Pollard PLLC routinely litigates high-stakes defamation cases. Over the past decade, the Firm has recovered millions of dollars for individuals who have had their personal and professional reputations destroyed by false allegations. Many of these cases arise in the employment context. That is because the Firm takes a novel approach to employment litigation. As the Firm’s founding attorney Jonathan Pollard explains:

We are always looking for leverage. I don’t care what the case is. Or what side of the V we are on. We could be prosecuting an employment discrimination case. Or defending a non-compete and trade secret lawsuit. No matter what, I am always vetting the facts for a possible defamation claim, and especially a defamation per se claim. Defamation per se is the single most powerful, high-dollar claim that a plaintiff can ever file in the State of Florida. Most employment lawyers do not have sufficient knowledge of Florida defamation law. And many companies are so egotistical and poorly run that they routinely defame former employees. Bottom line: In every case we touch, we look for a defamation claim.

Defamation vs. Defamation Per Se

There are two different types of defamation: defamation and defamation per se. Regular defamation means a false statement where harm or damages must be proven. Defamation per se means that the statement is so inherently harmful to a person’s reputation that damages are presumed. Florida case law defines a limited number of allegations that are defamatory per se. For our purposes, the two most significant categories are (a) false allegations of a felony crime or (b) false allegations that are incompatible with a person’s lawful trade or profession. Defamation per se claims of this nature routinely surface in the course of Pollard PLLC’s work representing employees. Some typical examples:

• The trade secret smear campaign. Employee leaves Company A and either goes to work for a competitor or starts his own venture. Company A launches a smear campaign and accuses the former employee of stealing trade secrets. Company A does this in an effort to thwart competition. This often entails Company A telling customers or third parties in the market to avoid dealing with the former employee or his new venture because “the FBI is investigating”, “there are going to be criminal charges”, or “you don’t want to get dragged into a trade secret lawsuit.”

• The fired for cause smear campaign (non-compete & trade secret variety). In the non-compete and trade secret context, companies often run the trade secret smear campaign detailed above. But they usually don’t stop there. They also fabricate reasons for the employee or executive’s departure from the company. Over the years, our firm has seen all of the following false allegations in this specific context:

• The employee was fired for stealing money or embezzlement.
• The employee was fired for stealing equipment.
• The employee was fired for losing the company $10 million.
• The employee was fired for making an unauthorized loan.
• The employee was fired for submitting fraudulent reimbursements.

In each one of these instances, the allegations were total fabrications. And in the vast majority of these cases, the employee was never fired – they voluntarily resigned.  

• The fired for cause smear campaign (discrimination and retaliation variety). This is the version we see in discrimination and retaliation cases. A company fires an employee for discriminatory reasons. Or, an employee complains about discrimination and the company fires him in retaliation. The employee accuses the company of unlawful discrimination. To counter this, the company fabricates a reason for the termination. The company cannot just make something up on the fly in response to a lawsuit. So, they have to establish a paper trail and set up witnesses to testify and advance the false narrative. This is usually done by HR henchmen who are not particularly savvy. And sometimes it is even done or advanced by certain regional, management-side employment law firms that (a) do not understand defamation law and (b) routinely commit legal malpractice. Rather than opt for a generic explanation that is arguably defensible as opinion (i.e. “poor performance”), these HR henchmen and their corporate lawyers opt for something that they believe has more gusto: Theft. Time fraud. Fraudulent reimbursements. Drug abuse. Threats. Intimidating coworkers. You name it.

Defamation Per Se: The Strongest Claim in Florida

In a jury trial situation, defamation pe se is the strongest plaintiff-side claim in Florida. That is because the plaintiff does not have to prove actual damages. Instead, the jury is instructed to presume the false allegations are harmful and award the plaintiff whatever dollar amount they believe is appropriate. This is where things get really interesting. Florida juries – and juries in many parts of the country – place a high value on a person’s professional reputation. And that does not change based on the nature of the person’s work. Juries tend to award significant presumed damages for defamation per se, whether the plaintiff is a janitor, a doctor, or a corporate executive.  But it goes beyond that: Punitive damages are on the table.

Pollard PLLC recently litigated a defamation case in Palm Beach County Circuit Court. The cases was called Robinson v. Solomon.  In Robinson, a hotel security guard alleged that he was defamed by a resident who falsely accused him of being high on drugs while at work. The security guard was fired a few weeks after that allegation was made. In Robinson, Pollard PLLC successfully moved to add a claim for punitive damages. The defendant appealed the trial court’s allowance of punitive damages. Pollard PLLC won the appeal and the case proceeded to the brink of trial, at which point it settled on confidential terms. When a defamation per se case does go to a jury trial with punitive damages, the jury is instructed to award a dollar amount intended to punish the defendant and deter similar misconduct in the future. In the context of employment-related defamation claims, juries will severely punish companies that engage in the types of smear campaigns outlined above. Because of this, the defamation per se claim (whether an affirmative claim or a counterclaim) often become either the most valuable claim in the case or the source of the greatest leverage.