Truth and Falsity Category Archives — Page 3 of 4 — The Virginia Defamation Law Blog Published by Reston Defamation Attorney — Virginia Slander & Libel Lawyer

June 24, 2013

Pilot’s Defamation Case Goes to Supreme Court

Applying Virginia law, the Colorado Supreme Court upheld a $1.4 million jury verdict against Air Wisconsin back in March of 2012, finding it was responsible for slander of a former pilot and not entitled to immunity. On June 17, 2013, the United States Supreme Court granted certiorari to consider the question of whether a court can deny the immunity provided by the Aviation and Transportation Security Act (ATSA) without a prior determination that the air carrier’s statements to the Transportation Security Administration (TSA) were materially false.

After the September 11th terrorist attacks, Congress passed the ATSA in order to encourage the reporting of security concerns. The ATSA requires airlines and their employees to report potential security threats to the TSA. Reporting parties are given broad immunity and may only be liable for reports made with actual knowledge that the report was false, inaccurate, or misleading, or with reckless disregard as to the truth or falsity of the report. Because failure to report can result in civil penalties, shorthand for the policy has become known as “when in doubt, report.”

William Hoeper was a pilot for Air Wisconsin Airlines. Hoeper apparently had failed three proficiency exams and abandoned his fourth attempt. Approximately ninety minutes into the test, Air Wisconsin contends that Hoeper ran the simulator out of fuel, flamed out the engines, and nearly crashed. According to Air Wisconsin, Hoeper knew he would be terminated and was acting irrationally, yelling and cursing at his instructors. Hoeper’s version of the story is that Air Wisconsin was conducting the simulator test unfairly, and a personal dispute was escalated into a matter of national security.

June 10, 2013

Lost Profits Caused by Defamation Must Be Proven with Competent Evidence

by Lee E. Berlik

On May 31, 2013, the Fourth Circuit reversed a $4 million verdict against U.S. Bancorp for defamation, finding that the amount was excessive and/or unsupported because the jury apparently based its verdict on expert testimony of lost profits admitted in violation of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Still, in MyGallons, LLC v. U.S. Bancorp, the court found that Bancorp’s public statements refuting the plaintiff’s press release were sufficient to support defamation liability, so it ordered a new trial on damages only.

When Steve Verona conceived of a prepaid consumer gas card program, he contacted Voyager Fleet Systems, Inc., a subsidiary of U.S. Bancorp, about processing the program’s payments. Voyager operates a payment processing network for commercial and fleet gas purchases but was not set up to issue consumer gas cards. Verona explained his program to Bancorp executives, one of whom directed Verona to work with an authorized reseller of the Voyager payment processing system, “GoGas,” as Bancorp would not work with him until the program was larger. GoGas submitted and Bancorp approved Verona’s fleet card application and issued Verona several dozen cards using the Voyager payment network. Verona distributed the cards to family and friends who used the cards to purchase gas. Verona branded the program “MyGallons.”

Internally, Bancorp stated that MyGallons was an approved Voyager fleet card account and that it was working to expand the program. Bancorp began drafting a new contract for its relationship with MyGallons. Bancorp, GoGas and Verona worked to design fleet cards with MyGallons and Voyager logos on them.

June 3, 2013

This Is Why Exact Words Must Be Pleaded

by Lee E. Berlik

Defamation claims carry a particularity requirement, though the degree of particularity required is not as high as with fraud claims. While it is not necessary, for example, to specifically identify in the complaint the persons reading or hearing the statement, or to describe all the surrounding circumstances existing at the time the statement was allegedly made, what is required is to identify the exact words claimed to be defamatory.

This rule exists for good reason: it helps free court dockets of cases in which a plaintiff’s characterization of a statement (which is often exaggerated or unreasonable) forms the basis for the claim rather than the statement itself. Courts need to be able to make a threshold determination of things like whether the words at issue appear to be about the plaintiff, whether they are capable of being reasonably interpreted as a statement of fact, and whether they would tend to degrade the plaintiff in the eyes of the community. Defamatory meaning is a huge component of the test for liability, and the precise language used is crucial to the existence of an actionable claim.

Take the lawsuit filed in D.C. last month against NBA great LeBron James by a man claiming to be his father, Leicester Bryce Stovell.

March 1, 2013

Fabricated Quotations Actionable if Harmful to Reputation

by Lee E. Berlik

An essential requirement of any defamation action is that the alleged statement convey factual assertions. Pure expressions of opinion (i.e., those that neither state directly nor imply any assertion of objective fact) are protected by both the First Amendment and Section 12 of the Virginia Constitution. Whether a particular statement should be classified as fact or opinion is a threshold issue for the court to decide. Consequently, many libel and slander cases are dismissed at the outset and never reach a jury.

There’s not always a bright line between the two, and sometimes courts get it wrong. Yesterday, the Virginia Supreme Court reversed the decision of a Halifax County court to dismiss a defamation action on the ground the statement constituted opinion and not fact. The statement at issue was this: “Tharpe told me that Tharpe was going to screw the Authority like he did Fort Pickett.”

It’s certainly tempting to treat a statement like this as opinion, because whether or not someone got “screwed” is subject to differing viewpoints. But look closely. The speaker is not making the claim that Tharpe screwed the Authority or screwed Fort Pickett. What he is saying is that Tharpe TOLD him these things. Tharpe’s position in the trial court was that he never made such a statement. So the issue wasn’t whether or not getting “screwed” is a matter of fact or opinion, but whether it was a factual assertion to claim that Tharpe made this particular statement. The Virginia Supreme Court held that it was “indisputably capable of being proven true or false.”

August 23, 2012

Defamation By Implication Theory Prevents Dismissal of Art Analyst’s Case

by Lee E. Berlik

In Virginia, defamation liability can be based on a statement that is literally true, if the true meaning of the statement arises from reasonable inferences attributable to it rather than the actual words used. Some jurisdictions refuse to recognize this “defamation by implication” or “implied defamation” theory, but on August 9, 2012, the Southern District of New York issued an opinion demonstrating that New York is among the states that recognize the doctrine.

Peter Paul Biro is in the business of art restoration and authentication and is well known in the art world for having developed scientific approaches to art authentication through fingerprint analysis. In July 2011, The New Yorker published an article titled “The Mark of a Masterpiece: The man who keeps finding famous fingerprints on uncelebrated works of art.” (Note: a full copy of the article is attached to the opinion). Biro sued the magazine, investigative journalist David Grann, and others for defamation, claiming that various passages in the article damaged his reputation to the tune of two million dollars.

In Biro v. Condé Nast, the court adopted the Fourth Circuit‘s approach to defamatory implication claims, holding that a plaintiff must make an “especially rigorous showing” that (1) the language may be reasonably read to impart the false innuendo, and (2) the author intended or endorses the inference. Where an implication arises due to the omission rather than the expression of facts, the court will examine whether the omission would materially change the alleged implication.

June 29, 2012

Breach of Non-Disparagement Agreement Leads to Defamation Claim

by Lee E. Berlik

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.

June 11, 2012

Virginia Law Firm’s Defamation Claim Dismissed As Opinion

by Lee E. Berlik

When several law firm clients were vocally unhappy about the firm’s work product and billing practices, and expressed their views to a Virginia legal newspaper, the firm slapped them with a defamation suit in Richmond federal court. However, finding the allegedly defamatory statements to be subjective statements of opinion, the court dismissed the claim.

The Virginia law firm of Cook, Heyward, Lee, Hopper & Feehan, P.C. (“Cook Heyward”) entered into a contract for legal services with Trump Virginia Acquisitions LLC, Trump Vineyard Estates, LLC, and The Trump Organization, Inc. Cook Heyward provided the Trump Entities with invoices itemizing fees and costs over the course of the representation. The Trump Entities requested Cook Heyward to reformat the invoice but did not object to the amount billed, and they continued to request legal services from Cook Heyward.

After a second updated invoice, the Trump Entities indicated that they had no problem with the quality of the legal work, but thought the bills were “too high” and suggested Cook Heyward reduce its fees by approximately seventy percent. Cook Heyward informed the Trump Entities that they intended to file a motion to withdraw as counsel. The Trump Entities asked Cook Heyward to reconsider, then informed them that they “should expect very bad publicity” regarding their withdrawal as counsel. After repeated requests for payment, Cook Heyward filed a motion to withdraw which the court granted.

March 30, 2012

Duck Creek Energy Says Fracking Accusations Defamatory

by Lee E. Berlik

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

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

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

February 13, 2012

Defamation by Implication in Virginia

by Lee E. Berlik

Is truth an absolute defense to a defamation claim? Despite what you may have read elsewhere, the answer (here in Virginia) is no. Aside from the fact that falsity is an element of the claim that needs to be proven by the plaintiff (rather than an issue to be raised as a defense), “defamation by implication” is a developing area of the law in which liability can be based on a statement that is literally true. Not all implications and inferences will be actionable; the speaker must have intended to imply a defamatory meaning. (See Pendleton v. Newsome, 290 Va. 162, 174 (2015)). To prevail in a defamation-by-implication case in Virginia, a plaintiff must prove:

that the defendant made the statements alleged in the complaint,
that the statements, even if facially true, were designed and intended by the defendant to imply a defamatory meaning,

June 10, 2011

Virginia Defamation Lawyer’s Arguments Rejected in Warren County

by Lee E. Berlik

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 immunity 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.