When not to file a libel lawsuit (Any Time Gutter & Screening edition)

|The Volokh Conspiracy |

Any Time Gutter & Screening Inc v. Loiacono, decided last week by a trial court, illustrates some problems with suing for libel. The court reports that the plaintiffs alleged that Vincent Loiacono—who had called Any Time Gutter & Screening (owned by Arthur Kaufman) for a quote—"made the following false statements" in a ripoffreport.com posting:

Kaufman said that pulling a permit was unnecessary.

Plaintiffs' estimate was significantly more expensive than other screen builders.

Plaintiffs were banned from Mr. Loiacono's residential community.

Plaintiffs were unlicensed, in violation of county code.

Plaintiffs were doing illegal gutter work in the Boynton Beach area.

But, according to the court,

Truth is a defense to defamation.

The undisputed evidence submitted to the Court is that Mr. Kaufman did tell Ms. Loiacono that pulling a permit for the screen enclosure job was unnecessary.

Likewise, Loiacono's statement that Plaintiffs were unlicensed is true, according to statements under oath from Broward and Palm Beach County officials.

Plaintiffs admitted that they were banned from Loiacono's community, albeit for a short time. Mr. Kaufman's business card was posted in the gatehouse under the name "Arthur Kaufman" and "Banned."

The undisputed evidence submitted to the Court is that Mr. Wexler [a Boynton Beach official] told Loiacono that he thought that he caught Plaintiffs performing illegal gutter work in the Boynton Beach area.

Furthermore, Plaintiffs admitted they performed illegal gutter work in Broward and Palm Beach Counties. At his deposition, Mr. Kaufman refused to state whether he performed gutter work in Boynton Beach on condos or townhouses, which work requires a license in Palm Beach County. Accordingly, Plaintiffs failed to rebut the truth of the statement. And, the precise location of Plaintiffs' illegal contracting work in Boynton Beach (as opposed to Boca Raton) is not material in that the evidence demonstrates he performed illegal gutter work in Palm Beach and Broward Counties.

Moreover, according to the court, plaintiffs couldn't point to damages caused by the post—and any lost roofing business couldn't lead to a legal claim for damages, because "Plaintiffs, who are unlicensed, may not legally generate income from building gutters, screen enclosures or roofs." And because of all this,

Mr. Loiacono is entitled to tax his reasonable attorney's fees and costs because the lawsuit was a strategic lawsuit against public participation. The Court finds that Plaintiffs filed this lawsuit against Loiacono without merit and primarily because he exercised the constitutional right of free speech in connection with a public issue.

I emailed Mr. Kaufman yesterday to see if he had a response but haven't yet heard back from him; if I do, I'll be glad to pass along the response.