Podcast Episode 15—Update: Effect of Noncompliant Defamation Mitigation Act Request for Correction or Retraction

Podcast Episode Timestamps

00:00 — What happens when you sue for defamation or business disparageent but fail to send the request for retraction or correction under the Defamation Mitigation Act? The Texas Supreme Court just answered this question.
00:21 — Intro
00:46 — Throwback to episode 6 question that the Texas Supreme Court just addressed this month in Hogan v. Zoanni
02:00 — Remember that sending a good DMA is still the best practice and the time limits are very strict
02:15 — Overview of the organization of this episode
02:40 — Factual background
03:35 — The procedural background
06:38 — The Texas Supreme Court’s plurality opinion – abatement and loss of punitive damages permitted, but not dismissal
07:45 — Digging into the Texas Supreme Court justices votes in Hogan v. Zoanni (4-1-3)
09:27 — The practical effect of the plurality opinion for Hogan
09:44 — The legal effect of this plurality opinion based on the vote
11:05 — The concurring justice’s opinion more closely aligns with the dissenting opinion
11:34 — The dissenting opinion
12:09 — What the practical outcome would be if the dissenting opinion was the rule
12:30 — The reason DMA requests should be focussed on
13:02 — Check the show notes for links
13:39 — Why it’s important for businesses to have a sense of this information
14:25 — Outro

Update To Episode 6 of the Keith Law PLLC Podcast Following Texas Supreme Court Opinion

In Episode 6 of the Keith Law PLLC Podcast, I covered how a business can handle negative online reviews that are false.  During that, I discussed the Texas Defamation Mitigation Act (DMA) and it’s requirement that the defamed business or person send a demand for retraction or correction to the accused defamer.  In that episode, I mentioned that there was some uncertainty about the effect of failure to send the demand—whether it would prevent the lawsuit from concluding or would only prevent a plaintiff from recovering exemplary (punitive) damages.  This month the Texas Supreme Court issued its opinion in Hogan v. Zoanni aiming to answer this question.  Following this opinion, it appears that dismissal is generally off the table.  But, based on the way the justices votes came out (detailed below), there may remain some degree of uncertainty as to the stability of the law when it comes to the effect of failing to send a timely DMA demand.  Either way, a timely and comprehensive demand remains the best practice for anyone alleging defamation.  Keep in mind that the DMA deadlines can be very short, so it’s important not to delay.

The Factual Background

Plaintiff, Hogan, is a pastor who divorced his wife in 2011.  Hogan’s ex-wife, Zoanni, is the defendant because, after the divorce, she “published a litany of statements online, to the police, and to [his] church leadership stating he is a pedophile, pervert, and patron of child pornography.”  In a 2014 letter he demanded that she cease and desist the defamation of his character and reputation.  After sending the letter, he sued asserting causes of action for defamation, invasion of privacy, malicious prosecution, abuse of child protective services process, and intentional infliction of emotional distress.  In the lawsuit he sought actual and exemplary damages.  

The Procedural Background (that is, what happened in the courts before it got to the Texas Supreme Court)

In 2016, ten days before trial, Hogan amended his lawsuit to add nine newly discovered defamatory statements made more than a year earlier, but during the pendency of the lawsuit.  Although the defendant never alleged a limitations defense (e.g. statute of limitations or laches), on the first day of trial defendant filed a motion for directed verdict as to the nine statements newly added in the amended lawsuit arguing that plaintiff failed to comply with the DMA by failing to provide a timely demand for correction or retraction as to the newly added statements—essentially asserting that they must be dismissed for failing to comply with the DMA.  The defendant declined the trial court’s offer of abatement and all the statements were submitted to the jury who returned a verdict of 2.1M in actual damages.  Because the newly discovered statements were made more than a year earlier, they would have been outside the one-year statute of limitations if they did not relate back to the original allegations in the lawsuit.  The statute of limitations, the relation-back doctrine, and something called the discovery rule are all beyond the scope of this post and podcast episode.   

A divided appellate court decided to reverse and remand for new trial on the original statements only, holding that the nine newly discovered defamatory statements were improperly included in the jury instructions.  A dissenting appellate judge would have held that abatement and loss of exemplary damages were the only remedies available for noncompliance with the DMA—and would have also held that the plaintiff complied with the DMA with his original letter that complained of defamation related to the nine newly added statements—and reasoned that allowing the trial court to dismiss for these reasons would undermine the rationale for the DMA’s existence which is, ostensibly, to help defamed people mitigate (or reduce) the harm caused by defamation close in time to the occurrence of the alleged defamation. 

The Texas Supreme Court’s Opinion

The outcome of the Texas Supreme Court’s consideration of Hogan v. Zoanni may be a bit complicated by the way the justices voted, which I discuss in more detail, below.  However, the primary opinion is referred to as the “plurality opinion” because four out of the nine justices signed on to it.  The plurality opinion held that in the event of an insufficient DMA request for retraction or correction, the DMA allows for abatement (temporary suspension) of a lawsuit and loss of exemplary (punitive) damages, and not dismissal of the lawsuit in full—and that this remedy is only available if the defendant invokes it.  As a result of this Texas Supreme Court opinion, it appears that a defamed party can sue for defamation, even in the absence of a DMA request. But in the absence of a DMA request, a defendant to the lawsuit might be able to put the lawsuit “in timeout” via abatement and will be able to limit damages to actual damages instead of risking exemplary (punitive) damages for the defamation. 

The Texas Supreme Court Vote (4-1-3), and Its Effect

Because the law can change over time and because this Texas Supreme Court opinion is a plurality opinion instead of a majority opinion, it’s worth going into a bit of detail on how the Hogan v. Zoanni vote turned out.  There are a total of Texas Supreme Court justices.  But only eight of them voted in this matter.  Four of the justices signed on to the primary opinion, which is why it’s referred to as a “plurality” opinion instead of a majority opinion.  One justice concurred in the result of the plurality opinion, but not the reasoning.  Three justices signed on to a dissenting opinion, disagreeing with both the result and the reasoning of the plurality opinion.  The effect of these votes is that the decision of the appellate court is reversed and that the specific issues that the appellate court did not reach are remanded for consideration by the appellate court.

The fifth vote in favor of the outcome of the Texas Supreme Court’s opinion was a concurrence—meaning that he agreed with the outcome (i.e., that the appellate opinion should be reversed on the issues it decided and remanded for consideration of the appellate issues it did not reach), but not in the reasoning of the plurality opinion.  The practical effect of this is that Hogan won the battle at the Texas Supreme Court and heads back to the appellate court for additional battles.  It’s worth remembering that this all relates back to a 2011 divorce.  The legal effect of the plurality opinion, at the least, is that there may not be a great deal of stability regarding the question of the effect of failing to send a DMA request for correction or retraction because, if a similar matter is accepted for consideration by the Texas Supreme Court, different facts could lead to a different outcome when all nine justices participate in the vote.  This is of special note in the event that the composition of the court changes.  Just as an example, Justice Guzman, who signed onto the plurality opinion recently announced her resignation from the court in order to compete to be elected as Texas Attorney General.  It’s also worth noting that some attorneys may seek to argue that, because the plurality opinion was not a majority opinion, it should not be given binding precedential weight in the trial courts and appellate courts.  Most trial and appellate judges will probably ignore most arguments like this.  But, in certain situations, such arguments might get traction.    

The concurring justice’s holding, had his legal position been adopted, would have more closely aligned with the three dissenting justices.  He would have held that the DMA requires dismissal of a lawsuit when a plaintiff files a lawsuit when a suit when a plaintiff files a lawsuit after sending a DMA request for correction or retraction that was insufficient or outside of the DMA’s time limits for sending it and that a lawsuit could be abated (temporarily suspended) when a plaintiff files the lawsuit without sending the DMA request at all.

The dissenting opinion’s position (the opinion that does not control because of insufficient votes in its favor) states that failure to make a timely sufficient demand prevents the lawsuit from going forward at all—that is, it must be dismissed.  The plurality opinion’s position (the controlling opinion, because half of the participating justices signed on to it) is that adopting this rule would undermine the DMA’s stated purpose of facilitating the defamed mitigating the damage caused by the defamation close-in-time to the defamatory events instead of having to wait to the end of trial in an attempt to be made whole.  The practical outcome if the dissenting opinion was the rule would be to turn a statute that is ostensibly aimed at protecting the defamed into a law that, unless statutory requirements are carefully navigated, actually protects defamers and cuts off any ability for the defamed to reduce their damages or be made whole.

Conclusion

Although the current state of the law in Texas appears to be that failure to send a timely and sufficient DMA request to correct or retract does not risk dismissal of the plaintiff’s lawsuit, based on the votes and the arguments of the justices and the changing makeup of the court, this legal situation appears to be on very shaky ground.  The best course of action is still to ensure a timely and comprehensive DMA letter, remembering that the statutory deadlines can be very short, so it’s important not to delay.

For additional information, check out the related Keith Law, PLLC Podcast episode and the links in that episode’s show notes.

Disclaimer: This audio and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.

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