We file lots of plaintiff-side cases, primarily in the employment context. But the single best plaintiff-side claim under Florida law is a claim for defamation per se. To understand this, we have to start with the distinction between a regular defamation claim and a claim for defamation per se.
With a normal defamation claim, there is a false statement of fact and damages must be proven. But with a defamation per se claim, there is a false statement of fact and damages are presumed. The difference flows from the substance of the statement or allegation. Some types of allegations are considered so inherently damaging to a person’s reputation that damages are presumed. Florida (and many other jurisdictions) generally recognize the following categories of defamation per se: (1) Accusing someone of a crime that rises to the level of a felony. (2) Accusing someone of conduct that is incompatible with their lawful trade or profession. (3) Accusing someone of having a “loathsome” disease. (4) Accusing someone of having an affair.
Over the years, we’ve seen all of these variations. But given our focus on employment cases, the categories we see the most are (1) and (2). I see these defamation per se claims in the following two contexts:
First context: The smear campaign against a departing employee who went to a competitor. I have written, blogged, and talked about this specific scenario for 10+ years. An employee (Joe) leaves a company (OldCo) and goes to a competitor. Maybe the employee has a non-compete agreement, maybe they don’t. Let’s put aside the fact that many non-compete agreements are unenforceable under Florida law (and federal antitrust law). Either way, OldCo launches a smear campaign against Joe. Joe has been in the market for 20+ years and is well-known and well-liked. OldCo is terrified of competition. OldCo is afraid of losing business. So, OldCo sends some of lieutenants out into the market to spread malicious rumors about Joe, the circumstances of his departure, what he’s doing now, etc. Some of my favorite lies from the past decade? Joe was fired for stealing from OldCo. Joe was fired for embezzlement. Joe was fired for stealing equipment. Joe stole trade secrets. Joe is under investigation by the FBI. Joe has been indicted. Some or all of the foregoing plus you should clearly avoid doing business with Joe because you’ll just get dragged into this whole mess.
Second context. The pre-textual reason for a discriminatory or retaliatory firing. Let’s keep Joe as our employee. Say Joe complains about age discrimination. Then two months later, OldCo fires him. The facts are that OldCo did discriminate against Joe because of his age. And when Joe reported that discrimination, OldCo retaliated against him. Are most companies and their corporate lawyers willing to own up to that, quickly come to the table, and settle the case on reasonable terms? No. They’re not. In most instances, they’re going to fabricate some bullshit story and fight tooth and nail. I see this happen all the time. OldCo decides on any of the following narratives: Joe was fired for lying to a supervisor. Joe was fired losing the company millions of dollars on an ill-advised deal. Joe was fired for violating XYZ corporate rules and regulations.
When any employment matter comes in (i.e. discrimination, retaliation, sexual harassment, wrongful termination, etc), I am always looking for the possible defamation per se claim that is attached to that case. The discrimination claim might be what prompts the inquiry or the phone call to our firm. But the defamation per se claim is often the stronger claim. Let’s talk about why that is.
First, there is a tremendous amount of judicial activism in the employment discrimination context. Many federal courts – especially in Florida – do not properly apply Rule 56 (summary judgment) in employment discrimination cases. Instead, these courts routinely decide cases at summary judgment rather than letting those cases go to trial — where a jury would decide. This is a well-known and well-documented problem. The tide is changing and the United States Court of Appeals for the Eleventh Circuit has a number of recent opinions that require federal trial courts to get back to the basics of Rule 56 — and pointing out that Rule 56 applies the same in employment discrimination cases as it does in all other cases. But it’s going to take several more years for the federal district courts to fully apply that guidance. In the meantime, getting past summary judgment in employment discrimination cases is artificially harder than its supposed to be and harder than in many other cases.
Beyond that, Title VII has damages caps. And certain courts / judges are inclined to reduce large compensatory awards rendered under Florida state law in employment discrimination cases. As for punitive damages, those are capped at $100,000 under Florida law.
What about defamation per se? Different ballgame. Florida law has a long history of putting tremendous value on a person’s reputation. This is in the case law going back 100+ years. That cuts strongly against the sort of judicial activism you see in the employment discrimination context. Also, the courts have not been flooded with defamation per se cases in the same way that they’ve been flooded with discrimination cases. Perhaps because of this flood of discrimination cases, some courts seem to have an almost disdain for such cases. They don’t see as many defamation per se cases and there is no such disdain. Not only that, but most defamation per se cases don’t implicate politics, political leanings, particular ideologies, etc. The body of case law is devoid of the sort of political and ideological wrangling that you see in some discrimination cases. It’s very neutral. It’s basically: The statement was X. That meets the standard for defamation per se. Go to trial.
But it doesn’t stop there. The damages framework on defamation per se claims is better. First, damages are presumed. That means you put on the case and the evidence and the jury gets to award whatever dollar amount it thinks is reasonable. That goes for both compensatory and punitive damages. In a Florida defamation per se case, there are no caps on either compensatory or punitive damages.
To wrap it up: I am always interested in Florida defamation per se cases. But it has to be per se. And the potential defendant has to be collectible. We do many of these cases on a pure contingency fee basis. We have one of these cases heading to trial later this spring.
Jonathan Pollard is a lawyer, writer, and the founder of Pollard PLLC. Pollard and his colleagues do high stakes litigation and routinely litigate defamation per se cases. The Firm has been recognized by Super Lawyers and Chambers & Partners. Pollard has appeared in or on The New York Times, Bloomberg, NPR, PBS News Hour, The Guardian, The Times (London), Inc. Magazine, Law360, and more. The Firm has offices in Miami, Fort Lauderdale, and St. Louis. For more information, call 954-332-2380.
