Articles Posted in Damages and Remedies

The Internet search giant Google periodically issues “Transparency Reports” which summarize government requests for removal of content from the Internet and Google’s response to the requests. Google also discloses statistics regarding requests received from copyright holders. The latest report, issued for the last six months of 2012, reveals that Google received 2,285 government requests to remove 24,179 pieces of content during that time period – a significant increase from the first six months of 2012 during which it received 1,811 requests to remove 18,070 pieces of content. By a large margin, the number one reason for a removal request is claimed defamation, followed by privacy and security reasons, trademark and copyright infringement, violence, impersonation, government criticism, bullying, national security, adult content, hate speech, religious offense, drug abuse, electoral law, geographical dispute, suicide promotion and “other.”

The large increase in removal requests is mostly due to clips of the movie “Innocence of Muslims” and Brazil’s most recent elections. Twenty countries asked Google to review YouTube videos containing clips of “Innocence of Muslims.” Seventeen of those countries asked Google to remove the videos. Although Google restricted the videos from view in some countries, it did not remove the content from others. Google received 316 requests for removal of information relating to alleged violations of Brazil’s electoral code. Although it removed some content in response to court decisions, it is appealing other cases on the ground of freedom of expression under the Brazilian Constitution. Also related to the elections, Google received requests from a prosecutor, an attorney and a judge to remove blog posts and search results that were allegedly defamatory. Google refused to remove this content.

The latest report shows that Google readily removes content that infringes a protected copyright or trademark, and that it complies with court orders to remove defamatory matter. However, Google is typically unwilling to remove allegedly defamatory material that has not been declared as such by a court of law. For example, Google scrub.jpgrefused to remove YouTube videos that allegedly defamed a school administrator, police officers, government officials and prosecutors, and it only age-restricted an allegedly defamatory video showing Argentina’s president in a compromising position. However, Google did remove items that a court had ruled defamatory to a man and his family, and in response to a court order, it removed a blog post that allegedly defamed a retired military officer accused of business gain through political ties.

Travel agent John Mathews may have a meritorious claim against a Virginia hotel for breaching a contract to provide food for a large group of tourists. It’s hard to tell, though, when he clutters his complaint with counts for defamation, invasion of privacy, tortious interference, and intentional infliction of emotional distress, and fails to include a count for breach of contract. This latest complaint represents Mr. Mathews’ fourth attempt to present his case to a federal court in Pennsylvania. Had he opted to file a simple breach-of-contract action in Virginia’s general district court instead, he might have secured a judgment by now.

The allegations go as follows. Mr. Mathews booked a “Winter Get Away Tour” with the Westin hotel at Washington Dulles in 2012. He alleges he planned the event with the hotel sales manager and estimated there would be 150 guests with the tour. He claims he emphasized that this was only an estimate and he would furnish a final number later.

When 174 people signed up for the getaway (or rather, the “get away”), the hotel was not able to feed everyone, as the head chef apparently wasn’t notified of the final number. On both Saturday and Sunday nights, some guests went without meals and an unlimited, all-you-can-eat buffet was converted to a limited, one-serving one. Mathews had advertised the tour to include two buffet dinners and two buffet breakfasts and claims he had to reimburse many guests due to the missed or reduced meals.

Jane Perez hired Dietz Development to repair her townhome. When Perez became dissatisfied with Dietz’s performance, she fired Dietz and posted negative online reviews on both Yelp and Angie’s List. Her comments not only expressed her dissatisfaction with Dietz’s work but also implied that Dietz was responsible for some jewelry missing from Perez’s home. Dietz sued Perez for defamation in Fairfax County Circuit Court and requested a preliminary injunction ordering her to remove the statements.

Perez opposed the injunction but apparently did not argue that an injunction would be an impermissible “prior restraint” under the First Amendment. The trial judge gave Dietz a partial victory, enjoining any discussion of the missing jewelry and ordering Perez to delete certain misleading statements she had made about a related lawsuit. Perez filed a motion for reconsideration in which she raised the prior-restraint issue, and appealed to the Supreme Court of Virginia shortly thereafter. Remarkably, the Supreme Court vacated the injunction just two days after the petition for appeal was filed and without even giving Dietz an opportunity to respond.

The First Amendment prohibits prior restraints on speech unless publication would threaten an interest more fundamental than the First Amendment itself. Perez argued that Dietz’s reputation as a businessman in the community does not rise to that level of importance. She also argued that although some jurisdictions allow an Yelp.jpginjunction against comments that have been found false and defamatory after a full trial, injunctions against speech that has not been found to be false and defamatory are never appropriate.

Michelle Bourdelais brought a defamation claim in the Richmond Division of the Eastern District of Virginia against Chase Bank and Chase Home Finance, based on Chase’s alleged reporting of inaccurate information about the status of her mortgage payments to consumer reporting agencies. Chase moved to dismiss the claim, arguing that it was preempted by the Fair Credit Reporting Act. Judge Henry E. Hudson denied the motion, allowing the claim to proceed.

The Fair Credit Reporting Act (“FCRA”) contains two seemingly conflicting sections. Section 1681t(b)(1)(F) appears to preempt all state laws regarding the liability of credit reporting agencies, whereas § 1681h(e) preempts only certain types of common law actions and then only under certain circumstances. The court noted that although the Fourth Circuit has not addressed the issue, seven of nine district courts in the Fourth Circuit have reconciled this conflict by using the “statutory approach” and holding that §1681t(b)(1)(F) only applies to state statutory claims and § 1681h(e) only addresses state common law claims.

Bourdelais argued that the preemption provisions did not apply at all because Chase did not act as a furnisher of information to consumer reporting agencies and Kroll Factual Data, the party who provided Bourdelais’ credit report, was not a consumer reporting agency (“CRA”) within the meaning of the FCRA. The court rejected this Payment Due.jpgargument and noted that the FCRA definitions of “furnisher” and “consumer reporting agency” clearly include Chase and Kroll.

First, don’t hire a lawyer. (What do lawyers know about defamation law, anyway?) Second, refuse to comply with the court’s orders and local rules. Finally, file a whole bunch of frivolous and nonsensical motions, such as a “Motion for Declaration All Rulings & Judgments Be Rendered Null & Void,” a motion against opposing counsel for engaging in “felonious conspirator tactics,” and a “Motion to Declare All Your Base Are Belong to Us.” With the exception of the “all your base” example, a defendant recently tried all of these tactics in North Carolina federal court and came away with a judgment against him that included punitive damages.

William Mann, a member of the Professional Golfers Association Hall of Fame, acquired a North Carolina country club but then declared bankruptcy and moved to South Carolina. M. Dale Swiggett sent a letter to hundreds of recipients accusing Mann of fraud and crimes and claiming Mann left North Carolina after declaring bankruptcy and paid cash for his South Carolina house. Swiggett then sent a letter to the judge who had presided over Mann’s bankruptcy, accusing Mann of covering up “sludge spreading and spills.”

Mann sued Swiggett in the Eastern District of North Carolina for libel, seeking $2 million in compensatory damages and $2 million in punitive damages for injury to his reputation and livelihood. Swiggett, acting pro se, responded by overloading the court’s docket with numerous groundless motions, inducing the court to strike his Answer as a sanction. After entering summary judgment in Mann’s favor, the only remaining issue was the amount of damages.

A jury awarded Russell Ebersole $7,500 in compensatory damages and $60,000 in punitive damages on his libel claim against Bridget Kline-Perry in the United States District Court for the Eastern District of Virginia. Ms. Kline-Perry moved for a new trial or, alternatively, a reduction of the punitive damages award, which the court treated as a motion for remittitur. Finding $60,000 to be unconstitutionally excessive, the court remitted the punitive damages to $15,000 and gave Mr. Ebersole the option of accepting the reduced amount or requesting a new trial.

The court agreed with Ms. Kline-Perry that the $60,000 award of punitive damages violated her right to due process. When faced with an excessive verdict, courts will generally order a remittitur. Remittitur is a process by which the court reduces the damages award while giving the plaintiff the option of re-trying the case in lieu of accepting the reduction. The Federal Rules of Civil Procedure do not provide specifically for remittitur, but precedent holds that a court should order remittitur when a jury award is so excessive as to result in a miscarriage of justice.

In determining whether a jury award of punitive damages violates due process, courts consider (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by cut-money.jpgthe plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded and the civil penalties authorized or imposed in comparable cases.

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

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

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

The First Amendment does not protect the “right” to post anonymous comments online that defame the reputations of others. Libelous statements posted in Internet forums can come back to bite those who post them. In most cases, posters will not be able to conceal their identities once the gears of litigation start grinding. A jury in Texas recently awarded $13.78 million to a couple who were targeted by online posters — one of the highest verdicts ever recorded in Texas for an Internet defamation case.

In 2008, Shannon Coyel sought to divorce her husband and gain custody of her two children. She accused her husband of being a sexual pervert and claimed he had abused their daughter. Mark Lesher, an attorney, and his wife tried to help her with her divorce. The Coyels reconciled, however, and Mrs. Coyel then accused the Leshers and their ranch hand of sexual assault. Moreover, she claimed she had only reported an incident of abuse by her husband against her daughter because the Leshers had drugged her with pills.

The Leshers were indicted as a result of Mrs. Coyel’s sexual assault accusation. They also came under attack on with some 25,000 comments, many anonymous, posted about them. They were called molesters, murderers, sexual deviants and drug dealers, and were accused of encouraging pedophilia. The Leshers said the attacks were so laptop.jpgvicious, they had to move out of their town and Mrs. Lesher lost her business, a day spa. Mr. Lesher lost substantial business as well.

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

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

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

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

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

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

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