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Proving Damages in a Business Defamation Lawsuit

Author By Todd McMurtryPosted on

It can take years for a company to develop a reputation among its customers, suppliers, investors and employees. But that reputation can be quickly impaired when someone disseminates falsehoods about the company, its employees or its goods and services. This is known as business defamation and it may entitle the injured company to legal relief and compensation.

Business defamation differs from personal defamation in that damages are not presumed. The defamed company must prove monetary losses or other economic damages. Further, there must be an identifiable link between the false statements and the harm suffered by the company. The losses must also be reasonably quantifiable, not speculative. In other words, there must be a measurement of the amount of loss attributable to the defamatory statements.

Proving damages caused by business defamation often requires the use of expert witnesses. In many cases, experts demonstrate that the company had a long history of stable financial results right up until the time the defamatory statements were published. Then there was a significant or even precipitous drop in performance. Financial reports and projections also are used to show how the false statements brought actual economic harm to the business.

There are several different kinds of economic losses that may be demonstrated, including:

  • Lost revenue — If the defamatory statements caused an immediate and significant loss in sales, this will be evident in the periodic financial reports. Lost future revenue may be shown in the company’s sales projections. While future revenue is hard to predict, sales projections may be persuasive evidence if the analyses are logical and credible.
  • Lost profits — Revenue and profits are often tied together. However, not all sales generate the same profit margins. Defamatory statements might cause only a modest reduction in revenue but a large drop in net profits. Both recent profit reports and future profit analyses can be used in assessing damages.
  • Lost shareholder value — Defamatory statements can affect the value of the shares. This is particularly important when the stock is publicly traded. Poor financial performance easily affects stock price in the near term. Also, defamation losses may undermine the public’s faith in maintaining or growing shareholder value, which in turn can affect current and future stock prices.
  • Damage control — Companies might spend large sums of money in refuting false claims and pursuing defamation actions. Advertising, public relations firm costs, legal fees are often necessary expenses in countering business defamation. These costs may be compensable in a business defamation lawsuit.

Proving these damages can be complex, especially because valuation of a company’s worth and future prospects is subjective and may be challenged by the defendant’s own experts. An experienced business defamation attorney can analyze your situation and advise about the best approach to proving the case.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

Fraud Is Real: Don’t fall for it

Author By Christopher P. FinneyPosted on

Fraudsters — both high-tech and old school — daily attempt to use real estate and other transactions to scam our law firm, our title company and our clients out of money and property.  To date, we have not been hit (some of our client have been), but we are always on guard.  Fraudsters forever keep trying.

As you are growing your business — and these tips apply to businesses large and small, old and new — it is a good idea — from time to time — to gather your financial team and key executives, along with your IT professionals, and simply have a conversation about “tightening things up” and avoiding common scams.

  • Are your checks (and cash) — incoming, outgoing and blank checkbooks — tightly secured and under watchful eyes?
  • Are your systems too open and accessible (a simple question such as automatic screen savers with passwords that trigger when an employee is away from his desk)?
  • Do you have proper insurance to protect your real risks?
  • Do you have proper training and systems in place to avoid common and emerging risks?

In the end, we all have some exposure.  So, eternal vigilance, the latest technology protection and training of employees new and old, is the only answer.  Part of this caution is constantly “tightening up” and “changing up” your transactional practices and security procedures to avoid the latest scam.

Here are some common scams we and our clients have seen:

  1. In the low-tech world, fraudsters simply borrow money based upon false promises and representations.  This is a time-tested and common scam.  It is borne of two human instincts: (a) we want to trust people and (b) we are lured by the promise of a better-then market return on investment (if it’s “too good to be true,” it’s probably fraud).  Many of these fraudsters have the appearance of business stability and financial success, but are willing to offer above-market interest rates for a personal or business loan.  In the end, these loans are not properly secured and are not properly guaranteed, and the fraudster never had the ability or intent to pay back the monies.
  2. Similarly, we have seen clients purchase assets or entire businesses that are subject to liens or governmental enforcement actions, or the purchase price is based upon false financial documents or hidden property condition.  In a business transaction, be careful of slippery buyers, sellers and attorneys who can make fraudulent closing adjustments as the numbers are flying about in a closing.
  3. Another low-tech fraud is thieves who rifle U.S. Postal Service mail boxes (both the blue drop boxes and mailboxes at your home or business), steal checks, and then change the payee and amount on the check and cash it.
  4. Pay attention here: In the high-tech world, fraudsters hack into a Realtor, investor or title company email system, and steal their email signature and logo, and the details of an imminent transaction.  Then, they establish a similar email domain (with maybe one letter changed or a “dot” added).  Using the new domain, they send an email to the party who is to originate a wire with false wire instructions — instructions straight into the fraudster’s overseas wire address.  The email by all appearances looks entirely legitimate and it’s from a name you know and with whom you actively are dealing.
  5. We have written about sellers who don’t own actually property attempting to mortgage or sell the same.  Read here and here.
  6. Finally, fraudsters use sophisticated hacking and ransomware viruses to invade your critical computer systems.  They corrupt your data and hijack control of your systems, relenting only when an exorbitant ransom has been paid.  Extortionists have taken over critical infrastructure such as oil pipelines, hospitals, and municipalities.  Most recently, the vendor running the Cincinnati Multiple Listing Service and dozens of MLSes nationwide was the victim of a weeks-long ransomware attack that was costly and disruptive.

So, how can you protect yourself in this world increasingly fraught with risk of theft of your valuable data, money and time by those with malintent?

Here are a few ideas:

  • Stay in your lane.  Let lenders lend.  In most cases, they are good at it.  If a borrower is coming to you for a loan, it’s likely because he’s not eligible for conventional financing, and that ineligibility is for a good reason — he’s either lying, broke or both.
  • Carefully use due diligence and proper documentation.  If you are going to lend money or buy assets or a business, perform the kind of due diligence a prudent and sophisticated buyer or lender would undertake and obtain appropriate security and guarantees of a loan.  We discuss some of the pitfalls of private lending here.  Similar risks can exist in buying assets and buying whole operating businesses.  Part of this process is assuring that the borrower actually owns the assets he is selling or pledging (free and clear) and that your security interest is properly and timely perfected as against that asset.  In a real estate-based loan, title insurance is a key way to assure this is so.  In purchasing a business, the risk is even greater in that the corporate entity may have significant residual undisclosed liabilities or governmental enforcement problems. That seller — and your purchase monies — will completely disappear by the time you learn of the fraud.  Finally, the #1 “due diligence item” is to know your employees, know your borrowers, know your sellers.  The internet (and now artificial intelligence tools) is an incredibly powerful way to do background on parties to a business transaction,  Use it.  Cautiously heed the lessons of what you find.
  • Properly perfect security interests and document guarantees.  When banks lend money, they want proper security for their loans and appropriate guarantors for their repayment.  In most cases, banks are over-protected, and they want it that way.  You do too.  In both real estate and equipment-based transactions, we have seen borrowers pledge the same assets to different lenders as security for two or more loans.  Obviously, in that circumstance someone is going to be left holding the bag.  (Yes, fraudsters are that shameless.)  Using proper real and personal property title examinations and lien searches and using appropriate documentation for loans and guarantees is critical.  For example, in Kentucky, in order for a personal guarantee of debt to be enforceable, it must follow specific statutory requirements.  Without that, it’s worthless.
  • Don’t put checks or other key financial documents in blue U.S. Post Office boxes on the streets and don’t have checks sent to a mail box at your business or residence that is accessible by others.
  • As to wire fraud, you can’t be careful enough.
    • The sender of a wire should assume everything you see is a lie, the fax, the email, the logo, the wire instructions, the sender web site, the sender.  Everything.  Always verify everything via voice using a trusted and known telephone number for the wire recipient.
    • If you smell a rat, don’t initiate the wire.  Wait and check some more.  Urgency — especially inappropriate urgency — is a key indicator of fraud.
    • Read carefully the sender email addresses and the email.  Many times the email domain of a fraudster does not exactly match the domain name with which you have been dealing.  Note misspellings and grammatical errors in the text of an email that may come from a foreign sender or one unfamiliar with the parties and the transaction.
    • Note last-minute changes, especially of wiring instructions.
    • Note changes made on the Friday before a holiday weekend or before another holiday, and before the end-of-month, when Realtors and title company employees are more likely to be busy and careless.
  • Buy cyber insurance.  Your property and casualty insurance agent can offer your business cyber protection.  It requires you to use good practices for the insurance to invoke, but both the coverage and the required procedures are a critical part of best practices protection.
  • As to ransomware attacks, we have two pieces of advice:
    • First, according to the Harvard Business Review (citing IBM), 60% of cyber attacks originate inside your organization.  Either a malevolent employee or ex-employee intent on theft or vandalism (75% of attacks) or a negligent employee (25% of incidents) who falls for a phishing attack scam cause most losses.  So, hire and retain employees of good character, monitor their activities, and carefully, comprehensively and quickly cut off computer access of former employees.  Segregate access to data in your organization to those who need that data, and no one else.
    • Second, every computer system is vulnerable.  Every one.  But homegrown (premises-based and self-maintained) servers are more vulnerable to a hack (in my opinion).  As a result, we (a) have migrated the vast majority of our data into the Microsoft cloud (other providers are also available) (heaven help the world if they hack the Microsoft cloud!), (b) have segregated access to data to employees who need that access, and (c) have make serial backups of data that is not in the cloud.
  • Understand the risks, develop training and systems to avoid the risk, and train all of your employees on cyber security procedures.

As our attorneys can assist with due diligence and proper documentation (including title insurance) of your transactions, call us!

More on upcoming property tax valuation increases

Author By Christopher P. FinneyPosted on

For both commercial properties as well as single family homes, owners have flooded us with inquiries about their notices from County Auditors in Hamilton, Butler, Clermont and Montgomery Counties as to new property valuations.  We can’t imagine the number of calls the County Auditors must be getting.

A few guideposts for you:

  • First, read this important blog entry that essentially tells you that the first 30% of the valuation increases in southwest Ohio will not result in an increase (or at least not a significant increase) in your actual tax bill.
  • Second, Auditor’s property valuation is not some magical number — for the January 2024 tax bill, it is to be the fair market value as of January 1, 2023.  Thus, if your property was worth more then than in the prior valuation period, you should expect a valuation increase — perhaps one even above average for all properties in the marketplace.  Some clients seem to think that since valuations were less than what they thought the property was actually worth in the past, the Auditor’s valuation process is supposed to yield a lower number.  Well, it’s not.
  • Third, if your property was purchased since the last triennial valuation date (January 1, 2020), the sale price likely will be reflected in the valuation.  As this blog entry addresses, a recent arm’s length sale essentially — and largely irrebuttably — IS the value by law.
  • Fourth, if your property falls in one of the gazelle categories of properties whose values have leaped ahead of the market — single family homes, warehouse and industrial properties, and apartment buildings — you should both celebrate your good fortune and expect a bigger tax bill as a result.
  • Fifth, on the flip side, if you are a victim of the weak office market or the mall or downtown retail market weaknesses, you should should see some tax relief in the January tax bills.
  • Sixth, gas prices are up, grocery prices are up, car prices are up.  You have not had a valuation increase in three years.  Wouldn’t you expect your tax bill would rise some, at least modestly?
  • Seventh, for both buyers and sellers in today’s market, the looming valuation increases create both a possible problem and an opportunity as to contractual tax prorations for sales between now and January when the new — very different — valuations come out.  Read here for more detail on this.
  • Eighth, remember, the Board of Revision process to challenge property valuations is a two-way street.  If your property truly is undervalued, you risk an increase.  Cautiously keep in mind the upward dynamics of the real estate market over the past three years.  You could wind up with an increased valuation as opposed to the sought reduction if you overplay your hand.
  • Finally, I had a client recently ask me “why would single family home valuations be increasing in Cincinnati?” and I swear he must live under a rock.  I responded, “haven’t you seen newspaper articles explaining that Cincinnati has had one of the hottest housing markets in the nation since the start of COVID?”  The response, “ummm, no.”  It is surprising since we deal with this every day, and to some extent it is just denial of the obvious fact that we are blessed in Cincinnati with a fantastic housing and commercial real estate market.  Enjoy it while it lasts!

If, after reading this and the prior blog entry on the new valuations coming out in January, you still have tax valuation questions, please contact me (513.943.6655) or another member of our tax team.  We are glad to help.

7 Key Clauses to Include in a Terms and Conditions Agreement

Author By Todd McMurtryPosted on

As recently as 2018, just half of the country’s small businesses had a website. But today, in the aftermath of pandemic-era lockdowns and closures of physical plants, around 95 percent of small businesses have some form of online identity. The internet offers powerful tools to present your products, generate revenue and provide customer service. However, taking full advantage of an internet presence requires devising new ways to deal with the public, including adoption of a terms and conditions agreement.

Also known as terms of service (TOS), a terms and conditions agreement outlines the rules governing your website or app and defines the relationship between you and your users, who implicitly agree to the terms and conditions.

The TOS should be crafted to fit the types of merchandise and services that your business offers, but certain provisions are generally advisable. Here are seven clauses that you should consider having:

  • Limitation of liability — You can include disclaimers designed to protect your business from being held liable for certain losses suffered by users, such as data loss, malware infections and other mishaps outside your control. You can also state a maximum amount of damages for which your company can be held liable.
  • User code of conduct — Any site or app that allows users to post content, such as reviews or comments, should have a code of conduct. It should also state the consequences of posting unacceptable content, such as account suspension or termination. The code can explain that you have the right, but not the obligation, to remove offensive user posts.
  • Governing law clause — This tells users that if they file a legal claim against you, it will be governed by the laws of the state you specify.
  • Intellectual property clause — This prohibits the use or distribution of your company’s name, logo, domain name, trademarks or copyrights without your permission.
  • Payment and refund procedures — The TOS should clearly explain the payment methods you accept, the consequences of non-payment and your policy for issuing or refusing to issue refunds.
  • Termination clause —This reserves your right to delete a user’s account if they violate the terms of service.
  • Cookie usage — The TOS should explain how your site or app uses cookies to track users and to provide them with relevant information. It should also explain users’ rights to limit or prevent use of cookies.

There may be other clauses you’ll want to include, such as one setting out a procedure for conflict resolution. A qualified business attorney can analyze your situation and draft a TOS that is best suited to your needs and objectives.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

What Are the Most Common Forms of Legal Malpractice?

Author By Todd McMurtryPosted on

You expect your lawyer to represent you effectively and to work hard to achieve the results you want. However, the fact that the lawyer fell short of your expectations doesn’t automatically mean you can sue for legal malpractice. Also known as professional negligence, malpractice is limited to situations where an attorney does not act according to the accepted standard of professional care. The lawyer might do something that a reasonably competent lawyer would not have done in a similar case or, conversely, might fail to do something that should have been done. In addition, the act or failure to act must have harmed the client in some way.

The following are some of the most common examples of legal malpractice:

  • Commingling funds — This means the attorney or law firm failed to keep client funds in accounts separate from business accounts.
  • Lack of experience or training — Lawyers cannot know everything about every area of law, so they are obligated to take only those cases they are competent to handle. A corporate lawyer who has no experience in family law could make critical mistakes in a divorce case.
  • Missing deadlines — Attorneys are expected to adhere to all deadlines imposed by law and by courts or other tribunals. Among the most critical deadlines are statutes of limitations that set time limits on certain claims.
  • Not knowing the facts or applicable law — Lawyers must take the time to learn the facts and laws applicable to each case in order to represent the client’s interests thoroughly and effectively.
  • Fraud or misrepresentation —Lawyers must disclose to clients all material information about their cases and do so truthfully. Lawyers also have a duty of candor and honesty to courts and tribunals, as well as to other parties and lawyers.
  • Failure to communicate — Lawyers have a duty to keep clients informed of what is happening in their cases so the clients can participate in making informed decisions. 
  • Improvident acceptance or rejection of settlements — Lawyer should not accept settlement offers that are not in their clients’ best interests, nor should they reject settlements that might be beneficial. Failure to discuss settlements with clients can also constitute malpractice.

Legal malpractice claims can be challenging to win. You have to prove that you would have achieved a benefit if your attorney had adhered to the proper standard of professional care. This is known as a “case within a case,” since it means presenting evidence sufficient to support a favorable outcome in the underlying matter. The lawyer you retain for your legal malpractice claim should also have familiarity with the area of law involved in the original case.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

Determining Company Value During a Business Divorce

Author By Todd McMurtryPosted on

Dividing property is one of the most important and potentially contentious aspects of business partners falling out and going their separate ways. A business divorce requires that the company be fairly valued so that all or part of it can be sold, whether to insiders or to outside buyers.

A business valuation analyzes all areas of the company to determine the worth of its various departments and of the entity as a whole. Professional evaluators look at such as elements as the company’s capital structure, its management, the market value of its assets and its future earnings potential.

There are numerous ways to value a company during business divorces. Some of the most common methods are:

  • Market capitalization — The value of a public company typically is calculated by multiplying the company’s share price by the number of shares outstanding. If the price is $50 and there are one million shares outstanding, the company’s value is $50 million.
  • Times revenue — A multiplier is applied to the revenue the company has generated over a certain time period. The multiplier varies by industry. A tech company might be valued at 5x revenue while a service company might be valued at 1x revenue.
  • Earnings multiplier —The company’s price-to-earnings ratio is adjusted to account for current interest rates. This is often more accurate than the times revenue method because the earnings multiplier is based on profits.
  • Discounted cash flow — This is similar to the earnings multiplier method, except that the company’s cash flow is calculated taking inflation and other market risks into account.
  • Book value — This is the company’s total assets minus its total liabilities as shown on its balance sheet.
  • Discretionary earnings — This method, often used for valuing small businesses, takes gross earnings and adjusts them for depreciation, interest expense and non-operating and non-recurring income.

When business owners are engaged in a split up, it is to be expected that the choice of valuation method will be a point of contention. Different owners will likely choose their own evaluators, with each employing a different method. If the owners can’t agree on a selling price, some form of alternative dispute resolution, such as mediation, may be used to arrive at a settlement.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

What to Do if Your Business Gets Sued for Breach of Contract

Author By Todd McMurtryPosted on

Contracts have been called the lifeblood of a business, and when unexpected troubles interrupt the flow, the health of the enterprise is affected. Being sued for breach of contract can greatly tax your business, costing you legal fees and exposing you to the risk of paying monetary damages. If you have been sued or believe that you might be sued, there are prudent steps you should take.

Even if you have not yet been served with a complaint, consult with a business attorney about the risk of litigation and how to prepare. At your initial consultation with the attorney, you should bring a copy of the contract, your business liability insurance policy and any other relevant documents. Your attorney can review the situation and your relationship with the prospective plaintiff and can advise you about possible actions to avert the suit.

Once you are sued, you should immediately contact your insurance carrier. You may hold a general liability policy, a commercial property policy or a business owner’s policy that includes both. Provide the carrier with a copy of the complaint and answer any questions the insurance adjustor asks about it. If your policy covers the dispute, the insurance carrier has a duty to defend you, which means that it must provide you with capable legal counsel. If you don’t have a policy that covers the dispute, you must retain your own lawyer.

Your attorney, whether provided by the insurer or retained by you, will take the following steps as appropriate:

  • File a motion to dismiss the complaint, based on any substantive or procedural defects.
  • File an answer to the complaint, listing your defenses and raising any counterclaims you might have against the plaintiff.
  • Conduct discovery, which is a set of procedures for obtaining information from the opposing party, which could include requests for production, interrogatories (written questions) and depositions (oral questions).
  • Help you respond to discovery and represent you and your employees during depositions.
  • File and respond to pretrial motions.
  • Conduct settlement negotiations on your behalf.
  • Prepare evidence and witnesses for trial.
  • Present evidence in your favor and rebut the plaintiff’s evidence during trial.
  • File or respond to any post-trial motions.
  • Represent you in any appeals.

If you retain your own counsel, make sure the firm is experienced in business litigation as well as in negotiation. Skillful handling of breach-of-contract cases includes making efforts to avoid excessive costs and disruption of business operations, as well as to preserve customer and supplier relationships to the extent possible. These goals are best accomplished if the case is settled out of court. However, the attorney must always be prepared to effectively protect your interests at trial.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

Alarm Tax Class Action Update: Checks have been mailed

Author By Christopher P. FinneyPosted on

As we reported here, Finney Law Firm participated in a successful class action to force the City of Cincinnati to stop collecting alarm registration fees and to refund illegally-collected fees for years past.

Those refund checks were dropped in the mail over the past few weeks and the final batch is to be mailed this week.

In the event that you did not properly receive a refund check due to you, contact the City’s False Alarm Reduction Unit at (513) 352-1272.

If you continue to have problems, do let Chris Finney (513.943.6655) know.

Dominion Voting’s $1.6B Suit Against Fox News Shows Challenge of Proving Libel Damages

Author By Todd McMurtryPosted on

Libel consists of making untrue, harmful statements to third parties through writing, printing, broadcasting, pictures or other media. Because these means of communication create a record of the defamation, they can have a lasting impact on the reputation of a business. But if someone libels your company, you have a legal remedy only if you can prove what injuries the statements have caused.

Business libel has been much in the news recently because of the lawsuit filed by Dominion Voting Systems, Inc., and its affiliated companies, against the Fox News Network. Dominion, which supplies voting machines to election districts throughout the U.S., asserts that Fox broadcast groundless allegations by then-president Donald Trump’s political allies that Dominion was involved in 2020 election-rigging. Dominion seeks damages of $1.6 billion for reputational damage. Fox contends there is no evidence that Fox’s reporting has done harm to Dominion’s revenues or profitability such as would justify damages on the scale sought.

The trial, expected to last five weeks, is scheduled for late April. Whatever the outcome, the lawsuit offers a concrete lesson about the difficulty of proving damages in a libel claim.

The elements of a libel claim are as follows:

  • The defendant made an untrue statement of fact (not merely a statement of opinion).
  • The defendant made the statement to a third party or publicly.
  • The defendant was at least negligent in checking the accuracy of the statement or, if in reference to a public figure, the defendant made the statement with knowledge of its falsity or with reckless disregard for the truth.
  • The plaintiff suffered damages as a result of the defamatory statement, except for rare cases in which the defamation is so egregious that damages are presumed.

Dominion, which is a public figure, argues that emails and deposition testimony of Fox employees and its owner, Rupert Murdoch, show that Fox knew the allegations of election-rigging were false.

However, Dominion also needs to produce evidence of any damages the business suffered and of their connection to the alleged libel. This includes evidence that Dominion lost customers or business relationships or that the viability of the business itself is in danger. Dominion claims it lost $921 million in overall business value, $88 million in actual profits and $600 million in potential future profits. The company also seeks punitive damages.

In a business libel case, an experienced and skilled defamation attorney knows how to demonstrate damages that are based on hard economic data and a causal connection to the alleged libel. This may involve a detailed investigation and the retention of expert financial analysts.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

Making a Living Will and Health Care Surrogate Part of Your Estate Planning

Author By Todd McMurtryPosted on

Every adult resident of Kentucky should have a living will and designation of health care surrogate. This is a legal document designed to protect you if you become incapacitated and/or cannot communicate with your doctors about important health care decisions. Without this document, some stranger might be making those decisions on your behalf. The document also impacts your estate planning, since it can include important conditions on the type and degree of life-sustaining treatment you wish to receive.

Unlike “end of life” documents such as wills and trusts, which mandate how a person’s assets will be distributed after death, a living will and surrogate designation has effect while you’re alive. It serves two functions:

  • It provides advance directives about your health care in certain situations. For example, in the event that the physicians determine you are incapacitated and terminally ill, you may forego any further medical treatment and require that nutrition and/or hydration be withheld.
  • It allows you to appoint a health care surrogate. This is a person you choose to make health care decisions on your behalf. The surrogate must honor all of your advance directives but can direct the providers about all other health-related matters.

The advance directives and surrogate appointment take effect only if you are incapacitated or otherwise incapable of communication.

The requirements for executing a living will and surrogate designation are provided by state statute. Like a last will and testament, a person executing a living will must be of sound mind at the time. The document must also be notarized and witnessed in accordance with Kentucky law. The signer may revoke the document at any time with or without cause. People may revoke and rewrite their living will and surrogate designation for various reasons. Sometimes their attitude towards potential care and treatment changes over time. In other cases, the chosen surrogate has died, moved away or is no longer the best candidate for serving as the surrogate.

Estate planning is not usually a priority for the young and healthy. However, life is unpredictable. A sudden illness or accident can leave anyone incapable of making decisions and/or communicating with their doctors. Every adult should have a thoughtfully drafted living will and surrogate designation in place in case the unexpected happens. It is also important to periodically review the estate plan to be sure that the person’s current wishes are reflected in the documents.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

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