Search results for "OBSIDIAN FINANCE GROUP"

District Court Denies Motion for New Trial in Obsidian Finance Group, LLC v. Cox — Next Stop, the Ninth Circuit

Some of our readers have been following Obsidian Finance Group, LLC v. Cox, the libel case in which our local counsel Benjamin Souede and I are representing defendant Crystal Cox. As you may recall, the Nov. 30 opinion in that case concluded, among other things, that only members of the institutional media are entitled to certain First Amendment libel law protections; that is one of the decisions that we are challenging with our motion for new trial. We filed a motion for a new trial in the district court, and on Tuesday the court denied the motion, issuing a long opinion on the subject. We will now be appealing to the Ninth Circuit.

If you’re interested, here are the trial court documents:

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Briefing in Obsidian Finance Group, LLC v. Cox

Some of our readers have been following Obsidian Finance Group, LLC v. Cox, the libel case in which our local counsel Benjamin Souede and I are representing defendant Crystal Cox. As you may recall, the Nov. 30 opinion in that case concluded, among other things, that only members of the institutional media are entitled to certain First Amendment libel law protections; that is one of the decisions that we are challenging with our motion for new trial. The briefing on that motion is now complete, so I thought I’d link to the documents:

We will hear soon about whether the court will hear oral argument on the motion. […]

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Electronic Frontier Foundation Submits Proposed Amicus Brief in Obsidian Finance Group, LLC v. Cox

I’m pleased to say that the Electronic Frontier Foundation has asked the court for leave to file this amicus brief [UPDATE: link fixed] in our Obsidian Finance Group, LLC v. Cox case. To see links to the district court opinion in that case, and to our motion for new trial in that case, please go here. […]

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Motion for New Trial in Obsidian Finance Group, LLC v. Cox

Our local counsel Benjamin Souede (Angeli Law Group LLC) and I have just filed a motion for new trial in Obsidian Finance Group, LLC v. Cox. As you may recall, the Nov. 30 opinion in that case concluded, among other things, that only members of the institutional media are entitled to certain First Amendment libel law protections. The motion for new trial argues that the First Amendment applies equally to all who speak to the public, whether or not they belong to the institutional media. Here is Part I.A of our memorandum in support of the motion:

Even if plaintiffs were not public figures, defendant was still entitled to the protections of Gertz v. Robert Welch, Inc.

The Supreme Court has held that the First Amendment applies equally to the institutional press and to others who speak to the public: “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” Citizens United v. FEC, 130 S. Ct. 876, 905 (2010) (internal quotation marks omitted). In support of this holding, the Court favorably quoted five Justices’ opinions in a libel case — Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 784 (1985) (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting), and id. at 773 (White, J., concurring in judgment) — which expressly concluded that “in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals or organizations engaged in the same activities,” id. at 784 (a view expressly approved by Justice White, id. at 773). And the Court in Citizens United went on to specifically mention that its “‘reject[ion]’” of any greater protection for the institutional press over other speakers stemmed

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Thanks for Help with Obsidian Finance v. Cox

I just wanted to thank the many people who helped me with Obsidian Finance v. Cox:

  • Benjamin Souede of Angeli Ungar Law Group LLC, our pro bono local counsel for the motion for new trial in district court and for the motion to block plaintiff’s zany attempt to seize the appeal rights.
  • Mayer Brown LLP, with which I’m a part-part-part-time Academic Affiliate, and which paid the litigation costs through its pro bono program.
  • Helene Siegel of Mayer Brown, for her work with cite-checking and production.
  • My colleagues David Babbe, Sam Bray, and Dan Bussel, Loyola (L.A.) professors Karl Manheim, Jay Dougherty, John Nockleby, and Justin Levitt, and recent graduate Dafna Gozani for their help with moot courts for my argument.
  • Bruce Brown, Gregg P. Leslie, and Jack S. Komperda, representing the Reporters Committee for Freedom of the Press, and Tom Goldstein, representing SCOTUSblog, for their amicus briefs that supported our position, and Matthew J. Zimmerman and Richard D. Mc Leod, representing the Electronic Frontier Foundation, which filed an amicus brief supporting our motion for new trial.

I very much appreciate all that all these people have done to bring us to Friday’s win. […]

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Bloggers = Media for First Amendment Libel Law Purposes

So holds today’s Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014) (in which I represented the defendant). To be precise, the Ninth Circuit concludes that all who speak to the public, whether or not they are members of the institutional press, are equally protected by the First Amendment. To quote the court,

The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352. In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue — not the identity of the speaker — provide the First Amendment touchstones.

I think that’s right, not just as a matter of First Amendment principle but also as a matter of history and precedent (as I documented at length in Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012)). The specific legal issue that the Ninth Circuit was confronting in this passage, by the way, is whether all who speak to the public are equally protected by the Gertz v. Robert Welch, Inc. rules, which are that

  1. libel plaintiffs suing over statements on matters of public concern must prove that the defendant was negligent
  2. […]
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Judge Blocks Plaintiff’s Attempt to Sell Indigent Defendant’s Appeal Rights

As I blogged last week, a pro bono First Amendment appeal that I’m litigating (Obsidian Finance Group, LLC v. Cox) sprouted an interesting procedural twist; to oversimplify:

  1. Obsidian Finance and Kevin Padrick sue Crystal Cox. They win at trial, and get a large judgment.
  2. Cox appeals on First Amendment grounds (I’m representing her on appeal). Cox has very little money, so she can’t put up a so-called “supersedeas bond” (a bond for the full amount of the judgment) that is required to keep plaintiffs from seizing her assets to execute the judgment. But that doesn’t block her appeal, since under federal law one generally doesn’t need to put up a bond in the amount of the judgment to appeal — one only needs the bond to stop execution on the judgment pending appeal.
  3. But plaintiffs have a different view: They go to Oregon court, register the judgment, get a writ of execution, and ask the sheriff to seize and sell to the highest bidder Cox’s “intangible personal property,” in the form of … Cox’s right to appeal.

Plaintiff’s plan was thus to have the sheriff sell off Cox’s right to appeal, so that “Cox will be incapable of continuing the suit and the highest bidder at the foreclosure sale (whether that be plaintiffs or someone else) will take an assignment of Cox’s interest in the appeal, becoming the real party in interest.” Presumably the plan is that the highest bidder would be the plaintiffs, who will buy Cox’s rights for a modest amount, and then use those rights to drop the appeal. No more appeal; the judgment is final; end of story.

Of course, if plaintiffs can do this to Cox, any plaintiffs who win a judgment against a defendant who can’t afford a supersedeas bond […]

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Moot Courts for Faculty Members Who Are About to Have Oral Arguments

I had some colleagues of mine do a moot court for my Obsidian Finance Group v. Cox argument tomorrow — many thanks to Profs. Stuart Banner, Sam Bray, Joanna Schwartz, and Steve Yeazell for that — and I also had the administration invite students to watch; about 40 students showed up, I think, and my sense is that they found it interesting, if only because they got to see a professor being grilled instead of doing the grilling. I did the same for my State v. Drahota argument a few years ago, and that seemed to have gone well, too.

I think this might be a good practice for law schools to engage in generally — whenever a faculty member is litigating a case and has a moot court for a forthcoming argument (even trial-level, but especially appellate), invite the students. It’s educational and even entertaining for the students, and I think it helps students see us as lawyers (even if only occasional lawyers) and not just as academics. […]

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May Plaintiff Cut off a Poor Defendant’s Appeal, by Having the Sheriff Sell off Defendant’s Right to Appeal?

That is the question I’m facing with the latest twist in Obsidian Finance Group, LLC v. Cox, a pro bono First Amendment case that I’m litigating before the Ninth Circuit. For more on the substantive First Amendment issue, see the materials collected here. But this twist is all about procedure (as so many legal questions are).

Here’s the matter in a nutshell, and somewhat oversimplified:

  1. Obsidian Finance and Kevin Padrick sue Crystal Cox. They win at trial, and get a large judgment.
  2. Cox appeals on First Amendment grounds (I’m representing her on appeal). Cox has very little money, so she can’t put up a so-called “supersedeas bond” (a bond for the full amount of the judgment) that is required to keep plaintiffs from seizing her assets to execute the judgment. But that doesn’t block her appeal, since under federal law one generally doesn’t need to put up a bond in the amount of the judgment to appeal — one only needs the bond to stop execution on the judgment pending appeal.
  3. But plaintiffs have a different view: They go to Oregon court, register the judgment, get a writ of execution, and ask the sheriff to seize and sell to the highest bidder Cox’s “intangible personal property,” in the form of … Cox’s right to appeal.

That’s right: Plaintiff’s plan is to have the sheriff sell off Cox’s right to appeal, so that “Cox will be incapable of continuing the suit and the highest bidder at the foreclosure sale (whether that be plaintiffs or someone else) will take an assignment of Cox’s interest in the appeal, becoming the real party in interest.” Presumably the plan is that the highest bidder would be the plaintiffs, who will buy Cox’s rights for a modest amount, and then use those rights […]

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New Pro Bono Case on Whether First Amendment Libel Rules Are Limited to Institutional Media Defendants

I’m pleased to report that our local counsel, Benjamin Souede of Angeli Law Group LLC, and I will be representing the defendant blogger in Obsidian Finance Group, LLC v. Cox (D. Or.); we will be filing a motion for new trial, and an appeal to the Ninth Circuit if the motion is denied.

Gertz v. Robert Welch, Inc. (1974) held that even private-figure libel plaintiffs (1) may not recover proven compensatory damages unless the defendant was at least negligent in its investigation, and (2) may not recover presumed or punitive damages unless the defendant knew the statement was false or recklessly disregarded a known and substantial risk that the statements were false. The District Court in Obsidian Finance held that the defendant was not entitled to the protection of Gertz, because she was not a member of the “media.” But as I’ve argued in my forthcoming University of Pennsylvania Law Review article, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, the First Amendment has historically been understood as protecting people who use mass communications technology equally, whether or not they are members of the institutional media. I much look forward to litigating this case, and, I hope, getting the District Court decision reversed. […]

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