Aaron Morris

Gay Lawyer Takes Stand in Defamation Suit

The gay attorney suing Anapol Schwartz for defamation took the stand Tuesday to outline his departure from the firm and his decision to accept a job at Raynes McCarty…

Source: www.thelegalintelligencer.com

Quite the case. The law firm associate, Jeffrey Downs, was planning to make a lateral move from a law firm called Anapol Schwartz to Raynes McCarty, but allegedly his former firm informed the new firm that Downs was preparing to sue the former firm for discrimination. Raynes McCarty then revoked its offer.

It’s like second had discrimination. If Downs purportedly suffered discriminated because he is gay, and decided to sue on that basis, is it then discrimination to refuse to hire someone who sued someone else for discrimination? I’m sure Raynes McCarty did not give one whit about Downs being gay, so revoking the offer likely had nothing to do with that fact.

Let’s say I run a products liability defense firm, and I extend an offer to a woman to come join the firm. But then I find out that the woman is a plaintiff in a products liability case against a manufacturer we represent, and I decide that the optics of having a products liability plaintiff working at my defense firm would be really bad for business, and revoke my offer. It would be a crappy thing to do, and she might have a violation of public policy claim, since I am terminating her for exercising her right to pursue legal action, but it would have nothing to do with gender discrimination.

Ironically, Downs is now suing Raynes McCarty for discrimination and defamation. Presumably, if the allegations are true, the firm revoked the offer because it feared that Downs was litigious and wanted to avoid being sued, but in the process bought itself a lawsuit in any event.

Equally ironic, before leaving Downs had sent an email to his firm, seeking eight months of severance pay. That is the email that the firm is pointing to to claim that Downs was threatening litigation before his departure, which would make the warning to the new firm absolutely true.

[Update 1-19-2022:]  I didn’t take a deep dive into the status of the case, but I came across my own blog post and was curious. Downs ended up suing both firms in the same action. He sued Anapol for (1) retaliation in violation of the Philadelphia Fair Practices Ordinance (“PFPO”); (2) defamation (Count II); and (3) false light invasion of privacy (Count III), and the Raynes Defendants for (1) sexual orientation discrimination (Count IV); (2) retaliation in violation of the PFPO (Count V); and (3) defamation, against Stephen Raynes only (Count VI).

Both firms moved for summary judgment, and as to the Anapol Defendants, the motion was granted with respect to Counts II and III (leaving the retaliation claim), and as to the the Raynes Defendants, it was granted as to Counts IV and VI (again leaving the retaliation claim).  Here is the ruling.

I saw two headlines for articles behind paywalls that don’t appear to bode well for Downs: Jury Absolves Anapol Schwartz in Philly Gay Bias Trial and Defense Seeks Sanctions Against Gay Lawyer in Defamation Suit. Obviously I can’t speak to the veracity of either headline.

Former 49er Ray McDonald sues rape accuser for defamation

“Former San Francisco 49ers defensive end Ray McDonald has gone on the offensive, filing a lawsuit Monday against the woman who accused him of sexual assault in December, as a way to try to clear his name in hopes of restarting his career.”

Source: www.usatoday.com

This will be an interesting case to follow.

McDonald was accused of rape after spending the night with a woman me met at a San Jose bar. She claimed that while partying with McDonald at his home, she bumped her head during a hot tubbing incident, and did not recall anything that followed until she woke up naked in his bed the following morning. She spent the day with him, but sought medical treatment the next day. McDonald never denied that he had sex with the woman, but said it was consenual.

For reasons I have explained here before, reports to the police are privileged and will not support a defamation action. If that is the basis for the claim, this case will soon be gone on an anti-SLAPP motion. But if the woman alleged rape outside of that context, then McDonald’s case will survive.

[MAY 23, 2016 UPDATE:] The attorney for the woman brought an anti-SLAPP motion, based on the fact that the rape was reported only to the police. As I predicted, since McDonald was unable to identify anyone other than the police who received the allegedly defamatory claim, the anti-SLAPP motion was granted and McDonald’s case was dismissed.

Reports to the police are privileged, and can never form the basis of a defamation claim. This case makes clear why that MUST be the rule.

For sake of argument, let’s say McDonald did rape the woman. (Her story seems a little dubious, but let’s assume it was true for sake of this discussion.)

McDonald, who probably has some money from his NFL days, wants to silence this woman and hopefully get her to drop the charges. So he sues her for defamation, knowing that she will have to spend tens of thousands of dollars fighting against that legal action. She may very well get worn down by the time and expense of the legal action, and agree to drop her criminal charges in exchange for McDonald dropping his civil action.

We can never permit criminal defendants to use civil proceedings as a means to intimidate witnesses, and that is why reports to the police are privileged.

That does not leave McDonald without a remedy if the claims were false. If he is found not guilty in the criminal trial, he can then sue his accuser for malicious prosecution, if he can show that the claim was made with malice. Malice can be shown by proving that the woman could not have believed what she claimed.

Defamation in False Online Review

In a case brought by a US law firm in respect of a defamatory allegation on the firm’s Google Maps profile, it was held that the posting of a false online review by an English poster amounted to defamation deserving of substantial damages. In The Bussey Law Firm PC & Anor v. Page [2015] EWHC 563 (QB), the offending post read as follows:


‘Scumbag Tim Bussey, pays for false reviews, loses 80% of his cases.

Not a happy camper’


Source: www.scl.org

bowling ball knocking down false pins
A case out of England that is interesting for a couple of reasons.

When I mention that I represent clients who are suing for false online reviews, I sometimes get a shocked look. People feel that reviews should be off limits, since they are matter of opinion.

In a perfect world that would be entirely true, but as this case illustrates, a review is not a matter of opinion if it is a complete fabrication by someone who has never done business with the company. Here, the defendant charges $5 to write fake reviews. The reviews can be good or bad, depending on what the purchaser wants. Keep that in mind whenever you are reading on-line reviews.

The damages awarded are also interesting. No doubt, the plaintiff could not show any direct loss of business because of this one bad review, but the court nonetheless awarded the maximum amount permitted under the law. One’s reputation has value, and the court felt a stiff damage award was appropriate for damaging the reputation.

Fake Social Media Account by Police Allowed Without Warrant

Keep your friends close, and your Instagram friends even closer.   One of your online friends might be the police and a search warrant is not needed to befriend you on social media.

Source: www.thenationaltriallawyers.org

The Social Media Police Strike Again

To quote Bugs Bunny, “What a maroon!”

When a string of burglaries occurred, the police had a pretty good idea who it might me. They found the suspect’s Instagram account, and asked (under an undercover account) to become “friends”. The suspect agreed.

The suspect then proceeded to send out pictures of all the stolen property to his “friends”, which now included the police. Busted.

The suspect sought to exclude the evidence, claiming the police needed a search warrant, but the court disagreed.

“Where Facebook privacy settings allow viewership of postings by “friends,” the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment” as in the case of U.S. v. Meregildo (883 F. Supp. 2d 523, 525 (S.D.N.Y. 2012)) where a Facebook “friend” was a cooperating witness and allowed law enforcement to access Meregildo’s posts regarding his violent acts and gang activity.

‘Revenge Porn’ Law Sees First Conviction In California

selfie - revenge porn


A man who posted nude photos of his ex-girlfriend without her consent on her employer’s Facebook page is the first person to be convicted under California’s “revenge porn” law, the Los Angeles City Attorney’s Office reported Monday.

Noe Iniguez, 36, of Los Angeles was sentenced Monday to one year in jail and 36 months of probation and will be required to attend domestic violence counseling for violating both the state’s revenge porn statute and two restraining orders.

Source: www.huffingtonpost.com

The facts of this case are horrendous, and illustrate the need for such a statute.

As I have written here before, we have successfully sued for this sort of conduct, but this law adds another means to help victims of revenge porn.

The “revenge porn” statute is contained in California Penal Code section 647. The statute is quite extensive, and contains a number of provisions. The “revenge porn” section of the code, as that term is usually meant, is contained in subpart 4(A) (highlighted below). Basically, the statute requires a tacit approval between the parties that any intimate photos will remain private. Interestingly, that section states that “any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person” is liable under this Penal Code.

I already see a couple of problematic loopholes. In the photo above, we see a woman taking a selfie. If she then sends that photo to her boyfriend, and after they break up he posts the photo, would it still be covered under this section? After all, the boyfriend is not the person who “photographed or recorded” the intimate body parts. Also, how will she show that he posted the photo “with the intent to cause serious emotional distress”?

Here is Penal Code 647 in its entirety: Continue reading

Google has free speech right in search results, court confirms

A San Francisco court ruled last week that Google has the right to arrange its search results as it pleases, which confirms the company’s long-held view, while underscoring the stark difference in how U.S. and European seek to regulate the search giant.

Source: gigaom.com

The number of callers have gone down as the defamed public becomes more educated on the topic, but I still get a lot of calls from potential clients wanting to sue Google for the information reported in its search results.

I always viewed this as wanting to sue the telephone company because it listed the phone number of a con artist in the phone book. Just as the phone book simply lists the names and telephone numbers of people with telephones, Google results are just a report of what is out on the internet. Google, quite appropriately in my opinion, has always argued that its search results are neutral, and it cannot be responsible for whatever its search spiders happen to find.

With that said, the frustration of defamation victims is understandable. The squib that Google creates in conjunction with the search results can often be more damning than the defamatory posting itself, because of the truncated nature. 

It this recent challenge to Google, the plaintiff added a slight twist. CoastNews was miffed that it was ranked high on Bing and Yahoo, but that Google was pushing it far down the search results because it perceived CoastNews as a competitor. It sued, claiming that Google was being unfair, and should not be able to determine the position of websites returned in the search results.

Google brought an anti-SLAPP motion, which was granted.

Richmond Restaurant Encourages Bad Yelp Reviews




Botto Bistro in Richmond is not very concerned about its Yelp rating. In fact, in an effort to undermine the reliability of its Yelp page, the five-year-old Italian restaurant is on a mission to be the worst-rated restaurant in the Bay Area.

To achieve this end, Botto Bistro is encouraging all of its customers to leave one-star Yelp reviews; it is even offering deals for anyone who pens a crummy review: 25% off any pizza and a chance to win a cooking class. (Hat-tip to Richmond Standard.)

Source: insidescoopsf.sfgate.com

I applaud these restaurant owners.

In recent court documents, Yelp has admitted that its reviews are not trustworthy, and these owners have found a way to get out that message. They encourage their patrons to write bad Yelp reviews. It’s just a great way to get people to realize that anyone can write anything.

Ironically, Yelp wrote to the business to say that it is improperly paying for reviews. The business responded, “Yes we are. Thank you for noticing.”

Now the fun begins. In a case called McMillan Law Group, Yelp is suing a law firm that had dared to successfully sue Yelp. Yelp filed its own suit, claiming that if a business encourages Yelpers to write false reviews, that amounts to interference with contract.  How so? Well, according to Yelp, anyone who posts a review is subject to the terms of use for the site, and those terms of use provide that the users should not post fake reviews. If a business asks those users to post fake reviews, then that business is intentionally interfering with the “contract” between Yelp and its users. If Yelp fails to sue this restaurant, how will it explain that inconsistency?

Court of Appeals upholds $14.5 million defamation verdict against State Farm in hail fight

The largest defamation verdict in Indiana history — more than $14.5 million awarded to a contractor who claimed State Farm Fire & Casualty ruined his business and reputation — has been upheld by the Indiana Court of Appeals.

In a decision issued Tuesday, the three-judge panel found Hamilton Superior Court Judge Steven R. Nation correctly denied the insurance giant’s request for a new trial based on a claim that roofing contractor Joseph Radcliff obtained the judgment through fraud on the court.

The case grew out of a 2006 storm that battered Central Indiana with golf-ball-size hail and ravaged thousands of homes. The damage tally topped $1 billion, with State Farm alone paying out more than $200 million on about 50,000 damage claims.

The payout to Radcliff, however, was not the result of damage to homes or cars — but for what a Hamilton County jury determined was damage State Farm did to the roofing contractor’s reputation.

Source: www.indystar.com

These cases are becoming so commonplace, I’ve taken to calling them the “second appeal.” Here’s the way they work.

The defendant loses in the trial court, then they lose on appeal. Left with no other way to challenge the outcome, they bring their own action, claiming the original verdict was achieved by a “fraud on the court,” usually based on some evidence the defendant claims would have resulted in a different result. There is support for such an action, but the circumstances for a successful fraud on the court claim are extremely narrow.

So it was in this case. The insurance company claimed that after the trial, it obtained a declaration from a witness who said the plaintiff had lied and withheld evidence. It claimed that was a fraud on the court, and the judgment should therefore be thrown out. That approach won’t fly. Courts want finality to their verdicts, and that is evidence that could have been presented in the original trial. A defendant does not get to call a “Mulligan” because it failed to vigorously defend the case the first time around.

In one of my cases, a plaintiff sued my client and we counter-sued. In the end, we obtained a large judgment, and just as in this case, the plaintiff appealed and lost. The plaintiff then brought an action for fraud on the court, claiming the entire matter had been covered by an arbitration agreement, and that we had “defrauded” the court by allowing it to enter a judgment, knowing the matter was subject to arbitration. You read right. The plaintiff brought the action under an agreement that contained an arbitration clause, and then claimed that we had defrauded the court by not invoking the arbitration requirement. The case was thrown out on demurrer.

Glenn Beck’s audacious defense against Boston Marathon bombings defamation suit

Broadcaster Glenn Beck, formerly of Fox News, was nonetheless suspicious of Alharbi. He thought the Obama administration was hiding Alharbi’s involvement. So three weeks later, Beck urged the government to release its information on Alharbi or else Beck would “expose” him.

“While the media continues to look at what the causes were [behind] these two guys, there are, at this hour, three people involved,” Beck said, alleging the U.S. government had “tagged” Alharbi as a “proven terrorist.” Over several broadcasts, Beck called Alharbi the “money man” behind the Boston bombings. “You know who the Saudi is?” Beck asked. “He’s the money man. He’s the guy who paid for it.”

What Beck said about Alharbi was untrue. Alharbi sued Beck for defamation in federal court in late March. And now, in a batch of little-noticed motions, Beck has lashed back, saying Alharbi is trying to “punish” and impede Beck’s First Amendment rights. Beck argues the bombings made Alharbi a “limited purpose” and “involuntary” public figure who must prove not just that Beck made false accusations, but that Beck did it with “actual malice.”

Beck sticks to his guns that the man suing him for defamation had acted “suspiciously.”

Source: www.washingtonpost.com

This appears to the the classic, “I talked about you and made you a public figure, and now that you are a public figure, you have to show what I said about you was said with malice.” I’ll monitor this one and let you know how it is decided.

See on Scoop.itDefamation Law

Jones Day Threatens SLAPP Suit Against Detroit-Area Blogger


Jones Day, the third largest law firm on the planet, is focusing their weighty legal acumen and collective wrath upon the head of one lone Detroit-area blogger who dared to poke serious fun at their activities in the Detroit bankruptcy proceedings. Also found in the blogger’s sardonic cross hairs is one of the firm’s former associates, Kevyn Orr — aka, Detroit’s Emergency Manager — both parties are being scorched in parody by the outspoken blogger over their joint roles in looting the already decimated city coffers.

Source: www.democracy-tree.com

Business clients call to ask me to examine some review that was posted on-line, wanting to sue for defamation. When I advise them that the comments are permissible statements of opinion and not actionable defamation, the next question is almost always, “but can you at least send a cease and desist letter to make him take it down?”

No, I can’t, because it would be a toothless threat designed to intimidate someone out of exercising their right of free speech.

Apparently the law firm of Jones Day does not operate under the same standard, especially when its own ox is being gored. The firm sent a threatening letter, claiming that a blogger could not use its name in order to criticize it. This is a common ploy, used in the hope that the recipient of the threatening letter won’t know any better. Free speech would be dead indeed if critics could not name the people and entities they are criticizing. Just as Stephen Colbert can use the name and even the logo of Domino’s Pizza in his parody news report, this blogger was free to use the name and logo of Jones Day, and any action by Jones Day would have been a clear SLAPP suit. Here is the letter that the Electronic Frontier Foundation sent in return, calling Jones Day’s bluff.

Aaron Morris

Morris & Stone, LLP
Orchard Technology Park
11 Orchard Road, Suite 106
Lake Forest, CA 92630
(714) 954-0700

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