The Defamation of Directors & How to Deal With Abusive Members

Similar documents
Media Today 5th Edition Chapter Recaps & Study Guide. Chapter 5: Controls on Media Content: Government Regulation, Self-Regulation, and Ethics

Media Today 6th Edition Chapter Recaps & Study Guide. Chapter 5: Controls on Media Content: Government Regulation, Self-Regulation, and Ethics

"Pill Mill" v. Pharmacy: Know Your Standards of Care or Face Defamation Allegations

1. Under what theory, or theories, if any, might Patty bring an action against Darby? Discuss.

Answer A to Question Statements of Opinion May Be Actionable in a Defamation Action

TORT LAW. By Helen Jordan, Elaine Martinez, and Jim Ponce

DEFAMATION LAW FOR MATERIAL PUBLISHED BEFORE 1 JANUARY 2006

COMPLAINT DEMAND FOR JURY TRIAL

FILED: KINGS COUNTY CLERK 09/02/ :36 PM INDEX NO /2014 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/02/2014

DEFAMATION ACTIONABLE PER SE PRIVATE FIGURE MATTER OF PUBLIC CONCERN PRESUMED DAMAGES 1

Case 9:17-cv DMM Document 1 Entered on FLSD Docket 02/13/2017 Page 1 of 7 UNITED STATES DISTRICT COURT SOURTHERN DISTRICT OF FLORIDA. Case No.

FILED: NEW YORK COUNTY CLERK 05/15/ :39 PM INDEX NO /2015 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/15/2015

Chapter 6 Torts Byron Lilly De Anza College Byron Lilly De Anza College

DEFAMATION INSTRUCTIONS Introduction

Case: 5:14-cv JRA Doc #: 19 Filed: 11/06/14 1 of 8. PageID #: 221

FILED: KINGS COUNTY CLERK 09/03/ :48 PM INDEX NO /2014 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/04/2014

IN THE DISTRICT COURT FOR ROGERS COUNTY STATE OF OKLAHOMA PETITION

Case 0:10-cv KMM Document 1 Entered on FLSD Docket 08/10/2010 Page 1 of 7

Free Speech Issues in Technology Part 3 Threats, Hate Speech, Violence in Video Games, & Defamation

Free Speech Issues in Technology Part 3 Threats, Hate Speech, Violence in Video Games, & Defamation

THE FINE PRINT. USPA Conference June 22, Mariana Padias Assistant General Counsel

UNDERSTANDING SMALL CLAIMS COURT A Quick Reference Guide

Speaking Out in Public

Case: 3:11-cv TMR Doc #: 1 Filed: 11/07/11 Page: 1 of 13 PAGEID #: 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Plaintiffs OF DALLAS COUNTY, TEXAS v. Defendants JUDICIAL DISTRICT PLAINTIFFS ORIGINAL PETITION, JURY DEMAND AND REQUEST FOR INJUNCTIVE RELIEF

SUPERIOR COURT OF WASHINGTON FOR KING COUNTY

IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR MARTIN COUNTY, FLORIDA

Case 1:17-cv XXXX Document 1 Entered on FLSD Docket 12/06/2017 Page 1 of 19 IN THE UNITED STATES DISTRICT COURT FOR SOUTHERN DISTRICT OF FLORIDA

Defamation and Social Media An Update

HYDERALLY & ASSOCIATES, P.C.

Vs. C : PARISH OF JEFFERSON DAVIS JACOB COLBY PERRY : STATE OF LOUISIANA FILED: : DEPUTY CLERK OF COURT

How to Use Torts Tactically in Employment Litigation

DEFAMATION. Greens Local Councillor Forum

JEFFREY W. THARPE, ET AL. OPINION BY v. Record No JUSTICE ELIZABETH A. MCCLANAHAN FEBRUARY 28, 2013 J. HARMAN SAUNDERS, ET AL.

Defamation. CS 340 Fall Defamation: no First Amendment right to defame

Washoe Tribe of Nevada and California. Law & Order Code TITLE 3 TORTS. [Last Amended 10/1/04. Current Through 2/3/09.]

Case 3:17-cv LB Document 1 Filed 07/17/17 Page 1 of 11

Intentional Torts. What Is a Tort? Tort Recovery

PLAINTIFF S ORIGINAL PETITION

ELEMENTS OF LIABILITY AND RISK

Libel: A Two-tiered Constitutional Standard

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION

5. PRACTICAL PROBLEMS. 5.1 Being in court. 5.2 The Evidence - is it admissible in court? 5.3 Taking samples - evidential problems

We would welcome responses to the following questions set out in the consultation paper. You can return this questionnaire by to

Provincial NEWFOUNDLAND AND LABRADOR SMALL CLAIMS COURT. Booklet #1 What is Small Claims Court? Provincial Court of Newfoundland and Labrador

Basics of Internet Defamation. Defamation in the News

IN UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PHOENIX ARIZONA DIVISION. Plaintiff, pro se )

Chapter 69: Defamation - What You Cannot Do

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE February 3, 2014 Session

IN THE SUPREME COURT OF FLORIDA. Supreme Court Case No. SC BOCA INVESTORS GROUP, INC., Petitioner, IRWIN POTASH, ET AL., Respondents.

Illinois. Civil and Criminal Penalties for False Claims or Statements

DEFAMATION. 5. A statement is not defamatory unless it has caused or is likely to cause serious financial loss to a person (s.1 of the 2013 Act).

STATE OF MICHIGAN COURT OF APPEALS

IN THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF TWIN FALLS

Free Speech and the First Amendment for Cons and Festivals

Case 2:18-cv Document 1 Filed 06/22/18 Page 1 of 9

Case 4:11-cv BLW Document 1 Filed 12/15/11 Page 1 of 13

Vs : C.A. NO. WC ANSWER AND COUNTER-CLAIM

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Case 3:14-cv B Document 1 Filed 06/18/14 Page 1 of 18 PageID 1

PROJECT SCOPE STATEMENT

DISTRICT COURT, DENVER COUNTY STATE OF COLORADO 1437 Bannock Street, Room 256 Denver, CO (720)

Case 9:18-cv RLR Document 1 Entered on FLSD Docket 05/22/2018 Page 1 of 11 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.

Sato Constr. Co., Inc. v 17 & 24 Corp NY Slip Op 32508(U) September 7, 2010 Supreme Court, Nassau County Docket Number: 7690/10 Judge: Stephen

Intentional Torts. What Is a Tort? Tort Recovery

ATTORNEYS AT LAW. PHONE: (561) / FAX: (561) January 4, 2016

GC / MCS 115 CHAPTER 14. Ethical Considerations

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 1 May Appeal by plaintiff from order entered 19 July 2011 by

An Act to modify the general law relating to the tort of defamation and for other purposes.

CAUSE NO. COMES NOW, Plaintiff, Colin Shillinglaw, and files this Original Petition, complaining

Particular Crimes can be grouped under 3 headings: Crimes against people Crimes against property Crimes against business interests

Legal Liability in Adventure Tourism

1. Consider standing 2. Consider the three elements to make out a prima facie case 3. Consider defences 4. Consider remedies

Case 3:16-cv WHB-JCG Document 4 Filed 05/31/16 Page 1 of 8

TABLE OF CONTENTS. Preface...P-1 Table of Cases... TC-1

on your blue computer graded bubble sheet in the appropriate location.

Court of Common Pleas of Pennsylvania, Allegheny County. Reunion Industries Inc. v. Doe 1. No. GD March 5, 2007

Understanding Legal Terminology in NFA Arbitration Cases

When should this form be used? IMPORTANT INFORMATION REGARDING E-FILING. What should I do next?

FILED: NEW YORK COUNTY CLERK 10/27/ :33 PM INDEX NO /2016 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 10/27/2016

Florida. Florida State False Claims Laws

How to Keep Your Clients (and Yourself!) From Getting Sued for Defamation

IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI. NO CA-Ol CA APPELLEE'S BRIEF

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION. Civil Action FILE No. 1:00-CV-1416-CC

How Do I Answer a Lawsuit for Debt Collection?

AVOIDING BRIBERY AND CORRUPTION POLICY

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION. Plaintiff, Case No. 8:11-cv JDW-MAP

KEYNOTE ADDRESS: FAKE NEWS, WEAPONIZED DEFAMATION AND THE FIRST AMENDMENT

Chapter 293. Defamation Act Certified on: / /20.

CAUSE NO. DEFENDANTS. JUDICIAL DISTRICT PLAINTIFFS ORIGINAL PETITION I. SUMMARY AND KEY FACTS

DEFAMATION--SLANDER ACTIONABLE PER QUOD--PRIVATE FIGURE--MATTER OF PUBLIC CONCERN. 1

Schafer v. Time, Inc. 142 F.3d 1361 (11th Cir. 1998)

Topic 1: Freedom of Speech.

CHAPTER 4 THE LAW OF TORTS

Milkovich v. Lorain Journal 497 U.S. 1 (1990) Chief Justice Rehnquist delivered the opinion of the Court:

Case 9:17-cv RLR Document 1 Entered on FLSD Docket 08/04/2017 Page 1 of 18 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

V.-E. DEPOSITION INSTRUCTIONS

) ) Plaintiff, Christina Chisholm, complaining of Defendants, Tauheed Epps, and. Ro Zay Richie, alleges and says:

IN THE COUNTY COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA. Plaintiff, Case No CA

This fact sheet covers:

Transcription:

& The Alliance of Delray Residential Associations proudly present: The Defamation of Directors & How to Deal With Abusive Members By: Joshua Gerstin, Esq. Gerstin & Associates Copyright 2017 Gerstin & Associates, all rights reserved. Gerstin & Associates, 40 S.E. 5th St., Boca Raton, FL 33432, Telephone: (561) 750-3456, e-mail: joshua@gerstin.com Not intended as legal advice, please contact your attorney for legal advice

The Law of Defamation 1. Two forms of defamation: Slander - spoken form Written libel 2. Defamation v. free speech has evolved through state common law. People have a right to insult, but not make false statements about, one another. 3. Two types of Slander or Libel Standard defamation Defamation per se 2 Gerstin & Associates, 40 S.E. 5th St., Boca Raton, FL 33432, Telephone: (561) 750-3456, e-mail: joshua@gerstin.com

Defamation Defined 1. Florida common law defines defamation as: a false statement of fact, communicated to a third party, which is meant to hurt the plaintiff s reputation or economic wellbeing. (a) (b) (c) (d) A false statement must be uttered. Most of the time, nasty or stupid comments or insults usually do not qualify. Must incur and be able to prove damages. If a false statement is uttered without causing damages, a claim for defamation does not exist. Must be uttered to a third party. A defamatory statement about you, made to you, with no one else in the room does not suffice. 3 Gerstin & Associates, 40 S.E. 5th St., Boca Raton, FL 33432, Telephone: (561) 750-3456, e-mail: joshua@gerstin.com

Defamation Per Se 1.Often times proving damages from defamation is not possible. (a) (b) (c) (d) (e) However, some types of defamation are considered so socially unacceptable, its mere utterance to a third party is presumed to cause damages. Known as Defamation Per Se, the following defamatory statements do not require a claimant to prove damages: Afflicted with a terminal disease; Engaged in criminal activity; or Acted in a way unbecoming of his or her profession. For both defamation and defamation per se the speaker's utterance only has to be negligent when the target is not a public figure 4 Gerstin & Associates, 40 S.E. 5th St., Boca Raton, FL 33432, Telephone: (561) 750-3456, e-mail: joshua@gerstin.com

Private Figure v. Public Figure 1. For private figures, the person defamed d only has to show the speaker was negligent. 2. For public figures the person defamed has to show the speaker s utterance was malicious. The speaker had actual malice. 3. Actual malice in the defamation context is defined as: publishing a statement while either knowing that it is false or with reckless disregard as to the statement s s truth or falsity. 4. A third category knows as limited purpose public figure may encompass community association directors. The actual malice standard applies to limited purpose public figures. 5. The courts in Florida have not directly ruled on this issue. However, many other states categorize community association directors as limited public figures. 6. The standard from the courts within the state of New Jersey that has been used in other states: a person invites the application of the actual malice standard by voluntarily and knowingly engaging in conduct that one in his position should reasonably know would implicate a legitimate public interest, engendering the real possibility of public attention and scrutiny. 5 Gerstin & Associates, 40 S.E. 5th St., Boca Raton, FL 33432, Telephone: (561) 750-3456, e-mail: joshua@gerstin.com

Who is Suing Who? 1. Assume a defamatory statement was uttered against a director, who was damaged d and the speaker s statement showed actual malice. 2. Can an association use its own funds to sue an owner that defamed a director. 3. Only if the statement can be shown to have defamed or damaged the association or the board of directors as a whole. If not, the director is on his/her own and has to sue the owner using his/her own funds. 6 Gerstin & Associates, 40 S.E. 5th St., Boca Raton, FL 33432, Telephone: (561) 750-3456, e-mail: joshua@gerstin.com

The Hurdles in a Nutshell The director has to show actual damages, or have been victim i of defamation per se. The director will most likely have to show actual malice. The owner has the defense of truth. The director may be funding the lawsuit on his/her own. 7 Gerstin & Associates, 40 S.E. 5th St., Boca Raton, FL 33432, Telephone: (561) 750-3456, e-mail: joshua@gerstin.com

Notes 8 Copyright 2017 Gerstin & Associates, all rights reserved. Gerstin & Associates, 40 S.E. 5th St., Boca Raton, FL 33432, Telephone: (561) 750-3456, e-mail: joshua@gerstin.com Not intended as legal advice, please contact your attorney for legal advice.

& The Alliance of Delray Residential Associations proudly present: How to Deal With Abusive Members By: Joshua Gerstin, Esq. Gerstin & Associates Copyright 2017 Gerstin & Associates, all rights reserved. Gerstin & Associates, 40 S.E. 5th St., Boca Raton, FL 33432, Telephone: (561) 750-3456, e-mail: joshua@gerstin.com Not intended as legal advice, please contact your attorney for legal advice

What Can Be Done About Abusive Members? Community associations i are not governmental entities. i Rules can be adopted that establish a certain minimum level of behavior, or code of conduct that all members must follow without violating first amendment rights. Rules can be drafted to prohibit defamatory or abusive speech towards the directors. Violators can be fined and if the fines go unpaid for 90 days common area privileges suspended. Drafting such Rules are tricky and community associations must consult their attorneys when doing so. 10 Gerstin & Associates, 40 S.E. 5th St., Boca Raton, FL 33432, Telephone: (561) 750-3456, e-mail: joshua@gerstin.com

How to Deal With Abusive Members Problems often can arise when an owner or owners are not happy with particular board decision or policy. Often times, these situations can be resolved internally through transparency of board decisions and frequent communication to members. Sometimes a problem arises because a member is a sociopath and has a lead a life in which he/she has argued or sued neighbors and almost everyone they come into contact with in the past. No one can change this person and no policy will. The only option is exclusion and court enforcement. 11 Gerstin & Associates, 40 S.E. 5th St., Boca Raton, FL 33432, Telephone: (561) 750-3456, e-mail: joshua@gerstin.com

How to Deal With Abusive Members, Contd. Just because behavior is socially unacceptable does not mean you can seek enforcement or prohibition against a member. Member conduct has to be outlined in specific rules or regulations or it will not be enforceable. Association s should avoid passing Rules and Regulations regarding member s interactions with each other. Otherwise, the Association will be inundated with complaints and a duty will arise to take action. Association s should pass detailed Rules and Regulations regarding member conduct towards staff, employees and directors. 12 Gerstin & Associates, 40 S.E. 5th St., Boca Raton, FL 33432, Telephone: (561) 750-3456, e-mail: joshua@gerstin.com

How to Deal With Abusive Members, Contd. Violations of Rules and Regulations regarding member conduct should be enforced with fines. Thanks to recent legislation if a fine goes unpaid for more than 90 days, the Association can suspend the member and his/her guests common area usage. Violent or threatening members should be reported to the police immediately and forwarded to the Association s s attorney to build a potential case for an injunction. All complaints should be in writing. Enforcement must be uniform and documented. 13 Gerstin & Associates, 40 S.E. 5th St., Boca Raton, FL 33432, Telephone: (561) 750-3456, e-mail: joshua@gerstin.com

How to Deal With Abusive Members, Contd. Attitude is Everything. Be polite and listen to both sides. Sometimes an owner that is upset is confused or may actually have a valid point and has been treated unfairly. Do not lose sight of the association s s purpose. The purpose of an association is to maintain property values, maintain the common scheme of the community, and maintain the enjoyment of all living in the community. Don t lose sight that an association is a business. Make decisions ii based upon the needs of the business and the long term goals of the business. Don t make it personal. The goal of the board of directors is not to teach a lesson to a homeowner who does not follow the rules. The goal is to further the purpose p of the association. 14 Gerstin & Associates, 40 S.E. 5th St., Boca Raton, FL 33432, Telephone: (561) 750-3456, e-mail: joshua@gerstin.com

Anecdotes and Words of Wisdom Successful directors need a strong back bone, wishbone and funny bone. Do not take yourself to seriously and resign if you do not enjoy being a director, it is not for everyone. No good deed goes unpunished, and do not expect it be rewarded. d There is no way to please everyone, those who try are playing a sucker s game. Split your persona into neighbor and director. When you are a director, listen to others but make your own decision and stick by it. Sticks and Stones will break my bones but names will never hurt me should guide you through your term. 15 Gerstin & Associates, 40 S.E. 5th St., Boca Raton, FL 33432, Telephone: (561) 750-3456, e-mail: joshua@gerstin.com

Notes 16

Stay Informed, Subscribe to the Gerstin & Associates Newsletter. Stay one step ahead of new legislation, recent case law and new developments that impact your community association. Name: Mailing address: E-mail address: Community name: Position on board, if any: Fax this completed page to (561) 750-8185 or email the above information to joshua@gerstin.com. 17 Copyright 2017 Gerstin & Associates, all rights reserved. Gerstin & Associates, 40 S.E. 5th St., Boca Raton, FL 33432, Telephone: (561) 750-3456, e-mail: joshua@gerstin.com Not intended as legal advice, please contact your attorney for legal advice.

For more information or questions, please contact: 40 S.E. 5 th St., Suite 610 Boca Raton, FL 33432 Telephone: (561) 750-3456, Facsimile: (561) 750-8185 E-mail: joshua@gerstin.com Web: www.gerstin.com