by Paul Alan Levy
I have blogged a few times about the libel suit brought by Washington, DC contractor Christopher Dietz against one of his customers, Jane Perez, who posted on Angie’s List and Yelp unfavorable reviews of his work on her newly purchased condo and included an assertion that, after their contractual relationship broke down, she noticed that some of her jewelry had disappeared and only Dietz had a key.
Dietz unsuccessfully sued her for non-payment for his construction services, but had initial success suing for libel: he obtained a preliminary injunction against two small parts of her original statements. We contested that injunction as a prior restraint; the Virginia Supreme Court reversed with amazing alacrity. We at Public Citizen generally do not take libel cases at the trial court level, but with our help, Perez obtained pro bono representation from a seasoned Virginia lawyer, Raymond Battocchi; with his help, Perez counterclaimed against Dietz for defamation based on what he had said about her, and the whole shebang went to trial before a jury in Fairfax Virginia last February. As I discussed in my last blog post about the case, the jury returned a verdict that each side had defamed the other (without saying precisely how), but awarding no damages. I suggested then that the verdict could be seen as suggesting that neither side really belonged in court.
Perez appears to have followed just that reading of the verdict — she accepted the harsh judgment of her peers, removed her online criticisms from both Yelp and Angie’s List, and was ready to move on with her life. Not so contractor Dietz, who made a number of media appearances in connection with this litigation and has apparently come to love the life of a litigant whose case attracts significant media attention. He filed motions for injunctive relief against the posts that had already been removed, and for additur, a judicial award overriding the jury and fixing a specific amount of damages to be assessed against Perez, or in the alternative for a new trial on the issue of damages alone.
I looked at both motions carefully, and they both struck me as problematic for a variety of reasons. By way of disclaimer: although I have not represented Perez since the Virginia Supreme Court ruled, I have kibitzed with Ray Battocchi about his legal arguments, and I have offered to enter the case again if there is any appeal (see below).
Dietz’ Claim for Injunctive Relief
First, as Perez explained in opposing the motion for an injunction, the Virginia Supreme Court reversed the preliminary injunction not on First Amendment grounds but because a libel plaintiff has an adequate remedy at law — damages — and the jury’s finding that damages were not appropriate in this particular case does not mean that damages are not still the only proper remedy. Moreover, although voluntary cessation of challenged conduct does not make an injunction moot in the constitutional sense, injunctive relief is inappropriate if it is unlikely that the wrong will be repeated.
But there was an even more significant problem with the motion for injunctive relief – even if Virginia were to change its law to allow injunctions against the repetition of specific statements found by a jury to be false and defamatory, Dietz submitted forty separate statements to the jury (the list is here), and the jury was allowed to find in his favor if even one of the statements was false and defamatory, and it was not required to specify which statements were deemed the basis for liability. Indeed, under the instructions, the jury might have agreed that there was at least one false and defamatory statement without necessarily agreeing on the false and defamatory nature of any specific statement. But an injunction has to specify just what statements are being enjoined, and there is no way to be certain which statements the jury was finding false and defamatory, and which statements it deemed either accurate, or not made negligently, or, indeed, not a statement of fact. Hence the jury verdict could not be a basis for enjoining anything. If Dietz had wanted the trier of fact to make determinations on which he could then predicate a request for an injunction, he needed to ensure that the jury received special interrogatories demanding a verdict on each statement.
Dietz’ Claim for Damages
Dietz second motion demanded either a conditional award of a specific amount of damages, or a new trial on damages alone. It is easy to understand why he might not have wanted to risk a new trial on liability, reopening the question of whether anything said by Perez really was defamatory. But as with the injunction issue, without a specific ruling on whether any given statement was defamatory, it would be impossible to instruct a new jury on which statements could be assumed false in deciding whether that particular statement had caused Dietz damage. And as Perez explained in opposing the additur motion, the evidence Dietz introduced on damage was unbelievably vague – at best, his witnesses suggested that “online reviews” had affected their likelihood of doing business with him, not even specifying that it was Perez’ statements, not to speak of identifying which of Perez’s statements. Several Yelp users condemned Dietz for suing one of his customers, vowing that they would never do business with such a contractor, and the jury was shown a television story in which Dietz was asked whether he had hurt his own business by filing this lawsuit and making the rounds of media interviews to promote his lawsuit. Indeed, at one point Dietz' lawyer declaimed about various online statements by "outside groups," perhaps referring to my own blog posts evaluating the litigation; perhaps the online reviews seen by the witnesses who talked about Dietz' lost business were statements by the "outside groups" criticizing Dietz' litigation. The jury might well have concluded, with some justification, that it was one of these statements that hurt his business, and hence that any damages were the fruit of his own bad judgment in filing suit.
Still another problem with Dietz’ damages claim is also a result of the indeterminacy of the liability verdict. He contended that the jury must have been far off-base in awarding him no damages because Perez’ statements about him were defamatory per se, so that damages are presumed, and many of them were very serious indeed and hence quite likely to cause reputational harm if believed. Dietz testified to the jury about the impact of being accused of being a thief, for example, in terms of how he would be judged by the parents of his daughter’s soccer team; the bare transcript is compelling. But a simple glance down the list of allegedly defamatory statements sent to the jury reveals that although some statements suggested are defamatory per se, in that they say or imply Dietz might be guilty of criminal activity – for example, the statement “This was after filing my first ever police report when I found my jewelry missing and Dietz was the only one with a key”, and “Dietz committed a Class One Misdemeanor of Unlicensed Work in the State of Virginia, punishable by up to a year in jail and $500 per day”— others were plainly statements of opinion, such as “I can say on a professional basis that he is in the wrong line of business” and some were pretty darn innocuous, such as “I won in summary judgment (meaning his case had no merit).” If the jury found only that this latter statement was defamatory, it is understandable that they might have concluded that it caused him no damages. So how could the trial judge grant an additur (imposing a specific amount of damages on Perez unless she consented to a new trial) or set aside the jury’s damages verdict if this was the only statement found false and defamatory?
Dietz and the Jewelry
Jane Perez’ statement about her missing jewelry was the most explosive part of her review of Dietz’ work. But thinking carefully about the case, the very nature of the accusation, and the likelihood that, if believed, it is most likely to have caused Dietz reputational, emotional, and economic injury, I conclude that the jury must have decided that Perez’ statements on this topic were true. I did not attend the week-long trial, but from the portions of the transcript that I have been able to review, it appears that the discrete facts Perez included in her review — that she filed a police report, that it was the first time she ever filed a such a report, that some jewelry disappeared, and that Dietz was the only one with a key to her condominium – were all essentially undisputed at trial.
Although the implication from these undisputed facts may well have been that Dietz was involved in the theft, the jury might have treated that implication as a non-actionable opinion; or the jury might have thought that it was a fair implication based on the undisputed underlying facts. And the jury’s determination that whatever false statements Perez made did not cause Dietz any compensable damage tends to confirm that the jury must have decided that this implication was true. After all, assume that Perez deliberately but falsely accused Dietz of stealing her jewelry, that the reviews were widely seen by his potential customers as well as by others in his world, such as the parents of the little girls whose soccer team he coaches, and assume further that the accusation was believed – in those circumstances, how could the jury deny him any damages? If the jury thought that, it would seem quite likely that Dietz’ claims of humiliation, loss of reputation, and loss of business would have been worth something in the way of compensatory damages. So it seems fair to infer backward from the jury’s award of NO damages that they must have concluded that Perez’ statements about Dietz an
d the jewelry were true.
Indeed, among the statements by Dietz about Perez that were on the list of statements that produced the jury’s verdict that Dietz defamed her, were “If theft was made, it was her stealing services and money from me” and “The police investigated her claim of theft but found no grounds for her claim nor did they believe his statements.” We don’t know whether or not the jury decided that these specific statements were false and defamatory, but if these statements provided the basis for the verdict against Dietz, that too would be consistent with the conclusion that the jury rejected Dietz’ claim that the Perez statements about her missing jewelry were false.
Without talking to the jurors, it is impossible to know what conclusions they drew about the case and why they delivered the verdict that was rendered. But in this respect, Dietz’s situation is reminiscent of General Westmoreland, whose libel suit against CBS News came so perilously close to producing a jury determination that what CBS had reported about him was true that he was obliged to settle; history’s judgment has been that CBS’ report about him was vindicated. Similarly, careful analysis of the denouement of Dietz v. Perez suggests that the jury decided the most explosive of the accusations against him, and hence provides additional reason to question Dietz’ judgment in filing suit against a former customer. We can only hope that the lawyers who originally undertook this litigation on his behalf gave him sound advice about the risks as well as the potential benefits of becoming a libel plaintiff.
The Judge’s Views
The judge denied the motion for injunctive relief on mootness grounds, and he rejected the motion for additur on the ground that the standard for granting such a motion is that the jury’s damages ruling must have shocked the judge’s conscience. The transcript of the hearing, including the judge's decision, is here. However, as often happens, the judge gave his judgment for one side but issued an opinion for the other: this judge proceeded to excoriate Perez for her posting, making clear that, if the case had been tried to the bench, he would have awarded substantial damages. He told Perez that he thought she had taken the right step by removing her derogatory posts, but that it was the right step because, he said, as far as he was concerned, she had taken a small complaint and made it into a big one; because her various statements accusing Dietz of committing crimes – such as by working in Virginia without a contracting license, and indeed by taking her jewelry — were lies; and because those who tell lies should pay damages. In this regard, the judge had made it clear that nobody should be accused of a crime unless he has been prosecuted and convicted of the crime. He went on to say that Perez’ escape from a monetary award should not encourage others to make false statements about business people because someday, a business person is going to get a big jury verdict in such a case.
Certainly consumers should not make up facts in their reviews on sites like Yelp or Angie’s List; libel law provides a needed disincentive for deliberately false statements that cause genuine injury, and businesses can and do obtain substantial damages awards for defamatory online statements. Moreover, it is much less likely that Perez would have been sued had she reviewed only the quality of Dietz’s work and left out her concern about her jewelry. And the judge is to be commended for saying how he would have decided the case, while making dispassionate rulings on the legal issues before him.
Still, it seems to me the judge got some things wrong in his post-ruling "dicta." Libel law does not forbid assertions that people who have neither been prosecuted nor convicted are nevertheless guilty of committing crimes. Certainly current DC Mayor Vincent Gray and recently departed Virginia Governor Bob McDonnell might wish that the law protected them against public expressions of opinion about their guilt, but it does not. To be sure, it is a good idea to be cautious about alleging criminality, and to avoid accusing others of crime without having any good reason, but the record provides ample basis for suggesting, for example, that Perez’ jewelry disappeared at a time when Dietz was the only one with a key, or that Dietz should have had a Virginia license when he took the Perez job, but did not, and that this was a potential criminal violation. Perez appears to have had good reason to say these things even though the police had good reasons not to charge him and the state agency had good reason to exercise prosecutorial discretion not to pursue Dietz after he acquired the license in question. Moreover, the Perez observations about the disappearance of her jewelry and the lack of the required Virginia license are certainly, if true, relevant data to potential Dietz customers; the public should not be deprived of her information unless and until he is charged by public authorities. Indeed, as I have suggested above, it may well be that the jury credited Perez on the issue of the jewelry.
Moreover, in his haste to criticize Perez for false statements about Dietz, the judge said nothing to Dietz about his statement(s) about Perez that the jury found to have been false and defamatory. The judge wanted to send a worthwhile message, but unless he thought the jury’s verdict on Perez’ defamation claims was off-base, evenhanded criticisms might have been more welcome.
Was This the Final Act in Dietz v. Perez?
Dietz has apparently not decided whether to appeal the denial of damages and injunctive relief. Stay tuned for more news.
Dietz ultimately decided not to appeal.