In November 2010, Mara Feld arranged for her thoroughbred gelding to be shipped to a horse farm. The horse was instead sent to a horse auction and may have been slaughtered in Canada. The horse's fate became a topic of great debate on Internet sites dealing with thoroughbred race horses and at some point Crystal Conway became involved in the ongoing online discussions. On December 11, 2010, Conway posted on her Twitter account: "Mara Feld aka Gina Holt - you are fucking crazy!"

On December 10, 2013, Feld filed a complaint alleging one count of libel. Afterwards, Conway filed a motion to dismiss, arguing that the complaint did not state a claim upon which relief can be granted because her statement was an opinion. Conway further argued that the use of vulgarity signaled its lack of clinical or factual significance. Feld responded that the statement in question was not obviously a statement of opinion, because it could be interpreted differently. Furthermore, Feld argued that the use of profanity did not transform the statement into mere opinion.

The court held that the tweet had to be read in the context of the ongoing online discussion, rather than in isolation. In that context, the court found that the tweet could not reasonably be understood to state actual facts about Feld's mental state. Therefore, the complaint could not support a claim of defamation and Conway's motion to dismiss was granted.

On July 2, 2012, Hadeed Carpet Cleaning, Inc., a Virginia rug cleaning company, filed a complaint for defamation and conspiracy to defame against seven anonymous Yelp reviewers in the Circuit Court for the City of Alexandria.

Hadeed claimed these users' reviews were false and defamatory because it "had no record that the negative reviewers were ever Hadeed Carpet customers." Additionally, Hadeed noted that many of the negative reviews contained similar "themes" (for example, that Hadeed had doubled the price) and that one of the reviewers was from an area where Hadeed does not do business. Based on this evidence, Hadeed alleged that the authors of the negative reviews "acted together for the purpose of willfully and maliciously injuring Hadeed Carpet's reputation." Hadeed requested $1.1 million in punitive and compensatory damages, attorney's fees and costs, and a permanent injunction.

On July 3, 2012, Hadeed issued a subpoena duces tecum to Yelp seeking information identifying the anonymous commenters.

Yelp responded with a written objection to the subpoena on July 19, 2012. It contended: (1) that Hadeed had not complied with Virginia's procedure for subpoenas to identify anonymous Internet users, Code § 8.01-407.1, because it did not list the allegedly defamatory comments with adequate specificity; (2) that the First Amendment prevented disclosure of the defendants' identities because Hadeed had failed to present a prima facie case that their speech was defamatory; and (3) that the subpoena could not be enforced against a foreign non-party company.

On July 30, 2012, Hadeed filed a renewed subpoena that complied with the procedural requirements of Code § 8.01-407.1 by attaching documents allegedly establishing the basis for Hadeed's belief that the challenged posts were actionable. In its accompanying Notice of Filing Supporting Material, Hadeed asserted that "determining whether or not Defendants were customers of Hadeed is centrally necessary for Hadeed to advance any defamation claim."

Yelp filed written objections to the renewed subpoena on September 5, 2012. Yelp again asserted that Hadeed had failed to meet the appropriate legal test for obtaining identifying information about anonymous speakers because it had not "produce[d] evidence sufficient to make out a prima facie case" of defamation. Yelp noted that numerous appellate courts, most notably in Dendrite v. Doe and Doe v. Cahill, had held that that this was the proper test under the First Amendment, and argued that to the extent that Virginia had set a more permissive standard than Dendrite, Virginia should "join the national consensus standard on this issue." Yelp also asserted that it was not subject to personal jurisdiction in Virginia because it had no property there, and because Hadeed had consented to exclusive jurisdiction in California by agreeing to Yelp's terms of service when it chose to advertise on Yelp. Finally, Yelp argued that the subpoena was overbroad because Hadeed sought all documents Yelp possessed for the users that "relate[d] in any way" to Hadeed, which could encompass private communications subject to other legal protections or not reasonably accessible to Yelp.

On September 26, 2012, Hadeed moved to overrule the objections and enforce the subpoena. Hadeed argued that the proper legal standard for obtaining information about Yelp's anonymous users came from Virginia Code § 8.01-407.1 and was satisfied by its good faith claim that "it reviewed its own detailed customer files and c[ould] find no evidence that these specific seven persons were ever Hadeed customers." Hadeed also claimed that its attempts to obtain those identities through publicly available information or through discussions with Yelp had been unsuccessful. Hadeed also maintained that it had properly subpoenaed Yelp's records by serving the subpoena on Yelp's registered agent for service of process in Virginia, and argued that "Yelp conducts business over the internet in Virginia, and is present in Virginia through its registered agent." Further, Hadeed argued, it had not waived jurisdiction in Virgina, claiming that Yelp's terms of service only pertained to disputes arising out of the advertising relationship. Finally, Hadeed argued that the subpoena was not overbroad, as it only requested "postings" relating to Hadeed, not "communications," and Yelp's objection that the subpoena might encompass private communications was therefore unfounded.

On October 22, 2012, Yelp filed a memo in support of its objections to the subpoena and opposing Hadeed's motion to compel discovery. Yelp reiterated that the First Amendment "provides special protections for anonymity on the Internet," and argued that the court should apply the Dendrite test. The subpoena could not be enforced under this test, Yelp argued, because Hadeed had "failed to produce any evidence that any of the statements made about it are false." Yelp also continued to assert that it was not subject to jurisdiction. It argued that "predicating personal jurisdiction on the mere fact that Yelp enables its users to make statements accessible in Virginia through the Internet offends traditional principles of state sovereignty."

Hadeed responded to Yelp's objections on Oct. 31, 2012, reiterating its previous arguments.

The trial court held oral arguments on November 14, 2012, and enforced the subpoena on November 19, 2012. According to the court, it had jurisdiction over the motion based on service of the subpoena on Yelp's registered agent. The court added, however, that "even if a registered agent alone was an insufficient basis for jurisdiction," the court had jurisdiction "in light of Yelp's conduct directing electronic activity in Virginia and business relationships with Virginia companies and residents." The advertising agreement between the parties, the court held, did not deprive the court of jurisdiction, because the motion to compel was not a dispute between Hadeed and Yelp but rather a dispute between Hadeed and the anonymous reviewers, parties not governed by the agreement.

Finally, the trial court held that the proper standard for compelling the identity of anonymous speakers was laid out in Virginia Code § 8.01-407.1, which requires a showing that the statements "may be tortious" and that the speaker's identity is "important" or "relates to a core claim." Hadeed had met the statutory standard, the court held, because "the statements [we]re tortious if not made by customers" and "the identity of the communicators [w]as essential to maintain a suit for defamation." The court found no constitutional problem with this result. Although the court "recognize[d] that anonymous speech and even false speech is entitled to protection under the First Amendment," it stated that such speech is "not entitled to the same level of protection as truthful or political speech." Without citing Dendrite or Cahill, the court therefore ordered Yelp to produce information identifying the anonymous speakers.

Yelp refused to enforce the subpoena and, on January 9, 2013, the court held Yelp in contempt and imposed a $500 fine and $1000 in attorney fees. The sanctions were stayed pending appeal.

Yelp appealed to the Court of Appeals of Virginia and filed its opening brief on May 7, 2013. Yelp argued that the circuit court violated the First Amendment by ordering Yelp to identify the defendants, because Hadeed should have been required to do more than articulate a good faith belief that the speech "may be tortious." Indeed, Yelp asserted, the constitution requires "a factual showing, . . . that the statements are actionable and that there is an evidentiary basis for the prima facie elements of the claim." Yelp also argued that the court erred in concluding that the speech at issue did not warrant First Amendment protection because it was defamatory, because that argument begged the question by relying on the defamatory nature of the speech to compel evidence to prove its defamatory nature. Yelp also pointed to the constitutional requirement of proof of fault in defamation cases.

Yelp next argued that, even if Hadeed had made a sufficient showing that the reviewers were not Hadeed customers, the statements were not actionable. The parts of the reviews that Hadeed alleged were false -- the identities of the reviewers -- were not the parts of the reviews that could negatively impact Hadeed's reputation. Under Fourth Circuit precedent, Yelp claimed, "the falsity of a statement and the defamatory ‘sting' of the publication must coincide" for a statement to constitute defamation. And in this case, "Hadeed never allege[d] that the substantive problems set forth in the reviews, such as charging twice the advertised price, [we]re themselves false." Additionally, Yelp argued that Hadeed was libel-proof and could not sue for defamation because, in light of the large number of negative Yelp reviews of Hadeed that were not included in the lawsuit, a few more negative comments "would [not] cause Hadeed any incremental harm."

Yelp finally argued that, if the statements could be actionable, Hadeed had not presented a sufficient factual basis for the subpoena. When a party is "seeking discovery of information protected by the First Amendment," Yelp claimed, it should be required to show that "there is reason to believe that the information sought will, in fact, help its case." Hadeed had failed to make this showing, Yelp stated.

On May 8, 2013, the Reporters Committee for Freedom of the Press, the American Society of News Editors, Gannett Co., and The Washington Post filed a brief in support of Yelp. They argued that: the court should recognize "a heightened standard for compelled disclosure of identities" consistent with a consensus that has developed in the courts; allowing plaintiffs to compel the identity of authors "of any speech that ‘may be tortious' simply based on an unsupported allegation is inconsistent with the First Amendment"; and a "heightened standard is important to news organizations and other Internet publishers in creating a meaningful exchange of ideas on their web sites."

Hadeed filed its appellee's brief on May 30, 2013, arguing that the Virginia statute "clearly meets the minimal constitutional protections required under the First Amendment." But even if the Dendrite test were constitutionally required, Hadeed contended that the test had been satisfied because its complaint had "provided the actual statements, and if the posters are not customers, their statements are defamatory per se." Even under Dendrite, Hadeed argued, it was not required to present "all evidence necessary to survive a tough cross examination, summary judgment, or even . . . a jury verdict." Hadeed claimed it could not present more detailed information rebutting the Yelp reviews because it "serves 35,000 customers per year and its staff encounters all variety of circumstances," and the experiences of its thousands of other customers would not be relevant to "whether one specific person was defrauded through a bait and switch." Hadeed also contested Yelp's argument that it was libel proof, arguing that the many other negative Yelp reviews were not reliable.

Yelp filed a reply brief on June 27, 2013. It asserted that "even apart from the fact that a state statute cannot overrule the requirements of the First Amendment, there is no inconsistency between section 8.01-407.1 and the Dendrite-Cahill line of cases." Under the statute, Yelp claimed, it "is not enough for the plaintiff to show good faith; it must have a ‘legitimate' basis for claiming that the speech was tortious." Yelp argued that Hadeed had "alleged defamation, but ha[d] of yet proved nothing," and pointed out that Hadeed had not filed an affidavit from any employee actually denying that Hadeed engaged in the misconduct alleged in the Yelp reviews.

The Court of Appeals of Virginia, by a vote of two to one, affirmed the trial court's decision on January 7, 2014.

First, the court stated that although anonymous speech is protected by the First Amendment, "defamatory speech is not entitled to constitutional protection." Therefore, the court stated, "if the reviews are unlawful in that they are defamatory, then the [reviewers'] veil of anonymity may be pierced." Further, the court found that the speech at issue was commercial speech, as it was "expression related solely to the economic interests of the speaker and its audience." Because courts have recognized a lower level of First Amendment protection for commercial speech," the court held that the anonymous reviewers' "right to anonymity is subject to a substantial governmental interest in disclosure." In contrast, the court stated, a "business's reputation is a precious commodity."

The court also rejected the argument that the reviews were non-actionable opinion. "Generally," the court stated, "a Yelp review is entitled to First Amendment protection because it is a person's opinion." However, the court explained, this protection "relies upon an underlying assumption of fact: that the reviewer was a customer of the specific company and he posted his review based on his personal experience with the business. If this underlying assumption of fact proves false, . . . then the review is not an opinion; instead, the review is based on a false statement of fact."

The court next turned to Virginia law. It held that Virginia Code § 8.01-407.1 provided the proper test for uncovering the identity of an anonymous Internet communicator. The court noted that it was "reluctant to declare legislative acts unconstitutional" and ultimately refused to do so, because there was no constitutional infirmity that was "clear, palpable, and practically free from doubt." The court also refused to "adopt persuasive authority from other states," including Dendrite and Cahill, noting that the Virginia legislature had considered that authority and ultimately made its own policy decisions.

In applying the Virginia statute, the court held that Hadeed presented sufficient evidence to show that the reviews were or may have been defamatory by "indicating that it made a thorough review of its customer database" and could not match the defendants' reviews with customers. Further, the court believed that Hadeed acted on a "legitimate, good faith belief that the Doe defendants were not former customers," and "took reasonable efforts to identify the anonymous communicators." Finally, according to the court, the reviewers' identities were "not only important," but "necessary" because "without the identity of the Doe defendants, Hadeed cannot move forward with its defamation lawsuit."

The court also concluded that the trial court properly exercised subpoena jurisdiction over Yelp because Virginia statutes "explicitly allow for service on a registered agent of a foreign corporation that is authorized to do business in the Commonwealth."

Senior Judge James Haley dissented. Judge Haley agreed that Virginia Code § 8.01-407 provided the proper framework for analysis, and stated that correct analysis under the statutory framework properly "balances the First Amendment protection of an anonymous speaker and the right of redress for defamation." However, he concluded that, in this case, "the balance envisioned by [the statute] should weigh for the protection afforded by" the U.S. and Virginia constitutions. Judge Haley noted that Hadeed had not "claimed that any of the substantive statements [we]re false," and, at oral argument, "candidly admitted that it [could] not say the John Doe defendants are not customers." By arguing that the reviewers "may not have been customers, and, if they were not, the substantive statements may be tortious," Hadeed failed to provide sufficient supporting material to justify the subpoena, he asserted. Instead, Judge Haley said, Hadeed's claim was merely "a self-serving argument -- one that proceed[ed] from a premise the argument [wa]s supposed to prove."

The defendant, Hunter Moore, founded a now-defunct website at the URL IsAnyoneUp.com, which hosted sexually explicit user-submitted photos and videos. The plaintiff, James McGibney, owns a website called BullyVille, which works to counsel people who have been bullied by offering advice from professionals. McGibney bought the domain name for IsAnyoneUp.com from Moore on April 19, 2012. After the purchase, Moore referenced McGibney in tweets sent from his twitter handles @huntermoore and @is_anyone_up.

On August 20, 2012, McGibney filed a complaint against Moore in the District Court of Clark County, Nevada for defamation per se and false light. McGibney's complaint denied assertions made in Moore's tweets. McGibney claimed that Moore's tweets suggested that McGibney was a pedophile, a child abuser, and that McGibney possessed illegal content obtained from IsAnyoneUp.com. (Moore's full tweets can be viewed as exhibits to the complaint.)

On the defamation claim, the complaint alleged that Moore posted the statements intentionally, with the specific malicious intent to harm McGibney's reputation, and with actual malice, as Moore knew the statements were false at the time he tweeted them or else had reckless disregard for the truth. The complaint asserted damages relating to McGibney's business, as Moore's tweets referenced McGibney's connection to BullyVille.

On the false light claim, the complaint stated that Moore portrayed McGibney as a pedophile and child abuser on Moore's twitter account. The complaint said Moore's statements were categorically false, made with actual malice, and highly offensive to any reasonable person. It alleged that, by publishing the "false and harmful statements" to a Twitter following of over 160,000 people, Moore gave publicity to such statements.

The complaint requested: (1) more than $10,000 on the defamation claim for harm to McGibney's reputation; (2) more than $10,000 on the false light claim for resulting mental harm; (3) more than $10,000 for Moore's willful, deliberate, and malicious defamation of McGibney; (4) attorney's fees and related costs; and (5) any additional relief ordered by the Court.

On February 26, 2013, the plaintiff filed affidavits for Colleen Connolly-Ahern and Steven Rohr in support of an application for a default judgment against Moore. Connolly-Ahern, an Associate Professor of Advertising and Public Relations at the Pennsylvania State University, evaluated the McGibney's defamation claim against Moore. Her affidavit stated that because of Moore's "quasi-celebrity status" he will have a "larger-than-normal percentage" of followers who believe his statements about McGibney are truthful. Rohr, a founder and president of a Public Relations organization, confirmed the statements made in Connolly-Ahern's affidavit and added that with the existence of sites like www.archive.org, an Internet Archive, Moore's allegations may follow McGibney for years to come and damage his professional reputation. Rohr also stated that Moore's tweets caused real and tangible "lifetime reputational harm" to McGibney, which justified a judgment of $250,000.

The next day, on February 27, 2013, the plaintiff filed an affidavit of J. Malcolm DeVoy, one of the plaintiff's attorneys. DeVoy's affidavit included a copy of McGibney's redacted billings totaling $8,003.00.

On March 8, 2013, the court entered a default judgment against Moore for defamation and false light. The court held that Moore falsely accused McGibney of serious crimes and offenses that were defamatory per se. The court stated that Moore had been properly served with process and Moore had acknowledged the service on his tweets. The court referenced the affidavits of both Connolly-Ahern and Rohr and specifically addressed Rohr's mention of a $250,000 judgment, stating that the affidavits and Rohr's oral testimony were sufficient to support a judgment of $250,000 against Moore. Accordingly, the court ordered that Moore pay: (1) $250,000 in damages; (2) Interest accruing at 3.25%/month until the judgment is paid in full; (3) $1,588.50 for suit costs; and (4) $11,581.00 in attorney's fees.

On March 12, 2013, a notice of entry of default judgment was filed and on April 19, 2013, a writ of execution was issued to the Constable of Clark County, Nevada for $263,169.50 against Moore, commanding that the judgment be satisfied via Moore's Bank of America checking, savings, or other financial account.

The plaintiff owns the Plainridge Racecourse, a harness horse-racing track in Plainville, Massachusetts. Thomas Keen maintains the website "NoPlainvilleRacino" which opposes the development of a gaming facility in Plainville, Massachusetts.

On April 20, 2012, Ourway Realty d/b/a Plainridge Racecourse sent a cease and desist letter to Keen which cited a photograph Keen had posted on his NoPlainvilleRacino website. The picture showed an individual who was suspected of breaking and entering into a building on the Plainville Racecourse. Underneath the picture, another user left a comment that said, "I wonder if they checked the racetrack, lol." The cease and desist letter alleged that Keen's posting was "objectionable, unprofessional and actionable" and stated that Keen posted the photo to "associate the alleged crime" with Plainville Racecourse. The letter demanded that Keen remove the posting, refrain from posting "similar damaging material" in the future. The letter also demanded that Keen issue an apology on his website, Facebook, and the Sun Chronicle newspaper.

On June 4, 2012, Ourway filed a complaint against Thomas Keen in the Superior Court in the Commonwealth of Massachusetts for defamation. The complaint stated that the posting "intimates that criminals are clearly associated with the Plaintiff's present operations," and alleged that because of Keen's posting, Ourway suffered severe economic harm. The plaintiff requested damages, injunctive relief to remove "offensive material" from Keen's website, and an order prohibiting future publication of "information similar in nature."

On July 20, 2012, Keen served a Special Motion to Dismiss on Ourway pursuant to Massachusetts' anti-SLAPP statute, G.L. c. 231, § 59H. Keen's memorandum of law in support of the motion asserted that the comment at issue was removed prior to the commencement of litigation and called the plaintiff's action a "class example" of a SLAPP suit. The memorandum cited Keen's right to petition under Massachusetts' anti-SLAPP statute, saying that Keen's website satisfies at least four of the five forms of right to petition protected under the law:

1. The site contains a "written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding" over whether a "slot parlor would be good for Plainville[,]" an issue that the Plainville Board of Selectmen will negotiate with Ourway under the MA gaming statute.
2. The site is "reasonably likely to enlist public participation" because it encourages "residents to contact selectpersons and ‘tell them a racino is not in Plainville's best interest.'"
3. The site is "reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding" because the website elicits readers to contact town officials regarding their stance on the racino.
4. The site's stance on racino falls under the final definition of § 59H, "any other statement falling within constitutional protection of the right to petition government" as the website was "intended to organize" a community "around an issue of concern."

The memorandum further argued that Ourway could not show by a preponderance of the evidence that the petition caused the plaintiff actual injury or that Keen's right to petition lacked any "reasonable factual support or arguable basis in law." It cited the "lol" from the user's comment, saying that "statements written ‘not for serious effect' are simply not libelous."

Keen also served an affidavit which discussed his opposition to the casino development and his establishment of the NoPlainvilleRacino website. His affidavit detailed the origin of the photograph, which was taken by a webcam of a burglar who broke into Keen's home; that photo was posted by the Plainville Police Department on its Facebook page. An administrator of the No Plainville Racino Facebook page shared the photo on that page, under which a Facebook user posted the comment in question.

On August 17, 2012, Ourway served Keen with an Opposition to Keen's Special Motion to Dismiss. The memo in opposition said that the anti-SLAPP statute was not meant to protect Keen's conduct, as § 59H is not meant to be an "absolute privilege." The memo in opposition uses the example of an "individual [going] onto any website regarding pending legislation and mak[ing] comments or insinuations unassociated with . . . the site, such as baseless accusations of accusing their opponents of a crime or harboring criminals and then hid[ing] behind the statute" as an example of what the statute was not intended to cover.

On September 12, 2012, Keen served a Reply in Support of Special Motion to Dismiss Pursuant to G.L. c. 231 § 59H, saying that Ourway's memo in opposition differed from the complaint's allegations and that Ourway failed to meet its burden of proof.

Keen's anti-SLAPP motion papers, Ourway's opposition, and Keen's reply were filed with the court on September 17, 2012, pursuant to Superior Court Rule 9A, and was docketed by the court on September 19, 2012

On December 13, 2012, the court allowed Keen's Special Motion to Dismiss, finding that the plaintiff's complaint is based on Keen's "petitioning activities" on his website and that Ourway failed to establish that the "petitioning activities were devoid of factual or legal merit." Keen applied for an award of attorneys' fees, and on April 8, 2013, was awarded $24,776.00 in fees and $136.37 in costs.

Ourway initially appealed the court's ruling, but stipulated to dismissal of its appeal on April 30, 2013.

On February 4, 2013, Jonathan Graves Monsarrat filed a complaint in the Superior Court Department of Middlesex County, Massachusetts against defendants Deb Filcman, Ron Newman, and John and Jane Does 1-100. The complaint alleges that the defendants posted defamatory comments about the plaintiff on the website www.LiveJournal.com beginning on February 4, 2010, which related a linked-to blog post by defendant Filcman on the Somerville Journal's "Wicked Local" webpage. Defendant Newman administers the "davis square" forum on the site on which Monsarrat alleges many of the defamatory responses were posted. As LiveJournal is an online forum, many users are known only by aliases; Monsarrat asserted claims against these commentators by naming them as "John and Jane Does 1 through 100" until their identities could be ascertained through the discovery process.

The defendants' posts concerned Monsarrat's arrest on January 29, 2010, in connection with charged of keeping a noisy and disorderly home and serving alcohol to persons under 21. While these charges were ultimately dismissed against Monsarrat, the plaintiff alleges that the defendants' comments ruined his "reputation, regard, esteem and goodwill." The complaint cites to many of the comments posters made to the "davis square" forum, alleging that these posts are particularly defamatory as they affect him and his businesses locally.

Monsarrat's complaint included claims for: defamation; a violation of Massachusetts' Unfair and Deceptive Trade Practices Act, Mass. Gen. L. ch. 93A; business disparagement; common law copyright infringement (based on photographs taken from Monsarrat's website); intentional infliction of emotional distress; and civil conspiracy.

The complaint alleges that the defendants "intentionally planned and orchestrated this cybersmear attach" [sic] and that defendants "conspired together" to commit the acts which injured Monsarrat. Monsarrat's complaint claims damages amounting to over $500,000 from medical expenses, lost wages (documented and anticipated), and reputational damages.

On April 30, 2013, Monsarrat filed an amended complaint. The amended complaint included all of the initial allegations, and added that under Monsarrat's fourth claim for relief - common law copyright infringement - the defendants' misappropriation was not "for fair use or satire purposes" but instead "in furtherance of their collective willful, wanton and tortious conduct." The amended complaint also included additional damage demands in the form of "costs and disbursements plus interest from the date of commencement" of the action.

On May 14, 2013, defendant Newman's attorney sent a letter in response to Monsarrat's complaint. The answer described Newman's discussion on the LiveJournal forum as "promoting respectful, lively conversation without imposing ham-fisted restraint on the free speech of the community." The letter addressed each of the complaint's assertions in turn, including asserting that:

• no statements attributed to Newman could sustain a defamation claim;
• the complaint did not state a Chapter 93A claim against any defendant, and Monsarrat had failed to send a pre-suit demand letter to Newman as required under Chapter 93A;
• on the business disparagement claim, Monsarrat's complaint did not point to any "actionably false statements" by the defendants, and did not identify any of the plaintiff's products that were disparaged;
•  "there is no such thing" as common-law copyright infringement;
• Monsarrat's infliction of emotional distress claim would fail as the complaint does not show that the defendant acted without privilege;
• on the conspiracy claim, the complaint does not "identify any statement or action by which Mr. Newman could be inferred to have agreed to injure the plaintiff"; and
• punitive damages for defamation have not been permitted in Massachusetts since 1974.

The May 14th letter claims that Monsarrat's claims are wholly without merit and were brought in bad faith, and demands that Monsarrat's attorney file a notice voluntarily dismissing the complaint with prejudice or else face sanctions.

On May 28, 2013, defendant Filcman's attorney sent a letter in response to Monsarrat's complaint. The letter contends that Filcman's article on Monsarrat's January 2010 arrest is protected under the First Amendment and adds that the plaintiff's allegation of a "wide-spread cyber-smear campaign" is without basis "in fact or law" and "frivolous, abusive, and harassing." In addressing the defamation claims, the letter points to Massachusetts' fair report privilege that provides a safe harbor on fair and accurate reports. The letter also asserts that there is "no such thing" as a common law copyright claim, and under the federal Copyright Act, the plaintiff's photograph was not federally registered and his claim would therefore fail.

On June 7, 2013, Monsarrat's attorney filed a voluntary dismissal with prejudice (a copy of the official text is posted on LiveJournal). No settlement was reported on the docket of the court and no payments were made.

On Sept. 10, 2012, Haitian Prime Minister Laurent Lamothe and "prominent businessman" Patrice Baker filed suit in federal court against Haiti-Observateur Group, an online and printed news publication, and Leo Joseph, a Haitian-American journalist who owns and edits Haiti-Observateur. The plaintiffs claimed that the defendants published defamatory statements in two articles, titled "La Haitel en vente pour 25 million $?" and "Global Voice et SOWCI ensemble pour ruiner la TELECO." The articles reported on the roles Lamothe and Baker played in the sale of the Haitian telecommunications company Haitel, claiming that the plaintiffs orchestrated or already profited from the sale.

The complaint alleged that 10 specific statements published were false and defamatory, calling the statements "outrageous, scandalous and reminiscent of a tabloid publication." The plaintiffs argued that the statements were defamatory both (1) facially, saying the statements attributed conduct including illegal business practices, racketeering, corruption and conspiracy to the plaintiffs; and (2) per quod, implying degrading conduct when taken in context and thereby exposing the plaintiffs to "distrust, hatred, contempt and obloquy." The complaint alleged that the defendants' statements were "false and conjured to destroy reputations" and had injured the plaintiffs' good names, "stellar" reputations, and standing in their communities, noting the large Haitian population that resides in the Southern District of Florida, where the suit was filed. In filing suit, the plaintiffs sought damages, interests, costs, and attorney's fees.

On Jan. 16, 2013, the clerk entered a default against defendant Joseph because he failed to respond to the complaint. Haiti-Observateur Group had already been dismissed as a defendant in the plaintiff's amended complaint.

On Feb. 5, 2013, the plaintiffs filed a motion for entry of default judgment, attaching a proposed order for the court to use. The court formally issued the same order on Feb. 6. The order stated that the plaintiffs had succeeded on the merits of their defamation claim, that the defendant's statements were made with actual malice, and that the damage to the plaintiffs' reputation constituted irreparable harm. Further, the order permanently enjoined Joseph from publishing any future communications about Lamothe or Baker "in either their professional, personal or political lives."

On March 4, 2013, Joseph filed a motion with the court to set aside its entry of default and default judgment. Joseph claimed that the court's order constituted an unconstitutional prior restraint and that the court was not allowed to permanently enjoin defendants in defamation cases. Joseph also argued that the order contained an error of law because there were no well-pleaded allegations of actual malice, and therefore the plaintiffs failed to state a claim. He argued that the complaint had not alleged clear and convincing evidence of actual malice, but merely presented a legal conclusion not entitled to the assumption of truth, especially in the case of default. Joseph further argued that the plaintiffs were not entitled to a presumption of injury, and that he had not been properly served.

In an opposition filed on March 21, 2013, the plaintiffs claimed that they properly pleaded actual malice because the complaint listed the defamatory statements and alleged that they were made with knowledge of their falsity or reckless disregard for the truth. Lamothe and Baker claimed there was a presumption of injury because "the defamatory statements made malign their position and professional competence and their fitness to engage in their profession." The opposition also stated that the damages suffered by the plaintiffs fell under a business interference exception to the general rule against injunctive relief and prior restraints on speech, because there was an inference of adverse effects on the plaintiffs'
relationships and difficulty quantifying the actual damages. The plaintiffs also claimed that the defendant was properly served.

On April 9, 2013, the judge issued an order on the motion to set aside the default judgment. The court found that the complaint's assertion that "[d]efendants' statements were made with actual malice" was a legal conclusion and thus did not fulfill the requirements for a well-pleaded allegation. Therefore, the court ordered the plaintiffs to file a second amended complaint setting forth the facts that support their allegation of actual malice. Regarding whether the order was an unconstitutional prior restraint, the court found that because the plaintiffs had not asked for an injunction in their complaint, injunctive relief should not have been entered. The order stated, "[T]he Court cautions Plaintiffs that prior restraints on speech are disfavored." The court noted that the plaintiffs sought to enjoin more than just defamatory speech, and "[j]udgments that enjoin the publication of non-defamatory statements are invalid." Because there is a well-settled rule prohibiting injunctions in defamation cases, the court noted, the plaintiffs were required to include specific facts in their second amended complaint that would warrant such "extraordinary relief." The court also found that there was no proof of the plaintiff's assertions that the defendant had been properly served.

The plaintiffs filed a second amended complaint on April 19, 2013, which asserted that defendant Joseph knew that the allegedly defamatory statements were false, in part because of his business relationship with a shareholder of Haitel, and also because it was common knowledge that Haitel was never sold. Additionally, the second amended complaint included a new claim of tortious interference with advantageous relationships. The plaintiffs claimed that the alleged defamatory statements caused the plaintiffs' business relationships and political counterparts to question whether Baker was being investigated by the FBI and whether Lamothe acted consistently with Joseph's allegations, causing damage to the plaintiffs. The second amended complaint also asked the court to enjoin Joseph from publishing false and defamatory statements concerning the plaintiffs.

On April 25, 2013, Joseph filed a motion to dismiss the second amended complaint for failure to state a claim. Joseph claimed that the second amended complaint did not satisfy the pleading requirements because it did not directly quote the specific statements alleged to be defamatory and the plaintiffs did not attach copies of the relevant articles. Joseph also asserted that the second amended complaint did not allege that Joseph published the statements with actual malice because it did not allege Joseph's subjective knowledge of falsity. Joseph also argued that the plaintiffs failed to state a claim for tortious interference, because (1) that claim was based on the same statements as the defamation claim and would fail with it and (2)  the second amended complaint did not properly allege all of the elements of the claim.

The court issued its order on the motion on May 30, 2013. It agreed with Joseph that the second amended complaint was defective because the court could not determine whether the statements were defamatory without the plaintiffs submitting the relevant articles and because the plaintiffs merely summarized the allegedly defamatory statements. The court granted the plaintiffs an opportunity to cure this in a third amended complaint. The court also advised the plaintiffs that some of the summarized statements were not clearly defamatory. Regarding actual malice, the order stated that the second amended complaint's allegation that Joseph had knowledge of the falsity of his statements, while "not a model of clarity," could arguably be sufficient to support the plaintiffs' claim of actual malice. The court thus ordered the plaintiffs to file a more definite statement of the allegation. The court further stated that "a determination on whether the single publication rule bars [the tortious interference claim] is premature at present." The order also stated that the plaintiffs could only amend their complaint "to cure the defects identified in this order," and that the order was the final opportunity for the plaintiffs to cure the defects.

On June 14, 2013, the plaintiffs filed a third amended complaint. The third amended complaint asserted, among other things, that Joseph had acknowledged the falsity of his statements in a teleconference and that he acted with actual malice "by utilizing his publication to publish statements which benefit him and his business partners/creditors while having knowledge as to their falsity." The third amended complaint gave exhibit citations for each statement allegedly written by the defendant. It contained no claim for tortious interference.

On June 25, 2013, Joseph filed a motion to dismiss the third amended complaint for failure to state a claim. The motion argued, among other things, that:

(1) the plaintiffs exceeded the scope of leave to amend they were granted, because the third amended complaint "was premised almost entirely upon statements that are different than the ones summarized in the [second amended complaint]";

(2) as to three of the articles identified in the new allegations, the plaintiffs did not satisfy the statutory requirement in Florida that requires a plaintiff to issue a retraction demand before filing a defamation suit;

(3) the alleged statements were not actionable as defamation, because some of the plaintiffs' summaries of alleged statements did not reflect actual statements in the articles, the plaintiffs did not allege what parts of some of the statements were false, and some of the statements did not identify the plaintiffs, were opinion or rhetorical hyperbole, or fair and accurate reports of government information; and

(4) the plaintiffs did not sufficiently plead actual malice, because rather than alleging facts to indicate Joseph's state of mind at the time of publication, they relied upon alleged facts occurring only after the statements were published.