Monthly Archives: March 2014

Sports Defamation: Miller v. Mile High City? (Nah.)

sports defamation lawsuit speculation
Will a former Denver Nugget file a sports defamation lawsuit?

Is another sports defamation lawsuit on the way?

Nah, probably not. Nevertheless, former Mile High City point guard Andre Miller recently hit headlines for publicly waxing poetic about his former team and coach Brian Shaw.

Now, to be crystal clear, the words “sports defamation” or “lawsuit” – so far as we know – have never crossed Miller’s lips, but a few media outlets have made the connection — and it got us thinking: would Miller have a solid sports defamation suit in this instance?

Let’s take a look at the facts and engage in some sports defamation speculation, shall we?

Why Are Reporters Wondering If Sports Defamation Suit Is Brewing?

Our tale of possible sports defamation woe began on January 1, 2014. People around the world were tending to headaches or cracking on resolutions. Denver Nuggets point guard Andre Miller, however, was ostensibly nursing pent-up frustrations and dealing with the end of his 239-game-on-court streak.

According to reports, the “coaches’ decision” to bench Miller erupted in a heated exchange between Miller and NBA veteran/gumshoe head coach, Shaw. A locker room blow-up punctuated the incident. Disparagement and frustrations were shared by all – loudly.

Later, when asked about the incident, Miller chided, “I was made out to be the bad guy, the villain, because I was the one complaining about minutes. That wasn’t the issue at all.”
He continued:

“I came out and represented the organization, played games, practiced and did it the right way. Don’t bash me. It’s not true saying I was disgruntled about minutes and complaining. In reality, I was just speaking up for guys on the team and being a veteran leader. I was just doing my job.”

Who Would Probably Win In Our Hypothetical Miller v. Nuggets Sports Defamation Lawsuit?

What would be the likely outcome of a hypothetical Miller v. Denver Nuggets sports defamation lawsuit? Bluntly speaking, he’d probably lose. No, let me re-phrase that, he’d most definitely lose (unless public reports are missing key information).

Why is it unlikely that Miller would emerge victorious in our hypothetical sports defamation lawsuit?

In order to win a sports slander or libel lawsuit in the U.S., plaintiffs must prove that:

  1. The defendant made a public false statement of fact (Internet postings count);
  2. The false statement of fact caused damage to the plaintiff’s reputation or bank account; and
  3. The defendant acted either negligently or with actual malice.

Since Miller is a “public figure,” he would have to meet actual malice standards to win a sports defamation lawsuit. You can read more about actual malice here. To give you a quick (incomplete) definition, actual malice occurs when a person knowingly lies, with the intent of causing another person or entity harm. In this case, it sounds like nobody lied, but simply expressed their negative opinions about the other parties.

Miller and the Nuggets’ coaching staff begrudgingly shook hands and parted ways after the 1/1/14 incident. At the trade deadline, management traded Miller to the Washington Wizards where he is now averaging 3.9 points and 3.2 assists per game.

Contact A Sports Defamation Law Firm

Kelly / Warner handles all types of sports defamation lawsuits. Our batting average is great – and we get the job done quickly. Get in touch today to learn more about your sports defamation legal options.

Poppy Seed Bread Leads To Defamation Lawsuit

medical defamation poppy seed lawsuit
A woman in PA is pursuing a medical defamation lawsuit after eating poppy seed bread and testing positive for opiates.

The milk of the poppy has caused some problems for a new mom in Pennsylvania! All thanks to a few loaves of organic bread from a farmer’s market.

Nurses Single-Out Mother In Labor As Potential Drug Addict

IT programmer Rachel Devore recently had a baby. Like most expectant parents, Devore hoped for a beautiful, drama-free birth. Instead, hospital employees, for all intent and purpose, labeled her a drug addict.

Why did the hospital think Devore may have been indulging in illicit drugs? Apparently, at the hospital where she gave birth, all women must provide urine for a drug test conducted during delivery. Presumably, it’s to screen for unfit parents. In any event, Devore’s test allegedly came back positive for opiates, but she adamantly denied – and continues to deny — any wrongdoing.

Foiled By Poppy Seed Bread

After returning home from the hospital, Devore realized that the bread she had been munching on for several weeks was laden with poppy seeds.

Now, those of you thinking, “Yeah right. She’d have to eat a store’s worth of poppy bread to trigger a false positive,” may want to slow your role, because Devore’s test didn’t come back as a “slam dunk positive,” but instead an “unconfirmed positive.” Moreover, technicians tested the newly born baby for evidence of drug use, and the results came back 100% negative.

“It’s Defamatory To Tell Social Services I Was A Potential Drug Addict!”

Devore and her husband contend that the hospital staff violated doctor-patient confidentiality by handing the results of her drug test over to child protective services, then further defamed them by heavily implying that Devore flunked the drug test and needed to be watched. Moreover, the lawsuit points out that the drug test disclaimer instructed that results “are to be used only for medical purposes. Unconfirmed screening results must not be used for non-medical purposes (e.g. employment testing, legal testing).”

Not only was Devore’s child’s birth marred by the accusations, but the couple was also saddled with a social worker for months after the baby’s birth. And the rotten cherry on top is that a Devore file now exists with Child Welfare Services.

Contact A Medical Defamation Lawyer

Our legal practice has successful handled many medical defamation cases. Traditionally, we assist doctors, nurses, and other medical professionals with slander and libel claims – but we also handle doctor defamation defense in certain circumstances.

If you are interested in exploring legal options for a medical defamation situation, get in touch with Kelly / Warner Law today.

Realtor Defamation: Real Estate Agent Sues Over Vandalism Video

realtor defamation lawsuit
A realtor defamation lawsuit is underway in PA.

What happens when a house sitter, ad sales rep, real estate agent, and TV station collide in a maze of ambition? A realtor defamation lawsuit, of course!

Real Estate Agent Dissed On Local TV

Super-realtor Cheska Pennyworth* (*not her real name) peddles properties on Philadelphia’s Main Line — earning about $500,000 a year.

But in 2013, scandal struck. A CBS affiliate station allegedly caught Pennyworth, on video, defacing a competitor’s “For Sale” sign under the cover of night. Plus, reporters accused her of going “Whitewalker”, arranging dead animals on a rival lawn to deter potential buyers.

Two Hours Before Airing, Agent Alerted Of Segment; Immediately Calls For Help

Two hours before airing, the station called Pennyworth,  gave a head’s up about the segment, and asked for a reaction.

Pennyworth immediately pinged a friend at the station, explained the situation, and insisted that she couldn’t be the person in the video. HELP!

Pennyworth’s friend alerted superiors, and the station brass declared, “the show must go on!” Other studios had the story, too; but CBS had the video. Airing was an imperative!

Within days of the segment’s debut, angry viewers assaulted Pennyworth with death threats and other “pleasantries.” In short order, the once-flush agent found herself less $16M in listings and essentially “run out of town.”

So, From Where Did The Video Come? (Enter The House-sitter)

He’s a special effects artist who calls himself “Gore God”; Pennyworth calls him a “deranged house sitter,” and the feds know him as Sam Smith (not real name).

Why do we care about Smith? Because he’s the person who leaked the tape, allegedly.

Who was Smith’s contact at CBS3? Kath Daye (not real name), from the CBS3 ad-sales department. According to Pennyworth’s lawsuit, Daye is “known as ‘crazy blond chic’ by CBS3 personnel.”

Pennyworth claims “an interaction” between she and Daye over the sale of a house led to the video.

In fact, Pennyworth believes that Smith and Daye a) made a bogus complaint to the police, b) edited footage, and c) leaked the fake footage to CBS3. The realtor’s lawsuit calls it the “trifecta of false claims” orchestrated and executed by Smith and Daye.

Why does Pennyworth think Smith’s involved? Well, apparently, a co-worker mole overheard Daye admonishing someone over the phone, “you sent us the wrong video” and “you promised me that video so I could get us an exclusive!”

Realtor Defamation Lawsuit: It Wasn’t Me! I Was Framed!

Pennyworth filed a realtor defamation lawsuit, additionally claiming false light and intentional infliction of emotional distress. Plus, she wants an immediate injunction that prevents parties from destroying relevant documents.

The station has yet to issue a correction or apology, and at the time of this writing, its defense strategy is unclear. Will they plead “truth”? Reporter privilege? We’ll have to wait.

Will The Real Estate Agent Win This Realtor Defamation Lawsuit?

Unless vital information is missing from public reports, if Pennyworth is NOT the person in the video, this is a defamation slam-dunk.

Without Disclosure, Station Probably In Deep Water

Let’s say, for argument’s sake, that Smith DID see Pennyworth pulling a rock-star-in-a-hotel-room on the lawn, but didn’t have a camera at the time of the incident. But, to help his friend at the TV station, he decided to make a re-enactment video.

Even under those circumstances, the defendant’s road to victory is tough. Because if CBS3 showed a video of someone re-enacting the vandalism, and did not disclose that fact, the station is liable for slander.

Reporter’s Privilege

CBS3 could also argue reporter’s privilege, but it may not work since Daye’s phone call. Moreover, since Pennyworth’s friend took doubts to higher-ups before it aired, she can easily argue that the station had reason to doubt the story.

If it is Pennyworth in the video, she’s probably out of luck.

Contact A Realtor Defamation Lawyer

If you are a real estate agent caught in a defamation debacle, who is considering suing for defamation, get in touch with us. Our firm – Kelly / Warner – has handled countless defamation cases, including real estate defamation suits. Oftentimes, slander and libel suits are remedied quickly and never end up going to trial. Get in touch today to learn more about your realtor defamation legal options.

Anonymous Defamation: Startup Execs v. John Does

anonymous defamation case
Will two marketing executives be granted a court order for their anonymous defamation lawsuit?
  • Tech marketing executives launch anonymous defamation suit
  • Accused of “pump and dump” shenanigans
  • Asking for court order to get ISP addresses of anonymous posters
  • Similar anonymous defamation case launched last year by PETA foiled by hacker collective “Anonymous”

Paul Arena and Nathaniel Bradley — two mobile marketing executives who recently left Augme Technologies (a.k.a., Hipcricket) – are in hot pursuit of 30 anonymous online posters. Why? According to the pair, the 30 cloak-and-dagger posters committed egregious acts of Internet defamation.

Arena and Bradley already filed a John Doe defamation claim. Now they’re passing out subpoenas to several ISPs. Their goal is to get identifying information about the anonymous detractors in service of a defamation claim.

“The Bangbros of Pump Stock”

What accusations are causing Arena and Bradley consternation?

  1. Artificial inflation of company’s stock price right before resigning;
  2. Theft of investor funds; and
  3. General ethical shade.

To give you an idea, one anonymous poster dubbed the pair “the bangbros of pump stock.” Ouch.

Plaintiffs Ask Court To Force ISPs To Reveal Anonymous Online Posters

As is becoming increasingly common in business defamation cases, the plaintiffs requested a court order compelling Internet Service Providers (ISPs) to hand over identifying information about the anonymous commenters.

But Wait! Multiple People Can Have The Same ISP Address!

Getting a court order is possible in many anonymous defamation suits, but an ISP isn’t a unique identifier. Why? Because many people can share a single ISP address — roommates, families, apartment dwellers who share WiFi. Moreover, comments traced to coffee shops, libraries, and other public hotspots typically prove useless.

Now, the potential for mutli-person ISP addresses doesn’t negate the possibility of getting a court for identifying information,  just means that all Is must be dotted and Ts crossed when crafting the request motion.

Last Year, PETA Tried A Similar Tactic In A Potential Anonymous Defamation Case. But ‘Anonymous’ Said, “Nah-Ah.”

Animal-rights advocates, PETA (People for the Ethical Treatment of Animals), tried to lobby a similar anonymous defamation lawsuit last year, but free speech advocates and a hacker collectives thwarted the non-profit’s efforts at every turn.

In fact, Anonymous – of Tom Cruise Scientology Video Fame – caught wind of PETA’s legal maneuvers. Unimpressed with what they felt was PETA’s attempt to stifle legitimate criticism via legal filings, the collective threatened action. Apparently, PETA was not looking for a street fight with Anonymous and eventually dropped their suit.

Are You In Search Of A Defamation Attorney That Has Successfully Handled Anonymous Defamation Cases?

Entrepreneurs, startups, and marketing companies often find themselves on the wrong end of a defamation firing squad — pegged by malicious word-bullets. Hey, it’s a competitive market out there – and some people cross the acceptable competition line in an (usually ill-fated) attempt to gain edge.

If you’re dealing with an unwanted entrepreneur, startup or marketing defamation situation, get in touch with Kelly / Warner Law. Libel and slander law is our forte – but more than that, not only are we lawyers, but we’re tech entrepreneurs, too — just like you.

BizOpp Law: FTC Crack Down Alert

bizopp alert
Do you run a work-at-home bizopp? If yes, be sure to read this article.

Work-from-home bizopp operators: the Federal Trade Commission is on the hunt for people who offer bogus business opportunities, or “bizopps.” If you’re running a deceitful work-at-home marketing scheme, it may be time to go legit or shut ‘er down.

The Latest FTC BizOpp Crack Down

Last week, the FTC announced the seizure of several work-at-home operations that promised prospective participants the world – and then delivered bupkis. The now-neutered scheme worked thusly:

  1. Phase One: The bizopp offered work-at-home starter kits ranging from $37 to $99. Presumably, these kits instructed buyers on how to establish and run their own online marketing companies.
  2. Phase Two: Once an individual purchased the kit, the bizopp marketer added him or her to a mailing list, and then proceed to bombard their inbox with add-on offers costing between $3,000 and $12,000, like coaching and website development programs, in addition to tax filing and drop shipping services. Buyers were encouraged to put the costs of these add-ons on credit cards. According to the FTC, none of the programs offered were of any value.
  3. Phase Three: In the third phase of the bizopp scheme, marketers pretended to offer coaching services to participants, but instead used the coaching time to pitch more add-ons.

What Language Did The BizOp Use That Infuriated The FTC?

Here are a few examples of the marketing language used by bizop operators busted by the Federal Trade Commission for offering bogus work-at-home opportunities.

“If You Can Spare 60 Minutes A Day, We Can Offer You a Certified, Proven And Guaranteed Home Job To Make $379/Day From Home!”

“Important: Read my full report now as only 15 people are accepted into this program per city at any given time . . . because of the personal support given to each new member to ensure everyone’s quick financial success. Don’t hesitate . . . this page is taken down (literally) when the limit is reached, so read on . . .”

“This case halts a massive scam that bilked consumers out of millions for useless work-at-home kits and business coaching services,” explained Director of the Bureau of Consumer Protection, Jessica Rich. “The defendants duped consumers into thinking they could earn thousands working from home. Protecting consumers from such pernicious schemes remains a top priority,” she concluded.

If you’re not familiar with the FTC’s new bizopp rules, it would be wise to cozy up with the guidelines. Violations will cost you a pretty penny – so why not take the time to ensure compliance.

Click Here To Learn More About BizOp Rules.

Speak With An FTC Attorney Today

Are you in trouble with the Federal Trade Commission? Do you need the help of a lawyer who has successfully helped clients ward off the FTC? If yes, get in touch today. Our firm, Kelly / Warner, has been dealing with FTC-related cases for years. We know the niche well. Get in touch now to begin the conversation.

Dentist Defamation: Privilege & Case Law

dentist defamation
Privilege plays a significant role in many dentist defamation cases.

When it comes to the law, privilege means that one party has a legal right to engage in a given action, and, as a result, cannot be held liable for said action. When it comes to dentist defamation lawsuits, privilege can dictate who wins and who loses.

First Things First, What is Dentist Defamation?

Before we delve deeper into the legal concept of privilege, let’s first define defamation. In basic terms, defamation occurs when one party publicly lies about another party. When a dentist sues for slander or libel, related to their professional capacities, the dentist must prove that:

  1. The defendant published — or publicly spoke — a false statement of fact;
  2. The false statement of fact was about the dentist;
  3. Financial harm befell the dentist as a result of the statements under review.

Opinion Is Not Defamatory!

The #1 libel mistake dentists make: filing lawsuits in response to negative opinions. Under United States law, opinion is not defamatory. So, if one of your…shall we say…difficult…patients decides to rant online, but only says things like, “I do like this dentist at all!” or “I do think people should go to Dr. X” — winning will be tough.

If, however, someone says that you overcharged them, or didn’t have the proper credentials, or made any other demonstrably false statement of fact, there’s a chance you have a valid dentist defamation lawsuit.

What is Legal Privilege? And What Does It Have To Do With Dentist Defamation?

Over the years, a significant percentage of dentist defamation trials have turned on the question of privilege. The majority of privilege-related defamation suits involving dental professionals involve medical board review statements. It’s also common for privilege to affect employment cases.

So, what, exactly, is privilege as it relates to defamation? Basically, there are 2 types of legal privilege that usually arise in defamation lawsuits involving dentists:

  1. Reporter Privilege – Journalists (including bloggers) are allowed to report “facts” from sources so long as they engage in proper due diligence and convey said facts in a neutral manner, even if the information turns out to be inaccurate.
  2. Qualified Privilege – An individual may be granted qualified privilege if the defamatory statement is “made in the course of an employer’s duties.”

Let’s apply the concept of privilege to real-world libel and slander scenarios dentists may face.

A Medical Review Board Incident

John Doe, DDS has a relationship with a local hospital where he performs oral surgery. When his annual review rolls around, another dental surgeon, Dr. Jane Smith, reports Dr. Doe for improper conduct. Upon hearing of his colleague’s betrayal, John Doe files a defamation lawsuit. Who would win?

Scenario #1: If John Doe’s colleague maliciously made a false statement of fact during the board hearing and Dr. Doe can prove Smith had reason to believe her statements were inaccurate, Doe could win the case.

Scenario #2: If Doe cannot prove that Smith’s statements are false, Smith would probably emerge victorious in our hypothetical dentist v. dentist defamation lawsuit.

Scenario #3: If Smith is under an employment or quasi-legal obligation to report any suspected foul play on the part of her colleagues, even if the information turned out to be false, there is a significant chance that Doe would not be successful in his lawsuit against Smith.

Dentist Defamation Lawsuits Involving Privilege

Ferlito v. Cecola

In a 1982 Louisiana dentist defamation lawsuit, Chetta Tuminello Ferlito sued dentist Dr. Russell E. Cecola. In addition to several other charges, Ferlito claimed defamation because Cecola suggested that she seek out a psychiatrist, plus a few other comments the plaintiff found objectionable. In the end, the verdict came back in favor of the defendant dentist because his comments about psychiatry were privileged. Additionally, the court reminded: “profane language, although disgusting and uncouth, is not defamatory per se.”

Ellenberger v. Espinosa

In 1994, a Court of Appeals in California heard the case of Ellenberger v. Espinosa. Ellenberger, a dentist, filed a defamation lawsuit against one of her patients, in addition to the State of California, over statements made in a Board of Dental Examiners proceeding. Since the statements under review were spoken in the course of a quasi-legal proceeding, the court ultimately ruled they were protected by qualified privilege and, therefore, not defamatory.

Rickenbacker v. Coffey

Rickenbacker v. Coffey is a frequently cited privilege-related dentist defamation lawsuits. The melee started when the defendant dentist, Dr. Harry Rickenbacker, treated Bernard Williams – a patient who’d previously been a patient of Dr. R. Donald Coffey, Jr.

Having experienced some difficulties after seeing Coffey, Williams sought a second opinion with Rickenbacker. Williams ended up suing Coffey for malpractice, and Rickebacker was asked to testify on Williams’ behalf.

Coffey caught wind of Rickenbacker’s involvement. Unimpressed with his colleague’s professional assessment, Coffey sued Rickenbacker for defamation. Specifically, Coffey took umbrage with statements Rickenbacker made when being debriefed by Williams’ attorney.

In the end, the judge sided with Dr. Rickenbacker, deeming everything said in the deposition meeting privileged and, therefore, not defamatory.

McIntosh v. Patridge

McIntosh v. Patridge was a complicated employment case with a small defamation component. Basically, McIntosh sued for unlawful firing and other charges, including a slander claim, because McIntosh felt her superior, Patridge, defamed her professional skills as a hygienist. Since Patridge was McIntosh’s superior, the statements were deemed privileged and, therefore, not slanderous.

Skoblow v. Ameri-Manage, Inc.

In Skoblow v. Ameri-Manage, a dentist sued a bunch of his former co-workers for essentially talking trash about him before his termination. In the end, the suing dentist lost because the judge deemed the conversation between his colleagues to be privileged since it focused on his job performance, which, in these circumstances, was a relevant, professional topic of conversation among the defendants.

Contact A Dentist Defamation Attorney

Over the years, Kelly Warner has worked on many dentist defamation lawsuits. If you are a dentist looking to take action over a detrimental online review or you’re being sued by another dentist, our libel team can help. Get in touch today to begin the conversation.