Virginia Law Firm’s Defamation Claim Dismissed As Opinion

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. trump.jpgThe 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.

The Trump Entities’ General Counsel gave an interview to Virginia Lawyers’ Weekly in which he stated that the Trump Entities were “very, very disappointed” in Cook Heyward’s work quality and billing practices. He also claimed that he had to redo Cook Heyward’s work multiple times. Cook Heyward filed a suit against the Trump Entities which included a count for defamation per se. The Trump Entities moved to dismiss the defamation claim.

In Virginia, a plaintiff claiming defamation must prove that the defendant published an actionable statement with the requisite intent. An actionable statement is one that is false and harms the plaintiff’s reputation. If the statements are objectively true or are protected expressions of opinion, there is no actionable defamation. Words which injure a person in his profession or trade are actionable as defamation per se, meaning that the plaintiff need not show harm to reputation.

Cook Heyward argued that the Trump Entities published false, factual statements which prejudiced them in their legal profession, thus constituting defamation per se. The Trump Entities responded that the statements at issue were statements of pure opinion protected by the First Amendment.

In determining whether the statements were fact or opinion, the court first examined whether the language the Trump Entities used was “loose, figurative or hyperbolic”– traits that would suggest the statement was not one that could reasonably be interpreted as one intended to convey actual facts. The court also considered the context and general tenor of the Virginia Lawyers’ Weekly article, noting that a statement expressing a subjective view rather than an objectively verifiable fact does not constitute defamation, and that pure expressions of opinion and rhetorical hyperbole are constitutionally protected because they cannot be objectively characterized as true or false.

Based on the tenor, language, and context of the article, the court found that the statement that the Trump Entities were “very, very disappointed” in Cook Heyward’s work quality and billing practices was a subjective expression of opinion. The court noted that statements of unsatisfactory job performance generally do not rise to the level of defamation and that the concept of being “disappointed” is a relative one, contingent on the speaker’s internal viewpoint.

The court also found that the Trump Entities’ statement that they needed to redo Cook Heyward’s work represented a relative concept requiring the exercise of discretion and individualized judgment. The alleged necessity of redoing the work depended on the Trump Entities own evaluation and assessment. Finding both statements to be protected expressions of opinion and not actionable as defamation, the court dismissed Cook Heyward’s defamation claim.

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