Defamation

Office Space Star Ron Livingston Sues Wikipedia Prankster, Community Norms At Issue

Maybe I'm a big dork, but I think Office Space is a totally hilarious movie.  And based on his starring role in the film, I would assume that actor Ron Livingston has a pretty good sense of humor.  But apparently not so, at least when it comes to web 2.0 technologies and his personal life.

Jurisdiction: 

Subject Area: 

Lemkins v. Lexington Herald-Leader

Threat Type: 

Subpoena

Date: 

11/09/2009

Party Receiving Legal Threat: 

Lexington Herald-Leader

Type of Party: 

Individual

Type of Party: 

Media Company

Court Type: 

State

Court Name: 

Fayette Circuit Court

Publication Medium: 

Website

Description: 

On November 9, 2009, Kentucky attorney Astrida Lemkins issued a subpoena to the Lexington Herald-Leader, which operates the website Kentucky.com, seeking the identity of an anonymous commenter.  The subpoena was issued in connection with a defamation lawsuit filed by Lemkins against the commenter in state court.

At issue in the lawsuit are comments made by a commenter called "supercalifragilistic"to a September 18 article about Lemkins' client, accused killer Steve Nunn.  According to local television station WKYT, the comments contained claims that Lemkins "was mentally ill," had threatened to kill herself and had urged her client to "really really really get a new lawyer."

Content Type: 

Subject Area: 

Priority: 

1-High

Jurisdiction: 

Lemkins v. Doe

Threat Type: 

Lawsuit

Date: 

11/09/2009

Party Receiving Legal Threat: 

Doe

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Fayette Circuit Court

Publication Medium: 

Website

Status: 

Pending

Description: 

On November 9, 2009, Kentucky attorney Astrida Lemkins filed a defamation lawsuit in state court against an anonymous individual that posted comments about her on the website Kentucky.com.

At issue in the lawsuit are comments made by a commenter called "supercalifragilistic" to a September 18 article about Lemkins' client, accused killer Steve Nunn.  According to local television station WKYT, the comments contained claims that Lemkins "was mentally ill," had threatened to kill herself and had urged her client to "really really really get a new lawyer."

After filing her lawsuit, Lemkins issued a subpoena to the Lexington Herald-Leader, which operates Kentucky.com, seeking the commenter's identity.

Content Type: 

Priority: 

1-High

Subject Area: 

Jurisdiction: 

Zuleger v. Klocko

Threat Type: 

Correspondence

Date: 

04/01/2009

Party Receiving Legal Threat: 

Paul Klocko

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

Dean Zuleger, the Village Administrator in Weston, Wisconsin, sent a letter to Paul Klocko, a local businessman, demanding that he cease making anonymous derogatory statements about him on the website for the Wausau Daily Herald.  Klocko had posted his comments on the Daily Herald's website after Zuleger was named Person of the Year by the paper.  According to the Associated Press:

Readers anonymously flooded the Wausau Daily Herald's Web site with comments bashing Zuleger's salary, his management style, his weight. One person suggested his third chin should have been nominated.

''I have just two words for Dean Zuleger, and they are ... A) anger management. B) salad bar. C) Rod Blagojevich. D) all of the above. The correct answer is D.,'' one posting read.

Zuleger asked the Daily Herald for the identity of the user behind the comments, and the newspaper complied with his request by releasing the e-mail address associated with Klocko's username.  Zuleger contacted the Daily Herald and demanded to know the identify of the commenter and the paper handed over one critic's e-mail address.

Zuleger then sent a letter on his official stationery, telling Klocko to stop the personal attacks and ''come out from behind the cloak'' and meet him.

The Daily Herald later apologized to Klocko for revealing his identity and the paper's corporate parent, Gannett Co., has clarified its policies on anonymous speech, stating that it will release information only if ordered by a court or if a comment contains a threat of imminent harm.

No lawsuit has been filed.

Content Type: 

CMLP Notes: 

EK - editing [11/28/09]

Priority: 

1-High

Subject Area: 

Jurisdiction: 

Darnell v. Dobrott

Threat Type: 

Lawsuit

Date: 

06/10/2008

Party Receiving Legal Threat: 

Heather Dobrott

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

193rd Judicial District Court, Dallas County, Texas

Case Number: 

No. 08-06317

Verdict or Settlement Amount: 

$0.00

Legal Counsel: 

Matthew J. Kita; James H. Moody III; Thomas Foster

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Injunction Denied

Description: 

In June 2008, Tim Darnell of Advantage Conferences sued Heather Dobrott in Texas state court for comments she posted about his business under the pseudonym "soapboxmom" on forum site scam.com and other websites.  Darnell's petition and request for temporary restraining order sought injunctive relief and damages against Dobrott on theories of defamation, trade libel, tortious interference, negligence, and invasion of privacy.  

The court initially granted Darnell a temporary restraining order, but in a June 23, 2008 hearing it dissolved the restraining order and denied Darnell's request for a temporary injunction, stating that "prior restraints on speech are presumptively unconstitutional and I have not heard anything that would indicate . . . why the relief requested would take it out of that presumption."

Later, the court granted Dobrott's motion for summary judgment, which appears to have been unopposed.

Content Type: 

Jurisdiction: 

Subject Area: 

Subject Area: 

Jenzabar, Inc. v. Long Bow Group, Inc.

Threat Type: 

Lawsuit

Date: 

05/14/2007

Party Receiving Legal Threat: 

Long Bow Group, Inc.

Type of Party: 

Individual
Organization

Type of Party: 

Organization

Court Type: 

State

Court Name: 

Superior Court of the Commonwealth of Massachusetts, Suffolk County

Case Number: 

No. 07-2075-H

Verdict or Settlement Amount: 

$0.00

Legal Counsel: 

Paul Alan Levy, Michael Kirkpatrick - Public Citizen Litigation Group; T. Christopher Donnelly, Adam B. Ziegler - Donnelly, Conroy & Gelhaar, LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In 2007, Jenzabar, a company that makes software systems for colleges and universities, sued Long Bow Group, the maker of a documentary film about the 1989 student protests at Tiananmen Square called The Gate of Heavenly Peace. The complaint included claims for trade libel, defamation, and various trademark violations. 

Long Bow publishes the TSquare website, which features information and commentary about the events and people depicted in the film. Among other things, it includes articles and background information about Chai Ling, the founder of Jenzabar who was a student leader during the Tiananmen protests and who was portrayed critically in the film.

According to court documents, Chai Ling, Jenzabar, and another Jenzabar executive, Robert A. Maginn, Jr., claimed that Long Bow defamed them on the TSquare website by publishing an "excerpt from an August 2003 Boston Globe column stating that 'fiveformer executives have sued Jenzabar, including the former CEO, whoaccused Chai and Maginn of "a number of unethical, inappropriate,and/or illegal actions."'"  Slip op., at 2-3. The former CEO referenced in the Globe article eventually retracted his allegations anddismissed his lawsuit.

The plaintiffs also claimed that Long Bow violated federal and state trademark laws by using their trademarks—JENZABAR, JENZABAR.COM, JENZABAR.NET, LING CHAI AND CHAI LING—as metatags for those pages discussing Chai Ling and Jenzabar.

In response to Long Bow's motion to dismiss the complaint, in August 2008 the court dismissed the defamation and trade libel claims, ruling that Long Bow had no continuing duty to investigate the accuracy of the Boston Globe article posted on its site.  The court denied the motion to dismiss the trademark claims, but expressed doubt as to their viability:

Although Jenzabar seems unlikely to prevail on this claim because of the dissimilarity of Long Bow's business, Jenzabar has adequately pled the likelihood of confusion element, which is all that is required to survive a motion to dismiss. 

Slip op., at 7.

Long Bow filed a motion for summary judgment in October 2009, arguing that use Jenzabar's trademarks in its metatags does not create a likelihood of consumer confusion, and that the First Amendment protects its use of the metatags because they are directed to Long Bow's truthful and noncommercial speech about Jenzabar and Chai Ling.

In November 2009, Jenzabar filed a motion to disqualify Public Citizen Litigation Group as Long Bow's counsel based on two blog posts Public Citizen lawyers published about the case—Jenzabar Joins Trademark Abusers Hall of Shame (CL&P Blog) and Faulty trademark case pits Tiananmen Square protest leader against filmmaker (Citizen Vox).  Jenzabar argued that the posts will "create controversy" and "cause prejudice to Jenzabar," and that anylawyer who engages in such blogging is in violation of Massachusettscourt rules. Paul Levy of Public Citizen publicly responded to these claims on the CL&P Blog, characterizing the motion as a further attempt to suppress speech.

Update:

12/7/10 -  Superior Court Judge Cratsley granted defendant's motion for summary judgment on the ground that there was no evidence supporting the claim that any reasonable Internet user might be confused about whether Jenzabar was the sponsor of Long Bow's web site.

9/6/11 - Jenzabar appealed the grant of defendant's motion for summary judgment.

10/17/11 - Jenzabar filed its opening brief with the Massachusetts Appeals Court.

12/22/11 - The Boston Patent Law Association filed an amicus brief urging the Appeals Court to recognize "initial interest confusion" as a valid doctrine under trademark law.

1/18/12 - Appellee Long Bow filed its brief with the court. The Digital Media Law Project filed an amicus brief urging the court to reject application of trademark law to critical, communicative uses of trademarks. 

3/2/12 - Appellant Jenzabar filed a reply brief with the court, addressing the claims from Appellee Long Bow and the Digital Media Law Project.

10/18/12 - The Massachusetts Appeals Court affirmed summary judgment in favor of Long Bow, holding that: (1) Jenzabar's infringement claim failed because it did not present sufficient evidence to support a finding of likelihood of confusion; (2) allegations that Jenzabar's trademark was used for the purposes of critical commentary could not support a dilution claim; and (3) the fact that Long Bow's website did not possess a tendency to deceive consumers was fatal to its Massachusetts statutory claim for unfair and deceptive trade practices.

11/2/12 - Jenzabar filed an Application for Further Appellate Review with the Massachusetts Supreme Judicial Court. 

11/19/12 - Long Bow filed an opposition to Jenzabar's application.

12/19/12 - The Supreme Judicial Court denied the application for further appellate review.

CMLP Notes: 

Edited 1/24 to include updated brief - AFS

Jurisdiction: 

Subject Area: 

Content Type: 

Hipcheck16 Is No Turk 182 - But Anonymous Political Speech Is Sacred

This one is a little disturbing.

Political Race Gets Nasty

Jurisdiction: 

Subject Area: 

Straub v. Hair Transplant Network

Threat Type: 

Lawsuit

Date: 

07/24/2008

Party Receiving Legal Threat: 

ABC and XYZ Corporations, HairTransplantNetwork.com, Hennessey Patrick, John Doe 1-5, Mary Roe 1-5, Media Visions Inc.

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of the State of California, Los Angeles County

Case Number: 

BC395051

Publication Medium: 

Forum
Website

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Dr. Paul Straub filed a defamation lawsuit against Media Visions Inc., the company behind HairTransplantNetwork.com, on the grounds that he was removed from the website's recommended doctors list and that critical comments were posted on the website's forum.

HairTransplantNetwork.com operates two affiliate websites, RegrowHair.com, which serves as its Q&A Blog, and Hair-Restoration-Info.com, which serves as a forum for patients to discuss their experiences. HairTransplantNetwork.com suspended its recommendation of Dr. Straub in the summer of 2007. Dr. Straub requested that his recommendation be reinstated and that any critical forum posts be deleted.

When HairTransplantNetwork refused to take down the forum posts and to reinstate his recommendation, Dr. Straub filed a lawsuit. Dr. Straub voluntarily dismissed the case eight months later, in April 2009.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Stylianou Oct/09

Jurisdiction: 

Intellect Art Media Inc. v. Milewski

Date: 

12/15/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Mathew Milewski and Xcentric Ventures, LLC

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Supreme Court of the State of New York, New York County

Case Number: 

117024/08

Legal Counsel: 

Maria Crimi Speth, Jaburg & Wilk P.C. (for Xcentric)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)

Description: 

On December 15, 2008, Intellect Art Media, Inc., a Massachusetts-based company that operates a college-level summer program called Swiss Finance Academy, sued Mathew Milewski, a student at Fordham University; Xcentric Ventures, LLC, operators of the website RipoffReport.com; and five anonymous posters for defamation.  Intellect Art Media's claims were based on comments Milewski and others had posted on Ripoff Report, a consumer complaint site, regarding the Swiss Finance Academy program. The complaint also alleged a claim for breach of contract against Milewski and a products liability claim against Xcentric. Intellect Art Media later sought leave to amend the complaint to include six more causes of action against Xcentric, including tortious interference with prospective business relations, tortious interference with contractual relations, breach of contract, negligent misrepresentation, common law negligence, and injurious falsehoods. 

In April 2009, the defendants separately moved to dismiss. The Supreme Court of New York dismissed all claims except the breach of contract claim against Milewksi. The court dismissed the defamation claim against Milewski, characterizing his criticism of Swiss Finance Academy as personal opinion that is protected by the First Amendment. The court reasoned that the context of the website revealed that Milewski was "a disgruntled consumer and that his statements reflect his personal opinion based upon his personal dealing with plaintiff." The court also noted that Milewski's description of the program as a "bait and switch scam" and as a "joke" were "loose, figurative or hyperbolic" statements and were therefore unactionable.

The court likewise dismissed the defamation claim against Xcentric because Intellect Art Media failed to cite affirmative statements made by Xcentric, despite a general allegation that Xcentric added "defamatory headings" in Milewski's post. The court also found that Section 230 of the Communications Decency Act shields Xcentric from liability as “[nlo provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 USCA § 230 (c) (1).

The court disposed of the products liability claim against Xcentric, reasoning that the website is probably a "service" rather than a "product," and that even if the Ripoff Report were a "product," Intellect Art had not proven it to be "defective."

The court summarily denied Intellect Art Media leave to amend the complaint to add the six other causes of action and denied Intellect Art Media's request for discovery to identify Does 1-5 because the Intellect Art Media failed to allege defamatory statements made by the anonymous posters.

The court did not dismiss the breach of contract claim against Milewksi, and transferred the claim to the Civil Court of the City of New York on jurisdictional grounds.

CMLP Notes: 

-MW reviewing 10/1

Priority: 

1-High

Subject Area: 

Jurisdiction: 

Content Type: 

Butler University v. Zimmerman

Date: 

01/08/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Jess Zimmerman

Type of Party: 

School

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Marion Superior Court, State of Indiana

Case Number: 

49D020901PL001164

Legal Counsel: 

Dan Altman

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Subpoena Enforced
Withdrawn

Description: 

In January 2009, Butler University filed a "John Doe" defamation lawsuit against the pseudonymous author of the TrueBU blog, who signed his posts "Soodo Nym." The author later was identified as Butler University student Jess Zimmerman.

The complaint alleged that Soodo Nym defamed the University and two of its administrators in at least five blog posts from October to December 2008. The posts criticized school officals in connection with the decision to dismiss the chair of the school's music department (who happens to be Zimmerman's stepmother). Specifically, the complaint cited the following statements, among others, as allegedly defamatory:

  • "Peter Alexander, Dean of the JCFA, is power-hungry and afraid of his own shadow.  He drives away talented administrators. He frustrates students within the departments.  He hurts the ability of the school to recruit talented students and faculty members.  He announces to the campus that the Butler Way, the ideals for which the school and everyone at it stands, means nothing." ¶ 17.
  • "Dean Alexander has misused his authority, is paranoid, and is unequivocally a poor leader of an otherwise promising college with Butler University.  Need more be said?  He says one thing and does another. . . .  [Dean Alexander] cannot deal with disagreements or conflict and instead uses the brute force of his authority as Dean to dictate what happens within the JCFA." ¶ 23.
  • "Dr. Comstock 'doesn't seem to care much for student opinion,' is 'unwilling to work with students unless she can see how the relationship will directly benefit her,' and seems to 'have some illusions of grandeur and a love for the power of her position.'" ¶ 11.

According to an October 13 statement from Butler President Bobby Fong, the school requested permission from the court in February and April to issue subpoenas seeking the blogger's identity.  In both cases, the court granted the request and issued the subpoenas.  (It does not appear from the record whether Zimmerman had notice of the subpoena requests or intervened to object.) According to Fong's statement, information obtained through the subpoena process led to Zimmerman. (Zimmerman says that the University told him it had proof he was Soodo Nym back in January.) In October, Zimmerman came forward publicly as the author of the blog, which had ceased operations on January 1 in response to the university's threat of a lawsuit.

On October 27, President Fong issued another statement, indicating that Butler had dropped the lawsuit and would "deal with Jess Zimmerman through the internal disciplinary process."

CMLP Notes: 

Stylianou Oct/09

Priority: 

1-High

Subject Area: 

Jurisdiction: 

Content Type: 

Platinum Equity v. San Diego Reader

Threat Type: 

Correspondence

Date: 

06/26/2009

Party Receiving Legal Threat: 

San Diego Reader; Jim Holman; Matt Potter; Don Bauder

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Publication Medium: 

Print
Website

Relevant Documents: 

Status: 

Pending

Description: 

Platinum Equity, LLC, the parent company of the Union-Tribune newspaper, sent a letter to the San Diego Reader, another local newspaper with a website edition, cautioning them against publishing a story on two lawsuits charging Platinum with workplace sexual harassment.

In June 2009, when a CNBC report publicized the two lawsuits, the Reader asked Platinum’s public relations executive, Mark Barnhill, for a comment. Platinum responded with a six-page letter sent to the editor and publisher of the Reader and two of its reporters, warning them that Platinum would file a defamation suit if the newspaper published a story suggesting that Platinum engaged in wrongdoing as alleged in the lawsuits. 

Platinum's lawyers also marked the letter "Confidential Legal Notice" and threatened legal action for "breach of such confidence and a violation of the Copyright Act" if the Reader published the letter in whole or in part. 

The Reader published no in-depth coverage of the two lawsuits, but mentioned the lawsuit in two articles. In one, the Reader commented specifically on Platinum's threat letter and its assertion of confidentiality and copyright.  The article included a copy of the letter for download

As of the time of writing, neither Platinum nor its lawyers have pursued any legal claims against the newspaper or individuals involved.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Stylianou, Oct/09

Jurisdiction: 

Dolan v. Cityfile

Date: 

07/27/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Cityfile, Inc.; Remy Sterm; Teri Buhl

Type of Party: 

Individual
Large Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Supreme Court of the State of New York, County of New York

Case Number: 

150135-2009

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Retraction Issued

Description: 

James Dolan, Cablevision Systems Corporation, and Madison Square Garden sued the blog Cityfile: New York, its publisher, and one of its bloggers over a July 2009 post entitled "Jim Dolan to Kill Christmas in July?"  The complaint (¶ 1), filed in New York state court, describes the Cityfile post as follows:

The article . . . defames and disparages the Radio City Christmas Spectacular, the iconic holiday season production owned and operated by MSG, by — among other things — falsely alleging that Plaintiffs plan to "kill Christmas" for millions of fans by discontinuing the Christmas Spectacular, "scrap[ping]" the world-famous Rockettes, and installing an entirely new show at Radio City Music Hall during the holiday season.  Although the article purports to cite "insiders" as the source for these inflammatory allegations, the article is, in truth, nothing more than a sensational headline based on unfounded speculation, including double-hearsay from a "former cast member" and other anonymous "sources" who, as Defendant knew or should have known, have no knowledge of Plaintiffs' plans for the production.

Cityfile retracted the post and publicly apologized, stating: "We now realize that we could have done more to ensure that all relevant facts were included in the article. We have retracted the article and remove it from our website, and regret any negative and/or mistaken impressions that resulted from its publication."

Content Type: 

Priority: 

1-High

Jurisdiction: 

CMLP Notes: 

Stylianou, Oct/09

Subject Area: 

Advanced Armament Corp. v. Garner

Date: 

05/06/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Ian Hale Garner

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Oregon

Case Number: 

06:08-cv-06142

Legal Counsel: 

Michael H. McGean - Francis Hansen & Martin LLP

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Advanced Armament Corp., a Georgia manufacturer of silencers for firearms, sued Ian Hale Garner in Oregon over statements he posted on Internet chat rooms for gun enthusiasts.  Advanced Armament brought suit in federal court in May 2008 seeking damages and injunctive relief for defamation and interference with contractual relations. In particular, Advanced Armament sought to prevent Garner from "making, stating, or posting any defamatory statements," including but not limited to statements about its "products, designs, customer relationships, business plans and contracts." Compl. ¶ 4.

Garner moved to strike the complaint under Oregon's anti-SLAPP statute, arguing that American Armament's claims arose out of written statements in a public forum concerning issues of public interest.  He argued that the chat rooms were public forums because "[i]n this case, anyone who is interested" in the topic "may in fact register and gain access," analogizing chat rooms to newspapers, magazines, and newsletters. Def.'s Reply Mem. in Supp. of Mot. to Strike at 3-4. Garner argued that his statements concerned an issue of public interest because the two chat rooms had "thousands of members each." Id. at 6. He also pointed out American Armament described itself as providing weapons to police departments and the U.S. government, making its activities a matter of public interest. Id. at 5.

American Armament countered that Garner was not speaking in the public interest when he made the statements because he had a relationship with one of its business competitors, which was also financing Garner's defense.  Pl.'s Supp. Brief in Opp. to Def.'s Mot. to Strike at 4.

The case proceeded to discovery before it was dismissed in April 2009 because the parties had reached a settlement.  

CMLP Notes: 

Under review, HCF (10/14/2009)

Priority: 

1-High

Subject Area: 

Jurisdiction: 

Content Type: 

Lauth Group, Inc. v. Grasso

Date: 

07/25/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Gary Grasso; Matthew Roob; Kevin Lampe; Merit Management Group, LP; Kurth Lampe, Inc.

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization
Media Company

Court Type: 

Federal
State

Court Name: 

Hamilton Superior Court, State of Indiana; United States District Court for the Southern District of Indiana

Case Number: 

0706 PC 701 (state); 1:07-cv-0972 (federal)

Legal Counsel: 

Michael E. O'Neill - Hinshaw & Culbertson LLP

Publication Medium: 

Other

Relevant Documents: 

Status: 

Pending

Description: 

The plaintiffs, real estate developers the Lauth Group, Inc., Lauth Indiana Resort & Casino, LLC, Robert L. Lauth, Jr. and Greg Gurnik, filed a lawsuit in 2007 over statements made in a June 2007 press release about other litigation between the Lauth developers and Merit Management Group, LP.  The press release was published in the e-newsletter INside Edge, which focuses on business news. In the lawsuit, the plaintiffs seek damages for defamation, conspiracy to defame, intentional infliction of emotional distress, and false light invasion of privacy.

Gary Grasso represented Merit Management in prior litigation over the existence of a joint venture agreement with the Lauth developers. After the trial judge denied Lauth's motion for summary judgment in the contract action, Grasso and Merit allegedly participated in the drafting, editing or dissemination of the press release, according to the complaint. (Compl. ¶ 13). The press release stated that "the Lauth people" cannot be trusted in their business dealings and their "deception has now been exposed and confirmed." (Compl. ¶ 13). The plaintiffs contend that the statements imputed to them professional misconduct and harmed their business reputation. (Compl. ¶¶ 23, 27). The case was initially filed in Indiana state court, but the defendants removed to federal court in 2008 on the basis of diversity jurisdiction.

Content Type: 

Priority: 

1-High

Jurisdiction: 

Subject Area: 

Finkel v. Facebook: Court Rejects Defamation Claim Against Facebook Premised on "Ownership" of User Content

Back in February, Denise Finkel, a 2008 graduate of Oceanside High School on Long Island, sued four of her former high school classmates and their parents after the students created a private Facebook group called "90 Cents Short of a Dollar," which allegedly contained false and defamatory statements about her. 

Jurisdiction: 

Subject Area: 

Kerr v. Smith

Date: 

09/20/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Gregg B. Smith

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of Massachusetts

Case Number: 

No. 06-1807C

Verdict or Settlement Amount: 

$0.00

Legal Counsel: 

Pro Se

Publication Medium: 

Print
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued
Verdict (plaintiff)

Description: 

A group of developers sued Gregg B. Smith in Massachusetts state court over his operation of a website and distribution of a newsletter under the name "Save Cape Ann." Smith disputed the ownership of a parcel of land and the developers' right to develop the land. The developers brought suit in September 2006 seeking injunctive relief for defamation, intentional interference with contractual relations, intentional infliction of emotional distress, and trespass. In particular, the plaintiffs sought to prevent Smith from the "distribution of any publications, website, videos, or other means of communication, regarding these unfounded statements about Plaintiffs." (Compl. ¶ 78).

According to the complaint, the website contained "false, disparaging, and derogatory allegations about not only individual members of the Hoffman family, but also about the Kerr family. . . and about Reeb Millwork Corporation." (Compl. ¶ 32).  The allegedly defamatory statements included:

  • "Plaintiffs are continueing [sic] the crimes after two of the resident homes were illegally acquired. . ." (Compl. ¶ 33)
  • "Tide Rock Developer and former Math professor . . . is a child preditor [sic]. For over 15 years he prayed [sic] on his students giving them illegal drugs." (Compl. ¶ 34).

The plaintiffs also accused Smith of making false and defamatory statements in letters sent to the plaintiffs and their employees.

The Massachusetts state court issued a prelminary injunction in October 2006, prohibiting Smith from (1) making certain defamatory remarks concerning the plaintiffs; (2) contacting the plaintiffs; (3) contacting employees, customers, or affiliates of certain plaintiffs; and (4) coming within 25 feet of "the Stone House." The court specifically ordered Smith not to publish statements claiming that the plaintiffs hired "crooked lawyers" to further their development activities or that they "illegally acquired property, have illegally destroyed homes or property of others, have interfered with the property of others in retaliation for opposition to real estate development activities, and/or otherwise engaged in 'real estate crimes.'"

In March 2007, the court issued a further order expanding the scope of the injunction to prohibit Smith from (1) "publishing any statement accusing any of the Plaintiffs of illegal activity unless and until such illegal activity is actually found and adjudicated"; and (2) "soliciting others to violate the injunction."  In June 2008, the court deleted provisions of the injunction relating to contacting employees and making generalized allegations of criminal activity.

In August 2008, after a trial, a jury returned a verdict for several of the plaintiffs on the defamation count and for one plaintiff on the intentional infliction of emotional distress count, but the jury awarded no damages for these two counts.  (The jury awarded Katherine Hoffman Sen and Scott Kerr $900 for trespass on land, but this was unrelated to Smith's publishing activities.) 

After the jury verdict, the plaintiffs moved the court for entry of judgment, including a permanent injunction prohibiting Smith from making specified defamatory statements about them. In January 2009, the court ruled that it would issue an order enjoining Smith from "publishing the statements which, based upon the evidence, . . . have been the statement or statements the jury found to be defamatory of certain of the plaintiffs."

CMLP Notes: 

In review [HF 10/9/2009]

on wl at 2007 WL 6799319

Priority: 

1-High

Subject Area: 

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Case That Upended Truth Defense in Libel Actions Ends With Jury Verdict for Defendant

In a closely watched case that challenged (at least in Massachusetts) our long held understanding that truth is an absolute defense to a defamation claim, the jury has returned a verdict for the defendant, finding that it acted without actual malice when it sent an email to its employees stating -- truthfully -- that one of its salesman had been terminated because he violated the company's travel and expense policies.

Jurisdiction: 

Subject Area: 

Nevyas v. Morgan II (Federal Lawsuit)

Date: 

01/29/2004

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Dominic J. Morgan; Steven A. Friedman

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Pennsylvania

Case Number: 

2:04-CV-00421

Legal Counsel: 

F. Michael Friedman (for Morgan); Jeffrey B. Albert (for Friedman)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

The plaintiffs, Drs. Nevyas and Nevyas-Wallace and Nevyas Eye Associates, brought suit in federal court in 2004 for damages and injunctive relief for violations of the Lanham Act, defamation, and breach of contract for statements about their LASIK eye surgery practice posted by a former patient on a website.

Dr. Nevyas-Wallace performed elective LASIK eye surgery on the defendant Dominic Morgan in 1998. Displeased with the results, Morgan created a website that "intentionally and maliciously defamed Dr. Nevyas and Dr. Nevyas-Wallace" at that time or soon after, according to the complaint. (Compl. ¶ 18).

The federal Lanham Act claim was based on what the plaintiffs claimed were false or misleading statements posted on defendant's website. (Compl. ¶ 88). They also sued Steven Friedman, an attorney who represented Morgan in previous cases, for allegedly writing defamatory letters to the FDA which were later posted on the complained-of website. (Compl. ¶¶ 60-67). The plaintiffs argued that these statements were "material to the purchasing decisions" and "intended to deceive potential and current patients." (Compl. ¶¶ 89-90).

The federal district court dismissed the Lanham Act claim because the plaintiffs lacked standing to bring a false advertising claim and because Morgan's statements did not qualify as "commercial advertising or promotion." After the court dismissed the federal claim, it declined to exercise supplemental jurisdiction over the state law claims of defamation and breach of contract. Nevyas v. Morgan, 309 F. Supp.2d 673, 680 (E.D. Pa. 2004).

Related case in state court: Nevyas v. Morgan (state lawsuit)

CMLP Notes: 

309 F.Supp.2d 673

Review by HF 10/2/2009

Priority: 

1-High

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Content Type: 

Pages