Appeals Court Finally Shuts Down Bogus Lawsuit Targeting A School Official For Words A Journalist Wrote

from the PERRY-MASON-MOMENT-INCLUDED dept

At long last, one of the stupider defamation lawsuits in recent history is finally over. Last year, the ousted director of a Tennessee culinary school (Tom Loftis) sued over an article appearing in a local paper. The article, written by journalist Jim Myers, insinuated the departure of Loftis signaled a return to quality for the culinary program. It also spoke highly of his replacement, Randy Rayburn.

The article featured few direct quotes from Rayburn. The bulk of it consisted of Myers' take on the program's declining quality while Loftis was at the helm. So, naturally, Tom Loftis decided to sue his replacement, Randy Rayburn, who was responsible for none of the supposedly defamatory content contained in the article.

Loftis argued this was "defamation by innuendo," all the while refusing to target the journalist and paper responsible for the alleged innuendo. He not only lost his lawsuit, but now owes legal fees for that attempt. Rather than accept this loss and cut a check, Loftis appealed. This recent state appeals court decision [PDF], via Randy Rayburn's legal representative, Daniel Horwitz, has nothing positive to say about Loftis' bogus lawsuit.

First, the court points out the obvious: Rayburn didn't say the things Loftis is suing about.

To prevail on his defamation by implication or innuendo claim, Mr. Loftis must establish in his complaint that Mr. Rayburn published the statements and that the meaning reasonably conveyed by the statements was defamatory.

[...]

Mr. Rayburn is not the author of the article, and he is not quoted anywhere in the article. However, Mr. Loftis asserted in his amended complaint that during an interview with Mr. Myers, Mr. Rayburn spoke the words that Mr. Myers printed.

Even "liberally construing" Loftis' argument doesn't help. The court agrees that giving his allegations an extremely favorable reading supports his claim for "defamation by implication," but when all the facts are in, the allegation is baseless.

Mr. Loftis does not question the literal truth of the statements in the article, but he argues they imply that he personally was to blame for the unqualified line cooks in Nashville. We do not agree. Mr. Myers’ statement that the school’s culinary program was not turning out qualified students appears to have been based on the feedback Mr. Rayburn got from other chefs in the area. The article does not suggest that all of the unqualified line cooks in the area received training at the culinary program at Nashville Tech or that Mr. Loftis was to blame for the dearth of qualified line cooks, as Mr. Loftis argues. Mr. Loftis is not mentioned at all until the second page, toward the end of the article, when Mr. Myers wrote: “They started by cleaning house from the top by removing director Tom Loftis.” Mr. Myers does not clarify who “they” were, and the article does not impugn Mr. Loftis personally. Contrary to Mr. Loftis’s argument, we do not believe the article can reasonably be interpreted as depicting Mr. Loftis as “personally responsible for the perceived deficiencies of the culinary program.”

It follows this up with a blunt take on Loftis' creative legal thinking.

We are not bound by Mr. Loftis’s interpretation of the statements because we find they do not reasonably have the meaning he ascribes to them.

It also disposes of his "false light invasion of privacy" claim. While the statements made to the Tennessean reporter might satisfy the publicity requirement (in essence, Rayburn could assume that by speaking to a reporter his comments would be published in some form), this claim similarly fails because the statements were made by the reporter -- not Randy Rayburn. And even if they were, they do not even approach the the "false light" standard.

We do not, however, believe that the statements can be considered “highly offensive to a reasonable person,” as they must be for Mr. Loftis to proceed with this claim. For the reasons we found the statements in Mr. Myers’ article fail to imply a defamatory meaning, we also find they are not susceptible to the requisite inferences casting Mr. Loftis in a false light. We do not believe a reasonable person would be justified, in the eyes of the community, of being seriously offended and aggrieved by the statements at issue.

Finally, there's this: Tom Loftis' attorney made a stunning admission during oral arguments. It's a fact common to many bogus defamation cases, but one rarely stated so baldly by legal representation while still engaged in bogus litigation. Defamation lawsuits are a handy way to silence critics, especially when the target of the lawsuit is perceived to be ill-equipped to tackle the case in court. In response to the court's logical question as to why Loftis chose to sue Randy Rayburn rather than the journalist or paper whose article Loftis found defamatory, his lawyer had this to say:

Judge Neal McBrayer: “Why isn’t the Tennessean the proper party here?”

Gary Blackburn (Attorney for Mr. Loftis): “Your Honor, there were practical reasons for that . . . . It is easier to bring a lawsuit against the person who uttered the words than against a publication that buys ink by the barrel, as they say, and has lots of resources.“

This is Loftis' lawyer saying he felt he had a better chance of winning against Randy Rayburn than against a newspaper that might have the legal team and resources to put up a fight. Blackburn tries to disguise it by saying Rayburn "uttered the words," but the oral argument [beginning at 6:05] includes the court's rebuttal that the article contains "no direct quotes." This statement lays bare the lawsuit's true aims: to ruin a replacement school official who seems to be better liked by Tennessean journalists, if nothing else.

Filed Under: anti-slapp, defamation, free speech, jim myers, randy rayburn, slapp, tennesee, tom loftis

Hotel That Charged Guest $350 For A Negative Review Now Facing A Lawsuit From State Attorney General

from the when-has-this-EVER-worked? dept

The American Dream: own your own business... be your own boss... run your reputation into the ground... charge people's credit cards $350 for negative reviews... get sued by the government. Welcome to Nashville, Indiana, home of the Abbey Inn, whose absentee ownership, lack of on-duty staff, and hidden clauses have led to a precipitous decline in brand health, along with the opportunity to defend itself against a lawsuit brought by the state's attorney general.

It all started with hotel guest Katrina Walker's disastrous stay at the Abbey Inn.

The hotel room wasn’t just dirty. It was “a nightmare,” the guest said.

The air smelled like sewage. Hair and dirt covered the bed sheets, as if the linens hadn’t been cleaned after the last guests had left the Abbey Inn & Suites room that Katrina Arthur and her husband were renting in Nashville, Ind in March 2016. The air conditioner and shower in the room didn’t work right, either, Arthur told WRTV.

“We were just wanting to get away and have some alone time,” Arthur told the TV station. “It looked really pretty on the website.”

Walker left a negative review of Abbey Inn after an email from the hotel asked her to submit a review. This was followed by a (bogus) legal threat from someone who should definitely know better.

Attorney Andrew Szakaly, who owns the hotel, wrote a letter to Arthur on April 2, 2016 telling Arthur that her negative review included “false statements” that had caused “irreparable injury” to his business, according to Indiana’s attorney general.

If Arthur didn’t take down the negative review, Szakaly threatened to file a libel lawsuit against her, according to the attorney general’s office.

Andrew Szakaly isn't just an attorney and the now-former owner of the Abbey Inn. At the point this legal threat occurred, Szakaly was also the attorney for the town of Nashville. At this point, he's moved on to become the county's chief deputy prosecutor. He's also not willing to answer questions about the problems at Abbey Inn that occurred while he owned the business. He's also nuked his own site, which had his phone number and email address. But it lives on at the Internet Archive, even if calls and emails are going unanswered.

He will likely have to provide some answers. After sending out the bogus legal threat, Szakaly billed Walker $350 for the negative review, citing a clause in Abbey Inn's guest policy. Walker claims she never saw anything in the copy of the guest policy she received at the hotel. The clause also isn't posted anywhere in the business where guests can view it. It can be found in archived snapshots of the Inn's website -- which has also been nuked following negative press coverage.

Now, Indiana's state attorney general is taking the business to court. The complaint [PDF] (h/t Cyrus Farivar) lists dozens of things the Abbey Inn did wrong, on top of the $350 charge for "disparaging" an already-questionable hotel.

Abbey Inn Suites maintains an overnight phone number for times when an employee is not available on-site to address consumer issues, but signs in each guest room state a consumer must not call overnight phone number unless there is an emergency. The signs further state if a consumer calls the overnight phone number and there was not an emergency, Abbey Inn Suites will charge the consumer in the amount of $100.00.

[...]

During her stay, Ms. Arthur, experienced issues with a sewage smell in her room, issues with water pressure, problems with the air conditioner, and an unkempt room.

Ms. Arthur attempted to notify Abbey Inn Suites management of the issues, but there was no employee on site and her calls to the after-hours phone number went unanswered.

There was no employee at the front desk when Ms. Arthur checked out on March 13, 2016, to whom she could direct a complaint about the issues encountered during her stay.

This last part is especially important because it gives guests no other option but to "violate" the bogus clause in the guest policies that they never see [emphasis added]:

Guests agree that if guests find any problems with our accommodations and fail to provide us the opportunity to address those problems while the guest is with us, and/or refuses our exclusive remedy, but then disparages us in any public manner, we will then be entitled to charge their credit card an additional $350 damage. Should guest refuse to retract any such public statements legal action may be pursued.

The lack of staff makes it all but impossible for issues to be resolved before the guest leaves.

The attorney general accuses the business of violating state deceptive practices laws with its non-disparagement clause. The office seeks an injunction and fines of $5,000 per violation. As the complaint points out, the guest policy went far beyond discouraging negative reviews. It also prevented consumers from bringing grievances against the Inn.

The Policy also forces consumers to accept the Defendant's final and binding "exclusive remedy" to resolve any situation or issue, regardless of what that remedy entails and whether it actually resolves the situation or issue to the consumer's satisfaction.

[...]

The Policy not only attempted to limit negative online reviews, thus improperly shielding the Defendant from the consequences of providing consumers with a negative experience or unsatisfactory customer service during their stay, but would also prohibit a consumer from filing a consumer complaint with the Attorney General or Better Business Bureau, filing a lawsuit, or even a police report, as all could be considered a "disparagement"
in a "public manner."

The Abbey Inn's reputation is now destroyed, thanks to a clause inserted by the attorney/owner who also happens to hold a government job as a prosecutor. Hopefully, this all lands in the lap of Brown County Chief Deputy Prosecutor Andrew Szakaly.

Filed Under: andrew szakaly, free speech, nashville, non-disparagement, reviews, tennesee
Companies: abbey inn & suites