Friday, March 21, 2014

Accuardi v. Fredericks; Obsidian v. Cox Citing

"Finally, Accuardi relies on this court’s decision in Obsidian Fin. Grp., LLC v. Cox, CV-11-57-HZ, 2011 WL 5999334, *6 (D Or Nov. 30, 2011). In that case, the defendant published statements on the Internet that the plaintiff had committed tax fraud while administering assets as a court-appointed trustee in the bankruptcy proceedings of a private corporation.

The court found that those statements were not a matter of public concern because they did not involve a question for public discourse, but strictly related to the handling of a private company’s bankruptcy affairs, citing Gertz v. Robert Welch, Inc., 418 US 323, 350 (1974).

The focus of Fredericks’s statements about Accuardi, unlike those about the plaintiff in Obsidian, is how Accuardi’s involvement with the private company affects the public.

Fredericks’s scrutiny is not limited to the private management of the Telemarketing Entities, but questions how that management resulted in alleged robo-calling to the citizens on the National Do Not Call Registry and violations of federal and state law.

More importantly, the Ninth Circuit disagreed with this court’s conclusion in Obsidian that the allegations of tax fraud were not a public issue because “[p]ublic allegations that someone is involved in crime generally are speech on a matter of public concern.” Obsidian Fin. Grp., LLC v. Cox, 12-35238, 2014 WL 185376, at *5 (9th Cir Jan. 17, 2014). As explained above, Fredericks’s statements implying that Accuardi is violating the law involve a matter of public concern. Thus, Fredericks has met his initial burden. "