Counts Law Group

A former McIntosh County school board member is suing the chair of the county board of education, the city of Darien and several police officers for violating his constitutional and civil rights, and for violating the Georgia Open Meetings Act.

The former school board member, Dwight E. Jordan, is represented in the federal suit by Counts Law Group and the Savannah law firm of  Scheer, Montgomery & Call.

Mr. Jordan had been a school board member for 16 years at the time that the incidents which precipitated the lawsuit occurred. He was the only African-American member of the five-person board. Specifically, his complaint alleges that following a heated exchange at a school board meeting on April 18, 2013, the chair of the board, Bonita Caldwell, improperly called for a recess while Mr. Jordan was still talking. 

During the recess, Mr. Jordan walked outside. The suit alleges that Mrs. Caldwell, “without any probable cause of criminal activity” called the Darien chief of police, who directed several officers to the scene.

When Mr. Jordan proceeded to re-enter the building as the meeting was about to resume, a Darien police officer, Anthony Brown, told him he had to leave the premises, or he would be arrested for criminal trespass and "things would get ugly ."

According to the complaint, “when Mr. Jordan inquired as to how a public official could be charged with criminal trespass at a public meeting that he was supposed to attend and that he took part in calling to order, Officer Brown changed his charge to disorderly conduct, but reiterated his intent to arrest Jordan if he did not leave the property.

Officer Brown noted in his report that while Mr. Jordan was gathering his belongings, the Board Attorney, Mr. Alvin Leaphart, stated in Officer Brown's presence that he "did not believe that [Officer Brown] had the right to remove [Mr. Jordan] from the meeting." 

The complaint alleges Mr. Jordan was not permitted to participate as an elected school board member for the remainder of the meeting. Mr. Jordan complained at an April 25 school board meeting about this mistreatment. Subsequently, according to the complaint, “to make sure Mr. Jordan would not have any opportunity to criticize them or otherwise use the Board of Education meetings as a platform for his political views, Defendant Bonnie Caldwell and City of Darien by and through its agents "…conspired to have Mr. Jordan arrested.”

And in late May, Mr. Jordan was in fact arrested for disorderly conduct at the April 18 meeting he was forced to leave. Nearly a year later, after the charge was well-publicized via a police department press release, and after Mr. Jordan had lost his bid for re-election, the case was quietly dismissed.

In his complaint, Mr. Jordan accuses the defendants of violating the Georgia Open Meetings Act by forcibly removing him from a public meeting. He also alleges violations of the First Amendment pursuant to 42 U.S.C. §1983, in essence, a violation of his right to free speech, his Fourth Amendment right to be free of unlawful search and seizure (by forcibly removing him from the meeting) and a violation of his civil rights to equal protection under the law.  

Judge notes Plaintiff used the litigation as part of his own reality TV pitch

A Fulton County Superior Court judge has granted summary judgment on behalf of a well known recording artist and reality TV star, Kimberly Michelle Pate (K Michelle), Monami Entertainment, LLC; NFGTV, Inc.and Viacom International, Inc.

The defamation claim filed by former Jive Records executive Mickey Wright Jr., professionally known as MeMpHiTz, focused on statements Ms. Pate made while she was starring on the reality program Love & Hip Hop: Atlanta, now in its third season on VH1.  Wright previously had managed Ms. Pate’s music career and was romantically involved with her while she was under contract to Jive Records.

The plaintiff alleged that statements made by Ms. Pate on the first season of the reality show – statements regarding his financial and business management of her career, alleged domestic abuse by Wright and an alleged threat against her child – were defamatory. 

In granting the defendants’ motions for summary judgment, Fulton Superior Court Judge Robert C. I. McBurney found that while the statements at issue were about Mr. Wright, the former music executive could not meet any of the primary elements required for a defamation tort.  

 The judge devoted a considerable portion of his 20-page order to detailing the degree to which Wright had publicly injected himself into the media coverage surrounding the show:

“Although never expressly named on [the show], soon after the premiere episode aired, Plaintiff posted statements on multiple social media outlets in which he identified himself as the subject of Pate' s comments, accused Pate of lying, and claimed that he had bought her ‘Teeth, Titties & Ass.’

”[In a media interview] Plaintiff also gave his version of the events  Pate had described on [the show] -- a version which included the admission that he had fought with Pate and had covered her mouth while she screamed.”

The judge also found that the evidence showed that “after filing this lawsuit, Plaintiff published a pitch video to promote his own ‘reality’ television show starring himself and his wife, Antonia ‘Toya’ Wright. The video, widely viewed online, featured this very litigation as a proposed storyline.”    

Regarding the alleged threats to the defendant’s child, Judge McBurney concluded that the allegedly offensive comment was bleeped out in the version of the show that aired. Thus, the plaintiff could not meet the threshold burden of showing it had been published.

The Court also agreed with the defense’s contention that Ms. Pate’s comments about Wright’s management of her career were constitutionally protected opinions, noting that “since Milkovich v. Lorain Journal Co., 497 U.S. 1, 6 (1990),courts have found  that statements made as part  of an emotional, heated, or  adversarial  debate  often  negate  the  impression  that  the  speaker/publisher was asserting  an objective  fact.”

The judge underscored this point, citing Mathis v. Cannon, 276 Ga. 24 (2002), and noting that “reasonable  LHHA  audience  members  would  have  understood Defendant  Pate  to  have  been  using  figurative  and  exaggerative  language  to  express  her  strong, emotional, and negative views of Plaintiff and his impact on her career -as opposed to making a literal  assertion  of fact."  

He also concluded that the plaintiff’s claim fails because, when a reasonable listener examines the undisputed facts, “what Pate said is not sufficiently demonstrably false.”

The judge was more emphatic in addressing Wright’s claim about the domestic abuse, noting that Wright’s “pleaded truth” was that “during his physical altercation with Defendant Pate in that Memphis hotel room, he ended up on top of Pate, covering her mouth with his hand, a towel, or both until she stopped screaming.”

While Ms. Pate had characterized the incident on her show as “he beat my ass,” the judge concluded that with Wright’s acknowledgment that he smothered Pate in an effort to silence her, “the actual, complete truth is more damning than Pate's made-for­ reality-TV phraseology.”

Judge McBurney found that “even if Plaintiff could establish that Defendant Pate's statements pertaining to his physical abuse of her were false, his claim would still founder on the fact that he is a public figure … [a finding which] fatally increases Plaintiff s burden of proof.”

Noting that Wright described himself as a “big name in the industry” who had a public relations firm on call to deal with media issues, the judge concluded that Wright “effectively conceded his status as a public figure in his opening gambit by suing Defendants over statements made on a show on which neither his name nor his image ever appeared.”

The Court found that Wright was “indubitably a public figure for the limited purpose of this case.” As such, Wright would have to establish he could prove the allegedly injurious statements were made with actual malice.

Here, the Court concluded that “although Plaintiff challenges Defendant Pate's phraseology, her statements that Plaintiff "beat [her] ass" were a reasonable -- if inartful -- expression of the domestic violence she experienced at Plaintiff s hands. The words are nothing more (or less) than Pate's subjective description of what transpired in that Memphis hotel room in July 2009. See BoseCorp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512-13 (1984).”  

Finally, the Court concluded that Viacom and the production defendants, who investigated and believed K. Michelle's statements, were not at fault and exercised due diligence regarding Wright’s claims.

 Case Concerns Hispanic Morning Show Critical of Agency Serving Mexican Consulate  

A Gwinnett County State Court judge has granted a summary judgment motion filed on behalf of Davis Broadcasting of Atlanta and two of its radio show hosts in a defamation and false light claim brought by the executive director of an agency that has provided essential services to the Mexican consulate in Atlanta and to Mexican nationals in three southern states.

Counts Law Group represented both the radio station and the hosts in the case.

Gabriela Gonzalez-Lamberson contended in her suit that the speculation, political satire and sketches that were part of the Defendants' Spanish language radio program implied that she was guilty of either prostitution or adultery .

The plaintiff was the spokesperson and top executive of the Instituto de Mexico in Atlanta, which maintained an office inside the Mexican consulate and served as a liaison between the 900,000 Mexican nationals living in Alabama, Tennessee and Georgia and the government of Mexico. Among its services, the institute provides photographs and official identification documents, for a fee, to approximately 150 people a day.

During Plaintiff’s time as Executive Director of the Institute, there were allegations raised of corruption at the Institute, complaints about the plaintiff’s qualifications to hold the position and complaints about overcharging at the institute and mistreatment of Mexican nationals. These issues prompted attention from the news media, including a Mexican newspaper, as well as much discussion online and on social media sites.

Davis Broadcasting is the owner and operator of the metro Atlanta radio station La Raza, 102.3 FM. Defendant operates the Spanish call-in radio program "Los Hijos de la Manana," a news, comedy and entertainment show that caters to the Mexican immigrant population in metro Atlanta. The show is broadcast live each weekday. Parody and joke-telling is a daily feature of the show. Defendant Jorge Lopez is an on air personality known as "El Vampiro," and Defendant Ulises Ugalde is an on air personality known as "Bocho." At the time of the broadcast in question, El Vampiro and Bocho were co­hosts.

In granting summary judgment, Judge Joseph C. Iannazzone concluded that the issues regarding the consulate and the institute were matters of public concern. The Court concluded that any statements regarding why the Plaintiff was hired were clearly statements of conjecture and speculation.  The Court also found that the jokes about the Plaintiff providing sexual favors were constitutionally protected political satire.

The court also agreed the Plaintiff was a limited purpose public figure after applying the three-part limited purpose public figure test, Mathis v. Cannon, 276 Ga. 16 (2002).  (1) The Court found a controversy in the local Mexican community, including charges of corruption and mistreatment of customers.  (2) The Court agreed that Plaintiff, as the executive director of the Institute of Mexico, had directly injected herself by conducting an internal investigation and she sought to influence the controversy by providing information to the public relations and marketing teams.  (3) Finally, the court found that jokes about a hypothetical sexual favor were germane to the controversy because they might impact the amount of trust the public placed in Plaintiff's statements.

The judge concluded that the radio broadcast was political satire and protected by the First Amendment. He also found that, as a public figure, the Plaintiff could not meet the standard of falsity and actual malice required to prevail on her claims.

The line between fact and opinion when it comes to legal liability was given significantly more definition in a new U.S. Supreme Court decision.

While the case specifically concerned allegations of securities fraud, the opinion’s expansive discussion and declarations concerning fact and opinion have value for other practice areas, including libel and defamation cases.

The case, Omnicare, Inc. v. Laborers District Council, involves a dispute between a pharmacy services company, Omnicare, and a pension fund regarding statements made in connection with a stock offering.

Omnicare issued a statement saying: “We believe our contractual arrangements” with pharmaceuticals suppliers and healthcare providers “complied with state and federal laws.”

Subsequently, the federal government alleged in a lawsuit that Omnicare received kickbacks from pharmaceuticals manufacturers.

Investors, led by pension funds, sued Omnicare under a securities law provision that authorized litigation if a statement contained “an untrue statement of material fact” or “omit[s] to state a material fact.”

In a unanimous decision authored by Justice Elena Kagan, the Court held that a “sincere statement of pure opinion is not an 'untrue statement of material fact,' regardless whether an investor can ultimately prove the belief wrong.”

The funds had maintained, and the Sixth Circuit agreed, that a “statement that ‘we believe we are following the law’ conveys that ‘we in fact are following the law’—which is ‘materially false,’ no matter what the issuer thinks, if instead it is violating an anti-kickback statute.” 

The Supreme Court, however, ruled that the Sixth Circuit’s decision “wrongly conflates facts and opinions” and that an opinion statement does not become “’an untrue statement…of fact’ merely because the stated opinion ultimately proves incorrect.”

“Most important,” the Court said, “a statement of fact (“the coffee is hot”) expresses certainty about a thing, whereas a statement of opinion (“I think the coffee is hot”) does not.”

In remanding the case for further proceedings, the Court also considered the question of “when, if ever, the omission of a fact can make a statement of opinion like Omnicare’s, even if literally accurate, misleading….”

In this arena, the Court noted, “whether an omission makes an expression of opinion misleading,” and potentially actionable, “always depends on context.” And context, according to the Court, is a function of both the nature of the publication containing the opinion statement, and the expectations that the likely audience for such documents has when reviewing them.

When it comes to registration statements, the Court said, “Investors do not, and are right not to, expect opinions contained in those statements to reflect baseless, off-the-cuff judgments, of the kind an individual might communicate in daily life.

“At the same time, an investor reads each statement within such a document, whether of fact or opinion, in light of all its surrounding text, including hedges, disclaimers, and apparently conflicting information.”

The Court noted that an opinion statement, “is not misleading simply because the issuer knows, but fails to disclose, some fact cutting the other way. A reasonable investor does not expect that every fact known to an issuer supports its opinion statement.”

But, the Court said, if omissions were such that the speaker’s opinion could not be squared with a fair reading of the registration as a whole, then it is possible the opinion statement could be considered misleading in context, creating potential liability.  

In the case at hand, the Court focused on the mindset of the “reasonable investor[s],” and what expectations they customarily bring to statements made in connection to a stock offering. But the discussion around context could have wider application.