California Defamation Law Blog

A Cross-Complaint Is Rarely The Answer

Adrianos Facchetti — Sun, 13 May 2012 09:57:48 -0800

I routinely hear prospective clients ask me whether they should file a cross-complaint in response to a SLAPP action. In most cases, they ask me this question because a previous attorney has advised them to do it. While filing a cross-complaint certainly escalates the litigation, it rarely serves the interests of the client.

So why do attorneys recommend such a course of action? Because they think that by raising the stakes they are shifting some of the risk of loss to the plaintiff. In most cases, however, this is wrong. First, what many attorneys don't realize is that by filing a cross-complaint in response to a complaint, they may be subjecting their clients to the risk of an anti-SLAPP motion. Even if plaintiff's motion turns out to be frivolous, the client will still have to pay his attorney to oppose it. And, the risk is not worth it since in most cases you can respond to a complaint with an ant-SLAPP motion and then file a cross-complaint (if necessary, warranted, and within the SOL) after the Court rules on the motion.

However, if the the statute of limitations is running, or if the nature of the cross-complaint is such that the risk of an anti-SLAPP motion is low, it may be wise to file a cross-complaint. Otherwise, try to avoid it. So beware if someone is quick to advise you to file a cross-complaint.

How to read a consumer review

Adrianos Facchetti — Fri, 30 Mar 2012 07:14:08 -0800

At least 2 or 3 times a week I get a call from an anguished business owner about a negative review on the internet. Sometimes it's on Yelp, other times it's on other sites like Citysearch, Ripoffreport, or Avvo. Negative reviews can be extremely damaging to a business, but in many cases, it's best not to get too upset about them, unless they appear credible and they are defamatory. Even where a claim may be actionable, it's best not to sue for a variety of reasons that I've discussed previously on this blog.

But something I haven't written about yet is how you, as a potential consumer, should read a review. In other words, what should you consider in order to determine whether a review is to be trusted or not? After all, we all know that many businesses (affiliate marketers, in particular) write shill reviews in order to make it appear like they have a great reputation. Some of them even write malicious reviews to destroy their competition. So how do we know which reviews to trust?

Here are a number of guidelines to consider when you're reading a consumer review. Some of these are common sense, but as the old saying goes, I've found that common sense isn't so common.

1. The "Gestalt" - the first thing I look at is the whole of the business' internet reputation. I look at multiple review sites to see what the general trend is. Not surprisingly, if most of the reviews are fairly positive, that's a good sign. But I go beyond this. What do the positive reviews have in common? What do the negative reviews have in common? If positive reviews repeat certain things about the business I generally view this favorably, unless the language and sentence structure is so similar as to draw my suspicion. In addition, if the company has no negative reviews I look at this with a bit of skepticism. While it's possible that they have no unsatisfied customers, it's more likely that they're either fairly new or that they're using proactive methods to keep customers from making reviews, or to suppress reviews they don't like with SEO methods. But really, at the end of the day every business will and should expect to have a handful of negative of reviews. Every business owner has encountered the unreasonable or unhinged customer. And every consumer has come in contact with a business owner who just doesn't care.

2. The Language - I tend to look at the grammar, punctuation, and other similar characteristics of a review too. Is it well-written? If the review is badly written or is in ALL CAPS, then I tend to give it less credence. Why, you may ask? It's because I think people who write well tend to think well too. There are exceptions, of course. And people who use ALL CAPS in their reviews are often emotionally fired up. I tend to look at those kinds of reviews with an extra grain of salt. While their review may be 100% true, I'm more likely to believe a review that seemed to have been written by a cool and calm customer.

Also, is the language of the post specific? If the post is vague, general, or contradictory, this is a red flag for me. It tells me a few things. First, that it could be a post from a jealous competitor who is attempting to disparage the competition (not altogether common in my experience). Second, it's a disgruntled customer who will never be satisfied and may be seeking to exact revenge on the business owner. Or third, and worse, it is a person who may be emotionally disturbed or who is attempting to extort the business owner. Sadly, this happens.

3. The number of reviews - This is an obvious one. If the vast majority of reviews are positive and there are only one or two negative reviews, this is a good sign. The opposite is also true.

4. Anonymous reviews - It's very easy to take potshots at somebody when you think there are no consequences. It's much more difficult to put your name on a statement, especially a negative or a controversial one. For this reason, I find that anonymous posts on the whole are less credible. There are exceptions, of course.

5. The reviewer - the last thing I look at is the reviewer. Has this person posted multiple negative reviews about different businesses on a number of sites? If so, this is a major red flag. Most people do not post reviews on the internet at all. Even fewer post multiple negative reviews about different businesses. This suggests to me that the person may have emotional issues, unreasonable, or is simply a malicious individual. Or worse, that the person is a professional extortionist, which is a growing problem.

It is inevitable that most, if not all business owners will deal with a negative online review at some point. You simply can't make everyone happy, no matter what you do.

Can filing a petition for a restraining order subject you to the risk of an anti-SLAPP motion?

Adrianos Facchetti — Mon, 12 Mar 2012 17:50:54 -0800

Every day in countless courts in Los Angeles and elsewhere in California, people are filing petitions to enjoin harassment, whether for domestic violence, internet harassment, or stalking. But while Code of Civil Procedure 527.6 was meant to be a summary procedure, what few realize is that filing a petition for harassment may subject the filer to an anti-SLAPP motion, and thus attorneys' fees.

In a case several years back, a landlord filed a petition to enjoin defendant and others from demonstrating and leafletting against landlord's practices as a landlord of multiple rental units. Defendant filed an anti-SLAPP motion and the trial court found that the anti-SLAPP procedure was not applicable to petitions seeking relief under 527.6. But the First District Court of Appeal disagreed, reversing the decision, not only finding that defendant's activities were protected under the first prong of the SLAPP statute, but also ruling that petitioner was unable to show a probability of prevailing on the merits.

While not applicable to every petition for harassment, it is clear that the anti-SLAPP procedure is a trap for the unwary in this context. Few attorneys are even aware of this. For this reason, it is important that you contact an experienced restraining order attorney who is knowledgeable in the anti-SLAPP area.

What are the stages of SLAPP litigation?

Adrianos Facchetti — Sat, 10 Mar 2012 20:09:46 -0800

Here is a brief outline of the typical stages of anti-SLAPP litigation:

After being served with a Complaint, a defendant will have 30 calendar days in which to file a responsive pleading. Typically a responsive pleading comes in the form of an answer, motion to strike, demurrer, or other such document. Defendant will then have 60 days from the date he is served in which to file an anti-SLAPP motion. Once the anti-SLAPP motion is filed, all discovery is stayed in the case. Discovery is the method by which the parties exchange information with one another, and is typically the most expensive part of litigation. Seeking to reduce the cost of litigation to SLAPP targets, the law freezes discovery until the motion is decided by the judge, unless the plaintiff makes a motion for specified discovery, which is granted by the court.

Following the filing of the anti-SLAPP motion, the plaintiff will have an opportunity to respond. This is called an opposition, which will typically include a memorandum of points and authorities in opposition to the anti-SLAPP motion, declarations, evidence, and objections to defendant's evidence. Plaintiff's opposition must be filed no later than 9 court days before the scheduled hearing. Defendant will then have an opportunity to respond to the opposition. This is called a reply, and will generally include a memorandum of points and authorities as well as supplemental declarations, evidence, and objections to plaintiff's evidence.

As I mentioned above, in some cases, prior to the anti-SLAPP motion being decided, the plaintiff will seek limited discovery on certain issues. If the Court grants the motion, the anti-SLAPP motion hearing will likely be continued and the plaintiff will be allowed to conduct limited discovery, e.g., a short deposition or obtain documents. If the Court denies the motion for discovery, then the anti-SLAPP hearing will proceed.

At the hearing on the anti-SLAPP motion, assuming there are multiple causes of action, the Court will determine whether defendant has successfully defeated one or more of plaintiff's claims. If defendant is successful, defendant can ask the Court for its reasonable attorneys' fees in defending against the SLAPP.

After the anti-SLAPP motion is decided, either party may immediately appeal the Court's decision. If defendant is successful at the appellate level, then defendant may incur any fees he has incurred at the appellate level.

What is a SLAPP?

Adrianos Facchetti — Sat, 10 Mar 2012 19:50:20 -0800

SLAPP is an acronym for strategic lawsuit against public participation. It is a lawsuit that targets a person's free speech or petitioning activity. In California, the so-called anti-SLAPP statute is codified in section 425.16 of the Code of Civil of Procedure. The statute allows defendants to file a special motion to strike. In order to prevail, the defendant must show that its speech or conduct fits within one of the categories spelled out in the statute. If it does, the burden shifts to the plaintiff to show that he can show a probability of prevailing on the merits. If the defendant is successful in striking some or all of plaintiff's claims, defendant will be entitled to collect its reasonable attorney's fees.

Google Search Results Can Be Used to Show Public Interest Under Prong One of the SLAPP Statute

Adrianos Facchetti — Thu, 08 Mar 2012 18:49:09 -0800

Under California's anti-SLAPP statute, a defendant must meet its threshold burden to show that plaintiff's cause of action arises from protected activity. One of the ways to do this is to demonstrate that the protected activity involves a matter of public interest, generally speaking. In cases involving alleged defamatory consumer reviews, one of the challenges a defendant must meet is to show that the issue is of interest to a significant number of people--not merely a private dispute involving parochial matters. One way to do this is to perform a Google search of the purported public issue involved. For example, if you do a Google search for "Lakers" it returns about 102,000,000 results. So obviously, this is a matter of great interest. I have done this in several cases and it has proven to be very effective. In fact, recently, in a published anti-SLAPP decision, the Court of Appeal relied upon such evidence in determining whether the disputed matter involved a public issue. In short: Google search results can be used to show a matter of public interest.

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More Twitter Defamation In The News

Adrianos Facchetti — Sat, 18 Feb 2012 16:51:38 -0800

I haven't had a lot of time lately to blog, but here are a couple of stories involving twitter libel that you should check out. The first involves the lawsuit filed by Courtney Love's former attorneys over alleged defamatory tweets. If you recall, Love posted a less than flattering comment about one of her previous attorneys, or so the allegation goes. The attorney and the firm filed suit in Los Angeles County alleging defamation. While no anti-SLAPP motion was filed, Love's attorney has filed at least one demurrer (that I know of) claiming, among other things, that the statements are not "of and concerning" the lawyer. What is most interesting, though, is the analysis of the principle of "defamation by implication." For a fuller discussion, check out THR, Esq. It's worth your time.

In another case, an Australian man is suing Twitter over a tweet posted by a user accusing the man of having written a hate blog. Unfortunately for Twitter, there is nothing like the Communications Decency Act in Australia. Nor is there any other potentially available procedural device like an anti-SLAPP motion. I've previously given an expert opinion regarding California defamation and Choice of Law issues in an Australian case, so I'll be watching this one with interest. For more information, check out CNN's report here.

Murum Aries Attigit: A Philosophy for Litigation

Adrianos Facchetti — Wed, 08 Feb 2012 15:34:02 -0800

The other day opposing counsel in a case challenged me for having written in a letter that we would litigate the case according to the principle of "murum aries attigit." Now, I want to make it clear that I did not invent this term, nor was I the first to use it in the litigation context. I want to give credit where credit is due. The first attorney (that I know of) to have used this term in the civil litigation context is First Amendment Lawyer, Marc Randazza.

So anyhow, I often get a strong reaction from attorneys and other opponents alike, when I include this language in a letter, so I wasn't surprised. Yet, I don't include this phrase in correspondence strictly to get a reaction--I do it because that phrase represents my philosophy on litigation.

Before I tell you what the term means, let me give you a little background on me (I never share personal information about myself on this blog, but I'll make an exception here because it's important). I have loved Roman history and warfare (strategy) since I can remember. I have studied those topics intensely before, during, and after college. I am utterly fascinated by these subjects as well as rhetoric and memorization.

So while I was in college, among other books relating to Julius Caesar, I read the Commentaries on the Gallic War. There, Caesar described the principle of "murum aries attigit," which literally means the "The Ram Has Touched the Wall." It referred to a Roman policy: surrender would be accepted before--but not after the battering ram touched a enemy's city walls. Wikipedia explains the purpose behind the policy well: "The policy was to act as a deterrent against resistance to those about to be besieged. It was an incentive for anyone who was not absolutely sure that they could withstand the assault to surrender immediately, rather than face the possibility of total destruction."

Although it is necessary to settle some cases, either because the client wants to resolve it early, or because the facts warrant it, the other side should know that once litigation begins--no surrender will be accepted. Some may say that this is "posturing" or merely "tough talk," but I sincerely believe that if more attorneys employed this principle, and really meant it, we would all be better off. There would be less frivolous litigation. People would think twice before "pulling the tiger's tail." And so I wholeheartedly endorse and believe in this principle and employ it in my practice.

[Note: A reader has suggested that this post implies that I coined the phrase, murum aries attigit. I did not come up with that term; and I never said in my post that I did. In fact, given that the term has been around for close to 2,000 years, I'm sure I wasn't the first person to use the term in the litigation context (or any other context). Nor will I be the last. My point in writing the post was that if more people were aware of the principle, and actually followed it, less frivolous lawsuits would be filed.]

[Update]: In a previous version of this post I had not mentioned that Marc Randazza coined the phrase, M.A.A. in the litigation context. To give credit where credit is due, and to make things totally clear, I have updated this post (see the first paragraph). In other words, to use a more well-known latin phrase, mea culpa.

8 strategies to help avoid being sued for libel

Adrianos Facchetti — Tue, 17 Jan 2012 12:00:00 -0800

[Editor's note: This post was written by my good friend, Gordon Firemark. He's a media and entertainment lawyer in Los Angeles, California. He is the author of the Podcast, Blog & New Media Producer's Legal Survival Guide, and host of the Entertainment Law Update Podcast. http://www.firemark.com]

Enter Gordon:

Do you post blogs, podcasts, videos or other material on the web? Do you ever talk about other people in this context?

If you answered yes, you could someday be on the wrong end of a libel lawsuit.

Libel is defamation that's been recorded, printed, or broadcast, as opposed to slander which refers to spoken-word defamation.

In this post, I'll share some simple strategies and best practices you can use to avoid being sued for libel.

First, check your sources… Your source for information could have a vendetta against the subject and willfully or unintentionally misrepresent the facts for his or her own purposes. Or, your source could just be mistaken. Even large media outlets sometimes screw up and get things wrong. Don’t rely on someone else to be accurate.

Get independent corroboration whenever possible. Sources may disappear or recant what they said in the face of a lawsuit. Having multiple sources for your information lends credence to the assertions you make, and can provide 'safety in numbers'.

Although public figures and public officials are subject to higher standards of proof in libel suits, it's still smart to verify the accuracy of a story. Journalists are trained to contact the subject of a story for comment. Juries do not respond favorably to reporters or other writers who fail in this regard. Whether a blogger is considered a journalist or not, he or she needs to be aware of the standards to which they'll be held.

Be sure your story is accurate and complete. If you edit aggressively, it is possible to convey a false impression by omitting relevant details, or even from a carelessly constructed string of true statements. Make sure the story does not mislead the reader or listener because of poor editing.

Don't talk about matters you don't fully understand. If you're talking about a legal case or controversy, be sure you get the facts (not the allegations, the facts) right, and report accurately on things.

Opinion is not-defamatory, so when you express yours, be sure it's clear that you're doing so. The more facts and data you bring out to support your views, the more likely your piece will be construed as factual, and can subject you to liability if you're wrong. (Note from Adrianos: Opinions can be actionable if they imply provably false facts.)

Be judicious in your use of generic stock photos or footage to illustrate stories about controversial subject matter. It is possible to defame someone by juxtaposing his or her image with a story about someone else.

Don't republish information without corroboration. Just because someone else said it does not mean that you won't be sued for republishing it.

If you do find yourself on the receiving end of a lawsuit or threatened suit, contact a lawyer right away. Publishing a retraction or an apology can actually be a bad idea if not handled properly.

Common Examples of SLAPPs

Adrianos Facchetti — Fri, 16 Dec 2011 16:49:12 -0800

Potential clients and attorneys often ask me what kinds of claims are typically subject to an anti-SLAPP motion. The correct answer is that regardless of the label given a claim, it may still be subject to Code of Civil Procedure 425.16 if it arises from petitioning or free speech activity. Having said that, in general terms, there are some common claims and factual scenarios that give rise to a SLAPP.

Claims that often trigger anti-SLAPP protection are defamation, malicious prosecution, abuse of process, and business torts like intentional interference with prospective business advantage and intentional interference with contract. While any cause of action may be subject to the statute, including breach of contract, for example, those are the most common claims.

Factual scenarios that come up often are the following:

Claims based on previous litigation activity: I often see cases that arise from litigation activity. To the average lawyer, they may not be obvious as SLAPPs. For example, a suit for defamation based on an unsuccessful restraining order; or a breach of a covenant not to sue, both of which are subject to the statute.
Claims based on consumer conduct: An increasing number of lawsuits arise from negative consumer reviews, for example. These kinds of lawsuits are generally brought by professionals like dentists, doctors, lawyers, and psychiatrists who depend upon their online reputation to generate leads. While each case is different, some patterns emerge. Usually the former client or patient is dissatisfied with services they've received, so they post a critical review on sites like RipOffreport, Yelp, CitySearch, and other such sites.The professional will then bring suit for defamation, intentional interference with prospective economic advantage, and intentional infliction of emotional distress. Sometimes these posts are the work of competitors, but this is rare in my experience. Usually it is because the professional has not satisfied two critical needs of the customer: to be heard and understood.
Community Speech: Another common category of SLAPPs involves speech regarding what I call community issues. These may arise either offline or online and will typically involve speech about a public official, like a city councilman, or speech about a proposed redevelopment project.

While SLAPPs come in different varieties, there are certain patterns like the ones mentioned above. Before filing a lawsuit, you should know whether it is potentially subject to an anti-SLAPP motion because of the consequences of the motion: dismissal and possible hefty attorneys' fees.

Is A Public Figure's Sex Life A Matter of Public Interest Under the Anti-SLAPP Statute?

Adrianos Facchetti — Thu, 01 Dec 2011 16:22:22 -0800

Political and sports figures have recently argued that their sex lives are not a matter of public interest. Consider, for example, Herman Cain: in response to allegations from Ginger White that she had a decade-plus affair with him, Mr. Cain's attorney, Lin Wood, said that those kinds of allegations have no place in public discourse and that Cain would not discuss them.

David Beckham, too, insisted in his lawsuit for libel against In Touch magazine that the story about his alleged sexual interaction with a prostitute was not a matter of public interest.

So the question is whether a political candidate's or a world famous athlete's sex life is a matter of public interest. The answer is not so simple and can be argued both ways. Under the first prong of the anti-SLAPP statute, it can contended, under fairly recent authority, that a public issue is anything in which the public is interested. Applying that standard to Beckham's case, one can definitely make a strong argument that the allegations about his sexual dalliances with a prostitute is a matter of public interest. After all, Beckham is internationally recognized as a sex symbol. And there had been previous stories of his alleged marital infidelity. It could also be contended, however, that a public figure's sexual encounters are private and therefore not a matter of public interest. The essence of that argument is that even public figures have some level of privacy to which their entitled. Unfortunately for Beckham, in his case, the District Court determined that the anti-SLAPP statute applied, so his case was dismissed. Apparently he has appealed that decision.

The same analysis could be applied to Mr. Cain's situation as well. Assume he files suit against Ms. White for defamation. She could then file an anti-SLAPP motion. As in the Beckham situation, White could argue that there were previous stories of Cain's alleged inappropriate relationships with women. But unlike Beckham, Cain was never known as a sex symbol nor did he promote himself as such.

The most interesting aspect of these stories is the idea that any person, let alone a public figure, could lose all right to privacy. No California court has squarely decided this issue in the anti-SLAPP context, but it's only a matter of time.

Kim Kardashian's Defamation Claim: Smart Or Not?

Adrianos Facchetti — Mon, 21 Nov 2011 16:21:11 -0800

Faced with a growing backlash from the public for her mini-marriage to NBA basketball player, Chris Humphries, Kim Kardashian has filed a claim for arbitration alleging breach of a confidentiality agreement and defamation.

I won't recount the details about the wedding extravaganza, which was televised, because I think most people are probably familiar with it (for more background, read this). However, what I will discuss is why I think this latest legal move is probably a good one, assuming that the news accounts accurately describe the nature of the claims.

First, I think this is a good PR move. Not only does it send a strong message that her marriage was NOT bogus or a hoax, but also it allows her to control the story. Now, instead of talking about whether the marriage was fixed or not, people will be talking about the individual who Kardashian claims is defaming her. Further, by pursuing these claims in a private arbitration, she can better control how the story develops in the media. This wouldn't be the case had she opted to file a lawsuit. Of course, she may not have had much of a choice. The alleged confidentiality agreement probably had an arbitration clause in it.

The second reason this is a good move is a legal one: avoiding the anti-SLAPP statute (AKA Special Motion to Strike). Had Kardashian filed a lawsuit in state court I can guarantee that defense counsel would have filed an anti-SLAPP motion. There is no question that Kardashian is in the public eye and that comments regarding her marriage are a matter of public interest, so, a SLAPP motion would be warranted. Likewise, on the second prong, she'd have a very difficult time showing that the defendant made the statements with constitutional malice. However, perhaps her attorneys would argue that the SLAPP statute doesn't apply in the first place given the confidentiality agreement, i.e., that the defendant waived his right to use the SLAPP statute. One thing is certain: the defendant stands a much better chance if he can get the case out of the arbitrator's hands. For now, however, Kardashian seems to have the advantage.

In sum, I think Kardashian made a smart play here. It will definitely be interesting to see how this one plays out.

Cain's Defamation Lawyer Won't File Suit

Adrianos Facchetti — Thu, 17 Nov 2011 08:05:19 -0800

I recently saw an article that discussed whether Herman Cain would file a lawsuit for defamation. Cain has apparently hired a defamation specialist to advise and monitor the situation for him, particularly the proposed joint conference by Cain's accusers.

If the question is whether Cain will file a lawsuit for defamation, slander, or libel, whatever you want to call it, the answer is: it's very unlikely. Cain is a public figure. This means that he'd need to show that the accusers made the alleged false and defamatory statements with knowing falsity or a reckless disregard for the truth by clear and convincing evidence. This is a heavy burden to meet, one that very few public figure plaintiffs have been able to satisfy.

Another reason not to sue is the potential application of an anti-SLAPP statute. Depending on the state in which he elects to file suit, his complaint could be subject to speedy dismissal. In about half the states, if a plaintiff files a lawsuit which is based on defendant's free speech or petitioning activity, the defendant can file a motion seeking the dismissal of plaintiff's claims. If the plaintiff cannot show a reasonable probability of prevailing on the merits, the case is dismissed, and in many states, plaintiff is ordered to pay the defendant's attorney's fees. If his suit were to be dismissed, the public would view it as a vindication of Cain's accusers. So it's a big risk.

Finally, filing a lawsuit would put the alleged sexual conduct in issue. In other words, defense counsel would be entitled to dig even deeper into Cain's personal life. Discovery is very broad in civil suits and you can bet that whatever is discovered would be leaked to the media.

I would be very surprised if Cain elects to file suit. I don't see any upside to doing it.

Anti-SLAPP Defendant's Burden Of Proof: Prong Two

Adrianos Facchetti — Thu, 03 Nov 2011 21:46:57 -0800

A common cause of failure on an anti-SLAPP motion is a misunderstanding of the evidentiary burdens each side must satisfy. I suppose its understandable given skeletal analysis found in most of the typical practice guides. And with over 400 published decisions in this area, I suppose it's inevitable that busy practitioners--who are not experts--will overlook some of the SLAPP statute's subtleties. This is why it's important to hire a lawyer that concentrates his practice in this area of law. This is not an area one dabbles in.

In addition to the defendant's initial burden under prong one to show that the acts underlying the causes of action arise from petitioning or free speech activity, defendant has a burden on the second prong, depending on the appellate district. In many districts, defendant has the burden to substantiate its affirmative defenses with competent evidence. Other courts, however, have stated that it's plaintiff's burden to overcome all affirmative defenses by showing that they are not applicable to the case as a matter of law or by a prima facie showing of facts, "which if accepted by the trier of fact, would negate such defenses."

Whatever the prevailing view is, the practitioner must be ready to defend his position. Not knowing these applicable standards is, in my opinion, an unforgivable sin.

Federal Claims & Anti-SLAPP Motions

Adrianos Facchetti — Thu, 03 Nov 2011 21:22:05 -0800

Few lawyers are aware that the anti-SLAPP statue applies at the federal level, although some of its provisions are not applied because they collide with FRCP 56. In other words, at the federal level, in some respects, an anti-SLAPP motion is treated as a summary judgment motion. But even though the SLAPP statute is applied by federal courts to state law claims, district courts have unanimously held that the statute doesn't apply to federal questions in federal courts because it would frustrate substantive federal rights.

Defamation Law Videos

Adrianos Facchetti — Sat, 17 Sep 2011 19:52:47 -0800

Although some people prefer to absorb information by text, I know others enjoy video. So here is a link to my Defamation Law Channel on YouTube. Hope you find it helpful. I also discuss matters relating to California Anti-SLAPP law.

TKO: The Only Way To Go

Adrianos Facchetti — Sat, 03 Sep 2011 20:53:52 -0800

During World War Two, when faced with the menace of the Axis, the greatest criminal conspiracy of all time, President Franklin D. Roosevelt did not hesitate to take a hard stand. 'We will meet force with greater force, violence with greater violence,' he declared. This is the only kind of language some people understand--and the only kind of action they fear (or even take seriously). -- J. Paul Getty

Even though Getty was discussing his son's kidnapping in specific, and the decline of Western civilization in general, his words apply with equal force to certain individuals who use the internet as a weapon to destroy the reputations of others.

Getty has it right: some people only respond to force. It's the only language they understand--and the only action they fear.

Yet many clients have a hard time understanding this. They assume that talking or trying to reason with the defamer will produce results. But they are wrong. The only proper response in these circumstances is to use unremitting, overwhelming force. You must use all legal and ethical means to make this kind of person stop. This means you must file a lawsuit. Then when you get a Judgment, you must enforce it. And after all this if the defamer still doesn't get the hint: you ask the Court to put them in jail. Period.

Do You Have A Unique Name?

Adrianos Facchetti — Sat, 03 Sep 2011 18:10:39 -0800

I recently wrote a post on my other blog (yes, I have more than one!) called: Adrianos Facchetti? Why Having A Unique Name Is A Double-Edged Sword. There I write about a topic you've probably never thought of but should. Enjoy.

A Good Reputation . . .

Adrianos Facchetti — Wed, 10 Aug 2011 14:36:17 -0800

Both to an individual privately and to all people generally there is one goal at which they aim in what they choose to do and what they avoid. Summarily stated, this is happiness and its parts. 2. Let us, then, for the sake of giving an example of what might be more fully explored elsewhere, grasp what happiness is, simply stated, and the sources of its parts . . . Let happiness be defined as success in life, or as the pleasantest life accompanies with security, or as abundance of possessions and bodies, with the ability to defend and use these things; for all people agree that happiness is pretty much one or more of these

. . .

If happiness is something of this sort, it is necessary for its 'parts' to be good birth, numerous friendships, worthy friendships, wealth, good children, numerous children, a good old age . . . reputation, honor, good luck, virtue; for a person would be most self-sufficient if he had these goods

. . .

Good reputation is a matter of achieving the respect of all people, or of having something of the sort that all or the general public or the good and prudent desire.

- Aristotle, On Rhetoric, Book 1 Chapter 5.

A good reputation, as Aristotle defines it, is a necessary component of achieving happiness; for it is grounded on having achieved the "respect of all people." The lack of a good reputation, therefore, means unhappiness. This is important because it goes to the core of most defamation claims. It's a matter of losing respect in the eyes of your fellow man.

Are you happy?

Experienced Anti-SLAPP Lawyers Are Few And Far Between

Adrianos Facchetti — Tue, 28 Jun 2011 06:38:00 -0800

I routinely hear the following kinds of comments from experienced civil litigators in Los Angeles:

In my 40+ years of practice as a business litigator, I've only handled one anti-SLAPP motion and I lost because I missed the 60 day deadline to file a SLAPP motion by just 5 days. (This lawyer is an excellent litigator with experience in nearly every field of law, including securities, intellectual property, real estate, personal injury, malpractice, you name it. But this lawyer fell into one of the many traps awaiting attorneys in the anti-SLAPP statute).

I've been doing litigation for almost 20 years, and I've only encountered one anti-SLAPP motion on the plaintiff's side, and I lost because the other attorney misled and outmaneuvered me. (This lawyer was a solo but now works as a partner for a very large and respected law firm in Los Angeles).

Adrianos, I wish you could have seen my work product in another context, I actually do good work (this was said just after I prevailed on an anti-SLAPP motion and was awarded 100% of my requested non-contingent attorney's fees).

Adrianos, I wish I had called you sooner. (lawyer who was personally served with a lawsuit and only had 2 days in which to file an anti-SLAPP motion).

I don't say any of the above to impress you. I say it to impress upon you the fact that it is important to realize that the anti-SLAPP statute is a specialized area of law. It is highly technical and complex, with somewhere around 400 published decisions interpreting the statute. And, as the above quotes show, experienced anti-SLAPP attorneys are few and far between.

So it is very important that if you are served with a lawsuit that targets your free speech or petitioning activity, usually in the form of claims for defamation, libel, slander, malicious prosecution, abuse of process, intentional infliction of emotional distress, or intentional interference with prospective economic advantage, you need to call an experienced lawyer right away.