Aaron Morris

Yelp Wins Fight to Post False and Defamatory Reviews

hassell v. bird

In reading the California Supreme Court’s decision in Hassell v. Bird, which just came out today, an expression by my father-in-law came to mind. He was a real, honest-to-goodness cowboy, and when asked how things were going, he would often answer, “Well, I’m just stepping in cow dung with one boot and knocking it off with the other.” [He didn’t actually use the word “dung.”]With today’s opinion, Yelp temporarily knocked off some dung, but stepped right back in it.

Hassell v. Bird involved an attorney by the name of Dawn Hassell and her firm the Hassell Law Group. Hassell’s April 2013 complaint arose out of Hassell’s legal representation of a client named Ava Bird for a brief period during the summer of 2012. The complaint alleged the following facts about that representation: Bird met with Hassell in July to discuss a personal injury she had recently sustained. On August 20, Bird signed an attorney-client fee agreement. However, on September 13, 2012, Hassell withdrew from representing Bird because they had trouble communicating with her and she expressed dissatisfaction with them. During the 25 days that Hassell represented Bird, Hassell had at least two communications with Allstate Insurance Company about Bird’s injury claim and notified Bird about those communications via e-mail. Hassell also had dozens of direct communications with Bird by e-mail and phone and at least one in-person meeting. Continue reading

No, I Wasn’t Kidding About the Wisdom of Walking Away

Internet Defamation - Take the Settlement Fool

Just two weeks ago I posted comments on the wisdom of taking a walk-away settlement when you are a defendant with no moral high ground in a defamation action.  I told the story of how the defendant in the case I prosecuted was afforded the opportunity to take down the defamatory comments and walk away without paying any damages, rejected it, and now must pay over $200,000 to my client as a result of his hubris.

You’d think that might have at least given the defendant and his counsel in a different case a moment of pause in the trial that followed two weeks later.  My client sued the defendant, who then filed a frivolous cross-complaint, apparently thinking that would give him some leverage.  The parties had discussed settlement throughout the year-long litigation process, but the defendant had always insisted on money coming his way, and there was no way that was going to happen.

Come the day of trial, the judge conducted one final settlement conference, and my client, knowing the defendant doesn’t have much money anyway, graciously offered to just walk away.  There it was; that same moment in time discussed in my last posting, where the defendant is afforded the opportunity to avoid sending his life, or at the very least his finances, in a bad direction.  But the defendant refused and demanded payment of a ridiculous amount of money on his ridiculous claim.  My client declined.

With no settlement, the case proceeded to trial and I called the defendant as my first witness in a trial that both sides had estimated would last three days.  Two hours into my examination, the judge spontaneously announced that he had heard all he needed to hear, and unless defendant had some “miraculous evidence” he was going to find in favor of my client.  In chambers, he said to defense counsel, “Mr. Morris is very methodically cutting your client to pieces.”  He suggested the parties and attorneys talk settlement again.  My client said fine, and said he would dismiss the action in exchange for defendant paying the same ridiculous amount defendant had been demanding.  Defendant agreed, and we set up a ten year payment schedule, non-dischargeable in bankruptcy.  Ouch.

If you got the tie-in between the photo above and the article, give yourself a prize.  It’s from the movie The Road Warrior, and the gentleman in the photo is imploring the people at the oil refinery to “just walk away” and let him and his warriors take the gasoline.  I think I may start dressing like that for settlement conferences.

Morris & Stone Victory — $200,000 from Defendant Who Failed to See Wisdom of Walking Away

Perhaps because the adrenaline and endorphins flow during a courtroom battle, I become very thoughtful in the calm that follows. I won a small but satisfying court victory recently in an Internet defamation case, and it made me realize how much the process mirrors a scene from a movie.

The movie is Taken. Even if you haven’t seen the movie, you probably saw the scene to which I refer since it was shown in the trailers. The main character, who we come to learn is some sort of retired Über-spy, is on the phone with his teenage daughter when she is kidnapped. He hears the bad guy pick up the phone, and he calmly gives the following speech:

I don’t know who you are, and I don’t know what you want.
If you are looking for ransom, I can tell you I don’t have money.
But what I do have are a very particular set of skills;
skills I have acquired over a very long career.
Skills that make me a nightmare for people like you.
If you let my daughter go now, that will be the end of it.
But if you don’t, I will look for you, I will find you and I will kill you.

Most every Internet defamation case I handle starts with such a moment. Not nearly so dramatic, of course, and there are no deaths involved if the defendant doesn’t listen to me, but the concept of a choice is the same.

Most of my defamation clients aren’t seeking money initially; they just want the bad guy to stop defaming them. My marching orders are usually just to get the person to take down the false comments. So I write to the bad guy, explaining that this does not need to go any further. He strayed from the path and said and did some things he shouldn’t have, but if he just takes down the posts and walks away, “that will be the end of it.”

That is the moment in time. I am affording the prospective defendant the opportunity to avoid sending his life in a bad direction. I am less of an advocate and more of a caregiver, just trying to convince the patient to stop engaging in self-destructive behavior. But he makes the ultimate decision whether to accept that help, or to continue on his path.

In Taken, the kidnapper could not help himself and responded by saying, “good luck.” He did not take the skill set seriously enough, thinking he would be impossible to find. Today’s defendant also did not take the skill set seriously enough, thinking since he lived across the country we would never pursue him. He was one of a few on-line competitors with my client, and had engaged in some trash-talking that escalated into defamatory comments about my client’s business practices. All he had to do was take down the false statements and walk away and that would have been the end of it. He refused, and today a judge ordered him to take down the false statements, never to make the statements again, at risk of fines and imprisonment, and to pay my client over $200,000.

Pick your battles. I will defend to the death your right to post honest comments on the Internet. If you want to take on a plaintiff that you feel is trying to shake you down, then I’m with you one hundred percent. But don’t get into a court battle just to prove who has the bigger . . . lawyer. The defendant in this case had no moral high ground. He knew what he was saying about my client was untrue, so why on earth wouldn’t he take the opportunity to walk away? As a famous philosopher once sang, “You’ve got to know when to hold them, know when to fold them.”

How to Stop Defamation When You Can’t Afford an Attorney

Bankruptcy - Business Person holding an empty wallet

Is there a way to stop Internet defamation when you have limited funds to hire an attorney?

Here’s a call I get a few times a week. Someone somewhere has managed to upset someone else, usually over a miscommunication. Alternatively, it will be an ex-boyfriend, girlfriend or spouse that feels they were done wrong. The offended party responds to the perceived offense by going onto various social networking sites and posting false, defamatory statements; Facebook is a popular choice for the vitriol. The victim of these accusations wants my assistance in getting the statements taken down.

I can do that, but at a cost. And while I sometimes take a case on a contingency basis (receiving a percentage of the amount recovered), most of the time such an arrangement is not workable since the primary goal of the action is to remove the defamatory materials, not for damages. An attorney cannot take a case on a contingency basis if there are no damages or if the defendant has no ability to pay. Indeed, in many instances an attorney should not take a defamation case on a contingency basis since that will then make the case about money instead of being about solutions.

Is there a solution for those who can’t afford representation? Continue reading

Bill Cosby Sues Beverly Johnson for Defamation

“Bill Cosby filed a lawsuit Monday against supermodel Beverly Johnson, alleging she lied when she said the comedian drugged and tried to rape her at his New York home in the mid-1980s.

Cosby’s lawsuit says Johnson joined other women making accusations against him to revive her waning career and to help sell copies of her memoir.

The lawsuit alleges defamation and intentional infliction of emotional distress, saying Cosby and Johnson never spent any time alone in his house, he never drugged her and ‘her story is a lie.'”

Sourced through Scoop.it from: www.wmur.com

 

In an earlier discussion of Bill Cosby, I mentioned the problem of coming out and denying claims made by an accuser.

In the case of Bill Cosby, several women have come forward telling similar tales. Specifically, they allege that Cosby would drug and then rape them. Even though the statute of limitations on those alleged offenses may long have passed, Cosby affords those women with a potential cause of action if he comes out and denies the claims. By denying the claims, he is in essence calling them liars, which triggers a potential defamation action.

This action is the flip side of that coin. Cosby, of course, has the ability to sue for defamation, claiming that the accusations are false and defamatory. But this strategy comes at a cost. This lawsuit is against Beverly Johnson, but other women are making the same claim. Are we then to assume that the claims by the other women are not defamatory?

As the saying goes, “in for a dime, in for a dollar.” Cosby has now created a scenario whereby he must sue all of his accusers, lest he be viewed as being guilty of the claims by those he doesn’t sue.

James Woods Demands Court Order To ID Twitter User Who Called Him A “Cocaine Addict”

Actor James Woods says a Twitter user who called him a “cocaine addict” has no right to demand anonymity.

Sourced through Scoop.it from: www.buzzfeed.com

The James Woods case presents a good illustration of the legal process and certain constitutional rights.

Someone on Twitter, using the pseudonym “Abe List” or AL for short, got into it with Woods, and let fly with a series of put-downs, referring to Woods as a Joke, clown-boy and scum. Counsel for Woods understood defamation law well enough to know that those claims are not offered as verifiable facts, and therefore cannot be defamatory.

But AL also called Woods a “cocaine addict”, and that is where his counsel drew the line. They filed what is called a DOE action, suing an unknown defendant for defamation. (Here is the actual complaint.) Once a DOE action is filed, the plaintiff can then subpoena the records (here, from Twitter) to determine the identity of the anonymous poster.

Here’s where things get interesting.

What many do not realize is that someone posting comments on the Internet has a constitutional right to remain anonymous. It hearkens back to the days of “pamphleteering”, when those disagreeing with the government would produce and distribute anonymous pamphlets. If the government could require that the identity of protesters be known, it could intimidate critics into silence.

Because of this constitutional right, if someone wishes to remain anonymous, they can oppose the motion anonymously, forcing the plaintiff to make a sufficient showing that the speech is defamatory, and therefore not entitled to protection.

That is just what occurred here. AL has gone to court and challenged Woods’ right to discover his identity.

“How do you appear anonymously in a court proceeding?”, you ask. It’s easy. You retain counsel, usually Morris & Stone, who moves to quash the subpoena on behalf of the person, using the pseudonym. The identity of the person is never revealed. (In a couple of cases, we have seen other counsel attempt this procedure, only to make the effort pointless when they accidentally identify their client in correspondence.) Continue reading

Lying blogger ordered to pay $3.5 million in defamation lawsuit | PersonalInjury.com

A Shelby County, Alabama, blogger, who spent five months in jail before agreeing to remove stories from his website about the son of a former governor, has now been ordered to pay $3.5 million in a defamation lawsuit filed by a former campaign manager for the state Attorney General.
The blogger had written about an fictional affair between the attorney general and the campaign manager. 

Sourced through Scoop.it from: www.personalinjury.com

Yes, even  bloggers are subject to defamation laws.

I encounter a common belief that anything published on the Internet is somehow protected free speech. In fact, it is protected free speech until one steps over the line into defamatory speech. Defamatory speech enjoys no protection.

Of note in this case, the blogger spent five months in jail for his defamation. Not because he defamed, but because he refused to stop defaming. You see, a court cannot order you not to publish information that you want to publish, but once that information has been found to be defamatory, then the court can order you never to tell the same lies again, and can order you to remove the lies from the Internet.

In this case, the blogger was ordered after trial to remove the defamatory comments, but refused to do so. He even added more information. This amounted to contempt, and the court put him in jail until he removed the statements. He stood on his purported principles for five months, and then relented and had his wife remove the posts.

Court tosses lawyer’s libel suit over ‘The Good, The Bad and The Ugly’

TORONTO – Ontario’s top court has tossed a defamation action by a lawyer over a book in which he is cited as saying he identified with the Mexican bandit from the movie “The Good, The Bad and The Ugly.”

In a written ruling Monday, the Court of Appeal sided with a lower court judge, who rejected the action from David Midanik against Betsy Powell in October last year, and ordered him to pay more than $100,000 in legal costs.

“In our view, this defamation action was ill-conceived,” the Appeal Court said.

Source: metronews.ca

Two lessons from this Canadian case. First, consider whether your colorful writing style is going to get you into trouble, and second that context is everything.

In this case, a lawyer penned a book about some of his legal experiences. He wrote about a case he prosecuted against a Toronto street gang, and stated that one of the defense attorneys was like Tuco Ramirez, a character from the film “The Good, the Bad, and the Ugly.” He paraphrased a line from the character, “I like big men because they fall hard.”

The defense lawyer in question took offense at this comment, and sued for defamation. He argued that by equating him with Tuco Ramirez, the author implied that he was a murderer, rapist, dishonest and sleazy.

The case was doomed to failure, both legally and conceptually.

When one quotes from a fictional character, that does not mean or even imply that the quote is meant to pull in all the traits of the character in question. If I’m doing a hockey story, and I show a player making a slap shot, with the caption, “Say hello to my little friend,” am I implying that the hockey player is a drug lord?

The trial court and Court of Appeal agreed with my interpretation, and dismissed the case. Under Canadian law, the loser pays, so this ill-conceived case (the court’s words) cost the thin-skinned attorney about 100,000 Canadian dollars, eh.

Firefighter pictured in sex scandal article loses libel claims against Daily News, appeals | Pennsylvania Record

Per the order of a federal judge, the libel lawsuit brought by a Philadelphia firefighter against the New York Daily News earlier this year has been dismissed, though court records indicate he has appealed that verdict.

Source: news.google.com

This was an interesting case that really could have gone either way, and well may be reversed on appeal.

The New York Daily News reported on a sex scandal at the fire department, and the article included two photographs. The first was a generic stock photo showing firefighters at the scene of a fire, but inexplicably the newspaper chose to use a photo of firefighter Francis Cheney II, taken during a formal 9/11 ceremony. The newspaper’s intent was simply to use Cheney as a representation of a firefighter, but a casual reader could easily draw the conclusion that he was one of the firefighters involved in the sex scandal.

I would have anticipated that the defamation claim he filed would fail, but he also filed a claim for false light invasion of privacy, and that claim certainly had some merit.

Here is the jury instruction for false light (in California):

1802. False Light

[Name of plaintiff] claims that [name of defendant] violated [his/her] right to privacy. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] publicized information or material that showed [name of plaintiff] in a false light;

2. That the false light created by the publication would be highly offensive to a reasonable person in [name of plaintiff]’s position;

3. [That there is clear and convincing evidence that [name of defendant] knew the publication would create a false impression about [name of plaintiff] or acted with reckless disregard for the truth;]

[or]

[That [name of defendant] was negligent in determining the truth of the information or whether a false impression would be created by its publication;]

4. [That [name of plaintiff] was harmed; and]

[or]

[That [name of plaintiff] sustained harm to [his/her] property, business, profession, or occupation [including money spent as a result of the statement(s)]; and]

5. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

[In deciding whether [name of defendant] publicized the information or material, you should determine whether it was made public either by communicating it to the public at large or to so many people that the information or material was substantially certain to become public knowledge.]

Defamation is an intentional tort, but false light can be established with a showing of negligence. A jury could certainly find that it is negligent to post a picture of a random firefighter in an article about a sex scandal, and that an average reader might assume that the firefighter must in some way be involved with the scandal.

But the judge in Pennsylvania disagreed, and threw out all of Cheney’s claims. The judge found that the photo provided sufficient context such that a reader would know that no link between the photo of Cheney and the sex scandal was intended.

This is an important factor in any defamation (or false light) claim. The fact that a statement or photo can be interpreted in a defamatory sense is not enough. The statement must be given a reasonable interpretation.

Daily Mail publisher loses challenge to JK Rowling ruling

Associated Newspapers objected to parts of the statement that the author plans to read in open court as part of the settlement of her libel claim

Source: www.theguardian.com

In California, if a plaintiff wants to sue a newspaper (or radio station) for defamation, the plaintiff must first demand a retraction. If no such demand is made, then the plaintiff is limited to special damages (the actual damages that flow from the defamation. Failing to demand a retraction can kill the action, because it is often the case that no actual damages can be shown. If the demand is made, the newspaper can avoid any award for general damages by printing a retraction.

Here is the statute in its entirety, Civil Code section 48a:

Required Retraction Demand

1. In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided.  Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected.  Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.

2. If a correction be demanded within said period and be not published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as were the statements claimed to be libelous, in a regular issue thereof published or broadcast within three weeks after such service, plaintiff, if he pleads and proves such notice, demand and failure to correct, and if his cause of action be maintained, may recover general, special and exemplary damages;  provided that no exemplary damages may be recovered unless the plaintiff shall prove that defendant made the publication or broadcast with actual malice and then only in the discretion of the court or jury, and actual malice shall not be inferred or presumed from the publication or broadcast.

3. A correction published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as the statements claimed in the complaint to be libelous, prior to receipt of a demand therefor, shall be of the same force and effect as though such correction had been published or broadcast within three weeks after a demand therefor.

4. As used herein, the terms “general damages,” “special damages,” “exemplary damages” and “actual malice,” are defined as follows:

(a) “General damages” are damages for loss of reputation, shame, mortification and hurt feelings;

(b) “Special damages” are all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other;

(c) “Exemplary damages” are damages which may in the discretion of the court or jury be recovered in addition to general and special damages for the sake of example and by way of punishing a defendant who has made the publication or broadcast with actual malice;

(d) “Actual malice” is that state of mind arising from hatred or ill will toward the plaintiff;  provided, however, that such a state of mind occasioned by a good faith belief on the part of the defendant in the truth of the libelous publication or broadcast at the time it is published or broadcast shall not constitute actual malice.

You can still sue a newspaper for defamation even if you don’t demand a retraction within 20 days, but failing to do so limits any damage recover to “special damages”. In many cases, special damages are not worth pursuing, since they consist primarily of loss of income. Under proper circumstances, special damages can be significant (we recently won $1.5 million dollars of special damages for a client), but in most cases the plaintiff will have a hard time proving that specific business was lost because of the newspaper article.

Across the pond, they have a similar process, but with a couple of twists. The newspaper must print an apology, and if it does so, the plaintiff cannot recover any damages unless he, she or it can show that the article was printed with malice.

The dust up between Rowling and the Daily Mail arose from an online article in which the paper claimed an article written by Rowling about her time as a single mother in Scotland was a misleading “sob story”. The Daily Mail subsequently published an apology to Rowing, in which it accepted that Rowling made no false claims in the article and said that it had paid her “substantial damages”, which she was donating to charity.

But then Rowling announced she was going to read a statement in open court, stating that the Daily Mail had falsely accused her of being dishonest. The Daily Mail felt that was inappropriate, and unsuccessfully sought to block Rowling’s statement.

I can appreciate the newspaper’s frustration. The apology procedure is designed to undo the defamation, and to that end, the paper published an apology and paid a substantial settlement. If Rowling can now go to court and come up with her own characterization of what was said, which will then be reported by all the media, she is afforded the means to now damage the newspaper, even though she accepted the settlement.

For example, let’s say a newspaper publishes that you cheat customers. You demand a retraction, and the newspaper prints an apology stating that you never cheated customers, and pays you money. Now you call the media to court, and state on the record that the newspaper has apologized for saying you cheated on your taxes. The newspaper never said you cheated on your taxes, it might indeed believe that you do cheat on your taxes, and yet it is put in a bad light that goes beyond the original claim that you cheat customers, since the impression is now that the newspaper also apologized for a tax remark.

The newspaper’s position was that it never said Rowling was dishonest, and that Rowling should not be able to claim that it did, or that it apologized.

 

Aaron Morris

Morris & Stone, LLP

Tustin Financial Plaza
17852 17th St., Suite 201
Tustin, CA 92780

(714) 954-0700

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View Aaron Morris, Trial Attorney and Partner at Morris & Stone, with emphasis on Free Speech and Defamation Law.

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