Privileges Category Archives — Page 3 of 5 — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

April 13, 2015

A Brief History of Virginia’s Anti-SLAPP Statute

The First Amendment guarantees, among other freedoms, “the right of the people…to petition the Government for a redress of grievances.” This right to petition is part of the First Amendment‘s free-speech protection, as it pertains to a particular form of freedom of expression. A lawsuit aimed at deterring or punishing citizens from exercising this First Amendment right, or from otherwise exercising their right to freely express their political views or engage in discourse on a matter of public concern, is known as a “SLAPP” suit. (SLAPP stands for “Strategic Lawsuit Against Public Participation”). SLAPP suits usually don’t advertise the fact that they seek to chill the expression of ideas; they are often disguised as legitimate lawsuits for defamation or some other tort.

A majority of states have passed anti-SLAPP laws designed to facilitate the identification and early dismissal of frivolous SLAPP suits. Virginia is not one of those states. Until recently, Virginia had no anti-SLAPP law to speak of and gained a reputation among plaintiff’s lawyers as a welcoming jurisdiction friendly to questionable defamation suits. A movement is underway to fix that. A flurry of defamation lawsuits filed in Virginia by California congressman Devin Nunes inspired the introduction of House Bill 759, designed to bring Virginia’s anti-SLAPP law more in line with California’s more robust First Amendment protection. California’s anti-SLAPP law allows a defendant to make a “special” motion to dismiss if he or she can show the plaintiff’s claim arises from a statement made in connection with a public issue in furtherance of the right to free speech. If the court grants one of these special motions to strike, the anti-SLAPP statute requires the unsuccessful plaintiff to pay the defendant’s attorneys’ fees. (Attorneys’ fees are normally not recoverable in defamation actions, so this can be a powerful deterrent against meritless lawsuits.)

As of this writing, Virginia still has not enacted a traditional anti-SLAPP statute. But the law has evolved over the past 10-15 years and the trend is towards increased protection for free-speech rights. Here’s how Virginia’s anti-SLAPP protection has evolved over the years:
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November 7, 2014

No Intra-Corporate Immunity Against Defamation Claims

by Lee E. Berlik

Workplace defamation actions face a number of obstacles. The one that probably comes up the most is the issue of qualified privilege. Employees often claim that a manager or supervisor defamed them in the course of a termination or negative performance evaluation. These statements are usually protected from defamation claims, as a limited privilege applies to communications made on any subject matter in which the person communicating has an interest, or with reference to which he has a duty, if made to another person having a corresponding interest or duty. In other words, in situations where it is necessary or expected that one employee will make statements concerning the performance of another (such as a performance evaluation), a qualified privilege will apply.

Another defense that is sometimes raised in the employment context is that of “intra-corporate immunity.” This is a defense borrowed from the law of conspiracy. Because a conspiracy, by definition, requires at least two legally distinct persons, and because two employees acting within the scope of their employment duties are both acting as agents of their employer, a conspiracy cannot be formed between those two employees due to the unity of interest and absence of a second entity. “A corporation cannot conspire with itself,” is the oft-used way of describing the reasoning behind the doctrine.
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September 15, 2014

Fresenius Medical Care Sued for Allegedly Defamatory Statements of Employee

by Lee E. Berlik

As a business owner, you can’t control everything your employees will do or say. What if one of them defames the character of another employee while on the job? Can the business be held responsible? If the employee uttered the defamatory words while performing the employer’s business and acting within the scope of his or her employment, then yes, the employer can be held liable for defamation. How does one determine whether an employee’s statements were made with the “scope of employment”? In Virginia, an act will be considered within the scope of employment if it was (1) expressly or impliedly directed by the employer, or is naturally incident to the business, and (2) performed with the intent to further the employer’s interest, or from some impulse or emotion that was the natural consequence of an attempt to do the employer’s business, and did not arise wholly from some external, independent, and personal motive on the part of the employee to do the act upon his own account. (See Kensington Assocs. v. West, 234 Va. 430, 432 (1987)). If a plaintiff alleges the existence of an employment relationship, it becomes the employer’s burden to prove that the statement was not made within the scope of employment. Absent such proof, the employer is on the hook.

Last week, a defamation case against Bio-Medical Applications of Virginia, Inc. (doing business as Fresenius Medical Care Dominion) was allowed to go forward. The Amended Complaint filed in the case alleges that a Fresenius employee emailed to coworkers various false statements suggesting that the plaintiff (a registered nurse) had a complete disregard for patient welfare. For example, the alleged emails attributed to the plaintiff statements such as “[the patient] just needs a little bleach in his lines” and, in reference to another patient, “all she needs is a good shot of air. That’ll take care of her.” Another email accused the plaintiff of saying, “Well isn’t it about time?” after another patient had died. Fresenius Medical Care filed a motion to dismiss the case, arguing that the complaint failed to plead sufficient facts to hold the employer liable for the statements of its employees, and that the elements of defamation had not been satisfied. The court disagreed on both counts and denied the motion.
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July 29, 2014

Virginia Lawyer Says TV Report of Criminal Conviction Defamatory

by Lee E. Berlik

According to The Virginian-Pilot, Portsmouth attorney Sterling H. Weaver was “convicted in Portsmouth General District Court of assault” in June 2006. A new lawsuit filed by that attorney alleges that a WAVY-TV report, broadcast in February 2014, reported similarly that “in 2006, a Chesapeake judge sentenced [Mr. Weaver] to 30 days in jail for grabbing a prosecutor by the throat after she asked to postpone a case.” (The quote is from the complaint, not the WAVY-TV report). Mr. Weaver says that he heard the report while in jail, where he was staying after being “indicted for assault on a law enforcement officer and sexual battery of that officer.” The report was defamatory, the lawsuit claims, because “the 2006 charge of assault was dismissed.”

Those of you who share with me an unnatural interest in Virginia defamation law are naturally curious as to what the issues in this case are going to be. There are several in my mind, but here are the first few that jump out:
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July 14, 2014

Forced Apology and Admission of Inappropriate Conduct Held Not Defamatory

by Lee E. Berlik

Defamation claims arise frequently in employment settings. Employees often disagree with their performance reviews and, if they feel particularly aggrieved, resort to the courts to extract a modicum of revenge. Unfortunately for them, statements relating to employee discipline and termination made by managers and supervisors usually enjoy a qualified privilege against defamation claims. The privilege generally insulates such statements from liability absent clear and convincing evidence of malice or some other indicator that the privilege has been abused. When an employer makes a false and defamatory statement about an employee, but that statement is protected by a qualified privilege that has not been lost or abused, the statement is not actionable.

Of course, before the question of privilege even comes into play, there is the matter of whether the statement at issue is defamatory in the first place. In Regina M. Zarrelli v. City of Norfolk, Ms. Zarrelli sued the City of Norfolk, Virginia (her former employer) along with the City’s Commonwealth’s Attorney, Gregory D. Underwood, based in part on being required to apologize to a vendor. It didn’t work, and the case was dismissed both because the statements were not defamatory, and because even if they were, they were protected by qualified privilege.
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June 27, 2014

Defamatory and Scandalous Material as Grounds to Seal Record

by Lee E. Berlik

In bankruptcy court, the presumption in favor of public access to judicial records can be overcome if “scandalous or defamatory matter” is contained in a paper filed therein. (See 11 U.S.C. Section 107). Curiously, there is an absolute judicial privilege for statements made in connection with and relevant to a judicial proceeding, so normally one wouldn’t expect to find “defamatory matter” in a court filing. Still, there is a relevance requirement to be entitled to the privilege, and there’s always a possibility that potentially defamatory or scandalous statements will be made in a court filing that have nothing to do with the underlying merits. And that’s exactly what happened in the recent case of Robbins v. Tripp.

Attorney John W. Tripp was handling a case in bankruptcy court when certain issues arose relating to perceived problems with his practice. The court ordered him to prepare and file a report containing details relating to his organization of files, supervision of staff, communication with clients, and related matters. The bankruptcy court instructed that the report be written “candidly and not as an advocate for any party to this matter.” Mr. Tripp moved for leave to file the report under seal, based in part on Section 107’s “scandalous or defamatory” provision. The motion was granted, and the trustee appealed.
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January 23, 2014

Absolute Judicial Privilege Extends Outside the Courtroom

by Lee E. Berlik

Virginia recognizes an absolute privilege against defamation claims in three situations: (1) statements made in connection with judicial proceedings (the so-called “judicial privilege”); (2) statements made in the course of legislative proceedings; and (3) communications among military officers. A person who makes a defamatory statement in one of these contexts is completely immune from liability even if the statement was made maliciously and with knowledge of falsity. The judicial privilege is by far the most common of the absolute privileges, as it has broad application and applies to all forms of communication during litigation. The doctrine encourages unrestricted speech in litigation which in turn promotes compromise and settlement. The United States Bankruptcy Court for the Eastern District of Virginia recently held that not only does the privilege extend to communications outside the courtroom, but that when litigation is pending, the communication need not be made to an interested party to qualify for protection.

The case is Chesapeake Trust v. Chesapeake Bay Enterprise, Inc. (In re Potomac Supply Corp.), decided December 31, 2013. The bankruptcy court had approved the debtor’s sale of its operations to an unrelated entity called Potomac Supply, LLC. Chesapeake Bay Enterprise (CBE), an entity who had also negotiated to buy the debtor’s operations, filed a motion to reconsider. Potomac Supply’s attorney sent an email to CBE’s attorney, asking for two exhibits that were missing from the reconsideration motion and making a reference to “all of the fraudulent financing proposals we received from your client…” CBE responded with a third-party complaint alleging that the email was defamatory. The third-party defendants moved to dismiss, relying on the absolute judicial privilege.
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December 2, 2013

No Defamation Liability for Statements made to FBI During Background Check

by Lee E. Berlik

In most (but not all) cases, absolute immunity applies to statements made by government contractors to government investigators in the course of an official investigation. The United States District Court for the Eastern District of Virginia recently addressed this issue in Kolakowski v. Lynch and found that statements made to the FBI in the course of an employment background check could not form the basis of a defamation action.

Daniel Kolakowski filed an employment discrimination charge with the EEOC against his former employer, MITRE Corporation, alleging he had been harassed because of his Polish ancestry. Kolakowski and MITRE eventually signed a mediation agreement resolving the dispute. Under the agreement, MITRE agreed to not discriminate or retaliate against Kolakowski for filing the charge.

When Kolakowski later applied for a job with the Federal Bureau of Investigation, he signed a form authorizing the FBI to investigate his background and allowing former employers to release information about him. The FBI interviewed three of Kolakowski’s former supervisors at MITRE. The three employees allegedly told the FBI that FBI seal.jpg Kolakowski took excessive days off work, exaggerated how much worked, lied about his wife having cancer, and was generally untruthful. When the FBI did not hire Kolakowski, he sued MITRE and the three supervisors for breach of contract and defamation. The defendants removed the case to federal court and moved to dismiss for failure to state a claim.

November 1, 2013

SCoVA Clarifies Law of Qualified Privilege

by Lee E. Berlik

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 statement 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).

October 10, 2013

The Walls of a Church Do Not Shield a Tortfeasor from Defamation Liability

by Lee E. Berlik

The First Amendment dictates that religious organizations are entitled to decide matters of church governance, faith and doctrine without state interference. Accordingly, as a general rule, courts may not hear disputes involving religious law, principle, doctrine, discipline, custom or administration. In what has come to be known as the “ecclesiastical abstention” doctrine, courts should normally abstain from adjudicating issues involving theological or spiritual judgment, or the internal governance of religious bodies. Courts will often classify the issue as one involving jurisdiction, noting that the religious bodies have exclusive jurisdiction over their own internal workings.

For example, the Supreme Court of Virginia once considered a church pastor’s defamation claim against a church deacon based on his statement that the pastor had “borrowed over $100,000 from believers and has not returned the money.” While an express or implied accusation of theft would normally be treated as defamation per se under Virginia law, the court declined to exercise jurisdiction on the ground that the Free Exercise Clause of the First Amendment “divests a civil court of subject matter jurisdiction to consider a pastor’s defamation claims against a church and its officials.”

Still, courts may exercise jurisdiction over defamation actions involving religious organizations where “neutral principles of law” may be applied to resolve the dispute. The Supreme Court of South Carolina recently granted certiorari to consider the question of whether a pastor may use the First Amendment’s Free Exercise Clause to shield himself from defamation liability stemming from statements he made about the church’s trustees at a congregational meeting or whether the court could apply neutral principles of law to decide the case. The court found that “a tortfeasor is not shielded from liability simply by committing his torts within the walls of a church or under the guise of church governance.”