Defamation

Webster v. Albero

Date: 

05/23/2007

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Allan Webster

Party Receiving Legal Threat: 

Joseph Albero

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

District Court for Worcester County, State of Maryland

Case Number: 

0204 0001876 2007

Legal Counsel: 

Bruce Bright - Ayres, Jenkins, Gordy & Almand, P.A.

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Salisbury, Maryland Police Chief Allan Webster filed a lawsuit against local blogger Joe Albero, who operates the Salisbury News blog, wich covers matters of local interest in Salisbury and Wicomico County. Albero, who often takes local politicians to task, criticized and posted information about Webster on the blog. Although the details are not entirely clear, the dispute seems to have revolved, at least in part, around Albero's posting of a third-party, anonymous letter addressed to Salisbury City Council Members. Webster's complaint included claims for defamation and false light invasion of privacy.

In his pre-trial memorandum, Albero argued that he should not be compelled to disclose his source for the letter. He argued that the source of the letter was not relevant to the case, that Maryland's shield law protected him from having to identify his source, and that section 230 of the Communications Decency Act (CDA 230) immunized him from liability for posting the letter.

In an April 9, 2008 ruling, District Court Judge Gerald Purnell ruled that Albero could not take advantage of the Maryland shield law, which applies to individuals who are "employed" by the "news media" (which is defined as including any "electronic means of disseminating news and information to the public"). Although we have not been able to obtain a copy or transcript of the ruling, one report indicates that the court denied Albero the protection of the shield law because he does not earn revenue from the Salisbury News. In any event, the court decided that Albero would not be required to reveal the identity of his source, relying on either the relevance or the CDA 230 argument (exactly which is not clear).

On July 30, hours before the trial was set to begin, the parties announced they had settled the dispute on "non-monetary terms." The parties offered no further comment regarding the settlement.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Updated 08/01/2008. {MCS}

Bradley v. Conner

Date: 

07/23/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Herbert Bennet Conner

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal
State

Court Name: 

Court of Common Pleas, Allegheny County, Pennsylvania; United States District Court for the Western District of Pennsylvania

Case Number: 

2:07-cv-01347-DWA (W.D. Pa)

Legal Counsel: 

Dennis St. J. Mulvihill; Bruce E. Rende; Erin Wengryn

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Kimball Bradley, an executive at Reunion Industries, Inc., a publicly traded manufacturing company, sued Herbert Conner, an attorney who previously represented Reunion, over posts Conner allegedly made on a Yahoo! Finance Message Board that Bradley believed defamed him and cast him in a false light.

According to allegations in the complaint and other filings in the case, beginning in August 2005 and continuing through March 2006, Conner, using the alias “pun2dex,” posted numerous messages on the Yahoo! Finance Message Board designated for Reunion. Bradley alleges that Connor posted the following statements:

  • On August 10, 2005, pun2dex stated: “As badly as this company is run, there is no shutdown. Richard Conway (of Lc Capital Masters) is in and will be heard. The company has fresh cash and is buying raw material. It will show an operating profit this quarter primarily due to the sales in China by its CPI sub. So long as the bond holders sit still, there could be some upside.”

  • On September 1, 2005: “[Reunion] operates with a lockbox. It has no choice but to pay down the Bank debt. The Bondholders are stuck. The Bank takes all the excess cash and leaves only enough to buy material for production. Leadership is lacking, but well paid anyway. Check the identity of majority ownership in relation to the CEO and COO. I do not know how the outside directors sleep. There is a large lawsuit looming if someone should have the energy to file it.”

  • On September 20, 2005: “Richard Conway is running Reunion. At last someone with an IQ. He paid hard cash. The banks have been backed off and RUN will report around 20 cents, if it so chooses in October, not from operations, but debt reduction. They can now buy raw steel and make product. The Oneida division will be sold and the cylinder and pressure vessel business will be advanced. Conway will have a $4.00 stock in 18 months.”

  • On September 21, 2005: “I have followed the company for a very long time and read the filings. The Board is becoming concerned since Worldcom, in light of Sarbox, and well they should. . . .Kimball Bradley [Plaintiff] is still called COO, C E Bradley is still CEO, but the latter is CEO in paycheck only, and will soon be resigning at the request of Mr. Conway. The only way out for [Reunion] is to do what Conway suggests. Look for him to buy the junk bonds, reduce and control the debt and spur the growth of the profitable divisions. Check LC Capital Masters and Lampe, Conway Fund Group. Run (sic) needs management with a higher IQ than club handicap, with Conway, they get one, even if K. Bradley stays in as COO or even moves to CEO. He will not be calling the shots, except on the Golf Course.”

  • On January 1, 2006: “. . .the story is all of failure since the young Bradley took over and will not stop until he is long gone. Until that day, this company and this stock will bounce a little, but is going nowhere.” On January 24, 2006: “If you are intent on paying salaries, you must sell something in the context of this company. Check the President, who is a member of the YPO. That means he was unable to be employed anywhere else, so his father made him president of this company so he could hang out with other young guys who were born on third base and think they hit a triple. This company is going nowhere. The next big thing will be a revolt of the bondholders or the banks. The shareholders will not be happy.”

  • On January 25, 2006: “Our leader will never consider stepping aside to allow someone with the drive and intellect to run the company, so long as he has no other job prospects and strong cash needs. Instead of figuring out a way to make the company profitable, he sells assets to keep his check coming in. Go to GHIN.COM in Pennsylvania for Kimball Bradley and you will quickly see where the energy of management is spent, and only a small fraction of the rounds are posted so as not to upset his father. What a waste. The bondholders would be well advised to call his bluff, take control and get someone in who will put the company right. There are only a few assets left to sell, and at Kimball’s age he will need to sell them all just to pay his caddies.”

  • On February 10, 2006: “The market cap on RUN is $9,500,000.00. Check what the company was worth when currect [sic] management took over. Even at that number you could not sell the stock and hold the current stock price. What a waste. How do those people sleep at night? Subtract the debt from a reasonable enterprise evaluation and you are below zero. A monkey could do better.”

  • On February 22, 2006: “There is a [sic] apparent disconnect between blind optimism and business sense. A manager should get out of his office and go to customers, visit the plants and find new markets, new products and new businesses to bring a company above the profit line. He does not refinance a sea of debt over a five year reign, sell the divisions that earn a profit, add no new ones, shrink the revenue and raise his own salary, while buying a stadium box for his personal use with company funds, leave the office by 3:00 pm every weekday, work no weekends or evenings and pine for a job that makes ‘real money.’ This guy is rearranging the deckchairs on the Titanic, and only on a part time basis at that, while he works on his golfing handicap. We write in the hope that the board will wakeup and find a real CEO. Will recognize that it has a duty to the shareholders and not to an incompetnat [sic] young boy who cannot find a job on his own. . . .At Worldcom each boardmember was required to pay 20% of his personal net worth to the shareholders because they ignored guys like me. It will happen again.”

  • On March 9, 2006: “This is just more rearranging of the deck chairs on the Titanic. K. Bradley probably thinks he did something meriting a huge bonus or perhaps a pay increase, but look at what has happened since he became COO. Straight down for revenues, profits and share price. I agree he probably can’t sleep at night, but he should still put in a full day, although with his ability, the company would do better without him. Still, Dad likes him, so he gets promoted, GO Figure. After all the comments about YPO, I did some research and have concluded that they are circle of jerks or a circle jerk. Our Boy fits right in.”

Based on these statements, Bradley asserted claims under Pennsylvania law for defamation, including defamation per se, and for false light.

In October 2007, Connor removed the case from Pennsylvania state court to federal court and filed a motion to dismiss the case, arguing that the claims were barred under Pennsylvania's one-year statute of limitations.

On November 29, 2007, the district court agreed and dismissed the lawsuit, rejecting the plaintiff's assertion that the "discovery rule" should have tolled the statute of limitations.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

I assume appeal is still possible

No evidence of appeal as of 2/19/2009 - VAF

Ganjavi v. Smith

Date: 

08/03/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Reza Ganjavi

Party Receiving Legal Threat: 

Jeremy Smith; Cindy Smith; William Jennings; Todd Tipton; Deloitte Consulting LLC; Deloitte & Touche USA LLP; Deloitte & Touch Corporate Finance LLC

Type of Party: 

Individual

Type of Party: 

Individual
Large Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California; United States District Court for the Northern District of Illinois

Case Number: 

CV-058619 (California);1:06CV04189 (Illinois)

Legal Counsel: 

Daliah Saper

Publication Medium: 

Forum
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In 2006, Reza Ganjavi, a musician and record producer in the field of classical guitar, filed suit in federal court in California against several named and anonymous Internet posters.  Ganjavi alleged that the individual defendants posted negative comments about him on various websites and Usenet's classical guitar newsgroup and created websites mocking his website.  Ganjavi also alleged that the defendants fraudulently published text purporting to be his work and used his identity to make offensive and threatening statements, including threatening to kill a person, issuing racial slurs, and expressing sympathy for terrorists. 

In Ganjavi's suit in California, the court order dismissing the case without prejudice indicated that all defendants either were dropped from the case by the plaintiff or filed successful motions to dismiss for lack of personal jurisdiction.

Ganjavi then sued Jeremy and Cindy Smith, Todd Tipton, William Jennings, and Deloitte & Touche in federal court in Illinois over essentially the same facts. Ganjavi named Deloitte & Touche because the company employed Jeremy Smith and he was believed to have made some of the disputed comments from Deloitte's computers (Ganjavi later dropped the company from the suit).

Ganjavi's third amended complaint contained claims for violation of attribution and integrity rights under the Copyright Act (17 U.S.C. § 106A), "false presentation" in violation of the Anticybersquatting Consumer Protection Act (ACPA), false light, appropriation of name and likeness, libel, negligent and intentional infliction of emotional distress, unfair competition, and other state law claims.

The defendants moved to dismiss the lawsuit and for summary judgment on various grounds. In July 2007, the district court granted Jeremy Smith's motion to dismiss the complaint for lack of subject-matter jurisdiction. With respect to the two federal claims, the court held (1) that Ganjavi's federal copyright claim under § 106A did not survive as a basis for federal jurisdiction because that section only applies to works of visual art under § 101 of the Copyright Act, which do not include electronic publications, and (2) that the ACPA claim did not survive because the complaint did not assert that the defendants had attempted to or intended to profit from the alleged wrongful conduct. The court further found that since Ganjavi had not established the jurisdictional threshold amount for the remaining state law claims, it lacked subject-matter jurisdiction to hear the case.

According to Ganjavi's website, he had planned to refile in state court but reached a settlement agreement with the defendants before doing so. 

Jurisdiction: 

Content Type: 

Subject Area: 

Sungenis v. Tarsax

Date: 

09/27/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Paul Tarsax

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Website

Relevant Documents: 

Description: 

Paul Tarsax, who blogs on a site called Catholic Anti-Defamation League, created and posted a video on YouTube that contained edited footage of Robert Sungenis, the founder of Catholic Apologists International (CAI), making controversial statements about Jews together with images from the holocaust.

On September 22, 2007, Tarsax received a cease-and-desist demand from Colin Andrews, Esq., purportedly a lawyer for CAI, which Tarsax posted on his blog. The demand states that the video is libelous and unless it is removed, CAI would "register a legal complaint with Youtube authorities as well as file a lawsuit against you."

Tarsax ignored the demand, but YouTube later removed the video. Tarsax says this was because Sungenis's statements were too graphic and upsetting, while Sungenis states it was because he had complained to YouTube that the video was libelous. Tarsax reposted the video, this time on Google Video and on his blog, where it remains as of May 22, 2008.

Jurisdiction: 

Content Type: 

Subject Area: 

Case Testing Illinois' New Anti-SLAPP Law Settles Before Court Can Clarify Reach of Citizen Participation Act

In what would have been the first case to test Illinois' newly enacted Citizen Participation Act, which provides immunity for speech related to certain matters of government and public concern, the parties settled before a court could interpret this important addition to the growing list of state anti-SLAPP laws.

Jurisdiction: 

Subject Area: 

Melius v. Keiffer

Date: 

02/01/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

David Keiffer; Thomas Milliner; Maple Area Residents, Inc.

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Louisiana Civil District Court, Orleans Parish

Case Number: 

2006-1141

Legal Counsel: 

Alicia M. Bendana (Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P); James R. Logan (Logan & Soileau, L.L.C.); J. Keith Hardie, Jr.,

Publication Medium: 

Print
Verbal
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In February 2006, David Melius filed a lawsuit against Maple Area Residents, Inc. (MARI), a neighborhood association in the Carrollton neighborhood of New Orleans that had opposed the construction of a new bar Melius wished to build, and two of its board members, David Keiffer and Thomas Milliner. The suit alleges defamation, abuse of process, malicious prosecution, and intentional infliction of emotional distress based on statements the defendants made on the group’s website, Maple Area Residents, Inc., at city council meetings, in letters to officials, and in an appeal to the Board of Zoning Adjustments.

Melius claimed, among other things, defamation based on defendants’ statements that he "had received special treatment from the City[,] had made a ‘backroom deal’ with City officials," and "had broken various promises." Melius v. Keiffer, 2008 WL 659582 (La. App. 4 Cir., March 12, 2008).

On August 16, 2006, the Civil District Court, Orleans Parish dismissed the lawsuit pursuant to Louisiana’s anti-SLAPP statute, La. C.C.P. art. 971. On March 12, 2008, the Court of Appeal of Louisiana affirmed the dimissal, finding that the defendants' statements "fall under the purview of protected free speech [regarding a public issue]." Slip Op. at 6.

On March 12, 2008, the Court of Appeal of Lousiana, Fourth Circuit, affirmed the lower court's dismissal.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

TO-DO: Try to locate the initial pleadings through the parish court's website

Lifestyle Lift Holding, Inc. v. Bowler

Date: 

10/12/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Jean Bowler

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Michigan, Southern Division

Case Number: 

2:07-cv-14348

Legal Counsel: 

Sam Morgan - Gasiorek, Morgan & Greco, P.C.

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Settled (total)

Description: 

In October 2007, Lifestyle Lift Holding, Inc. and its sole shareholder, David Kent, sued Jean Bowler in federal court in Michigan. Bowler runs Ageless Beauty, an informational website on various aspects of beauty, cosmetics, and cosmetic surgery. According to the complaint, Bowler published an article on the website "sometime in 2007," in which she discussed an investigation of Liftestyle Lift's advertising methods by the National Advertising Division of the Better Business Bureau (BBB).

The complaint acknowledged that BBB did in fact investigate the company and its advertising in 2007, but alleged that BBB closed the investigation with a report dated 30,2007, and that Bowler's article mischaracterized the nature of the investigation and falsely implied that it was ongoing after its closure. See Cmplt. 14-15. Lifestyle Lift claimed that Bowler's article constituted false advertising under the Lanham Act, defamation, commercial disparagement, and a violation of the Texas Deceptive Practices-Consumer Protection Act.

The complaint also alleged that Bowler infringed Lifestyle Lift's trademark and engaged in cybersquatting by using "Lifestyle Lift" in a URL for the site and in metadata. (Note: the cybersquatting claim is unprecedented and definitely invalid because Lifestyle Lift did not allege that Bowler registered, trafficked in, or used a domain name containing the words "Lifestyle Lift" or anything like it. The company was evidently confused about the difference between a single URL and the domain name for a website.)

The parties settled in February 2008. The entire terms of the settlement are not public, but Bowler has removed the disputed article from her website.

Jurisdiction: 

Content Type: 

Subject Area: 

Jaeger v. Okon

Date: 

05/11/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Joy Okon; Thomas Okon

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Circuit Court of Cook County, Illinois

Case Number: 

07-L-004940

Legal Counsel: 

Daliah Saper (Saper Law Offices)

Publication Medium: 

Blog
Email

Relevant Documents: 

Status: 

Concluded

Disposition: 

Retraction Issued
Settled (total)

Description: 

Bloggers Joy and Tom Okon, operators of North Center Neighbors, a blog that covers happenings in the North Center neighborhood of Chicago, were sued by James Jaeger and his development company for defamation. Jaeger's complaint alleges that the Okons defamed him by posting statements on their blog (and sending emails) that implied that he had bribed government officials and engaged in dishonest business practices.

The dispute arose in the context of a controversial development project led by Jaeger's development company in the North Center neighborhood. Tom Okon, voicing his frustration with the development project, organized community opposition to the project and published several posts in May 2007 that were critical of Jaeger. According to Jaeger's amended complaint, Okon made the following false and defamatory statements on the blog:

  • Our meeting with the chamber that we thought would be friendly and amicable turned out to be a sham. Based on prior meetings and statements, I thought we had support from key members of the Chamber. That support now appears to be non—existent. The Chamber seems to have swallowed Jim Jaegers [sic] BS hook line and sinker. I guess the large $3,500 donation he gave them really did the trick.

  • Well it seems [the Chamber of Commerce] only care about how much money and power they have. Perhaps Mr. Jaeger also personally wrote them each a check... who knows for sure...

  • This comes down now to business against residents. The businesses want more density and more people on Irving Park Road so they can line their pockets. They care nothing about our safety or quality of life. They would be happy to see Irving Park Road so crowded you can not even walk down it, as long as those people are waiting in line to patronize the businesses. [...] This developer is one of the worst offender’s [sic] of that practice.

On July 27, 2007, the Okons filed a motion to dismiss on the basis that their statements were matters of opinion protected by the First Amendment and therefore not actionable as defamation. On October 5, 2007, the judge denied the motion to dismiss without explanation and ordered the parties to proceed to discovery.

After a limited period of discovery, the Okons filed a second motion to dismiss under Illinois' newly enacted Citizen Participation Act, which provides immunity for speech related to certain matters of government and public concern. The Act mandates that all discovery should be suspended pending a decision on such a motion and that the movants are entitled to attorney’s fees and costs if they prevail.

While the Okons' motion was pending, the case settled. According to a report in the Chicago Journal, the parties settled sometime in April 2008:

[Tom Okon] said he learned on Saturday that the case had been settled out of court in an agreement reached by both his and Jaeger's attorneys. The details, of course, "are confidential," Okon said. He added, though that "it only cost me $20,000." The original lawsuit, according to the Okons, demanded $100,000 from them.

On April 24, Tom Okon posted an apology on North Center Neighbors, stating in part:

We have never had, and do not now have, any reason to believe that Mr. Jaeger ever made inappropriate payments to any organization, nor that he ever received any favorable treatment from the North Center Chamber of Commerce or any other political entity. We never had, and do not now have, any reason to believe that Mr. Jaeger ever engaged in deceptive or evil behavior.

Jurisdiction: 

Content Type: 

Subject Area: 

Evans v. Evans

Date: 

03/02/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Linda A. Evans; Shirley Preddy

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

California Superior Court, San Diego County; Court of Appeals, Fourth District, California

Case Number: 

GIC881162 (trial level); No. D051144 (appellate level)

Legal Counsel: 

Linda A. Evans (Pro Se)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Denied
Injunction Issued

Description: 

In March 2007, Thomas Evans, a deputy sheriff in the San Diego County Sheriff's Department, sued his former wife, Linda Evans, and her mother, Shirley Preddy, for defamation, harassment, invasion of privacy, and other claims. After Thomas and Linda Evans divorced in 2002, they engaged in a bitter dispute in family court over custody of their child, child support, and other issues. Thomas filed a separate lawsuit in California court after Linda and her mother allegedly posted false statements about him on various Internet websites and filed two written complaints with his employer. Thomas also alleged that Linda and Preddy published information from his medical and financial records on the Internet.

The trial court granted Thomas a preliminary injunction that prohibited Linda and Preddy from: (1) publishing "false and defamatory statements" about Thomas on the Internet; (2) publishing "confidential personal information" about Thomas on the Internet; and (3) contacting Thomas's employer regarding Thomas except to call 911 to report criminal conduct. Linda appealed, and the appellate court reversed the ruling of the district court. It held that the preliminary injunction was an unconstitutional prior restraint on speech, and that it was unconstitutionally vague and overbroad. The court remanded the case to the district court for further proceedings. On the issue of Linda's alleged publication of Thomas's private information, the appellate court instructed the lower court to identify precisely what information Thomas seeks to protect and to balance his privacy rights (and the safety issues involved in disclosing personal information about a police officer) against the free-speech interests in publication.

Sometime before the appellate court ruled on the appeal, Thomas dismissed Preddy from the case, leaving Linda as the only defendant.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

AVM 6/12/09 - I checked the court docket, it does not indicate the resolution of the remaining counts against Ms. Evans. Can be found here court docket in case the documents are ever microfilmed. Checked Westlaw, no update to the docket

Appellate briefs are on WL and I uploaded them as well

Evans v. Evans: Appellate Court Throws Out Prior Restraint

Yesterday, a California appellate court struck down a brazenly unconstitutional preliminary injunction prohibiting two defendants from making "false and defamatory statements" about, or publishing the "confidential personal information" of, Thomas Evans, a deputy sheriff in San Diego. The case, Evans v. Evans, 2008 WL 2009669 (Cal. Ct. App.

Jurisdiction: 

Content Type: 

Subject Area: 

Tiny Details, LLC v. Ward

Date: 

02/26/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Stephen Ward

Type of Party: 

Organization

Type of Party: 

Individual

Publication Medium: 

Blog

Status: 

Pending

Description: 

In June 2006, blogger Stephen Ward wrote a post criticizing Tiny Details, LLC, a company that produces doll-making kits that users can assemble at home and sell as a work-from-home-business. The post described Ward's negative experience with the company and directed readers to customer complaints, a Better Business Bureau report, and other materials critical of the company.

In February 2008, Kristopher Buchan, the president of Tiny Details, emailed Ward complaining that the post was libelous and demanding that Ward take it down. Buchan also stated that he had forwarded the post and Ward's domain information to his company attorney. Ward asked by reply email which statements were allegedly inaccurate. Buchan responded by stating that Ward "[would] be hearing from our attorney." Ward sent back additional emails asking for Buchan to identify the allegedly inaccurate statements and offering to update the post "with a more balanced view of your company" in order to avoid a lawsuit. Mr. Ward's site does not indicate whether Buchan ever responded, and there is no indication that Tiny Details filed a lawsuit.

The exchange between Ward and Buchan is detailed in the comments to Ward's original post.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

No updates 6/09/2008 (JMC)

Lifestyle Lift Holding, Inc. v. NBC 10

Date: 

09/26/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

NBC-Subsidiary (WCAU-TV) (a.k.a. NBC 10); NBC Stations Management II, Inc.; NBC Stations Management, Inc.; NBC Universal, Inc.; Lu Ann Cahn; Dr. Louis Bucky; John Doe 1 and 2

Type of Party: 

Organization

Type of Party: 

Individual
Large Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Michigan, Southern Division

Case Number: 

2:06-cv-14312

Legal Counsel: 

Julie Rikelman

Publication Medium: 

Broadcast
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

Lifestyle Lift Holding, Inc. and LL NJ, Inc. are in the business of performing facelifts and other cosmetic surgery. In September 2006, they sued NBC-Subsidiary (WCAU-TV) (a.k.a. NBC 10), NBC Universal and certain of its affiliates, NBC reporter Lu Ann Cahn, and Dr. Louis Bucky over a television news report about the "Lifestyle Lift" cosmetic surgery procedure that appeared on NBC 10 in Philadelphia. In preparing the news report, the NBC defendants allegedly sent two individuals in an undercover capacity to LL NJ's offices to gather information and secretly videotape events on the premises. The news report itself was critical of the Lifestyle Lift procedure and included negative statements by former patients and Dr. Bucky, NBC10's hired expert. A copy of the news program was posted on the NBC10's website, but later removed, and a nearly verbatim transcript of the broadcast was originally posted on various local NBC websites.

The complaint, filed in federal court in Michigan, included claims for violation of the New Jersey wiretapping statute, trespass to land, false advertising under the Lanham Act, and defamation. In November 2006, the defendants moved to dismiss the case, and the court dismissed the false advertising and wiretapping claims, and dismissed Dr. Bucky from the suit altogether for lack of personal jurisdiction over him. Later, the remaining defendants moved for summary judgment on the trespass and defamation claims. On April 28, 2008, the court denied the motion, holding that the defamation claim could go to trial. The court dismissed the trespass claim without prejudice, holding that a New Jersey court should decide that claim.

UPDATE:

On 7/14/2008 the court issued an order of referral to facilitative mediation. On 8/21/08, the court issued an order dimissing the case.

 

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

avm -6-15-09 update on mediation and dismissal

Center for Consumer Freedom v. Marion Nestle

Date: 

01/29/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Dr. Marion Nestle

Type of Party: 

Organization

Type of Party: 

Individual

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

Dr. Marion Nestle, who publishes the blog What To Eat, criticized the Center for Consumer Freedom (CCF) in a blog post, accusing the CCF of, among other things, receiving its funding from and serving as a mouthpiece for the tuna industry.

CCF's director of research, David Martosko, sent Nestle an email stating that the allegations in her blog post were false and libelous and "seem calculated to do harm to our reputation." According to the text of the email Nestle posted on her blog, Martosko also wrote:

The above examples have clearly crossed the line into libel territory, and could lead to legal action. If you have documentation that you believe substantiates your claim, I would be very interested to see it. But I am quite certain that you do not. I advise you to either post a correction or withdraw your January 24 piece entirely.

As of May 2, 2008, Nestle had not removed the disputed statements. Interestingly, Martosko engaged in an extended conversation with Nestle's readers in the comments section below the post in which Nestle reproduced his email.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Jill Button editing

Bauer v. Wikimedia

Date: 

01/31/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Wikimedia Foundation; Jenna Glatzer; MacAllister Stone; James D. MacDonald; Kent Brewster; Ann C. Crispin; Patrick Nielsen-Hayden; Teresa Nielsen-Hayden; Brian Hill; Dee Power aka Harrilane D. Power aka D. Carr Harrilane; David L. Kuzminski; Thomas S

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of New Jersey, Monmouth County

Case Number: 

No. L-1169-07

Legal Counsel: 

Charles LeGrand, Kevin Goering, James M. Chadwick - Shepphard, Mullin, Richter & Hampton LLP; Matt Zimmerman - EFF

Publication Medium: 

Blog
Website
Wiki

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

In January 2008, literary agent Barbara Bauer and her company Barbara Bauer Literary Agency, Inc. filed a lawsuit in New Jersey State court against twenty-two defendants, including the Wikimedia Foundation. The complaint includes claims for defamation, tortious interference with prospective business advantage, and conspiracy. According to court documents, the dispute revolves around statements made on a large number of websites and blogs describing Bauer as being among the "20 Worst Literary Agents" and claiming that she has "no . . . significant track record of sales to commercial (advance paying) publishers." The complaint also alleges that various defendants posted altered photographs of Bauer on the Internet and created YouTube videos, including "Crouching Snark, Hidden Draggon" and "Miss Snark's Happy Hooker Crapstravaganza," that allegedly defamed and belittle her.

With regard to Wikimedia, the complaint alleges that Wikipedia published false statements indicating that Bauer was "The Dumbest of the Twenty Worst" literary agents and that she has "no documented sales at all." It further alleges that Bauer informed Wikimedia about the allegedly false statements, and that the foundation "has refused to remove the statements from Wikipedia." Finally, it alleges that Wikimedia conspired with the other defendants to defame and interfere with her prospective economic advantage, without providing any details.

On May 1, 2008, Wikimedia moved to dismiss the complaint, arguing that section 230 of the Communications Decency Act (CDA 230), the federal law that shields providers and users of "interactive computer service[s]" from liability for defamation and other torts for publishing the statements of third parties, bars Bauer's claims as a matter of law. Wikimedia's memorandum in support of its motion also argued that, even if CDA 230 did not bar Bauer's claim, the underlying statements are protected opinion under the New Jersey Constitution and the First Amendment to the United States Constitution.

On May 20, 2008, WritersNewsWeekly.com wrote that the court will hear Wikimedia's motion to be dismissed from the lawsuit on June 6, 2008.

Update:

7/1/08 - Court dismissed the case against Wikimedia Foundation, ruling that section 230 of the Communications Decency Act barred liability for publishing the statements of others. The court left open the possibility that Bauer could amend her complaint to state a claim against Wikimedia.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Status checked on 6/02/08 (AAB)

Updated 1/29/09 - VAF

English Libel Law's Pernicious Impact on First Amendment Speech

Floyd Abrams published an op-ed today in the Wall Street Journal that highlights the impact of foreign law, especially English libel law, on speech in the United States. Abrams notes:

Jurisdiction: 

Subject Area: 

Patterson v. Cole

Date: 

02/27/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Benjamin Cole

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

Benjamin Cole, writer for SBCOutpost.com, a collaborative "Southern Baptist news & commentary" blog, received a cease and desist letter from counsel representing Dr. Paige Patterson, president of Southwestern Baptist Theological Seminary. Cole had criticized Patterson in a blog post for allegedly refusing to take an oath to "tell the truth, the whole truth, and nothing but the truth” at the beginning of his deposition in a lawsuit in which he is the defendant.

In the February 27, 2008 letter, Patterson's counsel asserted that Patterson didn't refuse to tell the truth but couldn't take the oath as presented. Instead, he writes, Patterson gave an affirmation to tell the "truth, whole truth and nothing but the truth." By failing to mention this affirmation, the letter argues, Cole's article conveys the false impression that Patterson refused to undertake to tell the truth.

Interestingly, Patterson's counsel wrote that Cole that he should not interpret the letter as a threat of legal action, since Patterson's legal convictions precluded him from suing a fellow Christian. He called on Cole not to refrain from making defamatory comments about Patterson in the future, and to "ask the Lord if a retraction is in order."

Cole sent a response letter on March 5, 2008, asking to receive a copy of the transcript of the deposition, but otherwise refusing to retract his blog post.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Status checked on 6/6/2008, no new information. (AAB)

Nemet v. ConsumerAffairs.com

Date: 

03/17/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

ConsumerAffairs.com, Inc.

Type of Party: 

Individual
Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

US District Court for the Eastern District of Virginia

Case Number: 

1:08-cv-00254

Legal Counsel: 

Jonathan D. Frieden; Sean P. Roche (Odin, Feldmen & Pittleman PC)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Nemet Chevrolet and its owner Tom Nemet filed a lawsuit against ConsumerAffairs.com, a consumer ratings site run by former reporter James Hood, for publishing user complaints against his company. Nemet claims the postings published on the site constitute defamation, tortious interference with business expectations and violations of the Lanham Act.

According to Nemet's complaint, visitors to the website fill out an online complaint form, which the editors check for defamatory content before publishing. One disputed user complaint alleges that the company had reneged on a promise made by one of its salespersons to a customer. Another customer posting quoted in the complaint asserts that the company sold the car to her at an inflated price. Nemet maintains that these and other statements are defamatory. 

Nemet's complaint also alleges that the website's name "Consumer Affairs" is misleading and deceptive in violation of the Lanham Act, because it misleads members of the public into believing that it is a government body.

On April 14, 2008, defendant filed a motion to dismiss or strike the complaint, arguing that it has immunity from defamation and tortious interference under section 230 of the Communications Decency Act. It also argued that plaintiffs had failed to state a Lanham Act claim, because Nemet has no rights to the trademark "Consumer Affairs." The court set a motion hearing for May 16, 2008 at 10:00 AM before District Judge Gerald Bruce Lee.

Update:

6/18/2008 - The district court granted ConsumerAffair's motion to dismiss or strike the complaint.

7/15/2008 - The district court granted Nemet Chevrolet's motion for leave to file an amended complaint.

08/04/2008 - ConsumerAffairs filed a motion to dismiss or strike the amended complaint.

9/11/2008 - The district court granted ConsumerAffair's motion to dismiss or stike the amended complaint.

9/25/2008 - Nemet Chevrolet filed a notice of appeal.

12/29/2009 - The Fourth Circuit affirmed the lower court's dismissal of the case.

Jurisdiction: 

Content Type: 

Subject Area: 

Ancel v. Bowles

Date: 

03/05/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Adrian Bowles and Ronald Wimer

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Description: 

Amy Ancel, a local politician in Connecticut, posted a comment on WestportNow.com, a community news site in Westport Connecticut, in which she accused two users of the site of libeling her. The disputed comments occurred in a series of comments relating to the relocation of a local YMCA in which two users of the site, Adrian Bowles and Ronald Wimer, criticized her and questioned Ancel's placement of signs opposing her political opponent.

In a March 5, 2008 comment on the site, Ancel wrote:

[C]onsider this my notice to you and Mr. Wimer to cease and desist libeling me in this website, the newspapers, the Water Rats Parents’ Club website “Mahackeno Now,” Politicus Machamux and any other publications you and Mr. Wimer author or have access to. My next notice will come from my attorneys.

As of June 16, 2009, it appears that no action has been taken by any of the parties.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Status checked on 6/02/08 (AAB)

Status checked on 6/16/09 (CMF)

Frisco Fairways Homeowners Association v. Snell

Date: 

02/15/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

David Snell; David Doumani; Doug Macari

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

393rd Judicial District Court, Denton County, Texas

Case Number: 

2008-60050-393

Legal Counsel: 

Charles W. Branham III; Andrew Messer; Michael C Witt

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

In February 2008, the Frisco Fairways Homeowners Association filed a defamation suit against three homeowners after they posted critical comments about the association on an online community forum. According to the Dallas News, the lawsuit claims that Mr. Snell, Mr. Doumani, and Mr. Macari falsely stated or implied that the association's board had lied to members, engaged in questionable financial dealings, and acted unethically. The association claims that the homeowners also posted private information about members. The dispute apparently arose after the association required residents to cover up air conditioning units, pool equipment, and other items with bushes. News reports indicate that the case is expected to go to trial in April 2008.

Update:

5/1/2008 - Parties settled the case.  As part of the settlement, the association agreed to post the settlement agreement on its website for no less than 30 days.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Status updated on 6/4/2008 (AAB)

Pages

Subscribe to RSS - Defamation