Aaron Morris
Sleeping Fan Sues New York Yankees, MLB, ESPN for Defamation
Andrew Rector proved today that you really can sue anyone – even MLB, ESPN or the New York Yankees – for just about anything.
Source: www.rantsports.com
Clients often call and say, “can this person sue me for defamation if I [fill in the blank].” As I always say, and as this case illustrates, anyone can sue anybody for anything. The question is, can they do so successfully? Here, a sleeping baseball fan by the name of Andrew Rector is suing for the comments made by the sportscasters when the camera captured him napping.
Can he sue for defamation? Well, there is absolutely no basis for a legal action here, but yes he could type up a complaint and file it with the court. But will he be successful? The answer here will be, no. A ridiculous and frivolous suit. Defamation requires a verifiably false statement that would cause one to be shunned by society. The sportscasters did not make even one negative comment about Rector.
“But what about using his image without permission?” some will ask.
This question illustrates an interesting phenomenon, whereby people live their lives witnessing some reality, yet cannot apply what they have seen and know. In every television newscast we see people being filmed, often in a very unflattering light, such as when they are doing the “perp walk” after being arrested. Do the people who ask this question think that the network ran around getting signed waivers from everyone who appeared on camera?
One does not have a right of privacy if filmed out in public. If you are allowing yourself to be seen, you are allowing yourself to be recorded.
Of course there are limitations, based on a reasonable expectation of privacy. A pervert can’t hold his phone over a bathroom stall and claim it was ok because the person was using a public restroom.
And California recognizes what is called a “right of publicity,” meaning that one can’t record you and then use that recording for profit. If the MLB started a campaign to advertise that their stadiums are a great place to sleep, and used Rector’s image to promote the campaign, he might have a valid right of publicity claim.
But this matter really just came down to Rector being embarrassed that the sportscasters commented on his nap. He was probably teased about it at work for a few days. That is not a basis for legal action.
[UPDATE:] My prediction was correct. As reported by the New York Daily News, the court threw out (or should I say, put to sleep?) Rector’s ridiculous legal action.
Here is the video of the incident in question, which resulted in the unsuccessful legal action:
Cooley Law School loses defamation suit against New York law firm
Cooley Law School has lost an appeal in their defamation lawsuit against a law firm that posted criticism of the school’s reporting of student debt on a popular law school message board.
The school had filed a $17 million lawsuit against Kurzon Strauss LLC, a New York firm, and two attorneys associated with the firm, Jesse Strauss and David Anziska, accusing them of posting defamatory statements on the popular law school message board “JD Underground.” The post said that federal regulators were investigating Cooley Law School over student loan default rates and employment for graduates.
Those statements were later retracted, but the firm then began preparing a proposed class-action lawsuit against the school, at which point Cooley filed its suit against the firm accusing them of defamation, breach of contract and interference with business relations, among other claims.
A trial court granted judgment to Kurzon Strauss before trial, saying that Cooley Law School was a “public figure” and therefore would have to prove that the firm acted with a disregard for the truth, a bar the court said Cooley could not clear
Source: www.mlive.com
When in individual or entity is deemed to be a “limited public figure”, the theory is that such a person has greater access to the media, and therefore tell their side of the story. Therefore, when a limited public figure sues for defamation, they have a higher standard of proof to show that defamation. Specifically, they must show the person who allegedly defamed them acted with “actual malice” or “reckless disregard for the truth.”
Here, the court concluded that Cooley Law School would not be able to meet that burden.
Bitcoin Extortion Letters Threaten Pizza Restaurants with Yelp Libel
Pizza restaurant owners in America have been bombarded with letters threatening them with bad online publicity including bad reviews on sites such as Yelp, as well as physical damage such as food contamination — and demanding payment in Bitcoin, according to a report by veteran security blogger Brian Krebs.
Source: www.welivesecurity.com
The pizza in the photo looks like it deserves a bad review, but setting that aside, here is yet another example of Yelp reviews being used as a form of extortion. Click on the photo to get the complete article.
What to Consider Before You Post a Review to a Consumer Rating Website
(Credit: Getty Images) When Travis Hartinger found his dream home in Chicago, only one thing was missing. “We needed to update the kitchen,” said Hartinger, who works in apartment sales and lives with his wife. So he saved up for the $45,000 fix, took out a loan and called in a contractor. Hartinger told ABC News he liked almost all of the work that was done — except the time frame. “I was really happy with the finished product,” he said. “I just thought they took too long to complete it.” Related: Woman Sued After Giving Bad Online Reviews Related:…
Source: abcnews.go.com
Typical article about how posting a review can get you into legal trouble, but the interesting fact is the contract language. I am seeing more and more contracts that provide a consequence if the customer posts a negative review.
In some instances, I’ve seen intake forms at doctors’ offices that purportedly prohibit negative reviews. I don’t see how that would ever be enforceable. But as was the case here, some contracts take something away if a negative review is posted. Here, the contractor offered a ten year warranty on the construction, but the contract provided the warranty would be forfeited if a negative review is posted. I don’t see any reason that parties would not be free to enter into such an agreement.
Before you cry outrage that a contract would seek to silence someone’s right to criticize, you may not be aware that “extortion by defamation” is very prevalent in this country.
“Oh, I see from your invoice that I still owe another $5,000 for the job. If you don’t agree to waive that, I’m going to post bad reviews about you on every site I can find.”
Looking at it another way, it levels the playing field a little. Here the consumer posted a review that could have a significant financial impact on the contractor. If the consumer feels strongly enough about the job that they feel the world needs to know, then he can stand by that conviction and post to his heart’s content, knowing the the price of freedom is the ten-year warranty.
Court of Appeal Upholds Denial of Anti-SLAPP Motion and Allows Suit Over Drug Monograph to Go Forward
A woman who claims she suffered total blindness and other deleterious effects as a result of taking an anti-epilepsy drug can sue the distributor of a monograph she claims understated the drug’s risks, the First District Court of Appeal has ruled.
Div. Three Thursday affirmed an Alameda Superior Court judge’s denial of an anti-SLAPP motion brought by PDX, Inc.
Source: www.metnews.com
The distributor had contended that distribution of the monograph (a shortened version of the drug warnings) was a protected activity, but the trial court held, and the appellate court affirmed, that the plaintiff had met the second prong of the anti-SLAPP analysis, showing that she was likely to prevail on the action.
I question the legitimacy of these sorts of actions, but that is for the jury to decide. Plaintiff alleges that the following warning, which was contained in the complete drug warning documentation, was omitted from the monogram.
“SERIOUS AND SOMETIMES FATAL RASHES HAVE OCCURRED RARELY WITH THE USE OF THIS MEDICINE. . . . Contact your doctor immediately if you develop rash symptoms, including red, swollen, blistered or peeling skin. Treatment with this medication should be stopped unless it is clearly determined that the medicine did not cause the rash. Even if the medicine is stopped, a rash caused by this medicine may still become life-threatening or cause serious side effects (such as permanent scarring).”
Hardin alleges that she read the monogram, and had this warning been included, she never would have taken the drug.
Federal court applies Texas anti-SLAPP statute for the first time, confirming it creates a substantive First Amendment right | Lexology
In a major boost to the Texas anti-strategic lawsuit against public participation (anti-SLAPP) statute, a federal court judge granted a South Texas television’s anti-SLAPP motion to dismiss, applying the state statute in federal court for the first time since its adoption in 2011.
U.S. District Court Judge Nelva Gonzales Ramos of the Southern District of Texas dismissed the challenge to the anti-SLAPP statute and the argument that it was a procedural rule that conflicted with federal rules. Instead, Judge Ramos held the anti-SLAPP statute creates a significant substantive First Amendment right and should be applied in federal court. It is designed to prevent malicious or frivolous lawsuits that chill free speech.
Source: www.lexology.com
The application of state SLAPP laws in Federal court still tends to be a bit kludgy, but here is another in a line of decisions continuing to apply the law.
Court Says Tweeting Someone Is ‘F**king Crazy’ Is Not Libelous
There have been a number of libel cases popping up over the past few years where random insults on Twitter are turned into full blown court cases. Tragically, these cases have picked up the “twibel” name — a neologism that seems silly and pointless. . . . In a recent ruling (where both parties represented themselves!), a court recognized that saying on Twitter that someone is “fucking crazy” isn’t libelous, especially as part of a “heated” online discussion.
Source: www.techdirt.com
I have been making this point for years, and now a court is backing me up. I’ve received a number of calls from people wanting to sue for defamation because someone called them “a psycho” or “bipolar” or “schizophrenic”. Are these statements defamatory?
When determining if a statement (here, posted on Twitter) is defamatory, you must consider the context and the meaning attributed to that word by the speaker. Yes, so some extent, the speaker gets to define the word he uses, not the plaintiff who want to sue him for defamation.
So, in this case, there was a heated debate on Twitter about a horse or something, and at some point the defendant tweeted “Mara Feld . . . is f-ing crazy.” (The actual profanity was used.)
Let’s run it through the analysis. In that context, was the defendant asserting the verifiable fact that Feld suffers from a mental disorder? Of course not. It was offered as the usual “you’re out of your mind” sort of statement.
And even if we set the context aside and assume that the defendant really DID mean to assert that the plaintiff is suffering from a mental disease, how would that be defined? He did not say that plaintiff is suffering from bi-polar disorder or some other condition that could be verified, he simply said plaintiff is crazy. I, for example, think anyone who drinks Budweiser is crazy. With so many good beers available, I can’t fathom why anyone would waste liver tissue on that swill. My definition of “crazy” cannot be proved or disproved, so it could never support a cause of action for defamation. Here, only defendant knows how he defines “crazy”.
“Crazy” is a common one, but what if the person had been a little more specific, and had said that “Feld is bipolar? That is a little different, but still not defamatory. Repeat after me: “Context is everything.” Was the author of the remark really intending to say to the world that Feld is clinically bipolar, or was she just using the term in a hyperbolic sense, to report that Feld has mood swings? But wait, there’s more. Even if the author had dropped a footnote and added, “I don’t mean that in a figurative sense; Feld is really bipolar,” it is still not clear defamation. It’s certainly getting close, but since context is everything, before a court would find that statement and footnote to be defamatory, Feld would likely need to show that in the context the people reading that comment had reason to believe that (1) the author is qualified to make that diagnosis, and/or (2) that the author possesses some insider information about Feld’s actual diagnosis from a mental health professional.
I also get calls from women wanting to sue because someone called them a “whore”. That one, as least, is more subject to precise definition. “Whore” is another word for prostitute, so calling someone a whore could be construed as accusing them of illegal conduct.
But let’s run that through the “context is everything” analysis. If in the middle of a diatribe about how the woman stole her man, calling her a whore is not an assertion that she is a prostitute by trade, but rather is a claim that she is a woman of loose morals for taking another woman’s man. On the other hand, if the statement is that she was seen walking the streets and getting into cars, so she is a whore, that would be defamatory if false.
See more articles on Internet Defamation.
C.A. Says Ex-Employee’s Settlement Demand Was Extortion
Settlement Demand Was Extortion and Not Protected by Anti-SLAPP Statute
A fired worker who sued his ex-employer for defamation and wrongful termination committed extortion when he threatened to instigate a federal investigation of the company’s business practices if his demands were not met, the Sixth District Court of Appeal ruled.
Source: www.metnews.com
In another application of Flatley v. Mauro, the California Court of Appeal held that a pre-litigation demand letter was not protected under the litigation privilege because it crossed the line into extortion.
In a series of settlement demands prior to filing the lawsuit, the plaintiff stated that while he did not want to “make a Federal case out of” his employment dispute, he had been told by attorneys that if he initiated a qui tam action under the False Claims Act, it would “involve the United States the United States Attorney General, the Department of Justice or the DOD.” In other words, the plaintiff was using the threat of a criminal action to try and extract the payment of money.
The trial court had granted an anti-SLAPP motion, finding that the threats were protected speech, but the Court of Appeal reversed and reinstated the action.
The case is Stenehjem v. Sareen, in which the Court of Appeal provided a nice summary of the distinction between a genuine (protected) request to negotiate, and an (unprotected) extortion threat:
Here, the plain implication of Stenehjem’s August e-mail was a threat that unless Sareen accepted Stenehjem’s “extension of one last opportunity to settle … in a gentlemens [sic] manner,” he would “involve the United States Attorney General, the Department of Justice or the DOD” through a qui tam action alleging Sareen had violated the federal False Claims Act. His multiple references in the e-mail to “bottom-feeding attorneys” (including his own prospective attorney) – noting that he did not want to “enrich” them through a lawsuit – evidenced his linking a demand for negotiation and settlement of his personal claims with forgoing a threatened “Qui Tam option” and exposure of Sareen’s alleged criminal wrongdoing.
Stenehjem’s view that the e-mail was merely a benign desire to meet “face to face” to discuss his claims ignores the implied threat of exposing Sareen’s alleged criminal wrongdoing if Sareen persisted in his refusal to negotiate a settlement of Stenehjem’s claims, ones that Sareen had repeatedly said were meritless. Stenehjem’s stated “request to discuss the matter,” viewing the totality of the e-mail and the six-month history leading up to its transmission, was in reality a demand to negotiate and settle his personal claims or else face the potential exposure of unrelated allegations that Sareen had committed criminal acts. The fact that Stenehjem’s threats may have been “veiled” or “half-couched in legalese” does not disguise their essential character as extortion.
And the fact that Stenehjem did not make a specific monetary demand in the August e-mail does not preclude a finding that it was extortion as a matter of law. In Barton v. State Bar, our high court concluded that an attorney who had threatened to report to the prosecutor an oil company’s alleged practice of illegal product adulteration unless the company made “some sort of settlement'” with the attorney’s clients was conduct both warranting disbarment and “constituted an attempt to extort money as said crime is defined in sections 518, 519 and 524 of the Penal Code”
Court of Appeal Applies SLAPP Law to Zimbabwe Case
The California Court of Appeal has interpreted the term “official proceeding” as used in Code of Civil Procedure section 426.16 (the anti-SLAPP statute) to include even foreign litigation. The fact pattern here is rather involved, but to summarize, the action began in Zimbabwe when a wife allegedly took marital property to various locations in that country and then fled with her children to Northern California. The husband was convinced that his sister-in-law had assisted with the removal of the property, so he obtained a “writ of arrest” against her and she spent the night in jail. After a contested hearing, the Zimbabwe court found that there was insufficient evidence to prove that the sister-in-law had assisted in the removal of the property.
The sister-in-law then filed a civil action against the husband in Los Angeles Superior Court for false arrest. A jury found in favor of the husband, but the Court of Appeal reversed and ordered a new trial for various reasons. Back in Zimbabwe, the husband filed for permission to appeal from the final judgment on the arrest case. That application was supported by several declarations, including one from the husband’s California attorney, Donald C. Randolph of Randolph & Associates. The Zimbabwe court denied the application, and the sister-in-law then sued Randolph for malicious prosecution back here in California.
Quite appropriately, Randolph brought an anti-SLAPP motion seeking to strike the malicious prosecution complaint. Clearly, the declaration provided by Randolph was related to litigation and was in furtherance of a right of redress, even if that right was being pursued in Zimbabwe. Unfortunately for Randolph, Los Angeles Superior Court Judge Mel Red Recana was unwilling to take Section 426.16 that far, and denied the anti-SLAPP motion, concluding that it did not apply to activity in a foreign country.
But the Court of Appeal looked at the controversy from a slightly different angle. Although the declaration was provided to a court in Zimbabwe, it “contained statements about the effect of the Zimbabwe order in the Los Angeles case and the facts supporting probable cause for the writ of arrest,” which “were made in connection with issues under consideration in the Los Angeles case.” On that basis, the justices concluded, the statements were made “to influence the determination of issues pending in the Los Angeles case,” and therefore were a part of the right of petition in the Los Angeles case.
The story was reported by the Metropolitan News-Enterprise and can be found here.
“Stealth” SLAPP Suit Victory
One of our latest anti-SLAPP victories provides a beautiful illustration of a “stealth” SLAPP suit that the plaintiff’s attorney failed to recognize, to the great expense of his client.
In this case our (future) client’s business partner, we’ll call him Freddy Fraudster, opened a credit card account at a local bank using our client’s personal information. When our client discovered what Freddy had done, he contacted the bank and informed the personnel there that Freddy had committed fraud, and based on this report the bank closed the account and reported the matter to the police. Our client also filed a police report, and filed for a restraining order against Freddy.
Freddy was not happy. He had a long term relationship with the bank, and based on the report by our client, the bank closed his accounts and would have nothing further to do with him. Apparently thinking the best defense is a good offense, and hoping that winning the race to the courthouse might give him some leverage, Freddy filed an action against our client. He claimed that our client had authorized him to open the account, and that the report to the bank was therefore defamatory since it accused him of fraud.
Do you see why Freddy’s action in Superior Court was a SLAPP suit? Opposing counsel didn’t, but we recognized that this was a SLAPP suit and successfully brought an anti-SLAPP motion. You see, a SLAPP suit is one that tries to block a person’s right of petition. Freddy’s attorney realized that the report to the police and the application for the restraining order were protected rights of petition, but he mistakenly thought that the report to the bank, requesting that the credit card be cancelled, was not a petition for redress and therefore did not fall under the SLAPP statute because it did not involve any government agency. No doubt, he thought that by suing our client for defamation, he could make all his evil deeds go away and get back in good stead with the bank by offering to dismiss the case if our client would withdraw his remarks to the bank, court and police. Now it sounds like a SLAPP, doesn’t it?
The interpretation of the SLAPP statutes by Freddy’s attorney was far too narrow. Consider. One day you run a credit report on yourself and you find that someone has fraudulently opened a credit card in your name. What is the first thing you are going to do? Call an official government agency? You might do that eventually, but first you are going to call the credit card company and tell them to cancel the card. Thus, contacting the credit card company, or in our case the bank, is a natural part of the entire “right of petition.”
It’s very similar to the litigation privilege. I occasionally see cases where a defendant tries to sue the plaintiff and his attorney, claiming that the demand letter sent by the attorney was defamatory because it falsely claimed the defendant did something illegal. But under Civil Code section 47, anything said in conjunction with litigation is privileged and therefore not defamatory. The demand letter from the attorney takes place before legal action is ever filed, but it is still part of the litigation process.
So it was here. The report to the bank occurred before any “right of petition” was pursued with a government agency, but calling to cancel the credit card was a natural part of that process. If a plaintiff were permitted to SLAPP a defendant by focusing on the activities leading up to the actual right of petition, then the intent of the anti-SLAPP statutes would be subverted. We explained that to the court, and our motion was granted.
