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Author Archives: Rebecca Bricken Kinsel

  1. Katie Couric Sued: Can the Omission of Statements be Defamation?

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    Earlier this month, the Virginia Citizens Defense League (VCDL) sued Katie Couric and others involved in the making of a gun control advocacy film, Under the Gun, a film which Couric narrated and produced.

    According to the complaint filed in the United States District Court for the Eastern District of Virginia, the film “contains false footage purporting to show members of the [VCDL] sitting silently, stumped and avoiding eye contact for nearly nine seconds after Couric asked ‘if there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?’” The plaintiffs contend that, in actuality, the film was edited to remove the answers provided.

    In Virginia, in order to be successful on a claim for defamation, a plaintiff must show (1) publication of (2) an actionable statement with (3) the requisite intent. To be actionable, the statement must be both false and defamatory.

    This case is different from typical defamation cases because, here, plaintiffs are complaining about the omission of statements, which they claim provided an intentional false impression to the viewers. Unlike typical defamation cases that deal with proving whether certain statements are false and defamatory – such as gossip magazines claiming a celebrity has a drug addiction – here the plaintiffs must show that the omission of statements, through the splicing, amounted to defamation.

    Plaintiffs claim the editing of the video by Couric and others amounted to defamation because the edited video misrepresented the exchange, including splicing in nine seconds of silent footage following the question, and inserting images of a gun cylinder being closed. The claim that the “manipulated footage falsely informed viewers that the [plaintiffs] had been stumped and had no basis for their position on background checks.”

    Can the insertion of silence be defamation? On the one hand, there is no statement at all, much less a false and defamatory statement. But at the same time, the insertion of silence and removal of the answer given may have provided a false impression to the viewers, damaging the defendants. Because the plaintiffs are not claiming that Couric or others made false and defamatory statements, but instead omitted statements and inserted silence, it will be interesting to see if the Eastern District of Virginia finds that defamation exists here.

  2. Settlement Strategy: What Can Companies Learn From Target’s $4.6 Million Verdict?

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    Earlier this month, a jury in South Carolina awarded a Target shopper $4.6 million after she was stuck with a hypodermic needle in a Target parking lot. Prior to trial, Target rejected the plaintiff’s proposal to settle the case for $12,000. Target’s counter-offer was only $750.

    Statistics show that the vast majority of cases settle. The decision to settle a case or not is a difficult one for individuals and companies. Large companies, like Target, have to consider the ramifications of settling lawsuits. On the one hand, in the wake of large verdicts like this one, it may seem advisable to have settled for the amount offered. But on the other hand, companies have to consider the effects of a settlement on all of the other potential plaintiffs out there.

    If Target were in the habit of settling every case brought against it for more than $10,000, the company would soon feel the effects. And if potential plaintiffs learn that Target will settle claims for large sums, it may create an incentive to sue. Companies with lots of potential plaintiffs – pharmaceutical manufacturers, large companies with high volumes of customers – need to be cautious of creating a reputation for settling cases for large sums. This is particularly true if a problem is discovered that cannot be rectified going forward, such as a product defect.

    At the same time, however, large verdicts like this one are likely to incentivize potential plaintiffs, and drive up the amounts of future settlements, because plaintiffs may believe that there could be a large verdict awaiting them. Had Target successfully defended this case, of course, the impact on potential plaintiffs would have been the opposite, possibly creating a disincentive to sue or perhaps a decrease in future settlement amounts.

    Large companies like Target also have to consider the public relations effects of a large jury trial. Even with a win, the negative publicity resulting from a trial might factor into settlement decisions. For instance, if a plaintiff appears sympathetic in the media, particularly in a personal injury case, a large company may lose in the court of public opinion, even if they are successful at trial.

    Smaller companies have different factors to consider when deciding whether to settle a dispute. While large companies like Target may be able handle the law of averages over time, smaller companies are often risking a single home run verdict that they may not be able to afford. Thus, the settlement analysis can be quite different.

    Settlement strategy in every case can be a dynamic process, with multiple factors (and personalities) to consider. After large verdicts like this one, it will be interesting to see if Target adjusts its settlement posture in future lawsuits.