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The Unintended Consequences of Filing a Lawsuit

March 31, 2014,

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

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

Continue reading "The Unintended Consequences of Filing a Lawsuit " »

SCoVA Clarifies Law of Qualified Privilege

November 1, 2013,

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

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

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

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

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

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

Defamation Claim Dismissed for Failure to Plead Exact Words

October 21, 2013,

To survive demurrer, claims for defamation must set forth the exact language of the alleged statements claimed to be defamatory. Some Virginia judges (like Judge Charles E. Poston of Norfolk) refer to this requirement as a "heightened pleading" standard, but care should be taken not to confuse this terminology with the heightened pleading standard for fraud claims, which generally requires that fraud allegations identify the time, place, content, and maker of each alleged fraudulent statement. No such particularity is required for defamation claims in Virginia.

Judge Poston recently sustained a demurrer to a defamation claim that failed to allege the specific words spoken. In Owens v. DRS Automotive Fantomworks, Inc., Mr. and Mrs. Owens tasked DRS and Daniel Short with converting their 1960 Thunderbird into a 1960 Thunderbird Police Interceptor. The Owens paid DRS two deposits of $15,000 each which DRS used for restorations, repair work and part expenditures including the purchase of a Police Interceptor from Alexander Thiess. When the defendants refused to give the Owens documentation of the expenditures, the Owens asked DRS to return the vehicle. DRS demanded that the Owens pay an additional $3,313. The Owens refused and sued DRS. DRS filed a counterclaim alleging that the Owens defamed it in statements made to Mr. Theiss and his superiors. The Owens demurred to the defamation counterclaim, arguing that it failed to allege sufficient facts.

The allegedly defamatory statements were that the Owens described Mr. Short's business practices as illegal, criminal, shady and not on the up-and-up; asserted that Mr. Short and DRS were under criminal and civil investigation and that they likely stole the Police Interceptor; claimed Mr. Short was a "liar" regarding the history of Tbird.jpgthe Police Interceptor, and that he deceived and overcharged the Owens for the Interceptor. The counterclaim, however, contained only two verbatim quotes: that the Owens called Mr. Short a "liar" and that DRS sold vehicles with "open-titles." The court found the vague allegations insufficient.

The court held that the counterclaim failed to meet the "heightened pleading" requirement for a defamation claim because (with two limited exceptions) DRS did not allege the exact words or phrases used. Words of an equivalent or similar nature, summaries and generalizations are not adequate. The heightened pleading requirement, the court held, is to ensure that parties do not frame statements to favor their claims, resulting in bias to the other party. Additionally, the two single-word quotations are not enough. The quotes lacked context and were so vague as to be meaningless.

The court also found that even if the alleged statements could be considered sufficiently specific, they constituted non-actionable opinion. A factual statement can be objectively characterized as true or false whereas an opinion is relative in nature and is dependent on the speaker's viewpoint. Here, words such as "shady" and "overcharged" depend on the Owens' viewpoint and, if those words were used at all, would be statements of opinion. The court found that the allegation that Mr. Short and DRS were "under criminal and civil investigation" is a generalization that would require the speaker to define those terms in order to state an actual fact. The noncommittal statement that the car was likely stolen was clearly meant as an opinion, and calling Mr. Short a "liar," without alleging any context, was too vague to be considered an assertion of fact. Therefore, the court sustained the demurrer.

Federal Employees May Be Immune From Defamation Claims

April 8, 2013,

I previously reported on the Stafford County case of Suzanne Brown v. Katherine Schoeneman in which Brown, an FBI agent, brought a defamation action against Schoeneman for allegedly false reports Schoeneman made to superiors accusing Brown of making sexual advances toward her. The Government removed the case to federal court, substituted itself as the defendant under the Westfall Act, and moved to dismiss under the Federal Tort Claims Act. The court granted the motion as the FTCA's waiver of sovereign immunity expressly excludes claims for libel and slander. See 28 U.S.C. § 2680(h).

The Westfall Act (aka the Federal Employees Liability Reform and Tort Compensation Act of 1988) amended the Federal Tort Claims Act to make it the exclusive remedy for torts committed by federal employees acting within the scope of their employment. It precludes federal employees from being sued for claims arising under state tort law (such as slander or intentional infliction of emotional distress) if they were acting within the scope of their employment. See 28 U.S.C. § 2679(b)(1). If the FTCA precludes recovery against the United States, then the plaintiff may be left without a remedy, as this case demonstrates.

Upon consideration of the Government's motion to dismiss, the only issue before the court was whether the allegedly defamatory acts fell within the scope of Ms. Schoeneman's employment. The plaintiff did not dispute that if the conduct was committed within the scope of employment, substitution of the United States as the defendant and removal to federal court was appropriate.

The Government's certification that a party acted within the scope of employment is conclusive unless challenged. Where challenged, the certification is prima facie evidence that the alleged acts were within the scope of employment, and the plaintiff must prove by a preponderance of the evidence that the employee was not acting brickwall.jpgwithin the scope of employment. A plaintiff is required to provide specific evidence rather than conclusory allegations that contradicts the certification. The question is always one of law for the court to decide, and discovery is not appropriate on the issue unless there is a material dispute of fact.

The court examined whether Brown had demonstrated by a preponderance of the evidence that Schoeneman was acting outside the scope of her employment when she reported Brown's alleged sexual harassment. The court noted that sexual harassment is illegal. The FBI has a policy of no tolerance where sexual harassment is concerned, and employees are encouraged to report such matters. Preventing and correcting workplace sexual harassment is therefore within the ordinary course of the FBI's business. Additionally, Schoeneman was on duty when she made the reports, and she made them at FBI facilities. Schoeneman, an FBI employee, followed FBI procedure and policy and reported an incident of harassment in the workplace. She clearly was acting within the scope of her employment, the court found. Brown had thus failed to meet her burden.

Brown argued that Schoeneman's conduct fell outside the scope of her employment because she committed an intentional tort when she reported the alleged harassment and because her reports were motivated entirely by her own interests and reckless disregard for the truth. The court rejected these arguments as the willfulness or wrongful motive of an employee does not excuse an employer's liability. Intentional torts are within the scope of employment as long as the act was done within the ordinary course of business. Any contrary rule would undermine the Government's sovereign immunity. Additionally, the Supreme Court of Virginia has held that an employee's motive in performing the allegedly tortious act does not determine whether the action falls within the scope of employment. The issue is whether the service in which the tortious act was done was within the ordinary course of business. For these reasons, the court dismissed the case.

FTCA Bars Defamation Claims Against Federal Government

March 6, 2013,

If you work for the federal government and a co-worker spreads false and malicious rumors about you that damage your reputation, it will be very difficult to pursue a claim for libel or slander against the individual in question. The recent Maryland case of Shake v. Gividen demonstrates the hurdles a prospective plaintiff would face in pursuing such an action.

Donald Shake worked for the Department of Veterans Affairs until he was terminated in 2011. Teresa Gividen and Brian Sexton also worked at the Department of Veterans Affairs. Gividen was the Assistant Human Resources Chief. Shake claimed that Gividen and Sexton accused him of accessing the medical records of a veteran and not completing hundreds of work orders. He asserted that Gividen and Sexton started rumors that Shake was the subject of disciplinary proceedings and that numerous complaints had been lodged against him. Shake sued Gividen and Sexton for defamation, alleging that they slandered his name and reputation by making false and malicious statements about him. Shake alleged that he lost his job and retirement benefits as a result of the slander and that his reputation was harmed such that he was unable to secure subsequent employment.

The United States filed a motion contending that Gividen and Sexton should be dismissed because they were acting within the scope of their employment, and it asked to be substituted as the sole defendant in the case pursuant to the Federal Tort Claims Act (FTCA). The United States further argued that Shake's defamation claim should then be dismissed for failure to exhaust administrative remedies and on sovereign immunity grounds. The court agreed.

The FTCA provides that when the Attorney General certifies that a defendant employee in a state court case was acting within the scope of his employment with the federal government at the time of the incident, the case shall capitol.jpgbe removed to federal court and be considered an action against the United States and the United states shall be substituted as the party defendant. 28 U.S.C. § 2679(d)(2).

Here, the United Stated Attorney General for the District of Maryland, acting on behalf of the U.S. Attorney General, certified that both Gividen and Sexton were acting within the scope of their employment at all times relevant to Shake's claims. Shake challenged the certification, and when certification is challenged, the burden shifts to the plaintiff to prove that the defendants were acting outside the scope of their employment.

In this case, Shake did not present any evidence nor hint at any evidence that might suggest that Gividen and Sexton were acting outside the scope of their employment. The court found that Shake therefore failed to meet his burden, and it dismissed the claims against Gividen and Sexton. The court substituted the United States as the sole defendant pursuant to the FTCA.

Under the FTCA, a plaintiff must exhaust his administrative remedies by presenting his claim to the appropriate federal agency before filing an action in federal court. Shake should have brought his complaint to the Department of Veterans Affairs. Shake claims that he appealed his termination to the Merit Systems Protections Board and therefore satisfied the exhaustion remedy. However, the United States provided evidence that there was no record of such a claim. The court found that Shake failed to file an administrative claim with the Department of Veterans Affairs as required by the FTCA and therefore it dismissed his claim.

The court went on to note that even if Shake had filed an administrative claim with the Department of Veterans Affairs, his action still would fail because the FTCA bars suits for slander against the federal government. See 28 U.S.C. § 2680(h).

Defamation of Character: Libel and Slander Law in Virginia

February 10, 2013,

Under Virginia law, the necessary elements of the tort of defamation (which includes both libel and slander) are usually expressed as (1) a publication about the plaintiff, (2) of an actionable statement, (3) with the requisite intent. This sounds simple enough, but proper application of these principles is far more complicated than one would expect. This is, in part, due to the fact that the test is circular, as it begs the question of what an "actionable statement" is. It is more useful to think of Virginia law of defamation as encompassing the following eight elements: (1) a factual assertion (as opposed to an expression of opinion); (2) that is false; (3) and defamatory in nature; (4) that is about the plaintiff; (5) and made to a third party; (6) in a setting or context that isn't privileged; (7) with the requisite degree of fault; (8) that causes actual or presumed damages (generally consisting of financial loss, loss of standing in the community, and/or emotional distress).

Element (6) refers to a defense, not an element of the plaintiff's proof, but I've included it in the list to clarify that an otherwise defamatory statement made in a privileged setting will not be actionable in a court of law. Furthermore, element (8)--damages--is presumed (and need not be proven) in those situations deemed to constitute "defamation per se."

Libel and slander will be considered "per se" defamatory if it (1) imputes the commission of a crime involving moral turpitude; (2) imputes that the person is infected with a contagious disease which would exclude the party from society; (3) imputes an unfitness to perform the duties of a job or a lack of integrity in the performance of those duties; or (4) prejudices the party in his or her profession or trade. Statements that might qualify as defamation per se include an allegation that one has acted unprofessionally, an attack on a person's honesty and veracity, a false report of a corporations' profit and earnings, a statement regarding a company's inability to pay bills, and a statement suggesting a person is an incompetent businessman.

To make things more confusing, some courts use "per se" and "per quod" to distinguish between words that are defamatory on their face and words which do not appear to be defamatory, but are defamatory by implication, or that become defamatory when additional facts are made known. (When used in this sense, defamation per se refers not to the list of the four most serious categories described above, but to words defamatory on their face). Whichever definition of "per se" is used, "per quod" is the catch-all phrase that basically means "not per se."

Hundreds of Virginia state and federal cases have struggled to apply the law of defamation in a manner consistent with the United States Constitution, as defamation cases necessarily involve a careful balancing of vital constitutional and common law rights. On the one hand, there is the First Amendment's fundamental protection of free speech. On the other hand, there is a common law obligation not to abuse the First Amendment with unjustified attacks against the reputation and dignity of others. Defamation law attempts to accommodate these seemingly antithetical interests by providing a legal remedy for persons subjected to false and defamatory statements while limiting the range of statements considered defamatory and actionable.

Not every unflattering or critical remark will constitute actionable defamation. Statements that are merely unflattering, annoying, irksome, or embarrassing, or that hurt the plaintiff's feelings, without more, are not actionable. To be defamatory, a statement must be more than merely critical; it must "make the plaintiff appear odious, infamous, or ridiculous." A defamatory statement is one that causes reputational harm to a plaintiff, holding the plaintiff up to scorn, ridicule, hatred, or contempt--in other words, the type of statement that would tend to deter third parties from dealing with the plaintiff. To assert a claim of defamation, a plaintiff must show that a defendant published such a statement, that it was both factual in nature and false, and that it concerns and harms the plaintiff or the plaintiff's reputation. A plaintiff in a Virginia defamation action must plead the statement with particularity, identifying the exact words claimed to be defamatory. Failure to allege the specific words claimed to be defamatory can lead to a dismissal of the case.

Expressions of opinion are also not actionable as defamation. Statements of opinion, as opposed to assertions of fact, are deemed privileged and no matter how offensive, cannot be the subject of an action for libel or slander. This is because a statement of opinion is not an assertion of fact that can be proven false, and falsity is a required element of a defamation claim. Statements of opinion are also protected by the First Amendment's guarantee of freedom of speech. Distinguishing fact from opinion is not always easy. Courts need to examine whether the specific language has a precise meaning, whether the statements are capable of being proven true or false, and whether the context in which the communication was made affects the meaning of the statement.

Statements expressed in factual language but which would not be reasonably understood as an assertion of fact are not actionable. Rhetorical hyperbole, for example, is generally not interpreted literally, and therefore cannot support a defamation action. For example, defamation cases have been dismissed in Virginia where a talk show host said a government contractor had employees in Iraq who were "all over the country, killing people," and where a newspaper article referred to a university official as the "Director of Butt Licking." These statements were not literally true, but could not reasonably be understood as conveying actual facts. Other examples include parody, gross exaggeration, sarcasm, and irony.

Conversely, statements expressed in language suggesting mere opinion may nevertheless be treated as implied statements of fact if the statement suggests the speaker's opinion is based on the speaker's knowledge of undisclosed facts. Such statements may be actionable not because they convey "false opinions," but rather because a reasonable listener or reader would infer that the speaker or writer knows certain facts, unknown to the audience, which support the opinion and are detrimental to the reputation of the person about whom the statement is made. In other words, a statement of opinion that is based on undisclosed facts is potentially actionable because it carries with it an implicit statement of those facts.

Statements that are only partially false may not be sufficient to support a claim of libel or slander. If an allegedly defamatory statement is substantially true, it will usually be enough to defeat a defamation action. Substantial truth turns on the understanding of the reasonable listener or reader. In general, a statement is substantially true if the statement would not have a different effect on the mind of the reader from that which the complete truth would have produced. In other words, it is not necessary to demonstrate complete accuracy to defeat a charge of defamation. It is only necessary that the gist or substance of the challenged statements be true.

Celebrities, politicians, and other public figures have a higher burden in defamation actions. The First Amendment requires that in defamation actions brought by public figures, the plaintiff must prove that the allegedly defamatory statement was made with "actual malice," meaning that it was made "with knowledge that it was false or with reckless disregard of whether it was false or not." Hatfill v. The New York Times Co., 532 F.3d 312, 317 (4th Cir. 2008). Where a statement on a matter of public concern expresses or reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth.

Virginia defamation law is vast and complex. For more information, or to discuss the application of the law to a particular set of facts, consult a defamation attorney.

Breach of Non-Disparagement Agreement Leads to Defamation Claim

June 29, 2012,

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

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

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

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

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

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

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

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.

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.

Understanding Defamation

December 21, 2009,

The tort of defamation is widely misunderstood. Social media outlets like Facebook, LinkedIn and Twitter, which allow easy publication and dissemination of information to a wide audience, are leading to a rise in defamation lawsuits in Virginia and around the country. To be insulted by another, especially when it happens in a public forum, can be hurtful and embarrassing. Whether the insult constitutes actionable defamation under Virginia law, however, or whether it is sufficient to satisfy Virginia's "insulting words" statute, can present some complicated issues, often implicating the United States Constitution. Relevant considerations for any lawyer examining a defamation claim include the type and context of the speech, the identity of the speaker, the identity of the plaintiff, and the existence of qualified immunity or other defenses.

In Virginia, defamation includes both libel (written defamation) and slander (spoken defamation). There is no need for clever mnemonic devices to distinguish libel from slander, because Virginia law makes no meaningful distinction between the two and speaks only of the merged tort of defamation. The essence of any defamation claim is that a defendant published a false factual statement that concerns and harms the plaintiff or the plaintiff's reputation. While it is common to recite that "truth is a defense," that is not technically true, as falsity is a required element of the plaintiff's proof.

Proof of several elements is required. The defendant must know that the statement was false or must have lacked a reasonable basis for believing it to be true. Defamatory words that cause prejudice to a person in her profession are actionable as defamation "per se," meaning that it is not necessary to prove actual injury to reputation. Expressions of opinion, however, are constitutionally protected as free speech. Therefore, mere statements of opinion cannot form the basis of a defamation lawsuit.

The "publication" requirement means that the remarks were heard by a third party who understood the remarks as referring to the plaintiff in a defamatory sense. This is a fairly easy standard to meet (assuming a defamatory statement), as even accidental publication will suffice.

The Constitution plays two parts in the defamation analysis. First, it gives higher protection to those who speak on matters of public concern or about public figures. When an ordinary person brings a defamation claim that concerns a statement of no megaphone.jpgpublic concern, he only needs to prove the requisite elements by a preponderance of the evidence. When the plaintiff is a public figure (e.g., a celebrity or public officeholder), or when the statement at issue was one of public concern, then the bar is raised. The plaintiff would then need to prove, by "clear and convincing" evidence, that the defendant acted with actual malice. A defendant acted with actual malice if he knew the statement to be false or recklessly failed to verify the claim. "Clear and convincing" evidence is difficult to define but is a higher level of proof than a mere "preponderance." (You can think of it as requiring 75% certainty rather than 51% certainty, though that is not the legal definition).

The second constitutional requirement is that punitive damages may only be awarded upon the same clear and convincing finding of actual malice regardless of who the plaintiff is or if the statement was one of public concern.

The law of libel and slander is far too complicated to discuss in this small space. Consult an attorney if you have been the subject of defamatory speech, especially if your business or profession is being harmed as a result.