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Bankruptcy

: A Texas Bankruptcy Lawyer's Blog

Legal Blogger Beats Defamation Rap for Cheeky Headline

By Stephen Sather

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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