"The First District Court of Appeal held yesterday that a previously uninterpreted 1917 statute which renders it a misdemeanor to spread untrue statements about the condition of a bank is constitutionally invalid.
Writing for Div. Two, Justice Ignazio Ruvolo declared that Financial Code section 1327 “is an impermissible content-based restriction on speech protected by federal and state constitutional free speech guarantees.”
The opinion reverses an order denying an anti-SLAPP motion brought by Robert Rogers, a former employee of Summit Bank, sued by the Oakland-based institution for posting allegedly false comments about it on Craigslist.org. The trial court denied the motion based on a provision in the anti-SLAPP statute that protection will not be afforded where “the assertedly protected speech or petition activity was illegal as a matter of law.”
Section 1327—upon which the bank relied in asserting illegality of the postings—provides:
“Any person who willfully and knowingly makes, circulates, or transmits to another or others, any statement or rumor, written, printed, or by word of mouth, which is untrue in fact and is directly or by inference derogatory to the financial condition or affects the solvency or financial standing of any bank doing business in this state, or who knowingly counsels, aids, procures, or induces another to start, transmit, or circulate any such statement or rumor, is guilty of a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment for not more than one year, or both.”
Declaring the statute unconstitutional, Ruvolo noted that under a succession of cases springing from Times v. Sullivan (1964) 376 U.S. 254, public figures can only recover in an action for defamation if they can show that the statements were made with knowledge of their falsity or in reckless disregard of the truth."
"He wrote:
“Financial Code section 1327 is unconstitutional on its face for the same reason similar statutes have been found to be unconstitutional––it does not contain a clear requirement of actual malice or any statutory language limiting its reach to those banks which are not considered public figures….
Instead, the language of the statute allows for criminal punishment of persons making statements ‘untrue in fact’ which are ‘willfully and knowingly made’ without a clear requirement that the prosecutor prove defendant’s knowledge of falsity or recklessness with regards to falsity.”"
Source
http://www.metnews.com/articles/2012/bank053012.htm
Showing posts with label Defamation Lawsuit. Show all posts
Showing posts with label Defamation Lawsuit. Show all posts
Thursday, June 7, 2012
Tuesday, November 8, 2011
Milo v. Martin
"Walter Milo and Anthony Shelton sued Guy Martin, Bill Cochran, Melvin Douglas, and Sandy Martin, the editors and coordinator of The Conroe Watchdog (collectively "The Watchdog"), a website that describes itself as providing "[t]he unfiltered truth about Conroe politics and your tax dollars."
According to the court on appeal, Milo and Shelton sued for comments posted in October 2006 by anonymous users on a portion of the website titled "Guest Book." These comments referred to Shelton as a "pulpit pimp" and that he drove a $90,000 Hummer, according to the Houston Community Newspapers (HCN). Also according to HCN, the comments also contained allegations that Milo committed a drug crime in 2005 and "cut a deal" with the district attorney, reducing his sentence to probation.
The trial court granted The Watchdog's no-evidence motion for summary judgment in December 2008. The summary judgment was upheld by the Court of Appeals of Texas on April 29, 2010, which pointed to lack of evidence that the anonymous posts were created by The Watchdog and Section 230 of the Communications Decency Act. According to HCN, this case was the last of three lawsuits claiming defamation against The Watchdog to be resolved. Dixon v. Martin ended in July 2008 when a jury ruled for The Watchdog (see Legal Threat Entry) and a third lawsuit filed by Rigby Owen, Jr. was withdrawn in October 2009.
Related Links:
Judge Horton's Opinion Affirming Trial Court's Summary Judgment, Leagle.com.
Eric Goldman, Website Gets 230 Immunity Despite Claim of Site Content Accuracy -- Milo v. Martin, Technology & Marketing Law Blog, Apr. 30, 2010.
Nancy Flake, Watchdog Wins Lawsuit Appeal, Houston Community Newspapers, May 3, 2010.
Nancy Flake, Judge Dismisses Second Watchdog Defamation Suit, Houston Community Newspapers, Jan. 4, 2009.
CMLP Legal Threat Entry: Dixon v. The Watchdog"
Source
http://www.citmedialaw.org/threats/milo-v-martin#description
According to the court on appeal, Milo and Shelton sued for comments posted in October 2006 by anonymous users on a portion of the website titled "Guest Book." These comments referred to Shelton as a "pulpit pimp" and that he drove a $90,000 Hummer, according to the Houston Community Newspapers (HCN). Also according to HCN, the comments also contained allegations that Milo committed a drug crime in 2005 and "cut a deal" with the district attorney, reducing his sentence to probation.
The trial court granted The Watchdog's no-evidence motion for summary judgment in December 2008. The summary judgment was upheld by the Court of Appeals of Texas on April 29, 2010, which pointed to lack of evidence that the anonymous posts were created by The Watchdog and Section 230 of the Communications Decency Act. According to HCN, this case was the last of three lawsuits claiming defamation against The Watchdog to be resolved. Dixon v. Martin ended in July 2008 when a jury ruled for The Watchdog (see Legal Threat Entry) and a third lawsuit filed by Rigby Owen, Jr. was withdrawn in October 2009.
Related Links:
Judge Horton's Opinion Affirming Trial Court's Summary Judgment, Leagle.com.
Eric Goldman, Website Gets 230 Immunity Despite Claim of Site Content Accuracy -- Milo v. Martin, Technology & Marketing Law Blog, Apr. 30, 2010.
Nancy Flake, Watchdog Wins Lawsuit Appeal, Houston Community Newspapers, May 3, 2010.
Nancy Flake, Judge Dismisses Second Watchdog Defamation Suit, Houston Community Newspapers, Jan. 4, 2009.
CMLP Legal Threat Entry: Dixon v. The Watchdog"
Source
http://www.citmedialaw.org/threats/milo-v-martin#description
Wednesday, November 2, 2011
the affirmative defense of substantial truth.
"In a 1964 decision, the Supreme Court established that truth is an absolute defense against defamation.
New York Times Co. v. Sullivan, 376 U.S. 254 (1964). However, for parties involved in defamation suits, it is similarly important to know about the affirmative defense of substantial truth.
In a recent case, a Texas Court of Appeals found in favor of defendants who had posted a critical review of the plaintiff’s product online. David Rafes, Inc. v. Huml, 2009 Tex. App. (1st Dist. Oct. 29, 2009). In the suit, David Rafes alleged that Michael Huml and Slowboy Racing, Inc. published defamatory statements about Rafes’ business, Turbochargers.com.
The allegedly defamatory statements included Huml claiming that Rafe’s turbocharger was a “poorly manufactured turbo from China” that would “inevitably fail in a short amount of time” and that it was a “Chinese version us[ing] an inferior stainless in its composition.” Id. at 2. Among several defenses asserted by the defendants was that their statements were substantially true.
In order to bring a cause of action for defamation, a plaintiff must establish that the defendant:
published a statement about the plaintiff that was defamatory while acting with either actual intent or reckless disregard, i.e. malice (if the plaintiff was a public official or public figure) or negligence (if the plaintiff was a private individual) regarding the truth of the statement Id. at 13.
Generally, a defendant can defeat a libel claim by establishing that the published statement on which the action for libel is based is a true statement. Additionally, a defendant can defeat a libel claim by establishing that the statement at issue is substantially true. The Court explained that in order “[t]o determine if a publication is substantially true, we consider
whether the alleged defamatory statement was more damaging to plaintiff’s reputation, in the mind of the average person,
than a truthful statement would have been, and
[w]e look at the ‘gist’ of the publication to determine whether it is substantially true.”
Id. at 14.
The substantial truth standard has also been referred to as the “gist” test because, under this approach, only the “gist” of the statement in question must be true in order for the statement to be protected. As the Court explained, “[t]he defense of truth does not require proof that the alleged defamatory statement is literally true in every detail; substantial truth is sufficient.” Id. This doctrine protects certain false statements so long as any inaccuracies do not materially alter the dissemination of otherwise truthful speech.
The Huml Court decided in favor of the defendants, finding that the trial court had heard sufficient evidence to conclude that the plaintiff’s turbocharger was, as it concluded, a “bad product” and that the evidence “substantiat[ed] the ‘gist’ of the statements contained in the internet article regarding the production and manufacturing of the turbocharger.” Id.
The substantial truth defense is significant in that it provides defendants with a less stringent – and potentially less expensive – way to combat a libel suit.
If a defendant can show that the statement at issue is substantially true, it will hopefully be possible under the right circumstances for the defendant to have a motion for summary judgment granted (which will allow the case to be disposed of without going to trial). The doctrine is also important for libel plaintiffs because it notifies them that statements that criticize them need not be entirely true in order to be protected.
Comments/Questions: gdn@gdnlaw.com "
Source Of Blog
http://www.internetdefamationlawblog.com/2011/09/when-is-substantial-truth-an-adequate-defense-to-defamation.html
New York Times Co. v. Sullivan, 376 U.S. 254 (1964). However, for parties involved in defamation suits, it is similarly important to know about the affirmative defense of substantial truth.
In a recent case, a Texas Court of Appeals found in favor of defendants who had posted a critical review of the plaintiff’s product online. David Rafes, Inc. v. Huml, 2009 Tex. App. (1st Dist. Oct. 29, 2009). In the suit, David Rafes alleged that Michael Huml and Slowboy Racing, Inc. published defamatory statements about Rafes’ business, Turbochargers.com.
The allegedly defamatory statements included Huml claiming that Rafe’s turbocharger was a “poorly manufactured turbo from China” that would “inevitably fail in a short amount of time” and that it was a “Chinese version us[ing] an inferior stainless in its composition.” Id. at 2. Among several defenses asserted by the defendants was that their statements were substantially true.
In order to bring a cause of action for defamation, a plaintiff must establish that the defendant:
published a statement about the plaintiff that was defamatory while acting with either actual intent or reckless disregard, i.e. malice (if the plaintiff was a public official or public figure) or negligence (if the plaintiff was a private individual) regarding the truth of the statement Id. at 13.
Generally, a defendant can defeat a libel claim by establishing that the published statement on which the action for libel is based is a true statement. Additionally, a defendant can defeat a libel claim by establishing that the statement at issue is substantially true. The Court explained that in order “[t]o determine if a publication is substantially true, we consider
whether the alleged defamatory statement was more damaging to plaintiff’s reputation, in the mind of the average person,
than a truthful statement would have been, and
[w]e look at the ‘gist’ of the publication to determine whether it is substantially true.”
Id. at 14.
The substantial truth standard has also been referred to as the “gist” test because, under this approach, only the “gist” of the statement in question must be true in order for the statement to be protected. As the Court explained, “[t]he defense of truth does not require proof that the alleged defamatory statement is literally true in every detail; substantial truth is sufficient.” Id. This doctrine protects certain false statements so long as any inaccuracies do not materially alter the dissemination of otherwise truthful speech.
The Huml Court decided in favor of the defendants, finding that the trial court had heard sufficient evidence to conclude that the plaintiff’s turbocharger was, as it concluded, a “bad product” and that the evidence “substantiat[ed] the ‘gist’ of the statements contained in the internet article regarding the production and manufacturing of the turbocharger.” Id.
The substantial truth defense is significant in that it provides defendants with a less stringent – and potentially less expensive – way to combat a libel suit.
If a defendant can show that the statement at issue is substantially true, it will hopefully be possible under the right circumstances for the defendant to have a motion for summary judgment granted (which will allow the case to be disposed of without going to trial). The doctrine is also important for libel plaintiffs because it notifies them that statements that criticize them need not be entirely true in order to be protected.
Comments/Questions: gdn@gdnlaw.com "
Source Of Blog
http://www.internetdefamationlawblog.com/2011/09/when-is-substantial-truth-an-adequate-defense-to-defamation.html
Monday, September 26, 2011
David Aman, Tonkon Torp sure is Making Tonkon Torp Law Firm Look Foolish. As David Aman, Tonkon Torp sues a blogger for information David Aman, Tonkon Torp knows is from another blog. David Aman is suing an investigative blogger to STOP transparency in Federal Bankruptcy Proceeding.
David Aman, Tonkon Torp Attorney for Kevin Padrick of Obsidian Finance Group is costing Oregon Tax Payers Plenty and all to hide the Truth of a 40 Million Dollar Bankruptcy.
David Aman, Tonkon Torp Attorney for Kevin Padrick of Obsidian Finance Group is suing me for 10 Million Dollars for this Blog Post. David Aman, Tonkon Torp knows my blogs, and the standard of practice in to which I post. And David Aman knows that I link to my source blog, and David Aman of Tonkon Torp Law Firm and Kevin Padrick of Obsidian Finance knows the source blog as they have attempted to stop the blog from being up, have had courts remove videos and tried to intimidate and harass the blog author for years.
http://www.bankruptcycorruption.com/2010/12/kevin-padrick-of-obsidian-finance-group.html
10 Million Dollar Post - True or Not? Defamation or Not?
Now David Aman of Tonkon Torp Law Firm and Kevin Padrick of Obsidian Finance Group cannot sue the source blog due to some plea bargain, I believe, so they are suing me for information the know is not money, and making a mockery of the Oregon Court System Yet Again.
David Aman of Tonkon Torp Law Firm and Kevin Padrick of Obsidian Finance Group sued others in the Summit 1031 Bankruptcy to bully them from what I hear and David Aman of Tonkon Torp Law Firm and Kevin Padrick of Obsidian Finance Group sued the State of Oregon over Some Solar Tax law change that lost them jobs allegedly and now I am the latest victim of the wo is me, I can't make another billion from tax payers money. David Aman of Tonkon Torp Law Firm and Kevin Padrick of Obsidian Finance Group seem to me to be costing the State of Oregon alot of money and are Accountable to No One.
David Aman, Tonkon Torp NEVER asked me to remove this post, nor did David Aman, Tonkon Torp provide me, Legally Defined as Media and an Investigative Blogger with any proof or information that proved this post to be false so that I may consider removing this post. Oregon Retraction Laws are pretty cut and dried, he never asked and yet is suing me for 10 Million. That post was not in David Aman, Tonkon Torp's original complaint that cried lost job worth 10 Million, yet WaLa now this post is the reason that poor bully, thug, attorney crony Kevin Padrick of Obsidian Finance lost his Bank VP Job? Is this real in any way? It makes no rational Sense to me.
This blog post is true to the best of the information I have received, David Aman, Tonkon Torp Law Firm Portland Oregon knows that this post is based in fact, and that it is not my words but instead words from the blog I listed at the bottom of the post, along with my opinion of that information.
Yet somehow David Aman, Tonkon Torp has got a federal court in Oregon to use tax payers dollars and to take me to Trial for 10 Million Dollars when 10 Million Dollars I do Not Have and David Aman, Tonkon Torp refuses to provide any document that prove that the post is not true. I have only my qualified source to go on, which I got from the source blog which as a standard of practice on my blogs I do on most all of my blog posts. If the source information is inaccurate then suing me, is simply harassment as I am not the source information for that blog post. Nor was I asked to Retract that Blog Post.
Also keep in mind the Blog Post David Aman, Tonkon Torp is suing me for on behalf of Obsidian Finance Group Oregon, Kevin Padrick, this post was NOT part of David Aman, Tonkon Torp's original complaint against me as to the reason that Kevin Padrick
http://www.bankruptcycorruption.com/2010/12/kevin-padrick-of-obsidian-finance-group.html
There is a whole lot of details behind the Summit 1031 Bankruptcy that Leon Simson, Tonkon Torp and David Aman Don't want YOU to Know, Do your Homework.
Judge Hernandez in my Oregon Civil Case thus far refuse to Sign a Conflict of Interest form to provide me assurance that there is No Conflict of Interest with David Aman nor Tonkon Torp Law Firm. Oregon Law should be a matter of fact, and yet Anti-Slap Laws, Shield Laws and Retraction Laws seemed to be denied to me based on the fact that I am pro se and cannot afford an attorney and stated the laws as my defense in the wrong way. I stated the Anti-Slap Laws in my first court response, yet seemingly because the law was not stated as a correct motion, well the law then does not apply to me.
The point of these Anti-Slap Laws, Shield Laws and Retraction Laws
It is shocking how far Obsidian Finance Group, Kevin Padrick, David Aman and Tonkon Torp Law firm will go, and how many laws they will twist in order to cover up the details of a 40 Million Dollar Bankruptcy.
More on this Case Will continue to be Posted at
http://www.ancerhaggerty.com/
as Judge Ancer Haggerty was my Original Judge in this Case
Also Coming Soon
http://www.leonsimson.com/
AriOkano.com
AlbertKennedy.com
VickiBallou.com
Doni Marmaduke.com
RonaldGreenman.com
IngolfNoto.com
DarcyNorville.com
RyanBledsoe.com
TonkonTorpLawFirm.com
JohnStride.com
Got a Tip on any of these Tonkon Torp Attorneys?
eMail me Crystal L. Cox, Investigative Blogger
Crystal@CrystalCox.com
Note: My Source Post and others Like it are Still UP and Yet David Aman, Tonkon Torp is singling me out
http://www.oregonshyster.com/shyster/padrick.htm
http://www.summit1031bkjustice.com/?cat=53
Below is source information as in the 10 Million Dollar Post I am being Sued for, though Bully Attorney David Aman of Tonkon Torp Law Firm FOR Client Kevin Padrick Obsidian Finance Group .. .. KNOW that is NOT my information.. they Selectively Prosecute Me...
Source Details - Also Note in Source Details Much of it is over a Year Old, so Attorney David Aman of Tonkon Torp Law Firm FOR Client Kevin Padrick Obsidian Finance Group is suing me now for the reposting as the original post is over a year old and past the Defamation Limitations, Plus Attorney David Aman of Tonkon Torp Law Firm FOR Client Kevin Padrick Obsidian Finance Group KNOW that due to some other legal issue, Attorney David Aman of Tonkon Torp Law Firm FOR Client Kevin Padrick Obsidian Finance Group .. cannot sue the source blogger - so Attorney David Aman of Tonkon Torp Law Firm FOR Client Kevin Padrick Obsidian Finance Group sues me, Crystal L. Cox Blogger Instead.
David Aman, Tonkon Torp Attorney for Kevin Padrick of Obsidian Finance Group is suing me for 10 Million Dollars for this Blog Post. David Aman, Tonkon Torp knows my blogs, and the standard of practice in to which I post. And David Aman knows that I link to my source blog, and David Aman of Tonkon Torp Law Firm and Kevin Padrick of Obsidian Finance knows the source blog as they have attempted to stop the blog from being up, have had courts remove videos and tried to intimidate and harass the blog author for years.
http://www.bankruptcycorruption.com/2010/12/kevin-padrick-of-obsidian-finance-group.html
10 Million Dollar Post - True or Not? Defamation or Not?
Now David Aman of Tonkon Torp Law Firm and Kevin Padrick of Obsidian Finance Group cannot sue the source blog due to some plea bargain, I believe, so they are suing me for information the know is not money, and making a mockery of the Oregon Court System Yet Again.
David Aman of Tonkon Torp Law Firm and Kevin Padrick of Obsidian Finance Group sued others in the Summit 1031 Bankruptcy to bully them from what I hear and David Aman of Tonkon Torp Law Firm and Kevin Padrick of Obsidian Finance Group sued the State of Oregon over Some Solar Tax law change that lost them jobs allegedly and now I am the latest victim of the wo is me, I can't make another billion from tax payers money. David Aman of Tonkon Torp Law Firm and Kevin Padrick of Obsidian Finance Group seem to me to be costing the State of Oregon alot of money and are Accountable to No One.
David Aman, Tonkon Torp NEVER asked me to remove this post, nor did David Aman, Tonkon Torp provide me, Legally Defined as Media and an Investigative Blogger with any proof or information that proved this post to be false so that I may consider removing this post. Oregon Retraction Laws are pretty cut and dried, he never asked and yet is suing me for 10 Million. That post was not in David Aman, Tonkon Torp's original complaint that cried lost job worth 10 Million, yet WaLa now this post is the reason that poor bully, thug, attorney crony Kevin Padrick of Obsidian Finance lost his Bank VP Job? Is this real in any way? It makes no rational Sense to me.
This blog post is true to the best of the information I have received, David Aman, Tonkon Torp Law Firm Portland Oregon knows that this post is based in fact, and that it is not my words but instead words from the blog I listed at the bottom of the post, along with my opinion of that information.
Yet somehow David Aman, Tonkon Torp has got a federal court in Oregon to use tax payers dollars and to take me to Trial for 10 Million Dollars when 10 Million Dollars I do Not Have and David Aman, Tonkon Torp refuses to provide any document that prove that the post is not true. I have only my qualified source to go on, which I got from the source blog which as a standard of practice on my blogs I do on most all of my blog posts. If the source information is inaccurate then suing me, is simply harassment as I am not the source information for that blog post. Nor was I asked to Retract that Blog Post.
Also keep in mind the Blog Post David Aman, Tonkon Torp is suing me for on behalf of Obsidian Finance Group Oregon, Kevin Padrick, this post was NOT part of David Aman, Tonkon Torp's original complaint against me as to the reason that Kevin Padrick
http://www.bankruptcycorruption.com/2010/12/kevin-padrick-of-obsidian-finance-group.html
There is a whole lot of details behind the Summit 1031 Bankruptcy that Leon Simson, Tonkon Torp and David Aman Don't want YOU to Know, Do your Homework.
Judge Hernandez in my Oregon Civil Case thus far refuse to Sign a Conflict of Interest form to provide me assurance that there is No Conflict of Interest with David Aman nor Tonkon Torp Law Firm. Oregon Law should be a matter of fact, and yet Anti-Slap Laws, Shield Laws and Retraction Laws seemed to be denied to me based on the fact that I am pro se and cannot afford an attorney and stated the laws as my defense in the wrong way. I stated the Anti-Slap Laws in my first court response, yet seemingly because the law was not stated as a correct motion, well the law then does not apply to me.
The point of these Anti-Slap Laws, Shield Laws and Retraction Laws
It is shocking how far Obsidian Finance Group, Kevin Padrick, David Aman and Tonkon Torp Law firm will go, and how many laws they will twist in order to cover up the details of a 40 Million Dollar Bankruptcy.
More on this Case Will continue to be Posted at
http://www.ancerhaggerty.com/
as Judge Ancer Haggerty was my Original Judge in this Case
Also Coming Soon
http://www.leonsimson.com/
AriOkano.com
AlbertKennedy.com
VickiBallou.com
Doni Marmaduke.com
RonaldGreenman.com
IngolfNoto.com
DarcyNorville.com
RyanBledsoe.com
TonkonTorpLawFirm.com
JohnStride.com
Got a Tip on any of these Tonkon Torp Attorneys?
eMail me Crystal L. Cox, Investigative Blogger
Crystal@CrystalCox.com
Note: My Source Post and others Like it are Still UP and Yet David Aman, Tonkon Torp is singling me out
http://www.oregonshyster.com/shyster/padrick.htm
http://www.summit1031bkjustice.com/?cat=53
Below is source information as in the 10 Million Dollar Post I am being Sued for, though Bully Attorney David Aman of Tonkon Torp Law Firm FOR Client Kevin Padrick Obsidian Finance Group .. .. KNOW that is NOT my information.. they Selectively Prosecute Me...
Source Details - Also Note in Source Details Much of it is over a Year Old, so Attorney David Aman of Tonkon Torp Law Firm FOR Client Kevin Padrick Obsidian Finance Group is suing me now for the reposting as the original post is over a year old and past the Defamation Limitations, Plus Attorney David Aman of Tonkon Torp Law Firm FOR Client Kevin Padrick Obsidian Finance Group KNOW that due to some other legal issue, Attorney David Aman of Tonkon Torp Law Firm FOR Client Kevin Padrick Obsidian Finance Group .. cannot sue the source blogger - so Attorney David Aman of Tonkon Torp Law Firm FOR Client Kevin Padrick Obsidian Finance Group sues me, Crystal L. Cox Blogger Instead.
2. Mark Neuman Deposition Pg 95 "I guess the other thing was -- Kevin -- Kevin led us to believe that he was bringing financial -- he had these financial partners with deep pockets, and that he could do -- bring in some money in the interim. That was the last we ever heard of it." http://www.summit1031bkjustice.com/?p=2650
Around 12/7/08 – Kevin Padrick meets with Summit Principals – Well yes they did. Kevin Padrick was recommended to one of the Principals by a Bend Developer as a guy who could help solve Summit’s proplems. You see Kevin Padrick met with the Summit principals in early December 2008. By talking with the Summit Principals about this meeting, it looks like Kevin was more than willing to help them with their liquidity crisis. Kevin Padrick said his company, Obsidian Finance Group, LLC, specialized in helping save distressed businesses like Summit Accommodators, Inc. Good news right? Kevin Padrick said he had financial partners with DEEP POCKETS who would help fund the short-term liquidity issues.
At this meeting, Summit Principals explained the business of short-term lending, told Kevin Padrick about the properties they were willing to hand over and about the $14 Million of cash that was in the Summit bank account. At no time during this meeting did Kevin Padrick even mention the words fraud, ponzi scheme, embezzlement, or illegal.
At this meeting, Summit Principals explained the business of short-term lending, told Kevin Padrick about the properties they were willing to hand over and about the $14 Million of cash that was in the Summit bank account. At no time during this meeting did Kevin Padrick even mention the words fraud, ponzi scheme, embezzlement, or illegal.
12/19/08 – end of December 2008 – Summit Principals gathered all the information and willingly gave it to there supposed saviors, Obsidian Finance Group. Ewan Rose, said thanks, we will get you our proposal within the week. No proposal was ever delivered.
Early February – Kevin Padrick makes a presentation to the Creditors’ Committee. What? Thought they were supposed to be getting the proposal to the CRO and Principals, NOT the creditors??? Jeez this stuff is so confusing.
Why hasn’t he released it when holding the Summit Principals’ interests’ will cost the Bankruptcy estate $200,000? See the calculations(Exhibit F9). *****
Summit 1031 Assets on 12/19/08 (Time of Filing Chapter 11 – Debtor In Possession Bankruptcy)
Cash $14 Million
Bond $10 Million
E&O $3 Million
Note Receivable Steve White $1.2 Million
Notes Secured by Real Property
and Summit Principal Real
Property Investments $11.5 Million
Summit Principal Interests’
In Business Interest $1 Million
Monday, September 5, 2011
Defamation Law: The Basics - Defamation Defense, Public Figures have a Higher Burden of Proof.
"There is always a delicate balance between one person's right to freedom of speech and another's right to protect their good name. It is often difficult to know which personal remarks are proper and which run afoul of defamation law.
The term "defamation" is an all-encompassing term that covers any statement that hurts someone's reputation. If the statement is made in writing and published, the defamation is called "libel." If the hurtful statement is spoken, the statement is "slander." The government can't imprison someone for making a defamatory statement since it is not a crime. Instead, defamation is considered to be a civil wrong, or a tort. A person that has suffered a defamatory statement may sue the person that made the statement under defamation law.
Defamation law, for as long as it has been in existence in the United States, has had to walk a fine line between the right to freedom of speech and the right of a person to avoid defamation. On one hand, people should be free to talk about their experiences in a truthful manner without fear of a lawsuit if they say something mean, but true, about someone else. On the other hand, people have a right to not have false statements made that will damage their reputation. Discourse is essential to a free society, and the more open and honest the discourse, the better for society.
Elements of a Defamation Lawsuit
Defamation law changes as you cross state borders, but there are normally some accepted standards that make laws similar no matter where you are. If you think that you have been the victim of some defamatory statement, whether slander or libel, then you will need to file a lawsuit in order to recover. Generally speaking, in order to win your lawsuit, you must show that:
Someone made a statement;
that statement was published;
the statement caused you injury;
the statement was false; and
the statement did not fall into a privileged category.
To get a better grasp of what you will need to do to win your defamation lawsuit, let's look at each element more closely.
The Statement -- A "statement" needs to be spoken, written, or otherwise expressed in some manner. Because the spoken word often fades more quickly from memory, slander is often considered less harmful than libel.
Publication -- For a statement to be published, a third party must have seen, heard or read the defamatory statement. A third party is someone apart from the person making the statement and the subject of the statement. Unlike the traditional meaning of the word "published," a defamatory statement does not need to be printed in a book. Rather, if the statement is heard over the television or seen scrawled on someone's door, it is considered to be published.
Injury -- To succeed in a defamation lawsuit, the statement must be shown to have caused injury to the subject of the statement. This means that the statement must have hurt the reputation of the subject of the statement. As an example, a statement has caused injury if the subject of the statement lost work as a result of the statement.
Falsity -- Defamation law will only consider statements defamatory if they are, in fact, false. A true statement, no matter how harmful, is not considered defamation. In addition, because of their nature, statements of opinion are not considered false because they are subjective to the speaker.
Unprivileged -- Lastly, in order for a statement to be defamatory, it must be unprivileged. Lawmakers have decided that you cannot sue for defamation in certain instances when a statement is considered privileged. For example, when a witness testifies at trial and makes a statement that is both false and injurious, the witness will be immune to a lawsuit for defamation because the act of testifying at trial is privileged.
Whether a statement is privileged or unprivileged is a policy decision that rests on the shoulders of lawmakers. The lawmakers must weigh the need to avoid defamation against the importance that the person making the statement have the free ability to say what they want.
Witnesses on the stand at trial are a prime example. When a witness is giving his testimony, we, as a society, want to ensure that the witness gives a full account of everything without holding back for fear of saying something defamatory. Likewise, lawmakers themselves are immune from defamation suits resulting from statements made in legislative chamber or in official materials.
Higher Burdens for Defamation -- Public Officials and Figures
Our government places a high priority on the public being allowed to speak their mind about elected officials as well as other public figures. People in the public eye get less protection from defamatory statements and face a higher burden when attempting to win a defamation lawsuit. "
Source and More Information
http://injury.findlaw.com/defamation-libel-slander/defamation-law-made-simple(1).html
The term "defamation" is an all-encompassing term that covers any statement that hurts someone's reputation. If the statement is made in writing and published, the defamation is called "libel." If the hurtful statement is spoken, the statement is "slander." The government can't imprison someone for making a defamatory statement since it is not a crime. Instead, defamation is considered to be a civil wrong, or a tort. A person that has suffered a defamatory statement may sue the person that made the statement under defamation law.
Defamation law, for as long as it has been in existence in the United States, has had to walk a fine line between the right to freedom of speech and the right of a person to avoid defamation. On one hand, people should be free to talk about their experiences in a truthful manner without fear of a lawsuit if they say something mean, but true, about someone else. On the other hand, people have a right to not have false statements made that will damage their reputation. Discourse is essential to a free society, and the more open and honest the discourse, the better for society.
Elements of a Defamation Lawsuit
Defamation law changes as you cross state borders, but there are normally some accepted standards that make laws similar no matter where you are. If you think that you have been the victim of some defamatory statement, whether slander or libel, then you will need to file a lawsuit in order to recover. Generally speaking, in order to win your lawsuit, you must show that:
Someone made a statement;
that statement was published;
the statement caused you injury;
the statement was false; and
the statement did not fall into a privileged category.
To get a better grasp of what you will need to do to win your defamation lawsuit, let's look at each element more closely.
The Statement -- A "statement" needs to be spoken, written, or otherwise expressed in some manner. Because the spoken word often fades more quickly from memory, slander is often considered less harmful than libel.
Publication -- For a statement to be published, a third party must have seen, heard or read the defamatory statement. A third party is someone apart from the person making the statement and the subject of the statement. Unlike the traditional meaning of the word "published," a defamatory statement does not need to be printed in a book. Rather, if the statement is heard over the television or seen scrawled on someone's door, it is considered to be published.
Injury -- To succeed in a defamation lawsuit, the statement must be shown to have caused injury to the subject of the statement. This means that the statement must have hurt the reputation of the subject of the statement. As an example, a statement has caused injury if the subject of the statement lost work as a result of the statement.
Falsity -- Defamation law will only consider statements defamatory if they are, in fact, false. A true statement, no matter how harmful, is not considered defamation. In addition, because of their nature, statements of opinion are not considered false because they are subjective to the speaker.
Unprivileged -- Lastly, in order for a statement to be defamatory, it must be unprivileged. Lawmakers have decided that you cannot sue for defamation in certain instances when a statement is considered privileged. For example, when a witness testifies at trial and makes a statement that is both false and injurious, the witness will be immune to a lawsuit for defamation because the act of testifying at trial is privileged.
Whether a statement is privileged or unprivileged is a policy decision that rests on the shoulders of lawmakers. The lawmakers must weigh the need to avoid defamation against the importance that the person making the statement have the free ability to say what they want.
Witnesses on the stand at trial are a prime example. When a witness is giving his testimony, we, as a society, want to ensure that the witness gives a full account of everything without holding back for fear of saying something defamatory. Likewise, lawmakers themselves are immune from defamation suits resulting from statements made in legislative chamber or in official materials.
Higher Burdens for Defamation -- Public Officials and Figures
Our government places a high priority on the public being allowed to speak their mind about elected officials as well as other public figures. People in the public eye get less protection from defamatory statements and face a higher burden when attempting to win a defamation lawsuit. "
Source and More Information
http://injury.findlaw.com/defamation-libel-slander/defamation-law-made-simple(1).html
Monday, August 29, 2011
the Name of your Dotcom in Your Defamation Case
Does a Blog's Name Really Suggest Predetermined Thought Process. I mean if I use my Blogs to get search engine ranking for tons of posts on dif. things and the name has Corruption in it, is that an automatic guilt or assumption? Is it a Bias? If I write on a blog say NorthwestTribune.com and right about something in the Southwest, is that relevant?
It seems that some judges suggest the Dotcom is in an of itself a possibly defaming bias.
It seems that some judges suggest the Dotcom is in an of itself a possibly defaming bias.
Sunday, August 28, 2011
Kristen Rasmussen, the Reporters Committee for Freedom of the Press on Free Speech, First Amendment and Obsidian Finance Group V. Crystal L. Cox, Investigative Blogger
Kristen Rasmussen, the Reporters Committee for Freedom of the Press on Free Speech, First Amendment on Obsidian Finance Sucks Internet, Blog Defamation Case.
" Blog's context suggests that posts are protected opinion
An Oregon blogger’s disparaging “almost stream of consciousness-like” statements about the trustee in a bankruptcy case are protected opinion under the First Amendment, a federal judge in Portland recently ruled.
The opinion in Obsidian Finance Group v. Cox highlights the importance of courts’ consideration of the “looser, more relaxed communication style” of the Internet in their evaluations of allegedly defamatory online communications.
“Blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact,” U.S. District Judge Marco A. Hernandez said in his Aug. 23 order dismissing the overwhelming majority of defamation claims against self-described investigative blogger Crystal Cox, who often writes about whistleblowers in the real estate industry.
Cox operates the website ObsidianFinanceSucks.com, where she publishes critical statements about Obsidian Finance, an advisory and investment firm that specializes in unique and difficult business situations and transactions, and its senior principal Kevin Padrick.
Cox alleges that Padrick engaged in misconduct in connection with his duties as trustee in the bankruptcy proceedings involving an Oregon financial firm, accusing Padrick, for example, of participating in “illegal activity,” lying to investors and committing “fraud against the courts.”
Padrick denied the allegations and, asserting that Cox’s statements damaged his and Obsidian’s reputations, sued her for defamation.
Noting, however, the “obviously critical blog title on which [the allegedly defamatory statements] appeared, the creation of a forum for ‘heated debate,’ the extensive use of hyperbolic and figurative language, and the posting of several questions rather than statements,” Hernandez concluded that, under the totality of circumstances, a reasonable reader could not conclude that the statements at issue implied a provably false assertion.
This legal standard for statements of opinion was adopted by the U.S. Supreme Court in its 1990 seminal opinion case, Milkovich v. Lorain Journal Co.
The Milkovich Court described two broad categories of opinion protected by the First Amendment: language that cannot be proved true or false by a core of objective evidence and “loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining” an actual fact, or where the “general tenor of the article” negates the impression that actual facts are being asserted.
Thus, statements must be considered in context, courts have held. This evaluation generally requires a consideration of general context, which refers to the entire work at issue, and broader context, which refers to the publication in which the work appears.
In its discussion of the broader context of Cox’s online statements, the Oregon court noted that the setting and format of blog posts “create a looser, more relaxed communication style, which is less likely to be understood as containing statements of fact or implying factual assertions,” the judge said.
Moreover, Cox’s use of figurative and hyperbolic language, including terms like “jackass,” “thugs” and “fishy circumstances,” would lead a reasonable reader to “understand that [Cox’s] postings generally consist of a fanciful diatribe, fueled by her subjective belief of pervasive corruption . . . .”
In contrast to these posts, one that appeared on a different website, bankruptcycorruption.com, could lead reasonable readers to reach differing conclusions about whether the statements that appeared there contained or implied an assertion of objective fact, according to the court, which declined to dismiss the defamation claim based on this post.
While the title of this site still suggested a certain bias, it was not as strong or specific as that of obsidianfinancesucks.com, the judge said.
Moreover, certain statements in this post contained or implied assertions that could be proved true or false, including an allegation that as trustee of the bankruptcy estate, Padrick engaged in tax fraud, the court ruled.
Kristen Rasmussen - RCFP - the Reporters Committee for Freedom of the Press.
Source of Kristen Rasmussen Post
http://www.rcfp.org/newsitems/index.php?i=11998
" Blog's context suggests that posts are protected opinion
An Oregon blogger’s disparaging “almost stream of consciousness-like” statements about the trustee in a bankruptcy case are protected opinion under the First Amendment, a federal judge in Portland recently ruled.
“Blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact,” U.S. District Judge Marco A. Hernandez said in his Aug. 23 order dismissing the overwhelming majority of defamation claims against self-described investigative blogger Crystal Cox, who often writes about whistleblowers in the real estate industry.
Cox operates the website ObsidianFinanceSucks.com, where she publishes critical statements about Obsidian Finance, an advisory and investment firm that specializes in unique and difficult business situations and transactions, and its senior principal Kevin Padrick.
Cox alleges that Padrick engaged in misconduct in connection with his duties as trustee in the bankruptcy proceedings involving an Oregon financial firm, accusing Padrick, for example, of participating in “illegal activity,” lying to investors and committing “fraud against the courts.”
Padrick denied the allegations and, asserting that Cox’s statements damaged his and Obsidian’s reputations, sued her for defamation.
Noting, however, the “obviously critical blog title on which [the allegedly defamatory statements] appeared, the creation of a forum for ‘heated debate,’ the extensive use of hyperbolic and figurative language, and the posting of several questions rather than statements,” Hernandez concluded that, under the totality of circumstances, a reasonable reader could not conclude that the statements at issue implied a provably false assertion.
This legal standard for statements of opinion was adopted by the U.S. Supreme Court in its 1990 seminal opinion case, Milkovich v. Lorain Journal Co.
The Milkovich Court described two broad categories of opinion protected by the First Amendment: language that cannot be proved true or false by a core of objective evidence and “loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining” an actual fact, or where the “general tenor of the article” negates the impression that actual facts are being asserted.
Thus, statements must be considered in context, courts have held. This evaluation generally requires a consideration of general context, which refers to the entire work at issue, and broader context, which refers to the publication in which the work appears.
In its discussion of the broader context of Cox’s online statements, the Oregon court noted that the setting and format of blog posts “create a looser, more relaxed communication style, which is less likely to be understood as containing statements of fact or implying factual assertions,” the judge said.
Moreover, Cox’s use of figurative and hyperbolic language, including terms like “jackass,” “thugs” and “fishy circumstances,” would lead a reasonable reader to “understand that [Cox’s] postings generally consist of a fanciful diatribe, fueled by her subjective belief of pervasive corruption . . . .”
In contrast to these posts, one that appeared on a different website, bankruptcycorruption.com, could lead reasonable readers to reach differing conclusions about whether the statements that appeared there contained or implied an assertion of objective fact, according to the court, which declined to dismiss the defamation claim based on this post.
While the title of this site still suggested a certain bias, it was not as strong or specific as that of obsidianfinancesucks.com, the judge said.
Moreover, certain statements in this post contained or implied assertions that could be proved true or false, including an allegation that as trustee of the bankruptcy estate, Padrick engaged in tax fraud, the court ruled.
Kristen Rasmussen - RCFP - the Reporters Committee for Freedom of the Press.
Source of Kristen Rasmussen Post
http://www.rcfp.org/newsitems/index.php?i=11998
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