. Lorain Journal Co., 497 U.S. 1, 17, 21). The Fourth Circuit has described rhetorical hyperbole as a statement that "might appear to make an assertion, but a reasonable reader or listener would not construe that assertion seriously." (See Schnare v. Ziessow, 104 Fed. App'x 847, 851 (4th Cir. 2004)).

In analyzing whether a particular statement will be actionable as defamation in Virginia, it's usually helpful to review recent cases to see how actual judges have ruled. It's often not entirely clear whether a statement is an assertion of fact, an expression of opinion, or rhetorical hyperbole. Here's how Judge O'Grady ruled with respect to the various statements at issue in this article:

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Is it Slander to Call Someone a Liar?

December 13, 2014,

California lawyer Tamara Green has accused Bill Cosby of sexual assault. Bill Cosby, speaking through his publicist, characterized the accusation as "discredited" and as amounting to "nothing." First question: is Cosby calling Green a liar? Second question: is it defamatory to call someone a liar if they're actually telling the truth? Third question: is a celebrity personally liable for defamatory statements made by that person's attorney or publicist? Ms. Green believes the answers to all three questions are YES, judging by the fact that she sued Mr. Cosby for defamation a few days ago in Massachusetts federal court. Personally, I'm not so sure.

Let's begin at the beginning: what did Cosby actually say? In defamation actions, it is important to know the exact words used, lest liability be based on embellishments or mischaracterizations of those words by the plaintiff's attorney. First of all, it wasn't Cosby himself who responded to Ms. Green's allegations. Her lawsuit is based on statements made by his attorney and publicist. Back in 2005, when Ms. Green first went public with her accusations in an appearance on the Today Show (video below), Mr. Cosby's lawyer at the time, Walter M. Phillips, Jr., allegedly issued a statement calling the accusations "absolutely false" and saying that the alleged assault "did not happen in any way, shape, or form."

Years later, in a Newsweek interview published in February 2014, Cosby's publicist (claimed to be David Brokaw) gave Newsweek this statement: "This is a 10-year-old, discredited accusation that proved to be nothing at the time, and is still nothing." As if to demonstrate the reason we have a requirement here in Virginia to plead the actual words used, Ms. Green does not include this quotation in her complaint. Instead, she characterizes the statement as follows: "in an effort to continue the public branding of Plaintiff as a liar, Defendant Cosby through Brokaw stated explicitly, stated in effect, stated by innuendo, implied, and/or insinuated, that Defendant Cosby's drugging and sexual assault against Plaintiff Green never occurred, and therefore that Plaintiff Green lied and was a liar."

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Defamation Action Against 50 Cent Unlikely to Get Dismissed Early

May 5, 2014,

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

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

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Reliance on Responsible Source Negates Actual Malice

August 26, 2013,

When a defamatory statement is made about a public figure, a plaintiff must prove that the statement was published with actual malice, i.e. with knowledge that the statement was false or with reckless disregard of whether it was false or not. Mere proof that a defendant failed to investigate the truth of a statement is not enough to show actual malice, and where a defendant relies on a responsible source in making a statement, he has not been grossly negligent, much less malicious. However, evidence of intent to avoid the truth can be sufficient to satisfy the actual malice standard. The Second Circuit recently addressed these issues in Dongguk University v. Yale University.

When Shin Jeong-ah applied for a position as an art history professor at the prestigious Dongguk University in South Korea, she stated that she held a Ph.D. from Yale University in Art History, and she submitted a document on Yale University letterhead that purported to be a certification of her degree. The certification contained an exact reproduction of Yale Associate Dean Pamela Schirmeister's signature but misspelled the name and also misspelled the word "century" in Shin's listed concentration - Twentieth Century Art. Nevertheless, Dongguk hired Shin and sent Yale an Inquiry Letter with the certification attached seeking to verify its authenticity. Dean Schirmeister received the letter and responded via fax "confirming that the attached letter [the certification] was issued by the Yale Graduate School and signed by me."

Two years later, Dongguk became suspicious that Shin may have plagiarized her dissertation. An investigation revealed that Yale had no record of the dissertation and that in fact Shin had not received a Ph.D. from Yale. The Korean press latched on to the story, and Yale's Deputy Counsel Susan Carney and Dean Edward Barnaby began referring all Shin-related media inquiries to its Office of Public Affairs.

Dongguk's President, Youngkyo Oh, wrote Yale's President, Richard Levin, noting the contradictory answers Dongguk had received from Yale as to whether Shin held a Ph.D. from Yale. Oh attached Schirmeister's fax validating Shin's certification and asked Levin to confirm whether Shin had or had not received a Ph.D. from Yale. Yale.jpgCarney and Barnaby responded to the letter, expressing concern about the fax and indicating that it contained "indicia of authenticity." They did not ask Schirmeister if she had sent the fax but instead asked the Yale Police Department to look into the matter, suspecting that Shin had an accomplice at Yale who may have sent the fax. Carney responded to Oh's letter confirming that Shin was never a Yale student and that the certification and Schirmeister fax were not authentic. Carney indicated Yale would continue to investigate the matter.

In responding to media inquiries, Yale's Office of Public Affairs Assistant Director Gila Reinstein denied (1) the authenticity of the Schirmeister fax, (2) that Yale issued any document purporting to support Shin's Yale degree, and (3) that Yale ever received the Inquiry Letter. Dongguk contends that Reinstein's statements to the press were defamatory.

Dongguk eventually filed a criminal complaint against Shin. The U.S. Attorney's Office subpoenaed answers from Yale which prompted Yale's Associate General Counsel to investigate whether Yale had in fact received the Inquiry Letter. Eventually, the Yale mailroom confirmed receipt of the letter and its delivery to the graduate school. Schirmeister's assistant found the Inquiry Letter along with the responsive fax. Carney wrote President Oh to correct her misstatements regarding the Schirmeister fax and stated that it was indeed authentic.

Dongguk filed a complaint against Yale alleging defamation among other claims. The District Court initially allowed the defamation claim to go forward, but upon reconsideration entered summary judgment for Yale on all counts. Dongguk appealed.

The defamation claim was evaluated under the common law of Connecticut, which closely resembles Virginia defamation law. Dongguk was required to prove that Yale was responsible for the publication of a defamatory statement, identifying Dongguk to a third person, and that Dongguk suffered injury as a result of the statement. And because Dongguk was a "public figure," it was also required to prove that Yale published the statement with actual malice.

The Second Circuit affirmed the dismissal of the claim. The court reasoned that mere proof of failure to investigate is not enough to establish reckless disregard of the truth. Where statements are based on reliable sources, a defendant cannot be accused of gross negligence, much less actual malice. While evidence of intent to avoid the truth can be sufficient to constitute malice, there was no such evidence in this case.

Dongguk argued that Carney's statements expressing concern about the fax and its apparent receipt in the Dean's office and the fact that she initiated a police investigation indicate that she had serious doubts as to the truth of Reinstein's statements to the press. Accordingly, because Carney failed to investigate the truthfulness the statements, Dongguk contended that she acted with actual malice. The court disagreed.

Throughout the investigation, Carney noted her skepticism about whether the fax was manufactured yet failed to investigate its authenticity. However, failure to investigate does not establish actual malice without something more. Here, the court found that there was nothing more. Although the failure to discover a misstatement may demonstrate negligence, it does not establish actual malice. Dongguk had no evidence that Carney entertained serious doubts as to the truth of the statements or that her decision not to investigate further constituted purposeful avoidance of the truth.

Dongguk also argued that Yale's failure to retract its statements when it learned they were false established actual malice. The court noted that the actual malice inquiry considers the state of mind of the defendant at the time the statement was made. The failure to correct an earlier misstatement may be relevant to the actual malice inquiry but only where there is some evidence of actual malice at the time the statements were made. Here, there was no such evidence. None of the speakers involved were aware of the probable falsity of the statements when they were made, and Dongguk provided no evidence that anyone at Yale acted with improper motives.

The court held that Dongguk failed to present any evidence that any individual at Yale who was responsible for publication of a defamatory statement acted with actual malice. Therefore, it affirmed the district court's grant of summary judgment in Yale's favor on the defamation claim.

Anti-SLAPP Law Will Not Immunize Every Statement About a Celebrity

August 19, 2013,

Anti-SLAPP laws provide an expedited procedure for dismissing lawsuits that are filed primarily to inhibit the valid exercise of constitutionally protected speech. A defendant seeking to avail herself of an Anti-SLAPP statute must show that the allegedly defamatory statements concern a public matter or a matter of public interest. Not all statements about a person in the public eye qualify. Rather, the subject of the statement must be involved in a public controversy or be so famous that her involvement in a private dispute is a matter of public interest. A California appellate court recently addressed this issue in Albanese v. Menounos and concluded that some celebrity disputes are just none of our business and don't require the protection of the anti-SLAPP statute.

Lindsay Albanese is a celebrity stylist who worked at NBC for several years as a stylist for Maria Menounos of Access Hollywood fame. Albanese contends that on one occasion after leaving NBC, when Albanese and Menounos ran into each other at an event, Menounos loudly proclaimed that "Dolce and Gabbana won't lend to me anymore because they said you never returned anything." Menounos also allegedly told someone at the party afterwards that Albanese had stolen from her while she worked at NBC.

Albanese sued Menounos for defamation, tortious interference with prospective economic advantage, and intentional infliction of emotional distress, arguing that the statements were made with malice, actual knowledge of their falsity, and with specific intent to injure Albanese's reputation and employment. Her complaint seeks damages for injury to her personal, business and professional reputation, embarrassment, humiliation, severe emotional distress, shunning, anguish, fear, loss of employment and employability and economic loss in the form of lost wages and future earnings. Menounos moved to strike the complaint under California's anti-SLAPP law.

In order to strike a complaint under California's anti-SLAPP law, a party must make a threshold showing that the challenged cause of action is one arising from a protected activity such as free speech in connection with a public issue or an issue of public interest. The burden then shifts to the opposing party to demonstrate a probability of prevailing on the claim. A cause of action is subject to dismissal under the statute only if both steps of the anti-SLAPP analysis are met.

Menounos argued that the statements at issue constituted speech in connection with a public issue because Albanese is in the public eye and any statement concerning a person in the public eye qualifies as speech in connection with a public issue or an issue of public interest. To show that Albanese is in the public eye, Menounos paparazzi.jpgasserted that (1) Albanese refers to herself as a style expert and celebrity stylist in her website, and on her blog and Twitter and Facebook accounts; (2) a Google search of Albanese's name reveals over 662,000 entries and hundreds of articles, images, reports and advertisements about Albanese and her career as a celebrity stylist; (3) Albanese appeared on the national TV show Hair Battle Spectacular; (4) Albanese worked with nationally known figures such as Maria Menounos, Paula Abdul and Lara Flynn Boyle; (5) Albanese dressed the female cast members of Glee and the contestants on Bachelors and Bachelorettes; and (6) Albanese served as a "celebrity stylist spokesperson for nationally recognized products such as Seven for all Mankind and Famous Footwear Shoes.

The lower court denied the motion to strike finding that Menounos failed to make the threshold showing that the causes of action arise from a public issue or an issue of public interest. Menounos appealed, and the Court of Appeals affirmed.

On appeal, the court noted that the purpose of the anti-SLAPP statute is to encourage participation in matters of public significance and discourage meritless litigation designed to chill the exercise of First Amendment rights. The statute does not define what constitutes a public issue or an issue of public interest, so the court examined cases in which the public issue requirement was met and cases in which it was not.

The court's analysis concluded that a public interest is at stake if (1) the subject of the statement is a person in the public eye; (2) the underlying activity could affect large numbers of people beyond the direct participants; or (3) the statement involved a topic of widespread public interest. Where the issue is of interest only to a private group, the activity must occur in the context of an ongoing controversy such that its protection would encourage participation in matters of public significance. Case law also suggests that there should be some degree of closeness between the challenged statements and the asserted public interest. Contrary to Menounos' assertion that any statement about a person in the public eye is sufficient to meet the public interest requirement, the assertion of a broad, amorphous public interest is not enough.

The court found that while there is some public interest in Albanese based on her profession as a celebrity stylist, there is no public controversy concerning her, Menounos, or Dolce and Gabbana. No evidence existed that the public is interested in the alleged theft of items from Menounos or Dolce and Gabbana. Menounos argued that Albanese voluntarily placed herself in the public eye by creating and maintaining a web page, but the court did not think that the publicity was sufficient to make her a public figure in all contexts. Even if Albanese is a well-known stylist, the court found no evidence that she was involved in a public controversy or that her fame is so great that her involvement in this private dispute is a matter of public interest. Accordingly, the court affirmed the lower court's decision to deny the motion to strike. Albanese's claims will go forward.

Mann's Defamation Suit Survives Anti-SLAPP Motion

July 29, 2013,

Well-known climate scientist Michael Mann made good on his threat to sue the National Review and columnist Mark Steyn for defamation based on statements made online questioning Mann's global warming research. In response, the defendants filed a special motion to dismiss under D.C.'s anti-SLAPP statute, arguing that the online statements were made in furtherance of the right of advocacy on an issue of public interest. The court found that the anti-SLAPP statute did apply but nevertheless denied the motion.

Mann is a professor of meteorology and the Director of the Early System Science Center at Penn State. He is well known for his research on global warming and has published papers and books on the subject. The University of East Anglia's Climate Research Unit (CRU) exchanged emails with Mann which were later misappropriated. In one email, a CRU scientist referred to Mann's "nature trick" of adding in real temperatures for the last twenty years and from 1961 to "hide the decline." Upon discovery of the emails, the University of East Anglia investigated the matter and concluded that the honesty and rigor of the CRU scientists was not in doubt but that the email referencing Mann's "nature trick" was misleading.

In 2010, Penn State initiated an investigation of Mann and the CRU emails. The investigatory committee was comprised entirely of Penn State faculty members. Based on an interview with Mann, the committee cleared Mann of three of four charges against him. The last charge involved an allegation that Mann's research might deviate Mann.jpgfrom accepted norms. The committee interviewed an MIT professor who was critical of Mann's work and later expressed dismay with the scope of the investigation and the committee's analysis of the CRU emails.

At the same time, in response to pressure from the National Review, Steyn and others, the EPA investigated Mann and found no evidence of scientific misconduct. The National Science Foundation also investigated Mann's work and found that Penn State had not adequately reviewed the allegations and failed to interview critics of Mann's work

Two years later, Penn State was in headlines due to the Jerry Sandusky scandal. FBI Director Louis Freeh concluded that the university had failed to properly investigate allegations of misconduct when they arose and suggested that it should undertake a thorough and honest review of its culture which seemed to value the avoidance of bad publicity and its consequences above all else.

The National Review seized on the Sandusky scandal and published Steyn's article "Football and Hockey" on its website in a section called "The Corner." The piece contained an excerpt from and a link to a post by Rand Simberg on entitled "The Other Scandal in Unhappy Valley" which compared the Sandusky scandal and the university's failure to handle the matter properly with its investigation into Mann's work. Steyn agreed that Simberg had a point but admitted he might not have "extended the metaphor all the way into the locker-room showers" with quite the zeal Simberg did. Steyn also stated that Mann was the man behind the "fraudulent climate-change hockey stick graph, the very ringmaster of the tree-ring circus," and he concluded by noting the similarities between Penn State's investigation of Sandusky and Mann and questioning its handling of both matters.

Mann demanded a retraction and apology for the accusations of academic fraud. In response, the National Review asserted that the term "fraudulent" was used to mean "intellectually bogus and wrong" rather than criminally fraudulent.

Mann sued in D.C. Superior Court, alleging libel and intentional infliction of emotional distress against the National Review, Steyn, Simberg and the owner of, Competitive Enterprise Institute. His complaint was based on the statements that (1) Mann had engaged in data manipulation and scientific misconduct and was the "poster-boy of the corrupt and disgraced climate science echo chamber," (2) Mann was the man behind the "fraudulent climate-change hockey stick graph, the very ringmaster of the tree-ring circus," and (3) Mann's work was intellectually bogus.

The National Review and Steyn moved to dismiss under both D.C.'s Anti-SLAPP Act and Federal Rule of Civil Procedure 12(b)(6). The defendants argued that their comments are protected by the First Amendment and that the Anti-SLAPP Act applies because Mann's claims stem from statements made in a public forum that discusses issues of public interest, i.e., climate change and global warming. Mann asserted that the Anti-SLAPP Act was enacted to deter large private interests from bringing meritless suits to deter common citizens from exercising their political or legal rights and was not intended to apply to cases such as this. The court found that because the defendants' comments were made with respect to climate issues which are environmental issues and issues of public interest, and were made in publications that were available to the public, the Anti-SLAPP Act applies.

The Anti-SLAPP Act provides that if a party filing a special motion to dismiss makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the court will grant the motion unless the responding party shows that the claim is "likely to succeed on the merits." The parties disagreed on the level of proof this standard requires. The defendants asserted that "likely" poses a higher burden than "probability," which is the term used in the corresponding California statue upon which the D.C. statute is based. Mann argued that there is no difference between "likely" and probability." The court turned to Black's Law Dictionary which defines the "likelihood of success on the merits test" in the context of a preliminary injunction as requiring the litigant to show "a reasonable probability of success in the litigation." The California statute requires the plaintiff to show a "probability of prevailing on the claim by making a prima facie showing of facts that would, if proved, support a judgment in the plaintiff's favor." The court held that the standard is similar to that used on a motion for judgment as a matter of law and that Mann must present a sufficient legal basis for his claims in order to survive the anti-SLAPP motion.

The defendants argued that Mann would be unable to make a prima facie case for libel because he could not prove the actual malice required where plaintiff is a public figure. They also argued that Mann would be unable to prove the falsity of the statements because the statements were ones of opinion. Mann countered that he could demonstrate actual malice by showing that the defendants entertained serious doubts as to the truth of the statements or acted with a high degree of awareness that the statements were probably false. He argued that the statements were false and defamatory per se and that the defendants made them with knowledge of their falsity or with reckless disregard of the truth. He contended that whether he engaged in fraud is verifiable by analyzing the elements of fraud or considering the investigations conducted regarding his research.

On the issue of malice, the court found that sufficient evidence existed to show at least reckless disregard of truth or falsity, as Mann had been investigated several times, at least once due to the defendants' accusations, and his research has been found to be accurate. The court held that where the defendants consistently claim that Mann's work is inaccurate despite being proven accurate, then there is a strong probability that the defendants disregarded the falsity of their statements and did so with reckless disregard. Although the evidence was not yet sufficient to show clear and convincing evidence of actual malice, the court found sufficient evidence to necessitate further discovery on the matter.

Regarding the fact vs. opinion question, the court noted that opinions may be actionable if they imply a provably false fact or rely upon stated facts that are provably false. To determine whether a statement is actionable opinion, a court must examine the context of the statement. The court found that the statements at issue here questioned facts rather than simply inviting readers to ask questions. The court held that, given the definition of fraud and the common readers' interpretation of the words "fraud" and "fraudulent," the statements were more than brutally honest commentary. The court held that the assertions of fraud rely upon facts that are provably false in light of the fact that Mann has been investigated and his research and conclusions determined to be sound. Evidence indicated that the defendants' statements were not pure opinion but rather were statements based on provably false facts.

The defendants also argued that the statements were rhetorical hyperbole - witty and obvious exaggeration-- which is protected under the First Amendment, and that the statements criticized Mann's work and ideas rather than Mann himself and thus cannot be defamatory. The court found that, when considered in the context of all of the comments and accusations made over the years and the "constant" requests for investigations of Mann's work, the statements appear more as factual assertions.

Finally, the defendants argued that their statements were protected by D.C.'s fair comment privilege, which protects opinions based on facts that are well known to readers. To take advantage of this privilege, a defendant must show that the publication was fair and accurate and that the publication properly attributed the statement to the official source. Here, the court found that the accusations of fraud were provably false as several reputable bodies had found his work sound. Thus, the court held that the fair comment privilege did not apply.

For these reasons, the court denied the motions to dismiss and lifted the discovery stay.

D.C. Defamation Case Filed Against Redskin Fred Davis

April 20, 2013,

Makini R. Chaka is an owner of Remy Enterprise Group, LLC ("Remy"), an entity that arranges and coordinates logistics for celebrity appearances at public and private events. When Remy arranges a celebrity appearance, either the venue or the celebrity pays Remy a portion of the fee paid to the celebrity. Remy's clients include professional athletes, music recording artists and other well-known entertainers.

According to a new lawsuit filed in District of Columbia federal court, Washington Redskin tight end Frederick Davis has described Chaka as a "madam" and "pimpette" who procures prostitutes for professional athletes. In her Complaint, Chaka contends that Davis also insinuated that she is violent, dishonest and an extortionist. Chaka claims that Davis said as much to Chaka's clients and potential clients, and has sued him for defamation, invasion of privacy, tortious interference with contract and intentional infliction of emotional distress.

To falsely identify someone as a "madam" or "pimp" may be defamatory, but much will depend on the precise words used and the context in which the statement was made. Not long ago, motorcycle stuntman Evel Knievel sued ESPN when they published a picture of him with his arms around two women (one of whom was his wife) and the caption, "Evel Knievel proves that you're never too old to be a pimp." Evel claimed the caption was defamatory because he was not actually soliciting prostitution and his wife was not a prostitute. The Ninth Circuit held that the statement was not actionable, based primarily on the fact it was published on an extreme sports website full of lighthearted, jocular content targeted at a youthful audience. In other words, the court found that a reasonable reader would likely not interpret the "pimp" statement literally.

In this case, Chaka doesn't identify the complete statement or the context in which it was made. She alleges only that "In 2012, Davis [and his bodyguard] repeatedly told third parties that Chaka is a "madam" and "pimpette" who procures prostitutes for professional athletes." Without more, it is difficult to tell how a reasonable listener would interpret those statements and whether this case is likely to withstand a motion to dismiss.

Chaka asserts that her good name and reputation are crucial to Remy's ability to maintain current and secure new clients. She claims that Davis was aware of some of the clients and venues with which Remy had ongoing business relationships, and that publication of the allegedly defamatory statements to these clients resulted in the cancellation of contracts and have harmed Remy's reputation and business.

According to Chaka, Davis acted maliciously in making the statements, knowing them to be false. The news media published the statements in print, on the radio, on television and on the Internet. At Chaka's request, most of the media outlets stopped publishing the statements. Chaka asserts that publication of these statements harmed her reputation and that of her company, holding them up to public ridicule and contempt and deterring others from associating with them. Chaka contends Remy earned over $60,000 annually before the published statements but less than $30,000 since the statements were published. Chaka and Remy seek damages for lost income and profits, damage to reputation, and emotional distress.

Statements Based on Undisputed Facts Cannot Be Made With Actual Malice

November 29, 2012,

Attorney Ephraim Ugwuonye filed a defamation action against Omoyele Sowore, founder of, based on articles appearing on that website. Having previously been found in another case to be a public figure, Ugwuonye was required to demonstrate by clear and convincing evidence that the statements at issue were (1) defamatory; (2) false; and (3) made with actual malice. Public figures are required to prove that the defendant published a false statement with actual knowledge of its falsity or with reckless disregard for its truth. In this particular case, Mr. Ugwuonye was unable to meet that burden and the court entered summary judgment in favor of Mr. Sowore.

The statements at issue concerned real estate transactions in which Ugwuonye represented the Nigerian Embassy. The article claimed that Ugwuonye withheld the Embassy's $1.5 million IRS tax refund due from the sales because the Nigerian government owed him legal fees for representation in other litigation. The article also commented on past professional misconduct proceedings against Ugwuonye and referred to Ugwuonye's "professional shadiness."

The court found that prior to writing the article, Sowore investigated public records, researched cases involving Ugwuonye and also spoke to Ugwuonye by phone. Ugwuonye admitted that he withheld the tax refund as a fee to compensate him for legal work. The court found that statements that were not disputed could not have been Generic gavel.jpgmade with actual malice. Additionally, Ugwuonye did not submit any evidence that the statement regarding Ugwuonye's past professional misconduct proceeding was made with actual malice, and because the statement was substantially accurate, he could not overcome the qualified privilege for fair and substantially accurate reports on legal proceedings. Finally, Ugwuonye did not offer evidence that the reference to "professional shadiness" was done with actual malice, and it also amounted to non-actionable opinion and privileged reporting.

In a footnote, the court held that summary judgment could be entered against Ugwuonye simply because he failed to serve timely responses to requests for admissions. Those discovery requests sought admissions that the statements were substantially true and made without malice. Under Federal Rule of Civil Procedure 36, failing to respond to admission requests by the applicable deadline results in the matters in question being deemed admitted.

D.C. Defamation Cases Continue to Meet Anti-SLAPP Statute

November 2, 2012,

Statements made in the course of litigation by parties to the case are absolutely privileged and cannot form the basis of a defamation action. At the same time, reporters enjoy a "fair report" privilege that allows them to report and comment on judicial proceedings without fear of defamation liability, even if they repeat the allegedly defamatory statements in their coverage of the case, provided the report is a fair and accurate description of the case. Does it follow, then, that a litigant can make defamatory comments to a reporter during the course of a case? Most courts would answer that in the negative, since the reporter is not involved in the case. But if that litigant is speaking about an issue of public interest, such as the operation of the District's financial office, his comments may be protected by D.C.'s anti-SLAPP act.

Eric Payne, former contracting director for the District of Columbia, sued D.C.'s Chief Financial Officer, Natwar Gandhi, for wrongful termination. In an interview with The Washington Post, Gandhi claimed that he fired Payne because he was "a very poor manager," "nasty to people," and "rude to outsiders." Payne then sued Gandhi and the District of Columbia alleging that these remarks defamed him. The city has indicated that it plans to file a special motion to dismiss the case under the city's anti-SLAPP statute.

A "SLAPP" (or Strategic Lawsuit Against Public Participation) can exist in many forms but traditionally consists of a frivolous lawsuit filed by one side of a public debate against someone who has exercised the right of free speech NatG.jpgto express an opposing viewpoint. The anti-SLAPP statute was enacted primarily to protect citizen activists from these lawsuits filed for intimidation purposes, but can be applied in any situation where the lawsuit threatens the right of advocacy on issues of public interest.

Since the statute is relatively new, only a handful of suits have tested the anti-SLAPP statute. A D.C. firefighter filed a libel claim against a television station which aired a report about the firefighter's high overtime earnings. The court granted the station's anti-SLAPP motion to dismiss. Several federal litigants have invoked the statute, and the courts have thus far found that the law does not apply in federal court. Other cases have been settled before the anti-SLAPP claims were decided. In another case, television host Rachel Maddow invoked the statute to dismiss a claim filed by a Christian rock artist against her and MSNBC. Although a Superior Court judge granted the motion, the plaintiff is attempting to remove the case to federal court where the anti-SLAPP statute might not apply.

Payne will be unable to continue with discovery in his case while the anti-SLAPP motion is pending, and if the city prevails, Payne could be liable for the city's legal fees.

Does D.C.'s Anti-SLAPP Statute Apply in Federal Court?

October 28, 2012,

Former Georgia State Director for Rural Development, Shirley Sherrod, filed a defamation action in the United States District Court for the District of Columbia against bloggers Andrew Breitbart and Larry O'Connor based on a blog post allegedly portraying her as racist. The court denied defendants' special motion to dismiss under D.C.'s anti-SLAPP Act. Defendants appealed, and the case is now pending before the United States Court of Appeals for the District of Columbia Circuit

The district court cited three reasons for its dismissal. First, it found that entertaining defendants' motion would require retroactive application of the anti-SLAPP statute as Sherrod filed her complaint on February 11, 2011 and the D.C. anti-SLAPP Act did not become effective until March 31, 2011. Typically, only statutes that are purely procedural in nature can be applied retroactively, and the court held that the Act is substantive (or has substantive consequences). Defendants argue that whether the statute only applies to actions filed after its effective date is an issue of first impression, and summary disposition of a case of first impression involving a newly enacted statue that protects important First Amendment rights is not appropriate.

The district court found that even if the statute were purely procedural, the Erie doctrine, which requires federal courts sitting in diversity to apply state substantive law and federal procedural law, bars its application in federal court. Finally, the district court held that even if defendants could show that the statute is both retroactive and slap.pngapplicable in federal court, the plain language of the statute bars the motion to dismiss--the statute provides that a party may file a special motion to dismiss within 45 days after service of the claim, and here, the motion was filed more than two weeks after the 45 days had passed.

Another issue on appeal will be whether the court of appeals has jurisdiction to consider the appeal as a collateral order. In general, courts only have jurisdiction over final judgments, but the collateral order doctrine allows parties to appeal a narrow class of decisions that resolve important questions. Citing case law, defendants contend that the First, Fifth and Ninth Circuits have considered this issue and, of five substantive opinions, four hold that the denial of an anti-SLAPP motion to dismiss is immediately appealable. Further, defendants argue that the Supreme Court and the District of Columbia Circuit have applied the collateral order doctrine where a defendant seeks an appeal to vindicate rights of high value such as ones embodied in the Constitution. Defendants contend that because the case involves constitutionally protected free speech regarding public figures and issues of public importance, the court should exercise jurisdiction over the appeal.

Defamation Case Against Eliot Spitzer and Slate Dismissed

October 8, 2012,

Libel and slander claims depend to a large extent on whom the plaintiff targeted with the allegedly defamatory statement. Defamatory words may not support a cause of action unless they directly or inferentially refer to the plaintiff--this has come to be known as the "of and concerning" test. The defamation case filed against former Governor Eliot Spitzer and Slate Magazine Slate for a column Mr. Spitzer wrote in 2010 about an insurance bid-rigging scandal was recently dismissed by a New York court on the ground that the article did not sufficiently identify the plaintiff--a former insurance executive at Marsh & McLennan--as the subject of the statements.

William Gilman's work for Marsh included negotiating "contingent commissions"--fees paid by insurers to insurance brokers who place insurance business with the insurer. As attorney general, Spitzer took the position that Marsh's use of such commissions was illegal. A lawsuit ensued and Gilman was convicted of one count of restraint of trade and competition. While Gilman's appeal was pending, the trial judge vacated his conviction because exculpatory evidence had not been disclosed during trial. Spitzer wrote an article published on in response to a Wall Street Journal article criticizing his handling of the Marsh case. Gilman brought a claim for defamation against Spitzer and Slate based on statements in Spitzer's article.

Gilman's defamation claim was based on (1) a reference to "the many employees of Marsh who have been convicted and sentenced to jail terms" and (2) the statement that Marsh's employees "pocketed ... increased fees and kickbacks." Defendants argued that neither of the challenged statements was "of and concerning" Gilman and therefore could not be defamatory.

Whether a statement is "of and concerning" the plaintiff is a question of law for the court to determine at the pleading stage, considering the challenged words in context and giving the language a natural reading. Because eliot_spitzer.jpgGilman was not mentioned by name in the article, in order to be defamatory, the language must be such that persons reading it would understand that it refers to Gilman. Gilman argued that a reasonable reader would understand the statement to be about him based on preceding sentences referring to the dismissal of two cases after conviction. The court disagreed and found that no reasonable reader of the entire passage would come away thinking both that Gilman's case was dismissed after conviction and that he was convicted and jailed on those charges.

Regarding the statement that Marsh's employees "pocketed ... increased fees and kickbacks," the court noted that statements which refer to an organization do not implicate its members. Gilman argued that the article's preceding references to the two dismissed cases sufficiently tied him to the statement, but the court found that if anything, the preceding sentences tended to weaken any inference to Gilman. The court also rejected Gilman's attempt to characterize the challenged statement as referring to only 20 individuals who were subject to prosecution. Courts have allowed defamation claims to proceed where a statement referred generally to a group numbering 25 people or fewer, but the court here found the argument unsupported by the language which referred broadly to "Marsh" and "its employees" rather than to a subset of employees who were subject to prosecution. Finding that the allegedly defamatory statements could not be reasonably interpreted to be "of and concerning" Gilman, the court dismissed the defamation claims.

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.

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.

Defamation Claims Asserted by Church Against Former Members

May 17, 2012,

Julie Anne Smith and her family attended Beaverton Grace Bible Church for over two years. When the church dismissed one of its employees for "subversive conduct," the Smith family sought meetings with the Pastor and Elders to discuss the situation because they felt the termination was handled poorly. During the meetings, the Smiths and church officials discussed church policies and governance. Later, an elder informed Mrs. Smith that she must "recant" or her entire family would no longer be welcome at the church. The Smiths stopped attending the church.

Mrs. Smith later learned that Oregon authorities were investigating allegations of child molestation by a teenage member of the church whom she had seen in the child care area. The Pastor and Elders came unannounced to the Smith home demanding to know whether the Smiths knew who had reported the abuse. The Pastor informed the Smiths that they were "excommunicated."

Mrs. Smith began posting comments about the church under Google's "reviews" of the church. Congregants, former congregants, and the Pastor also posted comments, and the dialogue about church governance and doctrine continued. The Pastor removed many postings, so Mrs. Smith began her own blog, Beaverton Grace Bible Church Survivors, where she continued making and encouraging comments.

Shortly thereafter, the church and its Pastor filed a defamation complaint against Mrs. Smith and her daughter based on statements they posted online. The allegedly defamatory comments included statements that the Pastor misled the congregation and used "control tactics," that the church was not a healthy or safe place, was destructive and disturbing, and that it had a spiritually abusive environment. Mrs. Smith wrote that there is something "creepy "about the church, and she claimed that the church turned a blind eye to known sex offenders. She stated that the Pastor's "extra-biblical legalistic teaching" was wrong and that he was a liar. Mrs. Smith's daughter posted a Google review stating that the Pastor micro-managed things and bullied people and that one could not find grace at the church.

The Smiths responded with a Special Motion to Strike under Oregon's anti-SLAPP statute which allows a defendant to move to strike a claim that "arises out of" a statement made in a public forum in connection with an issue of public interest. If a defendant shows that the claim indeed "arises out of" such a statement, the plaintiff must present substantial evidence that the claim will prevail.

The anti-SLAPP statute should apply, in my view, because the Internet is a "public forum" and the statements concern matters of public interest. Various segments of the population have an interest in the statements at issue, including members of churches all over the world, people concerned with questions of personal salvation, radio listeners who hear the Pastor's sermons broadcast in the greater Portland area, persons who are the focus of the Church's evangelism, and those debating the impact of "spiritual abuse."

The church may end up having to pay the Smiths' attorneys' fees, because it's unlikely it will be able to demonstrate a likelihood of success on the merits. The statements at issue concern matters of opinion, which are not actionable. Moreover, the statements involve matters of church practices and personal religious conviction, which are protected by the "church autonomy doctrine." Finally, even if the court determines that a statement could be considered defamatory, the court will most likely find the church to be a "public figure," which would mean it could not recover absent a showing of malicious intent. Expect to see the SLAPP act put into action out in Oregon.

D.C.'s Anti-SLAPP Act to Be Tested in Maddow Defamation Case

May 12, 2012,

Christian minister and hard-rocker Bradlee Dean and his non-profit foundation, You Can Run But You Cannot Hide International (YCR), brought a defamation suit against liberal talk show host and commentator Rachel Maddow for comments Maddow made on The Rachel Maddow Show. Maddow is hitting back hard, filing a motion to dismiss under the District of Columbia's relatively new anti-SLAPP Act. If Maddow's motion is successful, Dean's defamation case will not only be dismissed with prejudice, but Maddow will be entitled to recovery of her attorneys' fees.

The complaint alleges that Maddow disparaged Dean's physical appearance, first name, profession, and standing in the community and represented that he and YCR advocate the execution of homosexuals. In her commentary (excerpted below), Maddow mentioned that Dean denied having called for the execution of homosexuals, but Dean and YCR contend that Maddow did so begrudgingly and in a way that suggested their denial was disingenuous.

Dean charges Maddow with referring to him as a "bloodthirsty" individual calling for the "upping of the bloodshed in America's culture wars," and accusing him of advocating the use of foreign enemies against America because Christians "aren't doing the job by killing gays and lesbians." According to the plaintiffs, Maddow's comments proliferated in the media and led to Dean receiving Internet death threats from gay activists. The plaintiffs contend that Maddow made these comments as a liberal member of the media and lesbian activist in order to harm the presidential campaign of Congresswoman Michelle Bachman to whom Maddow linked Mr. Dean and YCR on several occasions.

Maddow has moved to dismiss the case under D.C.'s Anti-SLAPP law. SLAPP is an acronym for Strategic Litigation Against Public Participation. The D.C. Anti-SLAPP Act of 2010 is designed to discourage frivolous lawsuits aimed at chilling the exercise of free speech rights. Virginia does not have an anti-SLAPP statute, and the law in D.C. did not become effective until March 31, 2011.

In her motion, Maddow gives three reasons why Mr. Dean's lawsuit should fail: 1) Maddow merely abridged and replayed original audio of Dean speaking on his own radio show; therefore, Dean cannot claim that he did not make the statements, and the fact that she abridged the original audio is irrelevant; 2) Maddow's commentary on Dean's statements is classic opinion and rhetorical hyperbole--fanciful language that may be exaggerated but is not grounds for a defamation suit; and 3) the fair comment privilege protects Maddow's commentary--the broadcasts featured Dean's actual statements and indicated the source of those statements such that viewers were free to make up their own minds regarding Maddow's remarks. Maddow contends that Dean's lawsuit is without merit and was instead filed to further his self-described mission to stop the "radical gay agenda." She asks the court to punish Dean for filing the suit by dismissing it and granting legal fees.

This is one to watch...stay tuned.