Legal Blogger Beats Defamation Rap for Cheeky Headline

The Second Circuit has sided with a blogger who was sued for defamation for his headline "TCPA Class Certification Denial Exposes Major Spousal Scheme."  Wexler v. Dorsey & Whitney, LLP, 2020 U.S. App. LEXIS 21474 (2nd Cir. 7/9/20). While the case does not fall within the usual fare for this blog, I am always happy to write about another blogger.

The underlying case which led to the blog post was a putative class action in which the  husband-attorney proposed that his wife serve as class representative. Even though the husband agreed to withdraw from the case and forego any attorney's fees as class counsel, he still reserved the right to seek an award based on quantum meruit. The Court found that the husband's potential to seek quantum meruit fees disqualified the wife from serving as class counsel.

Artin Betpera, an associate with Dorsey & Whitney, wrote a rather clever blog post about the case, the introduction to which said:

There are plenty of things I'd like to do with my wife one day. Take a trip to Greece. Finally convince her to go camping with me (never going to happen). But filing a class action with her as a class representative is definitely not one of them.

That's exactly what one husband-and-wife duo tried to pull in the Eastern District of New York. Senior Judge Frederic Block made quick work of the scheme.

The attorney-husband did not find this amusing and filed suit for defamation. The firm and the blogger moved to dismiss for failure to state a cause of action. The plaintiff apparently failed to argue his claim that the post itself was defamatory, focusing instead on the headline. The U.S. Magistrate dismissed the case and the husband-attorney appealed.

The Second Circuit explained that only assertions of fact as opposed to opinion could constitute libel. 

Distinguishing between opinion and fact requires a consideration of the following factors: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact

Opinion at *6-7. Based on this standard, the Second Circuit had no problem finding that the headline was a statement of opinion.

We agree with the magistrate judge that the headline in this case constitutes opinion and is therefore not actionable. The tenor of the article reflects that it is meant to be not only informative but also amusing and entertaining, making hyperbole in the headline expected and reasonable. The article's placement on a law firm's blog also suggests that it is informed, at least in part, by the firm's and its author's opinions. The context of the statement therefore cuts against a determination that it is an assertion of fact meant to be taken literally. The language "exposes major spousal scheme" also does not have a readily understood precise meaning of the nefarious sort that is advanced by Wexler — it could just as easily mean exactly what happened here, that the TCPA decision brought to light an ethically questionable arrangement by a married couple (here, to represent both the attorney's and the class's fiscal interests in a class action). The use of "major" does not change this analysis, as that is a relative term, the applicability of which is a matter of opinion. An average reader would not understand the headline to be "an attempt to convey with technical precision literal facts about" Wexler. And because the statement does not have a readily understood precise meaning, it is not capable of being proved true or false.  Nor do we think that a reasonable reader would think that the headline was based on facts other than those disclosed in the article, which accurately describes the ruling of the court. The headline is therefore properly read as non-actionable opinion rather than fact, and Wexler's defamation claim fails.

Opinion at *7-9 (cleaned up).

The Court then invited Mr. Wexler to to show cause why sanctions should not be issued for filing a frivolous appeal.

When I write about cases, it is common that one party wins and one party loses. The losing party may disagree with the opinion and on occasion, I have had persons tell me that the Court's fact finding was wrong or that their attorney was incompetent. I try to make it clear in my blogging that I am reporting on what a court found. I believe that I am free to report what a court finds, even if it is embarrassing or distasteful to one of the parties. This opinion takes that protection one step further. I often offer my opinion on what the implications of a case are.  However, this case shows that I can make my posts "not only informative but also amusing and entertaining." 

 

 

Tips for Virtual Practice

I have not been in a courtroom since the first part of March. Courts have adapted to life under Covid-19 with a combination of telephonic and video hearings. I have attended several CLE presentations on virtual court and have some observations of my own. Here are some tips.

1. If you are not 15 minutes early, you are late. When working with technology, assume that you may have problems and dial in/log in early. Sometimes you may input the wrong access code and have to look it up. Other times the court's phone line may be overloaded and you may have to try multiple times. You may notice that the battery on your laptop is almost dead and to go searching for the cord. Judges hate it when you log into a hearing which is already in progress. I have heard one judge order a late participant to hang up. 
2. Make sure you know what technology the court is using. Prior to one hearing, I noticed a blurb about Webex video hearings on the court's website and decided to log in that way. What I didn't notice was that the court wasn't using Webex yet and I ended waiting for a connection that never came with the result that I violated Rule 1.
3. Don't use a speakerphone. Speakerphones produce bad sound quality. However, you don't want to hold the phone to your ear the entire team so it is best to get some technology. I have tried both ear buds and a headset to connect to my cell phone by bluetooth. I found that the earbuds tend to fall out so I prefer the headset.
4. Mute your phone when not speaking. The judge does not want to hear your dog barking or you asking for more coffee. 
5. State your name before speaking. Seriously, this was a rule for in person court but it is all the more important for virtual court.
6. Wait your turn. Another thing judges hate is when people interrupt. It muddies the record and is rude. Typically, judges will tell you the order in which they will call on people. If the judge fails to call on you, then you should pipe up before he moves on but you should be very patient.
7. Exhibits  are tricky. You still have to exchange exhibits in advance just like before. However, you can't hand them to the courtroom deputy or place a copy on the witness stand like we would do in IRL court. Make sure that everyone has a set of exhibit books in advance, including the court and the witness. Don't count on being able to pull up an exhibit on the screen. Different courts may have different capabilities. See Rule 2.
8. When presenting direct testimony, it is good to prepare a written proffer, file it with the court and then send it to all the parties, including the court. This is probably a good time to point out that while the prohibition on ex parte contacts still applies, the courtroom deputy and law clerk are the gatekeepers for getting the judge what he needs. Know their email addresses.
9. If you are appearing by video, dress like you are in court. Today will be only the second time since mid-March that I have worn a coat and tie. Hopefully I still remember how ties work.
10. Finally, an anecdote. I recently participated in a day long hearing in Alaska on a claims objection. My client was a witness so I was just monitoring the hearing.The sponsoring attorney spent days working on her proffer because she was not a party and did not want to have words put in her mouth. The hearing got started late because someone was calling in from a location with bad cell service and the static overpowered the line. No one would fess up to creating the bad connection. We had to go through a series of having people hang up and dial back in until the connection was adequate.  When the time came for y client to be cross-examined, she had the exhibits on her laptop and could readily pull them up. She and I were in a conference room at my office. If I had wanted to mouth the answers to her or pass her notes, I could have. I did not for the reason that I believe in the rule that if you can get caught doing something wrong, you probably will. 

What are your stories from virtual court? I would love to hear them.