Not unlike former Pres. Bill Clinton, Pres. Trump has a reputation that will attract lawsuits. One such lawsuit filed by Summer Zervos, accuses the Celebrity Apprentice star of groping her when she was a contestant on his show. She accuses him of groping her and kissing her. She filed suit three days before Pres. Trump’s inauguration. She says he defamed her by denying her accusations. The President has claimed immunity. As some may recall, Pres. Clinton also tried to claim presidential immunity for a sexual harassment lawsuit, but he lost that claim. Ms. Zervos’ lawsuit, however is in state court. This time, the President is claiming immunity in state court, not in federal court. See Politico news report. We will see if that makes a difference.

I previously wrote about Ms. Zervos’ lawsuit here. Earlier, she offered to drop her lawsuit if the President would acknowledge the truth of her claims. Apparently, he decided not to take her up on her offer.

Coach Briles filed suit against Baylor University last December for defamation. See my post about that lawsuit here. In that lawsuit, he claimed Baylor said he knew about rapes and sexual assaults and did nothing about them. He claims din his lawsuit that was false, that he did not know about the sexual assaults. Well, now, he has dropped his lawsuit. He dropped his lawsuit just as a lawsuit filed by a former Athletic department assistant was getting started. Colin Shillinglaw filed his own suit against Baylor. Mr. Shillinglaw sued Baylor for claiming he had mis-handled the incidents involving the sexual assaults and rapes. In response to Mr. Shillinglaw’s lawsuit, Baylor provided evidence of Coach Briles’ knowledge of the incidents. Up to now, the administration has kept quiet about specific evidence, probably to protect the confidential nature of the claims.

For example, in response to a text about a football player exposing himself to a masseuse and asking for special favors, Coach Briles responded. “What kind of discipline . . . She a stripper?” The player, Tevin Elliot remained on the football squad and the incident was not reported to administration officials. Later, that same player would be accused of rape by two women in separate incidents. In 2013, a female athlete accused several players of gang raping her. She eventually told her female coach. When the female coach approached Coach Briles about it, he said, “These are some bad dudes. Why was she around those guys?” The response filed by the school argues that the football program was a “black hole” into which disappeared these allegations of brandishing a gun, drug use, domestic violence, indecent exposure, academic fraud, and physical assault.  See Chicago Tribune report.

It would be surprising if Coach Briles did not know about the actions of his players. Most coaches, perhaps all coaches are approached about what their players allegedly have done. And, really, the coaches know their players very well. So, Coach Briles’ suggestion that he knew his players were “bad dudes” reflects very poorly on him and the sort of players he recruited. The best defense to a defamation lawsuit is the simple truth. One can guess that Coach Briles filed his lawsuit as a bluff, hoping the administration would not reveal its information. He may have been trying to take advantage of the school’s difficult position. It must and is required to protect the confidential nature of these allegations. But, if so, he was wrong to assume the administration would not provide enough information to protect itself.

It was big news just a few months ago that Wells Fargo bank pressured its employees to engage in fraudulent sales tactics. Some employees were even issuing credit cards and setting up new bank accounts for its customers – without the customers’ permission. It was fraud. But, was it illegal? That distinction matters in a state like Texas. In Texas, there is no law protecting employees from employers engaging in fraud. But, there is a law against requiring an employee to engage in illegal activity. Alex Leal has filed suit against Wells Fargo. His lawsuit appears to lie right at the intersection of what is illegal and what is fraudulent but perhaps lawful. He was a branch manager at a branch on the West side of San Antonio. In his lawsuit, he says he was fired because he refused to go along with the sales tactics.

He also alleges defamation. I just wrote a post about defamation here and how hard it is to show defamation in the work place. To win, Mr. Leal must not just show management lied about him, he must show they knew it was a lie and they sought to cause him harm.

Mr. Leal is also suing for age discrimination, saying management preferred younger employees because they were more likely to go along with these fraudulent sales tactics. He says he was replaced by a 29 year old manager. See San Antonio Express News report.

Defamation refers to uttering an untruthful statement about someone. “Libel” refers to written defamation. “Slander” refers to oral defamation. In the employment context, defamation has an extra hurdle. In Texas, to constitute defamation at work, the defamation must be made in the course and scope of employment. That is, the defamatory statement must be related to the speaker’s job. So long as the speaker makes the statement to persons with a duty or need to know, then the speaker will be protected by a qualified privilege. To qualify as workplace related defamation, the statement must be made as part of one’s job. If the statement is part of someone’s job, then it will be protected by a “qualified privilege.”

For example, if a manager makes a statement to someone in Human Resources about an employee, even if that statement is not truthful, then the qualified privilege would probably apply. The manager’s statement would be protected by this qualified privilege. If the manager makes a statement to a potential employer, then again that statement will be deemed to have been made in the course and scope of employment. So, the manager’s statement will be protected by the qualified privilege.

An employee can overcome the qualified privilege only be showing that the speaker acted with actual malice. Showing malice is a high burden. Malice refers to a person knowingly and deliberately causing harm. Malice is more than a mistake or a misunderstanding. To show malice, an employee would have to show the speaker knew or should have known the statement was not true and that the speaker sought to cause harm of some sort. Many employees have come to me seeking redress for defamation. Rarely have I seen sufficient evidence to make a case of malice.  It is quite difficult to get inside a person’s head and show what the manager was thinking. That sort of evidence is rare.

For example, an employer fires a person for alleged stealing. The employee did not steal.  But, how do we show malice? That is, how do we show the employer knew or should have known the theft allegations were not true? Most times, we cannot. How do we show the manager made the statement hoping to cause harm to the employee? Again, it is rare that an employee would have that sort of evidence.

Many of the normal principles of defamation law apply to the workplace: the statement must be clear and unambiguous. It cannot be capable of two different meanings, one of which might be non-defamatory. Truth is always an absolute defense to defamation. But, for most people charged wrongly with theft, there is little anyone can do about that sort of termination. Defamation lawsuits in the workplace are just too difficult.

Coach Art Briles has filed suit against Baylor University. He filed suit for libel, saying Baylor is spreading false allegations that he knew of sexual assaults and did not report them. See Dallas Morning News report. “Libel” refers to defaming someone verbally. Slander refers to defaming someone in writing. Baylor has been very careful about what it says about Coach Briles. There have been a few stories just recently that Coach Briles was aware of an alleged gang rape incident and did not report it to Baylor authorities. See SB nation report. Coach Briles claims that what Baylor is saying about him is keeping him from finding a new coaching position. He was just recently overlooked for an open head coaching job at the University of Houston, He had formerly coached at U of H before he started working for Baylor.

The sad truth is that defamation claims in Texas are very difficult for the plaintiff. What an employer says about an employee is accorded extra protection in Texas. The employer receives a qualified privilege when it discusses an employee or former employee. That means Coach Briles would have to show Baylor acted with actual malice when it said those things about the coach. To show malice, the plaintiff must show the employer knew or should have known what it said was false and that it did so with intent to cause harm. Simply showing an employer knew something was false, as opposed to simple mistake, is a very high obstacle. But, to also show the employer made that false statement with the intent to cause harm is huge. Unless Coach Briles has an inside witness who can attest that the Baylor spokesperson wanted to be sure Coach Briles never worked again, the coach will lose his defamation lawsuit.

That is why lawsuits alleging defamation in the work place are so rare. Who would ever have that sort of evidence? Many clients have asked me about suing their former employer for something the employer has said. Yes, many employers do defame former employees. But, unless the law changes, those sorts of lawsuits will remain exceedingly rare.

Implicit bias is a concept acquiring some attention. The theory is that as human we have subconscious biases. I have written about the theory before. See my prior post here. The U.S. Supreme Court recognized the theory in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2517 (2015). The theory is we tend to filter out certain information based on subconscious biases.

The San Antonio Police Department apparently sees some value in the theory. They have asked Dr. Lorie Fridell, an expert on law enforcement and biases to provide the local law enforcement agency with training on how to deal with biases. In this day of police shootings, one has to consider the possibility that bias may play some role. Too many African-Americans and other minorities have reported being stopped by law enforcement for little or no reason.

The police union opposes the training, saying it starts from the standpoint of racial bias and that officers do not know what they are doing. See San Antonio Express News column by Brian Chasnoff. No, at least, not as I understand the concept. What implicit bias starts with is the standpoint that we are human, with human weaknesses.

In the legal business, lawsuits are governed by deadlines referred to as “statutes of limitation.”  A lawsuit must be filed within the applicable statute of limitation.  A suit based on personal injury must be filed within two years of the act complained of.  If the last day of the two year period falls on a weekend or a holiday, then the statute of limitations period is extended until the next business day.  A lawsuit based on the state statute which prohibits discrimination must be filed within two years.  This statute is known as the Texas Commission on Human Rights Act.

A suit based on defamation, libel or slander must be filed within one year of the act complained about.  A suit based on breach of an oral contract must be filed within two years of the alleged breach.  Suit on a written contract must be filed within four years of the alleged breach.

Of course, there are many exceptions to these statutes of limitation.  If you have questions, you should speak with a qualified lawyer.

This is a blog.  Blogs are growing in popularity.  On this blog, you can find my name and contact information easily.  But, a few blogs are anonymous for various reasons.  One such blog, "Reynolds News & Information," was started by an anonymous blogger known as "Trooper."  The blog attacked an Ohio based software developer, Reynolds & Reynolds.  The blog described R&R’s products as "crap" and accused its new CEO of being a thief.  R&R sued Google seeking the identity of the blogger.  The software developer says it needs the identity so they can sue the blogger for defamation and business disparagement.  R&R filed suit in Houston, Texas.  Trooper hired a lawyer, Shelly Skeen, to defend his interests.  Trooper stands on the First Amendment to block the attempt to secure his identity.

Google offered to provide the identity to the judge and let the judge decide if his identity should be revealed.  The judge, instead, ordered that the identity be revealed completely.  The First Circuit in Houston affirmed the lower court ruling.  Trooper then appealed to the Texas Supreme Court.  Meanwhile, the blogger took down his blog.  

R&R believes the blogger is an employee.  The employer claims the U.S. Supreme Court has held there is no right of anonymity for an employee who is criticizing his employer.  Trooper denies being an employee of R&R.  Indeed, Trooper claims he is a citizen of Ohio and that rulings by a Texas court do not apply to him.  Oral arguments before the Texas Supreme Court were held in November.  The Supreme Court’s decision is now pending.   See Austin American Statesman report

If Trooper is using his blog to discuss problems at work with co-workers, then his comments would probably be protected under the National Labor Relations Act.  But, even in that situation, I cannot imagine how he would have a right to anonymity.  Google is trying to steer a middle ground, not willingly giving up the identity.  But, I am sure that is based more on Google’s respect for the internet than on legal grounds.  

But, if Trooper’s blog is a simple straight ahead attack on R&R, his comments would not receive any particular protection under Texas law.  See my other post about a disaffected employee who who set up a wesbite to attack his former employee.  A blog must follow the same laws regarding defamation as any other public forum.  

Many employees are falsely accused of transgression at work.  There is very little any worker can do about a false accusation.  Defamation is very difficult to prove in the workplace.  I wrote about defamation under Texas law here.  As I mentioned in that post, to overcome the qualified privilege in the workplace, one would have to show that the speaker acted with actual malice.  Mere mistaken belief or merely relying on someone else would not overcome the qualified privilege.

But, defamation other than the workplace may be less difficult, but it is still challenging.  Traditional defamation occurs in regard to the workplace sometimes.  We see that in the case of Cullum v. White, 399 S.W.3d 173 (Tex.App. San Antonio 2011).   See that decision here.  In this case Dell Cullum worked for the Diamond A Ranch and Dalene White for about a year.  He worked as a ranch hand, but also took photos of the ranch.  The ranch relied on hunting for income.  His photos appeared on the ranch website.  After he left, they took his pohotos down.

Mr. Cullum was not happy about his work there, apparently.  He started a website, www.diamondalcoholicranch. com.  He sent a couple of emails to businesses who had been filming hunts at the ranch.  In these emails, he accused the owner, Ms White, of various dishonest acts and accused the ranch of criminal activities.  He suggested the FBI was about to make arrests.  The two companies ceased their connection to the ranch.  Ms. White was quite upset about all the accusations and the website.  While the website did not refer to Ms. White by name, it did include numerous references to her life and interests.  The appellate court found there was sufficient evidence for the jury to conclude the website was an attack on Ms. White and the Diammond A ranch.

The appellate court applied the test adopted by the U.S. Supreme Court and the Texas Supreme Court regarding whether a statement is actionable.  To be actionable, the statement must expressly or impliedly assert facts which are objectively verifiable.  The defamatory meaning will appear to a reasonable person’s understanding.

Mr. Cullum tried to argue that his website referred to a book he was writing, not to Ms. White and the Diamond A ranch.  But, he did admit some of the ideas came from his time working at the ranch.

The jury awarded $50,000 for damage to Ms. White’s reputation and $100,000 in exemplary damages.  The court of appeals upheld the first award, but overturned the exemplary damage award.  Ms. White was elderly, which made her a sympathetic party.  But, Mr. Cullum even violated a temporary restraining order by posting information on the internet about the ranch when he had agreed not to do so.  He and his lawyer offended the trial judge enough that sanctions were issued.

So, this was a rare case where there was a reckless former employee and a sympathetic employer.  These sorts of cases are rare.  As I have explained to many potential clients, defamation is ordinarily very hard to prove, especially in the workplace.

Joseph Rakofsky sued some 74 people, who had the temerity to criticize him on the internet and other places.  I previously wrote about his lawsuit against everybody here.  He filed suit in the state of New York against everyone from the Washington Post to the ABA Bar Journal  to J-Dog84@yahoo.com.  He sued a few dozen bloggers.  As the court noted, bloggers or those who commented on the blogs had insufficient contact with the state of New York to support a lawsuit.  New York cannot have jurisdiction over persons who have not actually conducted any business in the state.  That is the rule in most, perhaps all states. 

Most of the online criticism, said the court, was pure opinion generally by lawyers discussing Mr. Rakofsky’s legal skills.  As opinion and public debate, these comments do not rise to the level of defamation.  

Many of the defendants asked for sanctions against Mr. Rakofsky saying he filed a frivolous lawsuit.  If ever there was a frivolous lawsuit, surely this would be it.  But, the state district court found that some facts were included in the legal opinions voiced about Mr. Rakofsky.  See The New York Superior court order here.  So, in the end, it was much ado about nothing.  Mr. Rakofsky invested a small fortune in filing fees and service expense in serving papers on defendants across the country.  The plaintiff gets nothing and the defendants get nothing. 

And, I still do not know if Mr. Rakofsky ever effected service on J-Dog84@yahoo.com…..