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Dorsey & Whitney isn't liable for blog post about lawyer, 2nd Circuit rules

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A Dorsey & Whitney blog post about a lawyer's failed class action lawsuit wasn't defamatory, the New York-based 2nd U.S. Circuit Court of Appeals ruled on Thursday.

The 2nd Circuit ruled against lawyer Shimshon Wexler and ordered him to show cause why he shouldn’t be sanctioned for filing a frivolous appeal.

Wexler had claimed he was defamed by Dorsey & Whitney’s description of a class action lawsuit he filed against AT&T for alleged violation of a federal telemarketing law. Wexler’s wife was the lead plaintiff in the class action. Wexler sued the law firm and an associate who wrote the blog post.

Dorsey & Whitney defends companies accused of violating the telemarketing law, the federal Telephone Consumer Protection Act. The blog post was published in 2018 on its consumer financial services blog.

The blog post reported on a federal judge’s decision to toss the class allegations in Wexler’s TCPA suit on the ground that Wexler’s wife wasn’t an adequate class representative. The blog post said the judge “astutely observed” that Wexler’s wife should act to maximize class recovery, but her interest in an attorney fee award supplied the opposite incentive.

Wexler had withdrawn as class counsel in the TCPA suit, but still sought attorney fees for work he had already done. U.S. District Judge Frederic Block said the withdrawal wasn’t enough because Wexler was still seeking fees.

The blog post headline read, “TCPA Class Certification Denial Exposes Major Spousal Scheme.”

The blog post began: “There are plenty of things I’d like to do with my wife one day. Take a trip to Greece. Finally convince her to go camping with me (never going to happen). But filing a class action with her as a class representative is definitely not one of them.”

“That’s exactly what one husband-and-wife duo tried to pull in the Eastern District of New York. Senior Judge Frederic Block made quick work of the scheme.”

The 2nd Circuit affirmed a federal magistrate judge’s decision to toss Wexler’s defamation suit. The magistrate judge had ruled Dorsey & Whitney’s headline was nonactionable opinion and Wexler had abandoned any claims that the text was defamatory.

The 2nd Circuit agreed that the headline was opinion that could not serve as the basis for a defamation suit.

“The tenor of the article reflects that it is meant to be not only informative but also amusing and entertaining, making hyperbole in the headline expected and reasonable,” the 2nd Circuit said in a summary order.

“The article’s placement on a law firm’s blog also suggests that it is informed, at least in part, by the firm’s and its author’s opinions. The context of the statement therefore cuts against a determination that it is an assertion of fact meant to be taken literally. The language ‘exposes major spousal scheme’ also does not have a readily understood precise meaning of the nefarious sort that is advanced by Wexler—it could just as easily mean exactly what happened here, that the TCPA decision brought to light an ethically questionable arrangement by a married couple (here, to represent both the attorney’s and the class’s fiscal interests in a class action).

“The use of ‘major’ does not change this analysis, as that is a relative term, the applicability of which is a matter of opinion. An average reader would not understand the headline to be ‘an attempt to convey with technical precision literal facts about’ Wexler. … And because the statement does not have a readily understood precise meaning, it is not capable of being proved true or false.”

Wexler didn’t immediately respond to the ABA Journal’s voice mail and email requesting comment.

Hat tip to Law360, which has coverage of the opinion.

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