Expunged Conviction Doesn't Confer a Right to Sue for Defamation

Posted by joseph bahgat on February 01, 2011

First Amendment proponents are applauding yesterday's NJ Supreme Court decision, which dealt an apparent blow to privacy advocates by holding that the fact that a conviction was expunged does not negate its truth for the purposes of using it as a defense to defamation. As I explained here, defamation claims are not common because they are difficult to win. There are four elements of the claim, and even if you can prove all four elements, the defendant can still escape liability by showing that the allegedly defamatory statements were true. In attorney-speak, we say: truth is a complete, or absolute defense to defamation. That sounds pretty straight-forward, right? After all, doesn't everyone know the difference between the truth and a lie? As more than one of our recent U.S. Presidents can attest, sometimes truth isn't so black and white.

Expungement is the process of sealing the record of a criminal conviction, usually for first-time offenders. Expungement is not a constitutional right; it's created by statute, under state law. In fact, I am aware of only about a dozen states that allow it. And in each state that does allow it, different rules and requirements apply. Also, each state treats the effect of an expungement differently. For example, some states, like Washington, treat an expungement as though the crime never occurred. If you get an expungement in Washington State, state law gives you the right to tell anyone that you were not convicted of the crime in question. Similarly, for most purposes, the state of Ohio treats an expunged conviction as though it never happened, however, in some limited circumstances, the record of conviction may be later accessed by courts or law enforcement. Needless to say, not every crime is eligible to expungement, and not every convict is entitled to one. Generally speaking, serious crimes, violent crimes, and sex crimes cannot be expunged.

In the case decided yesterday by the NJ Supreme Court, the plaintiff (known only as G.D.) sued former state senator Bernard Kenny and the Hudson County Democratic Organization for defamation, based on their printing of campaign flyers stating that the plaintiff was a convicted drug dealer. G.D. was in fact convicted of drug possession back in 1993, and he served about 8 months in prison out of a five-year sentence. But G.D.'s conviction was expunged in 2006.

Justice Barry T. Albin delivered the court's opinion:

The relief provided by the expungement statute, however, does not include the wholesale rewriting of history. A person convicted of a first-time crime may petition for expungement of all records and information” relating to the conviction after the passage of ten years from the date of the conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later. (quoting N.J.S.A. 2C:52-2(a)). A court order of expungement does not result in the destruction of criminal records.

For anyone keeping score, Justice Albin is a democrat (McGreevey appointee); he also happens to be a former criminal law attorney, past president of the New Jersey Association of Criminal Defense Lawyers, and served on the court's Criminal Practice Committee from 1987 to 1992. He continued to say that:

Common sense tells us that an arrest or conviction may become general knowledge within a community and that people will not banish from their memories stored knowledge even if they become aware of an expungement order. And long before the entry of an expungement order, information about an arrest and conviction may be compiled by data aggregators and disseminated to companies interested in conducting background checks.

Although the court's ruling isn't likely to impact criminal law much, if even at all, it will serve as one more potential hurdle that a plaintiff must clear to successfully make a case for defamation.

Download pdf of the NJ Supreme Court's decision in G.D. v. Kenny, et al., No. A-85-09 (Jan. 31, 2011).

West Moves to Overturn $5M Defamation Verdict

Posted by joseph bahgat on January 20, 2011

David Thomson, Thomson Reuters Chairman

Follow-up: Jury Awards Professors $5M in Defamation Suit Against West

 

No surprise here; West Publishing has filed a motion to set aside the jury's $5,000,000 verdict in the case brought against them by the two law professors whom West defamed by selling books bearing the professors' names, which contained out-of-date and erroneous statements of law. West claims that:

(1) There was no evidence to support the jury's finding of actual malice;

(2) There was no evidence that anyone understood that the book in question was defamatory to the professors; and

(3) The damages were excessive.

To my knowledge, the story is only available on www.law.com, which requires a subscription (and it ain't cheap). I have, however, attached a copy of West's motion here in pdf format: West's Memorandum of Law. West filed this motion with the trial court, which tolls the time during which West can file an appeal to the Third Circuit. (See Fed. R. App. P. 4(a)(4)(A)).

Obviously, I haven't read the transcript of the trial proceedings, but even so, it's difficult for me to believe that West will win. The reason being the legal standard that the trial court must apply to determine whether West's arguments have any merit:

If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

Fed. R. Civ. P. 50(a)(1) (emphasis added).

Basically, this means that the trial court has to view all the evidence in a light most favorable to the other side (i.e. the professors), and can only set aside the jury's verdict if that evidence is legally insufficient to support the verdict. It does happen, but it's a very high standard nonetheless.

I'm not convinced, however, that the trial court won't reduce the jury's award, and I say this for a couple reasons: First, $5,000,000 is a hell of a lot of money—far more than these professors make in several years (if not their entire careers); and second, the amount is grossly disproportionate to the amount of money that West profited from the books in question.

If the court does reduce the award, it's likely that both sides will appeal, but what often happens is that before the case would be decided by the appellate court, the parties agree to settle the case. This type of settlement often benefits both sides because the plaintiffs—who probably aren't filthy rich, but by the looks of them, aren't getting any younger, and can probably use the money before Brett Favre makes it into the hall of fame and then un-retires—get some compensation much sooner than they would if they wait for all the appeals to play out. And it benefits the defendant because they don't have to spend even more money fighting the case, but at the same time, they get off without paying the professors the full amount owed.

The case of David Rudovsky & Leonard Sosnov v. West Publ'g, No. 2:09-cv-00727-JF is scheduled for a hearing on the motion(s) before U.S. District Judge John P. Fullam on February 10th (pdf of hearing notice).

 

Jury Awards Professors $5M in Defamation Suit Against West

Posted by joseph bahgat on December 19, 2010

drudovsk.jpg jpg

For everyone who says that juries aren't giving out mega-verdicts anymore, here's your exception: Last week, a federal jury in Philadelphia gave a $5,000,000 early X'mas present to a couple law professors in a defamation suit.† (Jury's Verdict pdf file).

Outside of legal contexts, the term defamation gets thrown around a lot, and although many people know what it is, most non-lawyers do not know what it takes to win a defamation lawsuit. In reality, defamation suits aren't very common, because they are in fact difficult to win. Why? Because the plaintiff must prove all of these elements:

(1) the defendant made a false & defamatory statement (if the statement was printed it is libel, an oral statement would be slander);

(2) to a third party;

(3) knowledge that the statement was false (or in some cases, merely negligence about the statement's truthfulness); and

(4) damages, or special harm that was caused by the statement.‡

Since 1987, the two professors, David Rudovsky (Penn. Law) and Leonard Sosnov (Widener) were the authors of the treatise Pennsylvania Criminal Procedure: Law, Commentary & Forms, published by West, but after they got into a dispute with West over royalties and compensation, they withdrew from the project. See Complaint (pdf file). But after the authors withdrew, West went ahead and published an update (aka "pocket part") which is supposed to contain important changes and updates to the laws that are the book's subject matter. Also, West continued to list Rudovsky and Sosnov as the authors. The problem was (in addition to using the authors' names without their consent) that the update West published omitted material changes in the law, and basically made the purported authors look like imbeciles.

The authors sued the legal publishing giant for (1) false advertising, under the Lanham Act; (2) unauthorized use of name, under Pa. state law; and common law claims for (3) defamation; (4) invasion of privacy/appropriation of name; and (5) false light. The trial court ultimately dismissed the first 2 claims, but the jury rendered a verdict in the authors' favor on the defamation and invasion of privacy claims. It seems likely, however, given the enormous resources of West Publishing and its parent company is Thomson Reuters this case is probably headed to the Third Circuit Court of Appeals, where West will argue that the punitive damages award is grossly disproportionate to the compensatory damages.

 

†Credit: Erika Wayne, of The Legal Intelligencer first reported this story in her blog, which has additional case history and details.

‡ See Sheldon W. Halpern, The Law of Defamation, Privacy, Publicity, & Moral Right: Cases and Materials on Protection of Personality Interests 4th ed., 6 (JPM Books 2000).

"Sports Law" Doesn't Really Exist: Part III, Intellectual Property

Posted by joseph bahgat on December 04, 2010

Given the way in which sports—even collegiate sports—Bama Natl Champs.jpghave become so heavily branded, merchandised, and televised, another area of law that routinely intersects sports is intellectual property—namely copyright, trademark, licensing, and the all-but-forgotten right-of-publicity. For example, the University of Alabama sued the artist who painted this picture commemorating the Tide's 2010 BCS National Championship. The artist, Daniel Moore, won summary judgment in the district court (pdf decision here), but the case is currently on appeal to the Eleventh Circuit.

And in 2005, fantasy sports league operator CBC Distribution filed suit against Major League Baseball Advanced Media (MLBAM, MLB's Internet division) after CBC was denied a new licensing agreement with the players' association giving it the rights to player profiles and statistics.

MLB argued that the league owned intellectual property rights in the players' right-of-publicity, which made it unlawful for fantasy leagues to profit from the identities or statistics of MLB players. In 49-page order granting summary judgment to the fantasy league, U.S. District Court Judge Mary Ann Medler said that even if the league did have intellectual property rights in the players' stats and likenesses, the First Amendment trumped the league's property interest, because the information that the fantasy leagues disseminate are facts. Facts, Medler, wrote, appear in newspapers everyday. Nobody can own them. (CBC v. MLBAM pdf file)

Paul Weiler's textbook Sports and the Law (see previous post) is nearly 1200 pages long, yet it devotes fewer than 100 pages to sports and IP law. In fact, in that single chapter of the book that addresses IP, Weiler tackles broadcast rights, copyright ownership, player publicity rights, trademarks, and group marketing of IP rights. By contrast, the book has three chapters on antitrust, two on labor relations, and even has a full chapter devoted to Title IX and intercollegiate sports. But because of how every sports franchise, conference, and league is continuously exploring how to increase the revenue earned from their branding and intellectual property, IP law, will nonetheless continue to impact the sports world for many years to come.

So what about entertainment law? I realize that I just devoted three entire posts to explain sports law, and even though this is the Sports & Entertainment Law Playbook, I haven't so much as mentioned entertainment law. Again, there is no such body of law per se, though there are so-called entertainment lawyers. I happen to be one of them. Like sports and the law, there are many different areas of law that intersect with the entertainment industry, although IP is probably the most prevalent. Artwork, sheet music, and sound recordings all need copyright and in some circumstances, trademark protection. Also, composers routinely license their scores and compositions to filmmakers and advertisers. This process inevitably involves attorneys. And just like professional athletes, artists, actors, and musicians work under contracts as well, and they also need competent legal counsel to represent their interests during negotiation. The record companies, opera houses, and concert promoters are certainly going to come to the table with the best attorneys that money can buy, so it behooves the artist to also come prepared.