Online Trade Libel Attorney Gets Facebook Defamation Ruling Reversed

Picture of blackboard featuring the word Trust to accompany blog post about online trade libel caseTo his client’s relief, online trade libel attorney Dan Warner convinced an Arizona appeals court to vacate a trial court’s ruling in a Facebook defamation case. By successfully arguing that the presiding judge failed to properly apply the appropriate legal tests established in Mobilisa, Inc. v. Doe, Warner was able to slip his client from the defamation liability noose.

About the Case: Business Criticism On Facebook Leads To Online Trade Libel Lawsuit

An online trade libel lawsuit, the Plaintiff (whom we’ll call “Acme”) sued an anonymous user (“John Doe”) for allegedly posting false and defamatory statements about Acme’s product on Facebook.

Since the user posted under an alias, Acme filed a John Doe claim to uncover the real name of the anonymous defendant. After initiating the lawsuit, Acme sent subpoenas to Facebook and Domains by Proxy, in search of information (like an IP address) that would help reveal the identity of the product-critiquing user.

Upon receiving the subpoena, Facebook notified John Doe; Doe then retained online trade libel attorney Dan Warner who filed a motion to quash the subpoenas.

Online Trade Libel Catch-22: Preserving Privacy v. Accountability

Online service providers avoid passing out user data like Gremlins avoid bright lights. Why? Because online privacy is a legal quagmire, and if they’re not careful, ISPs can unwittingly find themselves dragged into users’ legal battles. Thus, to avoid unnecessary, resource draining, litigation entanglements, most websites adopt a hands-off approach when faced with civil information requests.

In some cases, however, ISPs are legally compelled to release user data, by force of a court order.  However, in Arizona, to secure a subpoena that forces websites to hand over identifying information on anonymous Internet speakers, plaintiffs must show that:

  • The speaker has been given adequate and a reasonable opportunity to respond to the discovery request;
  • The plaintiff’s action could survive a summary judgment on elements, irrespective of the speaker’s identity; and
  • The balance of the parties competing interests favors disclosure.

Unfortunately, in Acme’s case, the trial court judge denied the motion without making any findings of fact — or conclusions of law — regarding the required three-part Mobilisa test.

Warner’s appeal included several points on which the appellate court could have hung a reversal, but it chose to focus on the trial judge’s failure to adequately apply the “balancing” test, as outlined in Mobilisa.

The appeals court, in Warner’s client’s case, expressly held:

Because of the conclusory nature of the order below, we are unable to tell if the trial court correctly used the 3-part test outlined in Mobilisa v.  Doe, 217 Ariz.  103, 170  P.3d  712 (App.  2007) (using  a  summary  judgment  standard)  or  the  lower  prima facie standard urged by Dream Steam below with their citation to Best W. Int’l Inc., v. Doe, WL 2091695 (D. Ariz. July 2007). See Chaparral DIVISION ONE FILED:  RUTH A. WILLINGHAM, CLERKBY: 6/27/2016 RB Dev. v. RMED Int’l, Inc., 170  Ariz.  309, 311, n.3,  823  P.2d  1317, 1319  (App.  1991) (citation  omitted)  (conclusory  rulings  impair effective  appellate  review).    We  are  likewise  unable  to  discern whether  the  trial  court  engaged  in Mobilisa’s third-prong  balancing test when considering whether the disclosure of Doe’s name outweighed the community’s protected interest in supporting anonymous speech on the internet.

In other words, the court of appeals ruled that it was unclear if the trial court judge considered whether the plaintiff’s business interests outweighed the defendant’s right to anonymously express opinions on the Internet.

Consult With An Experienced Online Trade Libel Lawyer

In today’s digital, viral marketplace, a pristine reputation is crucial to maintaining a competitive edge; protecting your business’ good name is arguably as important as securing seed money.

If you’re fighting a product or business disparagement headache, get in touch with our team of online defamation fixers. We can help.

To learn more about online trade libel lawyer Dan Warner, head here.

Supplement Marketers: Are You Crossing The Language Compliance Line?

picture of apple filled with dietary supplements to accompany blog post about supplement marketersLegal advice for supplement marketers: Be careful when wording dietary supplement promotional materials. Strict rules do apply, and breaking them could cost you millions.

FDA Takes Notice Of Trade Show Marketing Materials

Picture it (TM Sophia Petrillo). March 2016; the Natural Products Expo West Center [wavy lines transport us to a flashback]…

Health enthusiasts buzzed round the nutraceutical carnival; aromatherapy dominated olfactory senses, and a Washington State supplement brand charmed marketing materials into recycled tote bags.

Several weeks later, the material found its way to the FDA, who in turn issued a stern warning about “non-compliant disease claims.”

What Phrases Should Supplement Marketers Double Check?

So, with what wording did the FDA take issue? Here’s a list:

  • “…used in herbal medicine to help slow the progression of disorders for the eye…”
  • “…lowers blood pressure in hypertensive individuals…”
  • “…lower cholesterol levels…”
  • “…protects against cardiovascular diseases…”
  • “…slow the progression of diabetic and hypertensive retinopathy…”
  • “…protect against development of cancerous prostate cell lines…”
  • “…clinically effective in treatment of alcoholic cirrhosis…”
  • “Clinically improves cognitive function [for Alzheimer’s, vascular or mixed dementia patients].”

Are the above expressions always out of bounds? No. It’s important to understand that context is key.

Play it safe by having a marketing lawyer review your advertising materials before launching a campaign — everything from your website to trade show pass outs.

Interested in other marketing legal issues? Jump this way.

Are you a supplement marketer in need of a compliance review? Get in touch.

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Luxury Counterfeit Law: Kering v. Alibaba

luxury counterfeit lawsuitAlibaba.com and a behemoth fashion company are entangled in a luxury counterfeit lawsuit. Let’s take a look.

The Cast: A Luxury Brand to Rule Them All v. Online Retail Giant

Before we get to the lawsuit, let’s establish the players.

Kering

Kering is a huge fashion holding company for sport and luxury brands like Yves Saint Lauren, Gucci, McQueen, Brioni, and Puma. (Fun Fact: Kering’s CEO, François-Henri Pinault, is married to actress Salma Hayek.)

Alibaba.com

Alibaba.com (at the time of writing) is the #2 tech company in China and a major online retail hub. Almost everybody in the product marketing industry interacts with Alibaba.com in some capacity. Like Amazon.com, Alibaba.com is an expanding Borg-like force.

Kering v. Alibaba.com: The Clash of The Retailers

Product Marketing Legal Overview

Let’s be blunt: More often than not, especially lately, items bearing luxury tags are made in China. Why? You know the answer: cheaper labor. “Then how come luxury items cost so much?” Again, you know the answer: brand status is commerce’s co-pilot. “So, then, where does all that luxury money go if not to the people making the products?” Bingo! Back to the luxury companies who are  trading mostly in marketing, not manufacturing.

A retail revolution Is afoot: Asian factories are growing frustrated with the disparity. After all, who appreciates doing most of the work and reaping the least amount of profits? Nobody. So, Chinese manufacturers began a “Quality Made in China” initiative in an attempt to bypass luxury marketing middlemen, like Kering. Let’s put it this way: if “Made in the USA” is about patriotism, the Chinese effort is about globalism.

Luxury Counterfeit Law Claim

So, back to the lawsuit.

In an attempt to knockout knockoffs, Kering sued Alibaba, claiming various intellectual property infringements and — rather dramatically — racketeering.

Racketeering, you ask? Here’s the argument: Alibaba allegedly collaborated with fourteen counterfeiters, by allowing vendors to sell phony products on its site, over an extended period, to deliberately cheat Kering of profits.

Alibaba insists the claims are baseless. So much so that Jack Ma, the online retailer’s founder, vowed to lose in court rather than settle. Why isn’t Ma compromising? Only he knows; but to wager a guess, it’s probably because a settlement would thrust Alibaba into an extremely vulnerable cash flow position — which could also effect U.S. online retail companies. Moreover, a racketeering conviction, in a case like this, has the power to hamstring the global market — top to bottom.

Judge Shuts Down Luxury Goods Racketeering Claim

Theoretically, the racketeering assertion is plausible; but is it practical? No way. Why? It could crush the multi-billion online retail industry — and jump-start another global recession.

The presiding judge did side-eye the racketeering claim, and ultimately dismissed the charge, explaining:

“[M]erchants weren’t aware of each other or were in intentional cahoots w/ Alibaba, required by U.S. racketeering laws. […] The fraud perpetrated by each merchant defendant could be accomplished without any assistance from any other merchant defendant.”

The Case Is Not Over: Yes, in this luxury counterfeit law case, the judged axed a racketeering charge — but the intellectual property claims persist; Jack Ma and co. aren’t out of the woods just yet.

An Attorney Who Understands Luxury Counterfeit Law

Need help sorting an Internet business issue? If so, get in touch.

Cybersquatting Cases and Lawyer Contact

cybersquatting cases
Cybersquatting Cases Round Up

You can’t hold famous domains hostage for cash. That get-rich-quick scheme left the station in 1999 when Congress “yea’d” the Anticybersquatting Consumer Protection Act into law.

Below are two summaries of recent cybersquatting cases. If you’re ready to speak with a domain dispute lawyer, go here.

Wiz Khalifa Won A Cybersquatting Lawsuit

Domain marketer Anthony Lynch recently found himself in a legal tangle with Cameron Thomaz – a.k.a., Wiz Khalifa. Lynch scooped up eight domain names featuring the rapper’s trademarks.

Since Khalifa’s claim was straightforward, only one UDRP panelist sat for the case, who ruled in favor of the musician. Why? Because Khalifa used and registered the trademarks before Lynch purchased the domain names. The panelist also pontificated that Lynch probably bought the URLS with the “express intention to target” Wiz Khalifa.

The final verdict: all eight domains need to be transferred back to Wiz Khalifa’s company, at no cost to him.

Case: Thomaz et al v. Lynch, No. D2015-0166

Amazon.com and Kellogg: High Profile Cybersquatting Cases

Amazon.com and Kellogg Inc. can both add cybersquatting lawsuit victor to their virtual trophy cases.

After a protracted dispute, the Internet’s largest online retailer won back amazonprom.com, amazonpromdresses.com and amazondresses.org. The panelists ultimately ruled in favor of Amazon because the defendant lacked a legitimate interest in domains that included Amazon’s trademark.

All you cereal enthusiasts out there, you’ll be happy to learn that Kellogg’s won back kelloggs.buzz – for the same reasons Amazon won.

“Bad Faith Intent to Profit”

Both parties won their cybersquatting claims because the defendant demonstrated a “bad faith intent to profit”. Plus, the names under review were “confusingly similar” to trademarked brands.

Cybersquatting is still a big legal issue. Though federal officials passed the Anticybersquatting Consumer Protection Act, people still run typosquatting and cybersquatting schemes. But there are ways for trademark holders to regain control of their domains, without shelling out much money.

Speak To A Lawyer Who Has Dealt With Cybersquatting Cases

Kelly / Warner helps trademark holders regain control of domains. An Internet law firm with a cybersquatting law division, we know all the ins-and-outs to reclaim your domain promptly.

Contact us to take back your URL.

Source Article 1

Source Article 2

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Got Cybersquatting Questions?
Talk To A Cybersquatting Lawyer »

Internet Governance & International Internet Law Case Study

online harassment Internet governance
Kelly / Warner Law Helped Crack An International Internet Harassment Case.

*Kelly / Warner was one of the U.S. firms that helped win the International Internet defamation case discussed in this post. A pioneer in Internet governance law, Kelly / Warner partners with overseas legal practices to resolve cross-border libel, harassment and unfair competition cases. If you’d like to speak with Kelly / Warner about a domestic or transnational Internet law issue, please contact us.*

A web developer may spend some time in jail over a $300 invoice.

“But how could that be!?,” you protest.

When someone opts to criminally harass a former client, instead of legally handling an invoice disagreement, they sometimes find themselves behind bars.

Web Developer Created Harassing Websites About Former Client

Web developers and clients often clash over expectations and invoice amounts. When serious conflicts arise, professionals typically seek the assistance of an attorney with Internet governance and arbitration experience.

But some web developers choose a more dastardly path: they create disparaging –often harassing – websites about former clients.

Paul Britton, of Origin Design, falls into the latter group. Because of a  £200 (~$300) invoice dispute, Britton created several websites with the express purpose of humiliating his former client, and falsely labeled his foe a pedophile.

U.K.-based Britton thought using false credentials and U.S. companies to register and pay for the domains would sufficiently mask his identity.

But Britton didn’t do his Internet law homework.

If he had, Britton would’ve known that it’s possible to force Internet service providers and websites to fork over identifying information in criminal cases. Just because you use a fake name to register and set up a website doesn’t mean the “real you” can’t be unmasked – especially in service of a lawsuit.

How Kelly / Warner Law Helped Win This International Online Defamation Lawsuit

What The UK Team Needed to Prove

Due to the severity and nature of the accusations, the plaintiff’s legal team accused Britton of online harassment — a criminal charge in the United Kingdom. As such, the lawyers had to present evidence that satisfied “beyond reasonable doubt” standards. A simple IP address would not suffice, because, technically, IP addresses only represent computers, not people.

The U.K. legal team faced another challenge: Britton had done all his digital dirty work via U.S. companies. As an overseas practice, the prosecuting firm needed to partner with state-side practices that could obtain court orders compelling the U.S. ISP’s to hand over information in service of the lawsuit.

What Kelly Warner Did To Help Win This International Internet Law Caper

Our firm, Kelly / Warner, was one of the practices that partnered with the prosecuting U.K. legal team. Since Britton used U.S.-based ISPs to carry out his online revenge scheme, the plaintiff’s lawyers had a digital discovery challenge on their hands. In order to crack the case, they needed court orders, from U.S. judges, compelling parties – like PayPal.com and GoDaddy – to hand over user information.

We helped get those court orders.

Once in hand, the plaintiff’s U.K. lawyers were able to craft an unimpeachable case that included telephone recordings and password evidence.

Defense Argument That Didn’t Work In This International Internet Law Case

In this case, Britton’s defense attorneys used a decidedly 21st century legal argument [Paraphrasing]:

Since Britton’s disparaging sites didn’t appear in the first few pages of SERPs (search engine result pages), no harm was done, because nobody pays attention to SERP results past page three.

Some might call this the “twinkie defense” of Internet defamation law, but the argument isn’t completely baseless. At least under U.S. law, which requires nearly all* defamation plaintiffs to prove material harm. If a defendant can successfully argue that few people saw the material in question, case law precedence demands that even though a false statement of fact was made, the lack of material damage fails to meet the required preponderance of evidence for a successful libel claim.

(*Note: This statement doesn’t account for defamation per se. Defamation per se is a classification of slander or libel in which the accusation is recognized as inherently damaging. In such cases, the plaintiff doesn’t need to prove material harm, as it is inferred. Calling someone a pedophile would undoubtedly be considered defamatory per se in most jurisdictions that recognize the standard.)

Kelly / Warner: International Internet Governance Law

Due to the mounds of evidence, Britton had no choice but to plead guilty to criminal online harassment charges. No trial needed.

Kelly / Warner has considerable experience with international online defamation litigation. Frequently, we partner with overseas firms to close cross-border cases. Our attorneys and support staff know how to maneuver for a successful court order in online defamation and harassment cases.

Contact Kelly / Warner to learn more about our digital discovery,Internet governance and Internet law litigation services.

Yelp Lawsuit Case Study: Finance Firm v. Yelp Reviewer

Yelp lawsuit case and attorneyA brokerage firm filed a Yelp lawsuit against an unknown reviewer. Yelp doesn’t want to hand over the user information, but case law may not be on the review website’s side.

Another Yelp defamation lawsuit has hit the courts. This time, a brokerage firm wants to sue a semi-anonymous reviewer for online defamation.

The Rhodes Team (“Rhodes”), a Texas brokerage firm, filed a defamation lawsuit against a Yelp! (“Yelp”) reviewer named “Lin L.” for typing on its page:

“[B]y far the worst deceitful and money greedy sales agent you would ever deal with.”

Previously, Rhodes enjoyed mostly 5-star ratings. Lin L.’s missive was a noticeable stain on Rhodes’ otherwise glowing Yelp profile.

Yelp Lawsuit Basis: “We’ve Never Had A Customer By That Name”

But team Rhodes is suspect of Lin L’s aspersions. Because according to company executives, no Lin L. has ever used their services. As such, Rhodes believes the disparaging comment was the handy work of a competitor – a little “hate us because they ain’t us” (TM “The Interview”) action, if you will.

So, Rhodes initiated a “John Doe” Yelp lawsuit.

Yelp Doesn’t Want To Hand Over Information In Yelp Defamation Case

But Yelp doesn’t want to hand over Lin L.’s information, and has filed a motion in protest. The online review company, however, may be forced to give up the goods. Last year, a court forced Yelp to hand over identifying information in another anonymous defamation case involving a carpet store. Similar to this suit, the plaintiff in the carpet case was able to prove temporal incongruity between Yelp allegations and company records.

That said, just because the plaintiff emerged victorious in the carpet case does not mean this court will automatically side with the claimant. Internet defamation is still a fairly new phenomenon, and precedent setting case law varies from state to state.

To learn more about the basics of defamation law, and what you must prove to win a slander or libel lawsuit, head here. To read more about other anonymous online defamation cases, go here. If you’re ready to speak with an Internet defamation attorney, get in touch here.

Speak With A Lawyer Who Has Successfully Litigated Yelp Lawsuits and Solved Online Review Disputes

Kelly / Warner is a top-rated law firm with a respected Internet defamation practice. Our attorneys are skilled at discovery for – and deconstructing of – online trade libel and professional defamation cases. Our experience means we’re able to resolve most situations quickly and cost effectively.

The statute of limitation for defamation isn’t long; between 1 and 3 years depending on jurisdiction. Don’t delay. Get in touch with Kelly / Warner to consult more about a potential Yelp lawsuit or pending litigation.

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Trade Libel Example: Parigi v. Puma Lawsuit

trade libel example lawsuit and lawyer
Summary of an unfair competition lawsuit involving trade secret and trade libel claims.

In This Blog Post:

Defamation lawsuits aren’t exclusively matters of personal scorn and trash-talk. More often than not, libel and slander suits are nuanced, business law battles.

A recent legal tussle between Puma SE (“Puma”) and the Parigi Group Ltd. (“Parigi”) illustrates how defamation and trade secret torts can be leveraged in unfair competition lawsuits.

Background: Longstanding Licensing Agreement

The backbone of this trade libel example lawsuit is a longstanding licensing agreement.

For over ten years, Puma and Parigi enjoyed an amicable business relationship. A mutually beneficial agreement, Puma licensed its marks to Parigi, who then manufactured child-sized versions of Puma’s tracksuits and sportswear.

The Breakup: Longstanding Licensing Deal Broken Without Much Notice

The proverbial $#!+ hit the legal fan when Puma allegedly started *cheating* with United Legwear and Apparel Co. (“United”) behind Parigi’s back. According to Parigi, not only did Puma initiate clandestine talks with United, but executives from the fashion conglomerate supposedly bad-mouthed Parigi to several influential department stores. According to reports:

“’Puma intentionally and fraudulently made repeated misrepresentations to Parigi that Puma intended to renew the parties’ more than 10-year-long license agreement.’ It also alleges that Puma disclosed trade secrets and proprietary business information to United Legwear & Apparel Co. and tried to discredit Parigi among retailers such as Bloomingdale’s and Macy’s.”

Puma spokespeople swear that company representatives did nothing untoward, and the company is looking “forward to presenting [their] case.”

Trade Libel Example Case: Licensing Partner Problems

Full disclosure, we’ve not yet read the entire Parigi v. Puma filing. But judging from available reports, the crux of the lawsuit appears to be binary, in that the suit addresses both trade libel and trade secret issues.

Generally speaking, trade libel is the unfair disparagement of a product, service or business. (Read more about trade libel here.) Conversely, trade secrets are confidential, quasi-intellectual property holdings. (Read more about trade secrets here.)

In this case, Parigi is arguing:

Trade Secret Claim: Puma violated a trade secret agreement with Parigi by sharing information with United, before formally inking the deal.

Trade Libel / Defamation Claim: Puma executives purposefully and negligently spoke disparagingly of Parigi to executives at several department stores.

In Parigi v. Puma, the former insists the latter wasn’t forthcoming about its intentions to terminate a contract. Puma’s alleged reticence to renew the contract, however, isn’t the legal issue anchoring this case; it’s simply the branch on which the actual unfair competition claims — trade libel and trade secret misappropriation — were hung.

Puma and Parigi are two big business players in the fashion world. So, expect this lawsuit to be well-fought and long-lasting. In the words of Parigi spokesperson:

“We will see some very ugly things. Puma’s a major name in the industry, and my client’s a major name in the industry, and they’re going to war.”

Questions For A Business Defamation Lawyer?

Kelly / Warner handles all manners of business law issues, including trade libel and business defamation. If you need an attorney to review documents, we can. Need startup legal counsel? We’ve got the answers. Are you interested in pursuing a lawsuit? We go the extra mile — which is why we win.

Pick up the phone or shoot us a message. Let’s start solving your Internet and business law needs.

More trade libel example lawsuits? Head over here.

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Professional Defamation Case Study: Mogul v. Mogul

professional defamation case study
A judge tossed a professional defamation lawsuit between two moguls.

In This Article You’ll Find:

  • Explanation of a professional defamation lawsuit between two high-profile moguls;
  • Explanation of what one must prove to win a slander or libel lawsuit; and
  • Contact information for a defamation lawyer.

Casino mogul Steve Wynn lost round one of his professional defamation lawsuit against financier James “Jim” Chanos. Wynn has till January 15, 2015 to appeal – and according to all reports, he plans to do just that.

The Wynn v. Chanos slander lawsuit is a good one to review because it touches on the important crux of American defamation case law – the all-mighty First Amendment.

Why Did Wynn Sue Chanos For Professional Defamation?

At A Lecture: “The SEC investigated Wynn.”

A lecture circuit veteran, earlier in the year, Chanos gave a talk at the University of California at Berkley. During the event, Chanos mentioned a since abandoned federal investigation of Wynn’s operation for violations of the Foreign Corrupt Practices Act. Ultimately, the investigation went nowhere, as officials didn’t find “reliable evidence of FCPA violations.”

At the Berkley lecture, Chanos did note that the SEC’s investigation didn’t illuminate any evidence against Wynn Resorts Ltd and related parties.

Wynn Filed Lawsuit

Regardless, Wynn wasn’t pleased with Chanos’ lecture – and opinions therein; so, in September 2014, the casino king filed a professional defamation lawsuit against the money man.

But it doesn’t look like Wynn will win this slander case.

Judge Sides With Chanos Because Wynn Made Too Big Of A Leap

District Judge William Orrick explained his ruling in favor of Chanos thusly:

“It takes a significant inferential leap to conclude that Chanos’s general uncertainty about the questionable business methods in Macau equates to an assertion that Wynn violated the FCPA.”

Did Judge Orrick slyly and subtly insinuate: “doth protest too much, maybe, Mr. Wynn?”

No False Statement of Fact

The most important thing to remember about professional defamation law in the US: In order to win, your claim must be centered on a false statement of fact, not an opinion nor speculation. If it were against the law to speculate about businesses, politics or people, the news and entertainment industries would be forced closed by way of excessive litigation.

Defamation law in the U.S. is defendant-friendly: In 98% of cases, to win, a plaintiff must prove the defendant made an unprivileged, false statement of fact. Negative opinions or critiques do not a valid defamation case make.

What must a plaintiff prove to win a defamation of character lawsuit in the United States?

Generally speaking, in every U.S. jurisdiction, in order to win a defamation of character lawsuit – whether personal or professional – the plaintiff must prove, at the very least, that the defendant:

  • Published, broadcast or otherwise distributed the false statement of fact;
  • Was talking about the plaintiff;
  • Through the statement, caused material harm to the plaintiff;
  • Acted with reckless disregard for the truth or actual malice.

Don’t be discouraged by America’s defendant-friendly defamation laws. Every year, many businesses and professionals win slander and libel lawsuits. Yes, free speech trumps an awful lot, but it doesn’t give anybody the right to spread lies about a person, place, organization or business.

If you’re the target of a highly inflammatory review, a ruined online reputation, or if you’re simply interested in getting content removed from the Internet, get in touch with Kelly / Warner Law.

Speak With An Attorney About Your Professional Defamation Situation

Our legal practice maintains a perfect rating on review website AVVO.com, in addition to a preeminent standing on venerated lawyer review service, Martindale-Hubbell. Since Kelly / Warner’s inception, our lawyers have focused on Internet libel issues. We know the niche well and have guided –step-by-step – hundreds of individuals and businesses to successful resolutions of their professional defamation hiccups.

Professional Defamation Case Study: Resigned CFO v. Executives

professional defamation
A professional defamation case study

Walgreen Co.’s former Chief Financial Officer, Wade Miquelon, filed a libel lawsuit against the pharmacy conglomerate. Miquelon insists that both Walgreen’s CEO and the company’s top shareholder illegally besmirched his character via a pair of Wall Street Journal articles and a handful of emails.

We know we’re behind “breaking” on this case, but since our firm focuses on professional defamation litigation, for blogging purposes, we wanted to take a close look at the lawsuit. Specifically, we want to consider the question: Can Miquelon win?

Professional Defamation Case Study: Walgreen’s CFO v. Walgreen’s

Things Were Already Tense At The Office

According to Miquelon, the seed of this professional defamation saga took root last year. At the time a beleaguered entity, Walgreen was stuck between a tax-inversion inconvenience and activist investors. Then a bad 2013 morphed into a worse 2014, when a $1 billion mistake stained the company’s August financial disclosure.

CFO Says, “See Ya”

In the midst of the turmoil, Walgreen’s CFO – Wade Miquelon – resigned. He cited family and further opportunities as reasons for departure. But the financial books were less-than-ideal, and the search was on for a scapegoat. To some people, it seemed like Miquelon’s leaving provided a convenient, public fall guy for extant Walgreen executives.

Executives’ Disparaging Comments Published In The WSJ

Cue a pair of Wall Street Journal articles wherein Walgreen CEO, Gregory Wasson, and the company’s largest shareholder, Stefano Pessina, are quoted as holding Miquelon “personally responsible” for the corporation’s $1 billion mistake.

Additionally, at least according to Miquelon’s lawsuit, Walgreen executives were also regaling investors with disparaging tales of ex-CFO Miquelon during this same period.

Frustrated by the finger pointing – and worried it might affect future employment opportunities – Miquelon filed a defamation of character lawsuit against Walgreen Co. – specifically Wasson and Pessina.

Miquelon’s Business-Related Defamation of Character Lawsuit Claims: Truth & Financial Disclosures

Miquelon swears he warned Walgreen brass of impending financial disquiet. He says he urged them to “publicly report the truth.” Miquelon also suggests that Wesson and Pessina counselled him to “tamper with the earnings forecast.”

The lawsuit also highlights instances wherein Wasson and Pessina allegedly implicated or insinuated Miquelon as the cause of Walgreen’s “bungled” bottom line. And to bolster his defamation argument, Miquelon included emails, text messages and corporate documents wherein Wasson and Pessina praised his competence.

What Miquelon Must Prove To Win This Professional Defamation Lawsuit

To win a defamation lawsuit in the U.S., plaintiffs must prove at least the following:

  • The defendant made a false, unprivileged statement of fact about the plaintiff;
  • The statement caused either reputational or material harm to the plaintiff; and
  • The defendant acted either negligently or with actual malice.

To wit, in this case, Miquelon must prove:

  • He was not responsible for Walgreen’s financial predicament. He’s already started building this argument by including praising messages from Wesson and Pessina in his filing. But in order to win, Miquelon needs more.
  • As for proving harm or loss, Miquelon’s lawyer elaborated:

“The unanswered articles have had the inevitable negative impact on Miquelon…Miquelon has gone from being a 49-year-old former CFO of a Fortune 30 company … who had Chief Operating Officer … and CFO opportunities in the marketplace, to being a man with no such options and no recourse other than this lawsuit.”

Can Walgreen Co. Get The Records Sealed To Prevent Proceedings From Affecting Current Business Deals?

When Miquelon’s lawsuit landed, Walgreen attorneys quickly moved to get the proceedings sealed. Unfortunately for the corporation, the judge didn’t grant the request right away, instead opting to delay a decision until November 6th in order to carefully consider the motion. [UPDATE: Walgreen did get the gag order at the beginning of November.]

It’s still anybody’s guess who will win this professional defamation lawsuit. It’s a case that will stand or fall on the strength of lawyers’ arguments. If it gets past the first set of dismissal motions, discovery will undoubtedly play a significant role in this suit.

The case is Miquelon v. Walgreen Co., 14-ch-16825, Cook County, Illinois Circuit Court

Dance Moms Defamation: A Look At The Case That Could Have Been

Oh lo, fellow celebrity defamation enthusiast! The legal gods have spoken, and the Dance Moms defamation trial is a no-go. A judge ruled that Kelly Hyland’s slander claims against bedraggled TV Dance Coach Abby Lee Miller are meritless. (But! Hyland’s breach of contract charge against the Dance Moms production company is headed to trial.)

Dance Moms Defamation: A Look Back In Color

Despite Dance Mom Kelly Hyland’s slander claims not cutting legal muster, let’s look back at the case – because in the legal blogging business, it’s not often you can litter a post with LOL-media. Besides, there’s footage of the events, so why not use ‘em!

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In the beginning, the Hyland sisters were just two American tweens who took dance classes at Abby Lee Miller’s academy.

Then, one day, the Fairy Reality TV Godmother touched down at Abby Lee’s dance factory. Kazzam! Stars were born!

But then reality raillery got real – and physical. Accusations were lobbed, fists were flung and arrests were made.

Seasoned in the ways of reality TV stardom, after the incident, Abby Lee cried on the shoulders of four other people well-versed in on-air brawling (albeit verbal), the hosts of The View.

And bingo!  Hyland fired back with a Dance Moms defamation lawsuit alleging slander and breach of contract (with the production company). The asking price: $5 million in punitive damages.

From the lawsuit:
“the producers of the show [Collins Avenue Entertainment], in an effort to attract ratings and viewership, encourage and facilitate conflicts between Miller on the one hand and the young girl dancers and their mothers on the other.”

But alas, the presiding judge disagreed. She found no grounds for a valid Dance Moms defamation claim.

 

Pro-tip and tl;dr: if you sign on that Faustian reality TV contract line, don’t hope to launch a successful defamation lawsuit if something goes wrong on-air.

Trade Libel Case Study: Web Development Firms v. SMBs

online trade libel lawyerIn this post:

  • Review of an online trade libel lawsuit  involving a Web / SEO company
  • Explanation of the difference between free speech and defamation
  • Tips on how Web development and online marketing firms can protect against Internet trade libel
  • Contact information for online trade libel lawyer

It happens a lot: a small business owner hires a Web firm to update its website or manage an online marketing campaign; expectations aren’t met; the business relationship devolves into a trade libel lawsuit.

That’s exactly what happened between Spot Shooter Archery – a sporting goods store — and Five Sparrows – a Web development and online marketing firm.

The case raises three defamation law questions:

  • Does the First Amendment protect all negative consumer reviews?
  • Why do relationships between Web development firms and SMBs often disintegrate? Is it a matter of weak contracts and tech-talk miscommunication?
  • What does it take to win a trade libel or professional defamation lawsuit?

We’ll explore these issues by deconstructing Five Sparrows vs. Spot Shooter Archery.

Online Business Defamation Case Study: SMB v. Web Firm

The Relationship

  • Five Sparrows offers website development, SEO and online marketing services.
  • Jim Beasley is the owner of Spot Shooter Archery – a hunting and target archery store.
  • Beasley hired Five Sparrows to upgrade Spot Shooter Archery’s website.
  • Both Spot Shooter Archery and Five Sparrows belong to the same business networking group.

Google Plus Accusations

According to small business owner Beasley, his website upgrade wasn’t successful. Alleged functionality issues and status quo traffic had the archery guru seeing red. In frustration, Beasley pounded out a 1-star review on Five Sparrow’s Google + page. It reads:

“Please do not deal with this company”

“After almost five months and several thousand dollars, our e-commerce store is still not done and we have zero return [sic] on our investment. They talk a great game [sic] but you will lose your money. Five Sparrows has hurt our store’s finances. We have tried to work with them [sic] but I’m giving up! PLEASE STAY AWAY!”

Beasley also sent a bemoaning letter to their business networking group.

Web Developer’s Online Trade Libel Lawsuit

Five Sparrows – the Web/SEO firm – tells a different tale than store owner Beasley. According to Five Sparrows, Spot Shooter Archery’s shopping cart and contact form were “fully functional” and featured added search engine optimization elements.

In addition to the derogatory Google + review, Five Sparrows also took issue with the letter Beasley sent to the networking group. So, to restore its good reputation, the Web firm filed a defamation lawsuit.

Free Speech v. Defamation

Does Beasley have the legal right to post a negative review about Five Sparrows’ services? Absolutely. Just as Spot Shooter customers can write negative reviews of the store. The First Amendment guarantees this fundamental free speech right.

But what isn’t legal is publishing or distributing false statements of fact about another person or business. Doing so is defamatory, and it is against the law from sea to shining sea.

Five Sparrows, however, contends that the lawsuit is not about “negative comments” or trying to silence a critic – it’s about a false statement of fact, because in the estimation of the Web developers, they satisfied every contractual obligation.

What Businesses Must Prove To Win Online Defamation Lawsuits

Can Five Sparrows win this online trade libel lawsuit? To do so, the Web firm would need to satisfy the four pillars of U.S. defamation law:

  • Publication or Broadcast: A statement must be made public, in print, electronically or verbally.
  • Falsity: The declaration under review must be an unprivileged false statement of fact.
  • Harm: The material in question must cause the plaintiff material or reputational harm.
  • Intent: The plaintiff must prove that the defendant acted with either negligence or actual malice.

Trade Libel Lawsuits Involving Web/SEO Firms Are Common

Marketing and Web development firms frequently find themselves the target of terrible online reviews. Why is that? Simply stated: Internet marketing and search engine optimization aren’t exact sciences.

It’s a shame, too, when relationships sour between small businesses and Web development firms, because nine times out of ten the bad blood is a result of ill-communicated expectations.

To avoid SMB/Web Development trade libel lawsuits, firms should explain mitigating factors – like the nebulous, mercurial nature of the ever-mighty Google algorithm. Furthermore, Web development and SEO firms should use client contracts that protect against uncontrollable market factors and “project creep.”

TL;DR: Free speech doesn’t mean you can publically lie about people or businesses. Doing so is defamation, and it’s illegal. But in order to win a defamation lawsuit, you must satisfy the four pillars of libel. SMBs and Web development firms often clash to the point of online trade libel lawsuits — all because of poorly communicated expectations on both sides. Detailed contracts and per-work-commencement discussions usually squelch problems between the two parties.

Contact An Online Trade Libel Lawyer

Do you have an Internet trade libel issue? Are you ready to speak with an attorney? If yes, contact Kelly / Warner today to get started. To read more about our team, go here. To get in touch, head on over here. For ratings, we invite you to click on the BBB, AVVO and AV logos in the footer.

*Please Note: Kelly / Warner does not represent either party discussed herein; nor do we have a public opinion on its merits. We’re simply using this online trade libel case to explore aspects of business defamation law.

The SPEECH Act In Action: Canadian Innkeepers v. U.S. Blogger

The SPEECH Act lawyer
What happens in a cross-border defamation lawsuit between a Canadian and an American?

Can a Canadian sue an American, in a Canadian court, for defamation? Yes. If the Canadian wins, will the American be forced to pay damages? Because of the SPEECH Act, probably not.

Securing the Protection of Our Enduring and Established Constitutional Heritage Act (SPEECH Act)

It’s a law with a long name and a big job. The Securing the Protection of Our Enduring and Established Constitutional Heritage (SPEECH) Act is the regulation workhorse that materially safeguards U.S. citizens’ free speech rights in foreign jurisdictions.

How does the SPEECH Act work?

The paperwork particulars are nuanced and better left for a lawyer.

But, in basic terms, the SPEECH Act works thusly:

When a ruling is handed down in an overseas court, the foreign party seeking restitution must ask a “state-side” court to force the U.S.-based “losing party” to pay up. The SPEECH Act, however, says judges can refuse to issue a court order to the U.S. party, on the grounds that the case would’ve probably turned out differently in an American court.

U.S. Defamation Laws v. Canadian Defamation Laws

Since the U.S. has the most defendant-friendly libel laws in the English-speaking world, and Canada has the most plaintiff-friendly libel laws in the same demographic, U.S. courts don’t often recognize a libel judgment, in favor of the plaintiff, handed down in a Canadian Court. (Quebec courts are sometimes exceptions to the rule.)

The Notable Exception: If the facts of the case are such that the Canadian plaintiff would have won in both a U.S. and Canadian court, then the American party will be forced to turn over the duckets.

SPEECH ACT Case Study: Blogger v. Canadian B&B Owners

Dissing Innkeepers and Politicians On Slabb.org

Some time ago, Mr. Doug Handshoe of Mississippi posted a missive on Slabb.org. The focus of his prose was the former president of Jefferson Parish, Louisiana – a fallen area politician who plead guilty to theft and bribery. Handshoe compared the disgraced official with the owners of a guest house in Nova Scotia, Canada, quipping that both the politician and the innkeepers “had champagne taste on a beer budget” and “worked as a unit to grift their way through life.”

Canadian Innkeepers Sue for Online Libel

Probably perplexed about how they got dragged into the machinations of a Mississippi political melee, the owners of the Nova Scotia inn filed an online libel lawsuit against Handshoe – in a Nova Scotia court – and they won a judgment of about $430,000.

But can the Canadians collect the money?

The Canadian innkeepers petitioned a federal Mississippi court, asking it to force Handshoe to pay up. But Handshoe argued the SPEECH Act. Chief Judge Guirola agreed and ruled that Handshoe didn’t owe squat because he probably would have won the defamation lawsuit had it been tried in the United States.

The innkeepers appealed, but were once again denied, the Fifth Circuit explaining in their opinion:

A party may enforce a foreign defamation judgment in a domestic court if either (A) the law of the foreign forum . . . provides free-speech protection that is coextensive with relevant domestic law, or (B) the facts . . . are sufficient to establish a defamation claim under domestic law.

The higher court found that the Nova Scotia libel standards used to decide this case did not mesh with point (A), nor did the judges feel that the Canadian innkeepers would have won in a U.S. court, rendering point (B) unfulfilled as well.

Another blow to the Trout Point executives, they had to pay Handshoe’s legal fees.

(Case: TROUT POINT LODGE, LIMITED, a Nova Scotia Limited Company, VAUGHN PERRET, and CHARLES LEARY, Plaintiffs-Appellants)

Canadian-U.S. Defamation Litigation and Lawyers

Kelly / Warner Law has successfully handled many cross-border, Canadian-U.S. libel cases. If you are facing a foreign defamation judgment and want to exercise your SPEECH ACT rights, we can help. If you want to sue a non-U.S. citizen for defamation, we can also help. If you are being sued for defamation and need defense counsel, we do that too.

Kelly / Warner is a top-rated, full-service law firm – with an excellent track record in cases involving the SPEECH Act.

Get in touch today to begin the conversation.