Third Circuit Rejects Claim For “Defamation By Relation”

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Is it defamatory for a book to report that you are the child of a suspected Nazi? This was the question recently addressed by the U.S. Court of Appeals for the Third Circuit in Soobzokov v. Lichtblau, an unpublished decision.

In Soobzokov, plaintiff sued the author and publisher of a book entitled, "The Nazis Next Door: How America Became a Safe Haven for Hitler's Men." In the book, the author argued that plaintiff's father was one of several former Nazis brought to the United States after World War II for "strategic purposes." Among other things, the book described the challenges faced by the children of alleged Nazis, including plaintiff. When writing the book, the author spent nearly seven days with plaintiff and later communicated with him via email and telephone. According to the Third Circuit, plaintiff "makes a handful of appearances in the book — all of which emphasize his unwavering belief in his father's innocence."

After the book was published, plaintiff sued for defamation. His claim took two forms. First, he alleged that three references to him in the book were defamatory: a section that described his belief in his father's innocence as "an obsession;" a section that described his "determination to revive the investigation into his father's brutal murder — which had gone unsolved for nearly 25 years;" and a mention of him in the "Acknowledgements section, which plaintiff claimed could suggest that he assisted in the writing of the book, which could "lend[] [him] to be considered a traitor to his father before the entire world." Second, plaintiff alleged that these statements, even if they were not defamatory in their own right, were defamatory when combined with the negative comments about his father. The district court rejected both aspects of plaintiff's defamation claim and dismissed the complaint. Plaintiff appealed.

Continue reading “Third Circuit Rejects Claim For “Defamation By Relation”” →

File for bankrupcty when you have enough assets to pay your debts, then hide some assets . . . what could go wrong?

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

I don't usually post about bankruptcy or criminal law issues, but the facts from a recent decision from the U.S. Court of Appeals for the Third Circuit, which involved both bankruptcy and criminal law issues, were too intriguing to ignore.

In United States v. Free, defendant "made the bizarre decision to file for bankruptcy even though he had more than sufficient assets to pay his debts." Then, "having filed for bankruptcy unnecessarily, [he] hid assets worth hundred of thousands of dollars from the Bankruptcy Court." Not surprisingly, this led to criminal charges being brought against defendant and convictions for multiple counts of bankruptcy fraud. To make things even more odd, despite all of his "prevarications," defendant's creditors were paid in full from the bankruptcy estate. So, to summarize, defendant did not need to file bankruptcy but chose to do so, only to then defraud the Bankruptcy Court by hiding hundreds of thousands of dollars worth of assets, but eventually paid "100 cents on the dollar" to his creditors.

The legal issue in the case was how to properly calculate "loss" under the Sentencing Guidelines, which increase a "fraudster's" recommended sentence based on the loss he causes, or intends to cause, his or her victims. The curious part about Free was that the victims, defendant's creditors, were paid in full, therefore they had not suffered any loss in the usual sense of the word.

In Free, plaintiff filed for bankruptcy in his capacity as as the sole proprietor of an electric company he owned. He also owned a company that specialized in the sale of vintage firearms, which would become a central part of his bankruptcy case. Free claimed that he filed for bankruptcy to stay the sheriff's sale of property he was on the verge of losing through foreclosure. When he filed, he identified more than $1 million in assets — property and personal property, including firearms — and almost $700,000 in liabilities. He originally filed under Chapter 13, but the court converted it to a Chapter 7 bankruptcy, which would liquidate his assets and distribute the proceeds to his creditors.

Continue reading “File for bankrupcty when you have enough assets to pay your debts, then hide some assets . . . what could go wrong?” →

Havanese Day! Statements on duped dog buyer’s blog not defamatory

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

In Roberts v. Mintz, defendant bought what he believed was a "healthy, nine-month old, purebred Havanese," but what he got was a two-year old dog that was not a purebred Havanese, and was suffering from various health problems. Defendant complained and plaintiffs offered to refund his money in exchange for the dog. Defendant refused. He wanted the refund, but he wanted to keep the dog because he had already incurred $800 in veterinary fees and because he had become fond of the dog, which he named Moose.

One month after buying Moose, defendant began posting about his experience with plaintiffs on his blog. As you probably guessed, the posts were not positive. Eventually, plaintiffs sued in connection with six specific statements defendant made on his blog, which, among other things, accused plaintiffs of being members of a "notorious ring of South Jersey dog grifters," alleged that plaintiffs had been convicted of animal cruelty, claimed that plaintiffs' lived in a "run down farmhouse with 6 children," and described plaintiffs as "despicable human beings" who ran a "fraudulent puppy mill." Defendants also posted that they had heard from others who were "unwittingly scammed" by plaintiffs. Individuals who claimed to be plaintiffs responded to some of the posts in the comments sections of the blog, calling defendant a "liar" and a "jerk," and claiming that he "suffered from 'rage syndrome,' a behavioral condition that afflicts canines."

In lieu of answering plaintiffs' complaint, defendant moved for summary judgment, seeking to have the complaint dismissed. He also served plaintiffs with a frivolous litigation letter. Plaintiffs cross moved for summary judgment and also sought an injunction preventing defendant from defaming them. The trial court granted defendant's motion. It held that plaintiffs were barred from suing in connection with several of the statements because the one-year statute of limitations had expired. In doing so, it rejected plaintiff's claim that the statute of limitations should have been tolled because defendant had committed a continuous tort. The trial court found that the remaining statements were "opinions, epithets, and hyperbole," and were therefore "not sufficiently factual to be actionable."

Defendant then moved for sanctions, and the trial court granted the motion. Although it did no award defendant all of the sanctions he sought, it did award him $25,000 — assessed against both plaintiffs and their counsel — because plaintiffs filed their complaint without sufficient evidentiary support and because several claims were barred by the statute of limitations.

Both sides then appealed — plaintiffs seeking to reverse the trial court's decision dismissing their complaint, and defendant seeking to reverse the trial court's decision to award him less in sanctions than what he requested

Continue reading “Havanese Day! Statements on duped dog buyer’s blog not defamatory” →

Jury Instructions Deemed Ambiguous “and/or” Erroneous “and/or” a “Mongrel Expression”

When I used to teach Legal Research and Writing, one of the phrases I encouraged my students to avoid was "and/or." Like a lot of legalese, I think lawyers believe that using "and/or" leads to greater clarity in their writing when in fact the opposite is true. I suspect that, like much of what I taught them, my students avoided "and/or" in the writing they submitted to me and then quickly went back to using it as soon as they got out of my class. They may have thought that my opposition to "and/or" — like my opposition to "any and all," "heretofore," and any number of other phrases — was personal preference not generally accepted advice. If they did, however, they would have been wrong, and the Appellate Division has now confirmed as much.

In State v. Gonzalez, the Appellate Division reversed defendant's conviction and ordered a new trial because the trial court's repeated use of "and/or" in its jury charges rendered the instructions "hopelessly ambiguous and erroneous in important respects." In that case, defendant was convicted of, among other things, robbery and aggravated assault. (The emphasis on "and" will become clear later.) He was accused of conspiring with two other individuals to rob and then assault another individual. As might be expected, the prosecution and defense presented different versions of the underlying events to the jury. The problem for the Appellate Division was not the evidence that each side presented, but rather the repeated use of "and/or" by the trial judge when he instructed the jury on how to evaluate that evidence.

The Appellate Division began by observing that "[t]he imprecision of the phrase 'and/or' and criticism for its use [in New Jersey] and in other jurisdictions has been well documented." New Jersey's highest court previously described it as an expression that "has never been accredited in this state as good pleading or proper to form part of a judgment record." Courts in other states were less kind, calling it: a "verbal monstrosity, neither word nor phrase;" "an inexcusable barbarism" that was "sired by indolence;" a "mongrel expression" that was "an equivocal connective, being neither positively conjunctive nor positively disjunctive;" and an "abominable invention." The Appellate Division further observed that "[w]henever found in the decisions of [New Jersey] courts, 'and/or' has been recognized as creating ambiguity."

Continue reading “Jury Instructions Deemed Ambiguous “and/or” Erroneous “and/or” a “Mongrel Expression”” →

Have You Ever Left $600 At The Counter Of A UPS Store?

Me neither, but that is what happened in Glenn v. Duroseau. In fact, plaintiff in that case alleged that she not only left the money on the counter but that, when she went back a few minutes later, it was gone. To make matters worse, the security camera in the store did not work, so there was no way to tall exactly what happened. The trial court originally held this against the store owner, holding that he had a duty to plaintiff to ensure that the security cameras were working, but this decision was reversed on appeal.

In Glenn, plaintiff claimed that she walked into a UPS Store and placed her pocketbook on the counter, along with an envelope containing $600 in cash. When she left, she claimed that she took the pocketbook but not the envelope. She walked about four blocks away from the store before she realized that she was missing the envelope. When she returned to the store, the envelope was gone. She asked a store employee if he had seen it, but he responded that plaintiff did not leave an envelope in the store. Plaintiff became upset and called her boyfriend, who arrived and told the employee to give plaintiff her money back. The employee again denied that plaintiff had left an envelope in the store.

Plaintiff then called the police. When police officers arrived, they asked if the security cameras in the store were working. The employee did not know, but called his boss, who arrived on the scene and promised to review the tapes. However, it turned out that the security cameras were not working. Plaintiff sued the store owner, seeking the return of her $600.

Continue reading “Have You Ever Left $600 At The Counter Of A UPS Store?” →