Posts Tagged ‘Aaron Morris’

Anonymous Blogger Turns Case International, and Results in Anti-SLAPP Motion

International Anti-SLAPP MotionAn international defamation action has ended up here in California. Out of the UK, Tyneside councillors (that’s the way they spell it over there) are very upset that an anonymous blogger who calls himself “Mr. Monkey” has been defaming them.

The council has backed a three-year hunt to discover the identity of Mr. Monkey, with the legal fees now exceeding six figures. So far, since they did not retain Morris & Stone, the attempts to uncover the identity of Mr. Monkey have been unsuccessful.

Enter Coun Ahmed Khan, a councillor from a rival political party. The four plaintiff councillors successfully moved to have Khan’s personal computer records disclosed, because they apparently suspected him of being Mr. Monkey. Khan denies that he is the primate in question, but has cried “enough is enough”, and wants to put an end to the search.

To that end, he brought what I can only characterize as an offensive anti-SLAPP motion (not offensive as in crude, but as in the opposite of defensive). He intervened in the San Mateo Superior Court action and filed an anti-SLAPP motion, asserting that even though he is not Mr. Monkey, the comments of Mr. Monkey are protected and the action should therefore be dismissed.

Motion DENIED. Indeed, the court found the motion to be so frivolous that it awarded attorney fees of £40,000 to the plaintiffs. (I once obtained a judgment in Los Angeles Superior Court in British pounds. It’s worth it just to see the court clerks try to figure out how to enter it into the system and calculate interest and the like.)

Khan has now appealed the denial of his anti-SLAPP motion and the award of attorney fees. The complete story can be found here.

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Sending Demand Letter Out of State Can be Problematic

Anti-SLAPP Motion by Attorney

How Matabolic views the case

The case of Metabolic Research, Inc. v. Scott J. Ferrell, et al. is turning out to be a fascinating case on several levels, including liability considerations for attorneys and SLAPP issues. Briefly, here are the facts as set forth in a recent opinion of the Ninth Circuit Court of Appeals.

Scott J. Ferrell is an attorney practicing in Orange County, California. He apparently believes that a supplement being made by Metabolic and sold by GNC (Stemulite) is bad stuff. To that end, he sent demand letters to Metabolic and GNC in Pennsylvania and Nevada, accusing them of violating the California Consumer Legal Remedies Act by way of false advertising, and threatening to sue them (presumably in California)* if they did not stop their (allegedly) evil ways and agree to an injunction to that effect.

In California, Ferrell’s letter would likely have been determined to be part of the litigation process and therefore protected, UNLESS it was deemed to be extortion. (See Flately v. Mauro.) In California, the issue would have proved very interesting, because while Ferrell was not demanding any money, the hallmark of true extortion, the injunction he was demanding was so onerous – including a requirement that all profits be disgorged – that Metabolic claimed it would have put it out of business. Nonetheless, in California it might have been decided that the letters did not cross the line, and Ferrell would have been safe from suit.

But Ferrell’s letters were sent outside of California. In November 2009 Metabolic filed a lawsuit in Nevada State Court against Ferrell, charging extortion and racketeering based on his demand letter. Ferrell removed the case to Federal Court (I never would have done that for the reasons that follow), and then brought a motion to dismiss based upon Nevada’s anti-SLAPP statute, claiming that the lawsuit amounted to a SLAPP because it was suing him for engaging in litigation.

Motion DENIED. The District Court found that “Nevada’s anti-SLAPP legislation only protected communications made directly to a governmental agency and did not protect a demand letter sent to a potential defendant in litigation.” Again, as would be appropriate in California but not necessarily elsewhere, Ferrell took an immediate appeal.

Appeal DENIED. Federal courts do not like interlocutory appeals, and will find a way to reject them. The court did an in-depth review of Nevada’s anti-SLAPP statute, and concluded there was no right of immediate review of a denial of an anti-SLAPP motion. The court referred to this as a “run of the mill anti-SLAPP motion” (ouch), and held that a District Court judge affords sufficient safeguards to protect defendants from SLAPP actions without the added protection of an immediate appeal. However, to twist the knife a little, the Ninth Circuit threw in that Ferrell could have proceeded by way of a writ of mandamus, and that it was offering “no opinion on how we might have decided” such an application had it been pursued.

Lesson 1: Consider that when you send a demand letter out of State, you may be subjecting yourself to an action in that jurisdiction.

Lesson 2: (And I have seen this over and over) Don’t remove a case to Federal court just because you can. The motion may well have been decided the same way in State court, but I would not have wanted it decided there.

* That’s not me presuming, the court opinion used those words.

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District of Columbia Struggling With Anti-SLAPP Law

The District of Columbia instituted an anti-SLAPP procedure back in March but the judges are having a heck of a time figuring it out. (Don’t feel bad D.C., California has had a SLAPP statute since 1992, and some judges still don’t get it.)

Judge Rufus G. King III of the D.C. Superior Court got it right. A local television station did a report on the ridiculous amounts of overtime that was being paid to certain government officials. In one reported case of a fire department Lieutenant, his annual salary was $90,000 but he had earned as much as $119,000 in overtime pay one year.

That Lieutenant took exception with the fact that the news story had used terms like “racked up” and “month after month”, claiming those statements were defamatory. His attorney apparently failed to explain or he refused to understand that only the “gist” of the statement need be true in order to defeat a defamation action, so he filed a defamation action against the television station, and the station quite properly brought an anti-SLAPP motion.

Judge King ruled that the report was a matter of public interest and therefore fell under the anti-SLAPP statute, and that the Lieutenant failed to demonstrate a likelihood that he could establish damages. Motion GRANTED, case DISMISSED. Good job D.C.

But then there was Judge Richard Leon. You may recall that a U.S. Department of Agriculture official named Shirley Sherrod left her job after a video was released, seemingly showing her confessing to discriminating against white farmers. It later came to light that the comments were arguably taken out of context due to the editing of the video. Sherrod didn’t appreciate that, and sued blogger Andres Breitbart, among others, asserting in her complaint that the “deceptively edited” clip constituted defamation. Breitbart responded by bringing an anti-SLAPP motion, asserting that the posting of the clip was an act of protected speech.

Sure sounds like a SLAPP to me, but Judge Leon denied the motion out-of-hand with only a two sentence order. The U.S. Court of Appeals for the D.C. Circuit was stumped by that one as well, and today ordered Judge Leon to explain himself.

Less than a week ago, Judge Robert L. Wilkins out of the U.S. District Court for the District of Columbia was not nearly as concise as Judge Leon, and issued a 55-page opinion denying an anti-SLAPP motion, finding “that the special motion to dismiss procedure under the Anti-SLAPP Act does not apply to a federal court sitting in diversity.”

 

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An Emotional Distress Claim Should Not Be Undertaken Lightly

The case of Mallard v. Progressive Choice Ins. Co. beautifully illustrates a point I discuss with all clients who want to make an emotional distress claim, while at the same time illustrating an important SLAPP rule of law.

Sometimes I will get a call from a potential client within minutes after they were fired. They want to sue for wrongful termination and they want to sue NOW!

But 15 minutes after an employee has been fired, what are the damages? When I ask the caller that question, they answer, “I was fired!” Yes, but what are your damages? “I was fired!”

Rather than to go on all day in this fashion, I explain. Damages are something you can put a dollar sign in front of. Being fired is not a damage, although obviously it can CAUSE damages. But 15 minutes after a termination, an ethical attorney should explain that there are no real damages at that point.

If the employee was making, say, $25 an hour, and they were fired two hours before their shift ended, then the damages at that moment they are calling me are $50, at least in terms of lost wages. But let’s carry it out a little. Let’s assume for our hypothetical that the employee had seen the writing on the wall and had already sent out some feelers for a new job before the axe fell. She makes a few calls, and a week later she starts a new job with the same title that pays $30 per hour with better benefits. What are her damages then?

Well, she went a week without being paid, so she lost $1,000 in wages. Her old employer should at least cut her a check for $1,000, right? But wait a second. Because of the termination, she will made $10,000 more for the year than if she hadn’t been fired. Fair’s fair. If you thought her employer should pay her for what she lost as a result of the termination, then it is only fair that she should pay to the employer the money she gained as a result of the termination, right?

I’m speaking tongue in cheek of course, but I want you to think in terms of the real damage to our terminated employee. Last week I discussed all the damages that flow from a wrongful termination, and if you look at that list, assuming our employee did not suffer any setback to her career track, then there are no real damages.

“But what about emotional distress damages?”, the caller asks. That’s a valid question. If your employer wrongfully terminated you, you might have suffered some emotional distress damages. Again, an ethical attorney then needs to explain what you open yourself up to when you claim emotional distress.

Which leads us to today’s case review.

Progressive Insurance issued an automobile insurance policy to Winly Mallard. She was involved in an auto accident, and her medical expenses exceeded the policy limits, so she proceeded under her insurance policy’s uninsured motorist claim because the driver of the other car involved in the accident did not have liability insurance.

A quick aside here. All the commercials you see with the helpful insurance agents are bull. Yes, you will be fine if you are in an accident that involves only property damages and perhaps some minor medical expenses, but if you ask for anything challenging, the insurance company will fight your coverage.

That was what happened to Winly Mallard. An attorney by the name of Rivers J. Morrell III was retained by Progressive with regard to Mallard’s claim. Morrell propounded form interrogatories to Mallard on Progressive’s behalf. In addition to listing her injuries to her neck and back, Mallard also stated that she had difficulty sleeping, and suffered “[s]hock” and “[n]ervous anxiety.” In addition, she stated she was pursuing a claim for loss of earning capacity.

There it is. Just like a wrongfully terminated employee who wants to assert emotional distress, Mallard had put at issue her mental health. Is she having trouble sleeping because of the accident and/or injuries, or is there something else that could be troubling her? Morrell wanted to know, so her mental health records were subpoenaed from health care providers identified in her verified responses.

Understandably, Mallard felt very invaded. She filed a complaint alleging claims for invasion of privacy and abuse of process against Morrell and Progressive, based on the act of subpoenaing third parties to obtain Mallard’s mental health records. Mallard served only Morrell with the complaint.

Morrell filed an anti-SLAPP motion to strike the complaint, which was opposed by Mallard. The trial court granted the anti-SLAPP motion and ordered the complaint dismissed with prejudice as to both defendants. Mallard appealed.

The trial court granted Morrell’s motion for attorney fees and costs, awarding him $13,756.64 in attorney fees and costs under section 425.16, subdivision (c). Mallard appealed, but the Court of Appeal agreed that the action against the attorney was a SLAPP, and upheld the judgment.

Morals of this story: A determination of an insured’s uninsured motorist coverage is always by way of an arbitration. Apparently Mallard’s attorney thought that an arbitration would not fall under the right of redress aspect of the anti-SLAPP statute, but he was wrong. As I discussed here, the standard is very broad – even a trial in Zimbabwe is considered an official proceeding.

Second, clients must be made aware that making an emotional distress claim leaves them open to very intrusive questions and discovery. That does not by any means mean that it is never appropriate to assert such a claim, but it should only be done after much consideration.

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Even Nuns Defame; Credibility Key to Any Trial

"Notre Dame des Anges" an 1889 painting by William-Adolphe Bouguereau. (Provided photo) / AL
The report of this defamation caught my eye because of the parties involved. There is a standard joke among attorneys, that if you find yourself suing widows, orphans or nuns, your practice has probably taken a bad turn. In this case, nuns were being sued for defamation.

It started when the nuns decided to sell an old painting they had laying around. The painting was in really bad shape, not even worth hanging, but it turned out to be by a well regarded artist, William-Adolphe Bouguereau. So the nuns had it appraised by an art dealer named Mark LaSalle. Based on his appraisal, the nuns agreed to sell the painting to Mark Zaplin for $450,000. Zaplin had the painting restored to its former glory, a fact that I think is crucial to this case, and turned around and sold it for $2.15 million, netting a tidy little profit.

The nuns sued LaSalle and Zaplin under a number of theories, claiming that Zaplin had been a straw buyer, and that LaSalle was working in concert with Zaplin and had conned the Daughters of Mary by intentionally under-appraising the painting in order to buy it at a bargain price. The two Marks counter-sued for defamation, because the nuns had made these same claims to the media. (In case you’re new here, you can never sue for defamation for things said in conjunction with a lawsuit, since those statements are privileged, but you can sue if the same statements are made to the media.)

Here is the part I find interesting and the main reason for this article. The nuns had a witness. An art dealer by the name of Paul Dumont claimed to know both LaSalle and Zaplin, and testified that LaSalle had told him that they could “make a handsome profit by giving the sisters a low appraisal value of between $350,000 and $450,000 and presenting a buyer who would pay the amount of our deliberate and intentionally inaccurate appraisal.” He claimed that LaSalle had asked him to find a “money man” who would act as a straw buyer.

Wow. Pretty strong stuff. So the nuns must have won, right? Actually, they went down in flames (can I say that about nuns?). A New York jury found against them on all of their claims, and instead awarded LaSalle $250,000 for defamation against Dumont and a church Bishop, and awarded Zaplin $75,000 against Dumont for defamation. LaSalle will also recover punitive damages.

But how can that happen with a witness who is specifically corroborating the story of the fraudulent appraisal and straw buyer? And therein lies the moral of this story. Read the rest of this entry »

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Gloating Over $5,000 Settlement Costs Parents $234,011.87

Canadian Teacher, eh?Some callers to my office, wanting to sue for defamation because someone said terrible, false and hurtful things about them, are disappointed to learn that they cannot seek legal action because the speech falls under a privilege. By definition, “privileged” speech can never be defamatory, and therefore cannot support a defamation action.

Examples? Speaking at a City Council meeting, testifying in court, or filing a police report – all privileged speech. (There are of course exceptions to every rule of law, but my New Year’s resolution was to write shorter articles.) So, if someone trashes you from the witness stand in court, there is nothing you can do about it from a defamation standpoint. (Although the person could be criminally liable for perjury. Sorry, couldn’t let that one go.)

“BUT,” I tell the caller, “if the person steps out of court and makes the same statements, you have them.”

I ran across this case out of Canada that so beautifully illustrates the point, eh. A teacher allegedly says terrible things about a student in front of the class. Parents sue. On the day of trial, parents agree to settle for $5,000 with no admission of wrongdoing by the teacher.

But then they felt compelled to gloat. The walked out to waiting media, and said: “She’s a marked lady and before she makes any more unprofessional moves, she’ll have to think twice.”

Wait a second parents, you just agreed that there was no admission of liability, so how is she marked or unprofessional?  Now it was the teacher’s turn to be miffed. The teacher sued, and a court awarded $234,011.87. The parents appealed, but the appeal court not only upheld the verdict, it added insult to injury by spotting an error in the trial court’s math, and added $552. Ouch.

The parents could have said the exact same thing INSIDE the courtroom, and the media could have reported those statements, and the parents would have been fine. But when they left the courtroom, they stepped out of the defamation immunity bubble and got nailed.

 

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How to Fight Back Against Online Defamation

Aaron Morris

Always striving not to reinvent the wheel, I keep my eyes open for articles that do a good job of explaining basic legal concepts.  In that regard, I receve many calls from prospective clients who don’t yet know the fundamentals of pursuing an online defamation claim.  Many times, the callers want to sue Google since it is Google’s search engine that is revealing the sites that are posting the defamatory comments.  That is not possible (although we have had pretty good luck getting Google to cooperate in taking down blogs on their own service and in one instance Google agreed to stop indexing a particular magazine, but that is rare).

The following article [reprinted with permission] provides a brief outline of how to attack online defamation.  If you happen to be in New Jersey, contact the author for any action you need to pursue or defend.  If you’re hear in California, or the action needs to be brought in California, then call Morris & Stone at (714) 954-0700.

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Individuals now have the freedom to inexpensively and easily share everything  from their art to their opinions online. However, the ease and anonymity  associated with posting information on the Internet, comes at the cost of  providing a perfect avenue for those seeking to abuse the system. So what  happens when, for instance, an opinionated Internet rant goes too far? What if a  video stream broadcast damages the reputation of someone featured in it? More  importantly, do the victims of these scenarios have any rights under the law, or  are they at the mercy of the author or poster?

Fortunately for victims, the law of defamation has been evolving in order to  accommodate the legal ills associated with online publication. However, many  people still fail to avail themselves of these legal protections because they  are unclear about to which rights and remedies they are entitled. Therefore,  individuals wishing to protect their rights and reputations must understand how  the law of defamation applies to online activity. Defamation is defined as the  communication of a statement that makes a claim, expressly stated or implied to  be factual, that may give an individual, business, product, group, government,  or nation a negative image. The two subcategories of defamation are libel and  slander. Libel requires that defamation be committed in a printed forum, while  slander requires that the defaming words be spoken aloud.

Online publications are subject to the law of libel; online video posts are  subject to the law of slander. If a party believes that defamation may have  occurred because of the idea(s) presented in an online writing, he or she can  successfully sue the author for libel by showing: that the defamatory statement  was published, that it refers to the victim, that it is false, and that the  victim’s reputation has been harmed by the writing. A party who feels victimized  by video content can sue for slander under the same legal standard as is applied  to libel. Victims of defamation can recover both actual damages and punitive  damages.

Still, it is important to keep in mind the following caveats with regard to  defamation law as it applies to the Internet. If the author of a defamatory  statement is anonymous, a victim can request (through court proceedings) that  the wrongdoer’s identity be revealed. Also, in the event that the victim of  defamation is a public figure, actual malice must be proven (in addition to the  aforementioned elements). Finally, although the authors of misinformation can be  held liable for defamation, blog owners generally bear no responsibility for the  comments posted to their site by third parties. Thus, it is evident that the law  of defamation, although limited in its applicability to the Internet can still  offer numerous protections and remedies against those wishing to cause undue  damage to the reputations of others.

Melody Kulesza is an associate with Pepper Law Group, LLC, a law firm based  in Somerville, New Jersey which provides strategic advice and sophisticated  legal services to businesses, entrepreneurs, and entertainers in the areas of  technology law, intellectual property, Internet law, entertainment law, business  formation and general business counsel, and privacy and security law. More  information on the firm can be found at http://www.informationlaw.com or by telephone at  908.698.0330.

Article Source: http://EzineArticles.com/4043133

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The Good, The Bad, and The SLAPP Lawsuit: Don’t Sue For Speech Without Consulting With Counsel

I came across the following article by Darren Chaker who, according to the article, spent many years litigating a free speech case, apparently as the plaintiff.  His article provides a nice summary of SLAPP law as it applies to posting critical comments on-line, and the  importance of consulting with counsel before filing any free speech suit.  [Reprinted here with permission.]

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While legitimate criticism is protected, postings which constitute defamation are not. Ibid.; see also Chaker v. Crogan, 428 F.3d 1215, 1223 (9th Cir. 2005). The Supreme Court has explicitly held that “defamation…[is] ‘not within the area of constitutionally protected speech.'” R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992) (quoted in Chaker, supra, 428 F.3d 1215, 1223 (9th Cir. 2005)).

Prior to filing a lawsuit for comments posted online, it is important to know what a “SLAPP” lawsuit is and if what you believe is defamation is that, or merely protected speech. The acronym “SLAPP” stands for Strategic Lawsuits Against Public Participation, see California Code of Civil Procedure § 425.16. I cite California law, however most states have similar SLAPP laws as California. The crux of SLAPP law allows someone who is sued for doing activity which is protected by the federal or state constitution. If the Defendant’s activity sued for is protected activity, then an anti-SLAPP motion could be filed. An anti-SLAPP motion usually seeks dismissal of “lawsuits that ‘masquerade as ordinary lawsuit’ but are brought to deter common citizens from exercising their political or legal rights or to punish them from doing so.” Batzel v. Smith, 333 F.3d 1018, 1023-24 (9th Cir. 2003).

Keep a couple of things in mind before you go to court:

• Once a Plaintiff files a lawsuit, and Defendant files an anti-SLAPP motion, the complaint is frozen. Thus, Plaintiff cannot amend the lawsuit to avoid the court ruling on the anti-SLAPP motion. (Simmons v. Allstate Ins. Co. (2001) 92 CA4th 1068, 1073) Amendments could frustrate the Legislature’s objective of providing a “quick and inexpensive method of unmasking and dismissing such suits.” See, Simmons at p. 400)

• Plaintiff has the option to dismiss the lawsuit. Nonetheless, Code of Civil Procedure § 425.16 gives the trial court limited jurisdiction to decide whether to award attorney fees and costs to Defendant. (Law Offices of Andrew L. Ellis v. Yang, supra, 178 CA4th at 879, 100 CR3d at 777-778)

• A typical California attorney with 10+ years of experience bills from $325-500/hr. If a person files a lawsuit based on defamation, or other protected right, and loses, the court must award attorney fees to “adequately compensate the defendant for the expense of responding to a baseless lawsuit,” Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, 47 Cal. App. 4th 777, 785 (1996). As such, if you lose your case, attorney fees of $12,000-25,000 are typical.

• If you are self represented, this doesn’t buy you any credit with the court for suing someone for doing what the law allowed them to do (e.g. free speech). Self-represented litigants are held to the same standard as those represented by trained legal counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984- 985)  Thus, you can’t say in opposition, “Opps I didn’t know”.

In short, I strongly recommend do NOT file a lawsuit unless an attorney, who is competent in First Amendment law, agrees to file it for you.

I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court’s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada’s analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case continues to be a leading case on viewpoint discrimination. My case is active, living and breathing-forever helping people who once felt oppressed.

Article Source: http://EzineArticles.com/?expert=Darren_Chaker

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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NOTICE PURSUANT TO BUSINESS & PROFESSIONS CODE SECTION 6158.3: The outcome of any case will depend on the facts specific to that case. Nothing contained in any portion of this web site should be taken as a representation of how your particular case would be concluded, or even that a case with similar facts will have a similar result. The result of any case discussed herein was dependent on the facts of that case, and the results will differ if based on different facts.

This site seeks to present legal issues in a hopefully entertaining manner. Hyperbolic language should not be taken literally. For example, if I refer to myself as the “Sultan of SLAPP” or the “Pharaoh of Free Speech,” it should not be assumed that I am actually a Sultan or a Pharaoh.

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