Tag: First Amendment

Statement Assailing Lawyer’s Appearance and Competence Not Factual Enough to Sustain Defamation Claim – Ind. Appeals Court

In Sasser v. State Farm Insurance Co., the Indiana appeals court addressed the contours of defamation law in the context of two statements that variously impugned an attorney’s physical appearance and professional abilities.

The plaintiff, an in-house lawyer for the insurance giant defendant, had a years’ long personality clash with a non-attorney claims adjuster.  The plaintiff alleged the adjuster made many disrespectful comments about the plaintiff including the two statements that drove plaintiff’s defamation suit.

The challenged statements consisted of one concerning the plaintiff’s appearance; the other, her competence as a lawyer.  The Court focused mainly on the latter claims agent’s assertion that “any competent attorney could get a defense verdict” after the plaintiff advised against taking a case to trial to company brass.  The plaintiff argued that the adjuster’s statement was per se defamation since it imputed the plaintiff’s ability to perform as a lawyer.

The trial court disagreed and entered summary judgment for the defendants.  Plaintiff appealed.

Affirming, the court first set forth the general principles of Indiana defamation law.

Defamation requires proof of a factually false statement about the plaintiff, published to a third party that tends to lower one’s reputation in the community or that deters others from associating with the person.

Defamation includes written (libel) and oral (slander) statements.  Two species of defamation law include per se defamation and per quod defamation.  The former applies to statements that are naturally harmful on their face and don’t require a plaintiff to prove special damages.

The four categories of per se defamation are statements that a plaintiff (1) committed a crime, (2) has a communicable disease, (3) is incompetent in trade or profession, and (4) exhibits a lack of integrity in performing employment duties.

Defamation per quod involves a statement that isn’t obviously defamatory but requires extrinsic evidence to establish its defamatory meaning.  To succeed on a defamation per quod claim, the plaintiff must prove actual monetary harm attributable to the challenged statement.

For a statement to be actionable as defamation, it must contain objectively verifiable facts about the plaintiff.  But where the speaker is merely expressing his/her subjective view, interpretation, or theory, the statement is not actionable.  In addition, “[j]ust because words may be insulting, vulgar or abusive words does not make them defamatory.” [22]

Here, the appeals court agreed with the trial court that the two statements under attack did not directly convey a per se defamatory statement about the plaintiff.  While allowing that individual defendant’s comment concerning the plaintiff’s appearance may be offensive, it wasn’t verifiably true or false and so didn’t rise to suable slander.

And while the adjuster defendant’s “any competent attorney” statement arguably implicated per se category (3) – by attributing an inability to perform employment duties – the court found the statement too nebulous to be verified as either true or false.  The Court viewed this statement as the claims agent’s subjective opinion that a competent attorney could secure a certain result after a hypothetical trial.

Rhetorically, the Court asked how would one demonstrate the truth or falsity of such a statement?  It then cited to a late-90s Seventh Circuit decision (Sullivan v. Conway, 157 F.3d 1092 (7th Cir. 1998)) where the Court opined that “to say [plaintiff] is a very poor lawyer is to express an opinion that is so difficult to verify or refute that it cannot feasibly be made a subject of inquiry by a jury.”

The Sullivan case relied on by the Indiana appeals court noted that the caliber of legal representation is inherently uncertain: it noted that excellent lawyers may lose most cases because they take on only challenging ones.  Conversely, according to Sullivan, poor lawyers could win all their cases by only taking easy cases. [25].

What’s more: lawyers have strengths and weaknesses: some are good at some things, while poor at others.   There simply isn’t a way to factually test an opinion concerning a lawyer’s aptitude.  Here, since there was no way to corroborate the statement’s truth or falsity, it wasn’t factual enough to support a defamation claim.

The court also rejected plaintiff’s attempt to bootstrap the “any competent attorney’ statement into a claim that the plaintiff violated Indiana Rule of Professional Conduct 1.1 which specifically speaks to lawyer competence in representation.  The Court found that since the plaintiff didn’t allege either the individual or corporate defendant didn’t say the plaintiff acted unprofessionally or improperly with respect to a specific, discrete legal matter, the plaintiff’s reliance on Indiana’s professional conduct rules fell short.

The court also rejected plaintiff’s per quod argument: that the statement’s defamatory content was established when the  court considered extrinsic evidence.  Because the statement did not impute anything false about the plaintiff that would tend to harm the plaintiff’s reputation, the statement was not defamatory per quod.

Afterwords:

This case illustrates in sharp relief the challenges a defamation plaintiff faces in a culture that vaunts freedom of expression and gives latitude for citizens to “blow off steam” in the private, employment setting.

Sasser also demonstrates that while a statement may be mean, offensive, and vulgar, it still will not rise to the level of actionable defamation if it cannot be objectively tested as true or false.

Qualitative, subjective statements about a lawyer’s abilities do not lend themselves to objective testing.  As a result, in Indiana at least, such statements generally cannot support a defamation claim.

 

 

 

 

Truth Is Defense to Employee Intentional Interference With Contract Suit – IL Court

 

 

The Illinois First District recently discussed the contours of pre-suit discovery requests in cases that implicate fee speech concerns and whether truthful information can ever support an intentional interference with employment claim.

After relocating from another state to take a compliance role with a large bank, the plaintiff in Calabro v. Northern Trust Corporation, 2017 IL App (1st) 163079-U, was fired after only two weeks on the job for failing to disclose his forced removal from a prior compliance position.

When the employer wouldn’t spill the tea on the snitch’s identity, plaintiff sued.  The trial court dismissed plaintiff’s pre-suit discovery petition and plaintiff appealed.

Affirming, the Court construed pre-suit discovery requests under Supreme Court Rule 224 narrowly.  That rule allows a petitioner to discover the identity of someone who may be responsible in damages to petitioner.

To initiate a request for discovery under Rule 224, the petitioner files a verified petition that names as defendant the person(s) from whom discovery is sought and states why discovery (along with a description of the discovery sought) is necessary.  An order granting a Rule 224 petition is limited to allowing the plaintiff to learn the identity of the responsible party or to at least depose him/her.

To show that discovery is necessary, the petitioner must present sufficient allegations of actionable harm to survive a Section 2-615 motion to dismiss.  That is, the petition must state sufficient facts to state a recognized cause of action.

But Rule 224 limits discovery to the identity of someone who may be responsible to the petitioner.  A petitioner cannot use Rule 224 to engage in a “vague and speculative quest to determine whether a cause of action actually exists.”

Here, the petitioner didn’t know what was actually said by the third party respondent. The Court viewed this as a tacit admission the plaintiff didn’t know if he had a valid claim.

The Court then focused on the veracity of the third-party’s statement.  To be actionable, an intentional interference claim requires the supply of false data about a plaintiff.  Accurate and truthful information, no matter how harmful, cannot underlie an intentional interference action. This is because allowing someone to sue on truthful information violates the First Amendment (to the Constitution) and chills free speech.

Truthful statement immunity is also supported by Section 772 of the Restatement (Second) of Torts which immunizes truthful information from contract interference liability.  [(¶¶ 18-19].  And since the plaintiff’s claim was based on true information – that plaintiff was fired from his last job – the prospective interference claim was doomed to fail.

Afterwords:

This case portrays an interesting application of Rule 224 – a device often employed in the personal injury context.  While the rule provides a valuable tool for plaintiffs trying to identify possible defendants, it doesn’t allow a freewheeling “fishing expedition,”  The petitioner must still state a colorable claim.  In this case, the Court viewed the potential for stifling free speech more worrisome than the individual plaintiff’s private contract rights.

 

 

Avvo’s ‘Sponsored Listings’ Not Commercial Enough to Escape First Amendment Protection in Lawyer’s Publicity Suit – IL ND

img_1953

In its decade old existence, Avvo, Inc., an “on line legal services marketplace,” has been no stranger to controversy.  Private attorneys and bar associations alike have objected to Avvo’s business model and practices – some filing defamation lawsuits against the company while others have demanded in regulatory venues that Avvo stop its unconsented “scraping” of attorney data.

Vrdolyak v. Avvo, Inc. is the latest installment of a lawyer suing Avvo; this time challenging Avvo-pro, the on-line directory’s pay-to-play service.

For about $50 a month, Avvo-pro users can ensure that no rival attorney ads appear on their profile page.  But if the attorney chooses not to participate in Avvo-pro, he will likely see competitor ads on his Avvo page.

The plaintiff, a non-Avvo-pro participant, sued Avvo under Illinois’ Right to Publicity Act.  He argued that by selling competitor ads on his profile page, Avvo usurped plaintiff’s right to monetize his identity.

In effect, according to plaintiff, Avvo was capitalizing on plaintiff’s brand and using it as a platform for rival lawyers to peddle their services to anyone who visited plaintiff’s Avvo page.

The Court granted Avvo’s motion to dismiss on the basis that Avvo’s ads were protected by the First Amendment to the U.S. Constitution.

The key inquiry was whether Avvo’s site constitutes commercial or non-commercial speech.  If speech is non-commercial, it is entitled to expansive First Amendment protection that can only be restricted in extraordinary circumstances.

Commercial speech, by contrast, receives less First Amendment protection.  It can be more easily scrutinized and vulnerable to defamation or publicity statute claims.

The court cited daily newspapers and telephone directory “yellow pages” as prototypical examples of non-commercial speech.

While both sell advertising, a newspaper’s and yellow pages’ main purpose is to provide information.  Any ad revenue derived by the paper or phone directory is ancillary to their primary function as information distributor.

Commercial speech proposes a commercial transaction, including through the use of a trademark or a company’s brand awareness.  If speech has both commercial and non-commercial elements (e.g. where a commercial transaction is offered at the same time a matter of social importance is discussed), the court tries to divine the main purpose of the speech by considering if (1) the speech is an advertisement, (2) it refers to a specific product and (3) the speaker’s economic motivation.

The Court agreed with Avvo that its site was akin to a computerized yellow pages; That the core of Avvo was non-commercial speech: it provides attorney information culled from various sources.

The court distinguished basketball legend Michael Jordan’s recent lawsuit against Jewel food stores for taking out an ad in Sports Illustrated, ostensibly for commending Jordan on his recent basketball hall of fame induction.

The Seventh Circuit there found that Jewel’s conduct clearly aimed to associate Jordan with Jewel’s brand and in the process promote Jewel’s supermarkets.  As a result, Jewel’s actions were deemed commercial speech and subject to a higher level of court scrutiny. Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 515 (7th Cir. 2014).

In the end, the Avvo case turned on this binary question: was Avvo a non-commercial attorney directory with incidental advertising, or was each Avvo attorney profile an advertisement for the competitors’ “Sponsored Listings” (the name ascribed to competing attorneys who paid for ads to be placed on plaintiff’s profile page).

Since not every attorney profile contained advertisements and none of the challenged ads used plaintiff’s name, the Court found Avvo was like a newspaper or yellow pages directory entitled to free speech protection.

The Court likened Avvo to Sports Illustrated – a publication that features ads but whose main purpose is non-commercial (i.e. Providing sports news).  Like SI, Avvo publishes non-commercial information – attorney stats – and within that information, places advertisements.

To hold otherwise and allow plaintiff’s publicity suit to go forward, “any entity that publishes truthful newsworthy information about….professionals, such as a newspaper or yellow page directory, would risk civil liability simply because it generated ad revenue” from competing vendors.

Afterword:  This case presents an interesting application of venerable First Amendment principles to the post-modern, computerized context.

A case lesson is that even if speech has some obvious money-making byproducts, it still  can garner constitutional protection where its main purpose is to impart information rather than to attract paying customers.