Reputation Still Matters
Defamation of character can be a very serious offense. Professionals whose livelihoods depend on their reputations for good character, integrity, or trustworthiness, can lose their jobs, their careers, or their opportunities to contract with others due to mere allegations of misconduct or bad character. Often, their employers, their business partners, their clients, their patients, licensing agencies, or the administrative agencies that regulate them cannot afford to wait until thorough investigations are completed before taking precautionary and economically harmful actions in response to allegations that are only possibly true.
Truth is a journalist’s stock in trade. To invoke the right to deliberately distort what someone else has said is to assert the right to lie in print.
Alex Kozinski, Masson v. The New Yorker Magazine, Inc., 881 F.2d 1452, 1486 (9th Cir. 1989)(dissenting).
We have experience litigating defamation cases, including Internet defamation cases, in Arizona and Colorado. Call us if you were defamed or your business was defamed. If you are a private individual or small business who has been sued for defamation in Arizona or Colorado, contact our firm. We will explain your options and advise you.
Our law firm prosecutes and defends defamation of character (libel or slander) cases for private individuals, private businesses, public figures, politicians, and celebrities. The statute of limitations for defamation claims in Arizona and Colorado is one year. This means that if you want to take legal action against someone or a business for defaming you or your business, you should begin the legal action no later than one year after the date the defamation was published or, if you did not learn about the defamation until weeks or months after it had been published, one year after a reasonable person exercising a reasonable amount of diligence would have discovered the defamation had been published.
Defamation per se
When a defamatory publication expressly and falsely alleges that someone has committed a crime, has engaged in unethical conduct in a professional capacity, has a loathsome disease, or has engaged in sexual misconduct, the defamatory publication is considered defamation per se. We help clients with defamation per se cases involving libelous publications sent via email, posted to social network sites, or written in letters or newspapers. We can also help clients with slander per se cases involving oral comments made to large public audiences or members of their professional community.
Private Person Defamation
The elements of proof required for private person defamation claims that involve private matters are different in Arizona and Colorado. The most important difference is Arizona requires its private person-private matter defamation plaintiffs to prove it is more likely than not that the defamatory statements giving rise to their claims are false to win their claims. Colorado requires its private person-private matter defamation defendants to prove it is more likely than not that the statements they made were true to defeat plaintiffs’ defamation claims. Their other elements of proof are similar. For example, both require that the plaintiffs prove the defendants published defamatory statements about the plaintiffs to at least one third person.
Public Figure or Matter of Public Concern Defamation
When a plaintiff is a public official, public figure, or private individual involved in a matter of public concern, the plaintiff has the burden of proving, with convincing clarity, that the defamatory publication was made with actual malice. Actual malice can be proven when there is evidence the defendant knew that the statement was false or made the statement with reckless disregard of its truth or falsity. The appropriate test for reckless disregard is whether there was enough evidence to help a fact finder conclude that the defendant doubted the truth of the publication.
Trade Libel (aka Injurious Falsehood or Product Disparagement)
Trade libel is also known as product disparagement, injurious falsehood, commercial disparagement, and slander of goods. It occurs when someone intentionally makes false and disparaging statements about a business’s products or services or property. Trade libel claims are subject to a two-year statute of limitations in Colorado. See Full Draw Prods. v. Easton Sports. Inc., 85 F. Supp. 2d 1001 (D. Colo. 2000). Arizona’a appellate courts have not yet expressly held whether trade libel claims are subject to a one-year or two-year statute of limitations. See Gee v. Pima County, 126 Ariz. 116, 117, 612 P.2d 1079, 1080 (App. 1980) (“Although we do not see any reason to vary the statute of limitations because property rather than a person is defamed, we need not decide whether Arizona would follow the majority in applying the statute of limitations for libel to trade libel actions.”).
A trade libel plaintiff must prove a defendant intentionally communicated a false and derogatory statement about the plaintiff’s product or service to a third party, that third party perceived the statement to be about the plaintiff’s product or service, and the statement caused existing or prospective customers or other businesses not to do business with the plaintiff.
Trade libel claims can arise when businesses disparage their competitors’ products or services in comparative advertising. They can also arise when the false and disparaging statements concern the business itself rather that its products or services.
False statements that a business has gone out of business, declared bankruptcy, stolen or embezzled money, or defrauded clients or customers can give rise to trade libel claims. False statements that a business intentionally made or sold unsafe products or that a business’ products contained toxic or unhealthy components or ingredients can also give rise to trade libel claims.
A former employee or business partner can allege trade libel against a former employer or business partner who made false and disparaging statements to prospective employers or clients.
Internet or Social Media Defamation
Defamation over the Internet can be different from defamation in other mediums. The mode and extent of the Internet-based publications can have serious influences on estimated damages. Though state laws usually govern most defamation actions, when defamatory statements are published online, state, federal, and international laws could apply. Depending on the facts of the case, choosing where to file a lawsuit could become a time-consuming strategic decision. Usually, the most appropriate place to file an Internet defamation lawsuit is the state to which the plaintiff, defendant, and third parties have the most significant relationship. Another key consideration might be whether the state in which the lawsuit could be filed has a criminal libel statute. Attorneys who handle Internet defamation cases need to be familiar with emerging laws and recent cases in this area as well as Internet communication technologies and ways to effectively investigate and discover evidence shared online.
Our law firm writes a variety of pre-litigation (or pre-lawsuit) letters for our defamation clients. Each letter we write is customized to help our client achieve his, her, or its lawful objectives. Our letters analyze the evidence our clients provide and the defamation law we research, analyze, study, teach other lawyers, and litigate routinely.
Each letter strives to accomplish at least three objectives: (1) explain why the evidence and the relevant law show that our clients have viable claims arising from the letter’s recipient’s unlawful conduct; (2) explain why the letter’s recipient will benefit from complying fully with our client’s demands; and (3) make sure the letter’s recipient’s insurance company representative or attorney understands that our law firm is ready, willing, and able to litigate our client’s claims skillfully in the state or federal trial or appellate courts.
We will not agree to write letters for individuals or businesses who do not have viable legal claims. For example, we do not write letters for business owners who inform us they want derogatory but true statements or pure opinions about their businesses removed from consumer report websites. Nor will we agree to write letters for individuals or businesses if we determine the primary purpose would be to intimidate or bully others or to violate others’ First Amendment rights to publish true statements or opinions.
Cease and Desist Letters
We do not sell or use simple cease and desist letter forms. Our cease and desist letters are generally six to twelve pages long. The length typically depends of the amount of evidence and the number of legal claims we analyze in the letter. When we can confidently predict the amount of time we will need to spend on evaluating a client’s evidence, reviewing the relevant law, writing a letter, and negotiating with the letter’s recipient, insurance agent, or attorney then we generally offer prospective clients flat-fee contract options for cease and desist letter projects. There is no set price for our cease and desist letter writing services. Each cease and desist letter we write is a custom project based on our client’s particular set of facts and objectives.
Deletion Demand Letters
When our clients have viable legal claims against individuals or Internet companies that have published false and defamatory statements about them, we write letters demanding that those individuals or businesses delete their false and defamatory publications about our clients from the Internet. Section 230 of the Communications Decency Act shields some companies from being held liable for the false and defamatory statements that they allow users of their websites to publish via their company websites. It does not, however, shield Internet companies from any original content that they publish online. Nor does it shield them from content that they edited in ways that materially altered the content’s meaning.
Retraction Demand Letters
There are times when merely deleting a defamatory article is not enough to repair the harm that the publication caused one of our clients. If the defamation was harmful enough and a large enough audience read or heard about it, then it is often necessary to demand that the individual or company that published the defamatory articles also publish a retraction. Our retraction demand letters explain why our clients are entitled to retractions that are published just as prominently as the defamatory publications that caused them harm.
Settlement Demand Letters
Some of our clients have suffered substantial reputational or economic harm due to defamatory publications others published. Even if the people or businesses that defamed them cease and desist, delete their defamatory publications, or publish retractions, our clients might not be made whole. As an alternative to filing a lawsuit or when the evidence discovered during a lawsuit would make it appropriate to do so, we will write settlement demand letters for our clients. These letters give potential defendants or actual defendants opportunities to closely evaluate the costs and risks associated with defending against and losing a defamation lawsuit at the trial and appellate court levels. Those prospective defendants or actual defendants can then decide to agree to our clients’ settlement demands rather than take the risk of losing big after a jury trial or incurring hundreds of thousands of dollars in litigation fees that they will not be able to recover even if they successfully defend the claims our clients bring against them.
Due to the high volume of calls our law firm receives from people seeking legal advice about their potential defamation claims, we do not provide free consultations. If you would like to schedule a paid consultation with a defamation attorney who has experience litigating defamation claims in trial courts and arguing defamation law principles in appellate courts contact us.