Articles Posted in Defamation, Libel and Slander

A federal judge reversed himself and reinstated part of a defamation lawsuit filed by Covington Catholic High School student Nicholas Sandmann against The Washington Post. The lawsuit alleged that the newspaper libeled the teen in its coverage of his encounter with a Native American activist at the Lincoln Memorial earlier this year.

The federal judge assigned to the case, Judge William O. Bertelsman, originally dismissed the suit back in July on First Amendment grounds. After a request for reconsideration, the Judge reversed himself saying that the libel suit could go forward while narrowing the scope of the suit from 33 published statements to three.

As we previously wrote, the suit alleged that the paper “targeted and bullied” the 16-year-old in articles it published following in the aftermath of an incident involving Nathan Phillips, a Native American advocate, and the teen who was wearing a “Make America Great Again” hat. The incident occurred while the teen was on a school trip with classmates from Covington Catholic High School to the National Mall where they encountered Phillips on the memorial’s steps. The original complaint sought $250 million in damages.

The specifics of what occurred between Phillips and the students was disputed and media coverage of the encounter, including by The Washington Post, sparked heated debate around the country. In his July opinion, Judge Bertelsman accepted Sandmann’s version of the encounter as is required when ruling on a motion to dismiss. Despite accepting the plaintiff’s description of the encounter, the judge ruled that none of the 33 statements identified in the complaint were defamatory and most constituted constitutionally protected opinion.

Based on a proposed First Amended Complaint filed in connection with the motion to reconsider, Judge Bertelsman reconsidered his previous ruling and granted the plaintiff the ability to seek discovery from The Washington Post on three of 33 allegedly libelous statements reported by the paper. In a five-page written order, the judge identified the three allegedly defamatory statements identified in the amended complaint being reinstated, specifically statements that Sandmann had “blocked” Phillips as he ascended the stairs of the Lincoln Memorial and “would not allow him to retreat.” “Suffice to say that the Court has given this matter careful review and concludes that ‘justice requires’ that discovery be had regarding these statements and their context,” the judge explained.

The order also found that the proposed amended complaint offered by Sandmann beefed up and clarified its allegations concerning actual malice on the part of The Washington Post. “The Court also notes that the proposed First Amended Complaint makes specific allegations concerning the state of mind of Phillips, the principal source of these statements,” the court wrote. “It alleges in greater detail than the original complaint that Phillips deliberately lied concerning the events at issue, and that he had an unsavory reputation which, but for the defendant’s negligence or malice, would have alerted defendant to this fact.” Continue reading ›

Most of us have become accustomed to the idea of saying just about anything on social media without having to face any real consequences for our words, but Elon Musk is about to go to trial over a couple of words he posted on Twitter in the summer of 2018.

You might remember the case of the boys’ soccer team and their coach trapped in a cave in Thailand for several days before rescuers were finally able to get them all out. The incident gained international attention and Elon Musk sent a team of engineers from the three companies he leads. The engineers came up with three miniature submarines to help with the rescue, but the head of the rescue operation dismissed the submarines as impractical. Continue reading ›

Netflix released its movie about the Panama Papers on October 18th, and while fictional versions of Jürgen Mossack and Ramón Fonseca narrate the story of the movie to “tell their side”, the real-life Mossack and Fonseca are suing Netflix for defamation.

Mossack and Fonseca are the two lawyers who founded and ran the law firm Mossack Fonseca out of Panama. Their law firm controlled the finances for companies for people all over the world. These are known as offshore accounts, and while they are legal, the Panama Papers revealed that some of the companies allegedly held by the law firm existed only on paper and did not produce or sell anything. These are known as shell corporations and they were allegedly used by Mossack Fonseca’s clients to hide illegal dealings, such as fraud and evading international sanctions, as well as evading taxes.

In Netflix’s movie, “The Laundromat”, both Mossack and Fonseca insist their law firm holds so many companies they don’t even know what each of them does, thereby insisting they are innocent of any crimes their clients may have committed. Continue reading ›

Jared Pozner, who lost his 6-year-old son, Noah, in the mass shooting at Sandy Hook Elementary School in 2012, has had to deal with attacks from everyone from the hosts of radio shows to the authors of books claiming he’s lying about his son’s death. In addition to the HONR Networking, an advocacy group that puts pressure on social media sites like Facebook to remove false or misleading information about the Sandy Hook shooting, Pozner and several other families of the victims have filed defamation lawsuits against their accusers all over the country.

The largest defamation lawsuit is against Alex Jones, the host, and owner of Infowars, a radio show and website that have allegedly been spreading false information about Sandy Hook and other mass shootings and accused the families of lying about their children’s deaths. That lawsuit is still working its way through the court system, but in the meantime, Pozner recently won a smaller lawsuit against James Fetzer. Continue reading ›

Online review sites such as Yelp have been the bane of companies’ existence ever since they first started popping up on the internet. While businesses work hard to provide each of their customers with the best experience possible, one can never please everyone, and the displeased will inevitably turn to the internet to vent their frustration for all potential clients to see. As problematic as that is for any business (especially small businesses), is suing customers who leave a bad review really the answer?

Lisa Agostino, of Macomb County, Michigan, is being sued by North Wind Heating and Cooling for leaving a bad review of the company on Yelp.

In her review, Agostino said she was overcharged for the air conditioner capacitator the company installed for her. Continue reading ›

As the call for political activism has grown louder and wider in the past few years, most of us have seen or heard people urging us to call our political representatives to let them know how we feel about certain issues. But what if doing so could land you in court for defamation?

That’s what happened to Maggy Hurchalla, a long-time environmental activist who served as Martin County’s first female commissioner from 1974 to 1994 when she lost to a candidate who was heavily backed by developers.

Hurchalla has spent most of her life fighting to protect the Florida environment from developers. In the 20 years she spent as a county commissioner, growth and development did happen, but as Hurchalla put it, it happened slowly, “sanely”, and in a way that would not have a negative impact on Florida’s environment.

In 2008, Lake Point, a rock-mining company, bought 2,200 acres of what used to be sugar cane fields in Martin County, not far from Lake Okeechobee. Lake Point wanted to mine for limestone and use the leftover pits to store and clean polluted lake water, which would otherwise be flushed down the St. Lucie Estuary and contribute to toxic algae blooms, which are already a problem. The project was approved by both Martin County and the South Florida Water Management District.

That all sounds like a good thing for the environment, but according to Hurchalla, she became troubled when, a few years later, the company offered to sell that water to the city of West Palm Beach. Hurchalla and Martin County officials were not convinced that the plan would really benefit the environment. Continue reading ›

A foreign currency trading firm was implicated in misconduct when a separate company it had traded with was investigated by a regulatory authority. The second company settled the investigation with the regulator, and the regulator published documents relating to the investigation and settlement on its website. The documents named the trading firm and implied that the firm had engaged in illegal practices. The trading firm sued the regulator, arguing that the regulator had violated its due process rights and defamed it in the documents on its website. The district court dismissed the action, finding that the trading firm had not exhausted its available administrative remedies. The appellate panel affirmed, and also found that the state-law claims for defamation were preempted by the federal regulatory scheme and not available as a remedy to the trading firm.

National Futures Association is a self-regulatory organization under the Commodities Futures Trading Commission Act of 1974. The Commodity Exchange Act requires that SROs set forth many types of regulations and rules, including rules that provide that its members and persons associated with its members shall be appropriately disciplined for any violation of its rules. The NFA is subject to the broad authority of the Commodity Futures Trading Commission. The authority includes review of NFA disciplinary actions or denials of membership.

Effex Capital, LLC is a closely held, foreign-currency trading firm managed and controlled by John Dittami. Effex operates as an institutional over-the-counter, foreign-exchange liquidity provider and engages solely in transactions with other eligible contract participants such as financial institutions or highly capitalized trading counterparts. Because of the nature of Effex’s trading, it is not subject to regulation by the NFA and is therefore not a member of the NFA. Continue reading ›

Automated Transactions LLC (“ATL”), a small patent assertion entity, has collected millions enforcing a portfolio of patents relating to automated teller machines. After being labeled a “patent troll” by a number of critics of ATL’s enforcement practices, ATL filed a defamation suit in New Hampshire state court against 12 individuals and trade groups claiming that the cognomen was libelous. Earlier this month, the New Hampshire Supreme Court affirmed the dismissal of the suit finding the term “patent troll” to be a non-actionable opinion and rhetorical hyperbole.

This case stems from the patents of inventor David Barcelou, who claims to have come up with the idea of connecting ATMs to the internet. In 1994, Barcelou created a prototype of an automated gaming machine, which included ATM-like features such as the ability to immediately dispense cash to winners. Barcelou filed patent applications and was ultimately granted an ATM-related patent by the U.S. Patent and Trademark Office in 2005 and several other patents in the following years.

Barcelou’s efforts to commercialize his invention were largely unsuccessful and his “Automated Tournament Machine” never caught on. Barcelou later formed ATL, made ATL the exclusive licensor of the patent, and began licensing the patent and bringing infringement litigation. ATL filed infringement suits against numerous banks and credit unions allegedly using Barcelou’s patent in their ATMs. Additionally, nearly 200 different companies paid ATL roughly $3 million in licensing fees to avoid litigation.

ATL’s targets and several trade groups began vocalizing their criticism of ATL and Barcelou. One of the defendants in the slander lawsuit, an attorney who represented a number of the financial institutions targeted by ATL, said in an interview with the Boston Business Journal that ATL’s practices were “nothing more than a shakedown” and referred to ATL as a “patent troll” on his website. Another defendant, the Credit Union National Association, gave a presentation which contained a cartoon picture of a troll and referred to ATL as “a well-known patent troll.” A third defendant, the American Bankers Association, gave testimony before the United States Senate Committee on the Judiciary in which it referred to ATL as a “patent troll” that resorts to “extortive” practices “in an effort to extort payments” from financial institutions. Continue reading ›

An angry customer of a luxury car rental service posted comments on an internet message board alleging that the service defrauded him out of payments it owed him for the rental of his Lamborghini. The customer posted several times over a period of years, and then went quiet. Four years later, the customer marked a post that he made in 2011 “updated” without including any new content. The owner of the car rental service then sued, arguing that the postings constituted libel, breach of contract, and infliction of emotional distress. The district court dismissed the action. The appellate panel affirmed, finding that the action was untimely and that the act of marking a post as “updated” without actually altering or adding to its content was not sufficient to treat the post as a new publication and reset the statute of limitations.

George Kiebala owns a luxury car share service called Curvy Road Holdings LLC. Curvy Road allows customers to purchase time-ownership rights to high-end automobiles that are owned by “investors.” In September 2009, Derek Boris became a Curvy Road “investor” and received a share of the rental revenue when customers drove his Lamborghini Gallardo. Kiebala made payments to Boris in late 2009 and March 2010.

In May 2010, however, Boris withdrew his car from the program, and Kiebala’s check for his final payment to Boris did not clear. Kiebala emailed Boris in July and August to explain that various medical and business difficulties were preventing payment. Boris never received his final payment, and communications between the two seemed to come to an end.

After a period of quiet, Boris posted angry and derogatory statements on various websites about Kiebala and Curvy Road. He did this on eight occasions from December 2010 through July 2011. Boris then when dormant for a few years, but resumed his postings regarding Kiebala and Curvy Road in the summer of 2015. The following year, Kiebala, representing himself, sued Boris alleging libel, intentional infliction of emotional distress, breach of a non-disclosure agreement, breach of contract, and tortious interference with business expectancy. Boris moved to dismiss, and the district court granted the motion on all counts. Kiebala then appealed. Continue reading ›

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