A federal judge in Atlanta has refused to dismiss a federal civil rights suit against the city of Atlanta and Atlanta police that a citizen filed after his arrest for wearing a mask during a peaceful protest against a police shooting in Ferguson, Mo.. U.S. District Judge Leigh Martin May also rejected city lawyers' claims that the officers who detained Gates have immunity from liability. The plaintiff is represented by Cynthia Counts of Duane Morris, and the case is one of three similar 1983 civil rights claims filed by Counts and attorneys Dan Grossman and Gerry Weber. 


Protection for free speech rights in Georgia just got a lot stronger.

A SLAPP (Strategic Lawsuit Against Public Participation) lawsuit is intended to censor, intimidate or silence critics by burdening them with the cost of a legal defense until they abandon their criticism. Anti-SLAPP legislation is intended to address this abuse of free speech rights.

Georgia’s current anti-SLAPP statute was enacted in 1996 but was fairly narrow in scope, applying only to lawsuits involving statements made to government bodies or in connection with issues under consideration in official proceedings. It also contained a cumbersome verification requirement, which precludes application of the statute in federal courts. See The Royalty Network v. Harris, 756 F.3d 1351 (11th Cir. 2014).

But a new anti-SLAPP measure, HB 513, was passed by the Legislature this year and was signed into law April 26 by Georgia Gov. Nathan Deal. The push for a strengthened anti-SLAPP law was led by the entertainment industry, which increasingly has used Georgia for film and television production. Passage of the measure helps make Georgia attractive to the industry. HB513 would improve Georgia’s existing anti-SLAPP statute in several ways:

 ·         First, it broadens the scope of the statute to encompass “Any written or oral statement or writing or petition made in a place open to the public or a public forum in connection with an issue of public interest or concern” and “Any … conduct in furtherance of the exercise of the constitutional right of petition or free speech in connection with a public issue or an issue of public concern.” This language was borrowed from the California anti-SLAPP statute §425.16(e)(3)-(4), ensures that typical claims involving entertainment content would be covered by the statute.

·         Second, it contains a mandatory award of attorneys’ fees to the prevailing moving party on an anti-SLAPP motion;

·         Third, it provides that the denial of anti-SLAPP motion is immediately appealable; and

·         Fourth, it eliminates the verification procedure, which should help ensure that the statute applies in federal court.

What this means for media clients, and for anyone exercising their free speech rights in Georgia, is that deep pockets plaintiffs will have a much tougher time sustaining a groundless defamation claim. It is often that case in libel claims that plaintiffs will use the courts to chill speech and/or push defendants to settle just to avoid lengthy and expensive litigation. With the new anti-SLAPP measure, all discovery, with the possible exception of public figure discovery on the question of actual malice, will be stayed once an anti-SLAPP motion is filed, until that issue is decided.

A group of Georgia media lawyers and legislative media advocates worked together to draft and advance the bill. The attorney group included: Cynthia Counts of Duane Morris, Peter Canfield of Jones Day, and Tom Clyde and Lesli Gaither of Kilpatrick Townsend & Stockton. Media advocates included Ben Sheffner of the Motion Picture Association of America, Tom Harrold of Miller & Martin for MPAA, Michael Wall of Comcast, and Arthur “Skin” Edge for Turner Communications.

The new law takes effect July 1. 




                David and Goliath was how some media reports have characterized the data security enforcement action brought by the Federal Trade Commission against Atlanta-based LabMD. Few have had the temerity to go head to head with FTC.

                But in this case, chalk up a KO for David.                

               Administrative Law Judge Michael Chappell on Nov. 13 dismissed the FTC’s data-breach case against LabMD, concluding that the FTC had failed to prove any part of its case. The judge ruled emphatically that LabMD did not, as the FTC alleged, expose consumers who used its services to potential online theft of their personal information.

                The ruling in the 4-year-old case was a victory for Lab MD CEO Michael Daugherty, one of only a handful of business owners ever to challenge the FTC on privacy/security complaints. Daugherty became so frustrated by his experiences with the FTC and with Tiversa Holding Company, the cyber-security company that was the source of data the FTC used to build its complaint, that he researched and wrote a book about it. “The Devil Inside the Beltway” details his company’s debilitating experience with Tiversa and Tiversa’s use of its federal government connections.
                Because of repercussions from the data breach allegations, Daugherty had to wind down his blood-testing business and lay off some 40 employees.
                Tiversa responded to Daugherty’s book by first trying to prevent its publication and then by filing a libel suit against him. Cynthia Counts and Ken Argentieri of Duane Morris represent Daugherty in that litigation, which is pending in state court in Pennsylvania. Cause of Action represented LabMD in the FTC matter.
                At the center of the controversy was a file – identified as the 1718 file – used for insurance billing that contained names, date of birth and social security numbers of patients who used LabMD’s blood-testing services.  Tiversa contacted LabMD in 2008, claiming it had obtained the file through a then-popular file sharing software called LimeWire, which was often used to download and share music. LabMD confirmed that a copy of the software had been installed on an employee’s computer, without the company’s knowledge. That breach was cured, and Limewire was removed.
                Tiversa’s CEO, Robert Boback, offered pricey security remediation services, claiming that the compromised file was spreading around the internet among hackers, but Daugherty declined, unconvinced that such exposure had occurred. Information about the alleged data leak was subsequently passed – indirectly – by Tiversa to the FTC, which came after LabMD and ultimately filed its complaint in 2013.
                A former forensic analyst for Tiversa, Richard Wallace, emerged as a key witness in the FTC proceedings and figured prominently in the law judge’s opinion. Wallace, who worked for Tiversa for seven years, testified that he routinely fabricated information at the direction of Tiversa’s CEO to suggest that sensitive data belonging to businesses had been compromised and was being widely circulated around the internet when, in fact, it was not.
                If that tactic didn’t work, he testified, Boback would also call some of these potential customers and say “the FTC is going to be taking action against you if you don’t become clients.”
                In his ruling, Judge Chappell summarized the business model presented by the analyst:
                “Mr. Wallace testified that Tiversa’s business model was to ‘monetize’ documents that it downloaded from peer-to-peer networks, by using those documents to sell data security remediation services to the affected business, including by representing to the affected business that the business’ information had ‘spread’ across the Internet via peer-to-peer sharing networks, when such was not necessarily the case, and by manipulating Tiversa’s internal database of peer- to-peer network downloads (the ‘Data Store’) to make it appear that a business’ information had been found at IP addresses belonging to known identity thieves.”
                The testimony tended to support the opinions Daugherty expressed throughout his book.
                According to Wallace, who testified under a Department of Justice grant of immunity, the private data never actually was circulated outside Tiversa. Instead, it was spoofed in a way that made it appear that individuals already known to law enforcement as “bad actor” hackers had secured copies. 
                Wallace testified this was a scare tactic that added "spread" to the supposed damage – and created a "wow factor." 
                "So, to boil this down, you would make the data breach appear to be much worse than it actually had been?" Judge Chappell asked. 
                "That's correct," Wallace responded. 
                Following Wallace’s testimony, TIversa CEO Boback told CNN that the revelations were "baseless" and came from an ex-employee still angry for being fired. "This is an overblown case of a terminated employee seeking revenge," Boback said. 
                In his order, Judge Chappell clearly did not share that view: “Based on Mr. Wallace’s forthrightness in response to questioning, and his overall demeanor observed during his questioning, Mr. Wallace is a credible witness.”
                Meanwhile, he was less convinced about the truthfulness of the Tiversa CEO: Based on “observation of Mr. Boback’s overall demeanor during the June 7, 2014 video deposition," including his “evasive[ness] and lack[] [of] forthrightness in response to questioning…Mr. Boback is not a credible witness concerning LabMD, the 1718 File, or other matters material to the liability of Respondent.”

ATLANTA, October 8, 2015—Duane Morris LLP is pleased to announce that Cynthia Counts, the founder of Counts Law Firm, a media law firm, has joined Duane Morris as a partner in its Atlanta office. Counts focuses her practice on media and First Amendment law, including issues dealing with libel, copyright and privacy.

An experienced litigator with more than 20 years of trial and appellate experience, Counts defends newspapers, websites, television stations, businesses and individuals in libel matters, as well as breach of contract, invasion of privacy, fraud and promissory estoppel cases. She also represents media and publishing companies in prepublication review matters and in emergency court hearings to contest unconstitutional prior restraints, motions for injunctions, to quash subpoenas on the basis of reporter’s privilege and to gain access to court proceedings or public documents. Counts is best known for her aggressive motion practice, and for her success in winning libel cases outright in the early stages of litigation, before expensive discovery becomes necessary. In that regard, Counts has been at the forefront of the quest for a broad application of Georgia’s anti-SLAPP statute which was enacted in 1996 to provide an early mechanism for the dismissal of harassing libel litigation.

“Cynthia’s litigation experience and through knowledge of media and First Amendment issues adds an important dimension to the services we offer clients,” said Matthew Taylor, Chairman of the Firm’s Trial Practice Group. “We look forward to putting her abilities to work for our clients, and those she is bringing with her.”

Counts’ recent outcomes have included:

  • Dismissal of a defamation claim against CBS affiliate by physician investigated in cosmetic surgery deaths (2015);
  • Summary judgment for a reality TV performer in a libel claim over comments she made on her network show (2015);
  • Early summary judgment for hosts of a popular Spanish radio program sued for libel over satirical comments on their show (2015);
  • Voluntary dismissal of a libel claim against a whistleblower in a Department of State matter involving alleged contract fraud (2014); and
  • An 11th Circuit order for sanctions of $545,000 against plaintiffs who filed a frivolous libel claim against a Rolls Royce club member (2008).

Counts has also litigated successfully for individual clients with free speech concerns, including a man wanting to speak out about assisted suicide in a state that tried to prohibit such speech; individuals facing anti-gay discrimination in requests for vanity license plates, and others wrongfully arrested for verbally criticizing law enforcement, and for uttering profanities at a public meeting.

She is a sought-after commentator and writer on libel, privacy, Internet, the First Amendment and open government law. In 2014, she became a member of the governing board of the American Bar Association Forum on Communications Law. She is a director of the Georgia First Amendment Foundation and chairs the Media Law Resource Center’s Newsgathering Committee. 

Counts is also is an adjunct professor at Emory University, teaching media law at Emory University Law School and press issues in the undergraduate journalism program. She was selected a Georgia Super Lawyer in 2014 and 2015. 

Counts is a 1992 graduate of the University of Georgia School of Law and a 1989 cum laude graduate of the University of North Carolina at Chapel Hill.

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