Objective memorandum · 90 minutes
Predict whether a contractor can win a defamation claim over a customer's online review and whether the statements are opinion. You have 90 minutes. To: Associate. Use the File and the Library only, then compare your draft with the rubric and the model answer below.
To: Associate. From: Adriana Petrov, Partner. Re: Kestrel Roofing v. Lowell. Our client, Kestrel Roofing, is a local roofer. A former customer, Grant Lowell, posted a review on a public site. Kestrel wants to sue for defamation. Please write an objective memorandum predicting (1) whether the review contains actionable statements of fact, (2) whether Kestrel is a private or limited-purpose public figure, and (3) whether Kestrel must prove actual malice. Use only the Library.
One star. Kestrel Roofing is the worst company in town. They took my $9,000 deposit and never showed up. I think the owner is a crook. They also installed the wrong shingles on my neighbor's house, and the roof leaked within a month. Avoid at all costs.
Kestrel's owner, Dana Whitcomb, says that Mr. Lowell paid a $2,000 deposit, not $9,000, and that Kestrel did the work two weeks after he cancelled his order. Kestrel did not install any shingles on the neighbor's house. Kestrel has run local radio ads for six years and gives to local events, but it has never been in the news. Since the review, calls have dropped by about a third. Kestrel asked Mr. Lowell to remove the review, and he refused.
A person who publishes a false statement of fact about another that harms the other's reputation is liable for defamation. A private person who proves fault of at least negligence may recover actual damages. A public official or public figure must prove actual malice, meaning knowledge of falsity or reckless disregard for the truth, by clear and convincing evidence.
A restaurant owner sued a reviewer who wrote that a meal was 'disgusting' and that the owner 'cheats customers.' Held: the first was opinion and not actionable, but the second could be read as a statement of fact that can be proved false. A statement is actionable if a reasonable reader would understand it to assert a verifiable fact, and the setting and language are considered. A defendant cannot avoid liability by adding 'I think' to a factual assertion.
A local business advertised widely and sued a newspaper over a story. Held: the business was not a public figure. A person becomes a limited-purpose public figure only by voluntarily injecting itself into a particular public controversy to influence its outcome, and advertising or being known in the community is not enough. A private plaintiff need show only negligence and may recover actual damages without proof of actual malice.
Graders score a response against these criteria, and every one of them depends on using only the facts in the File and only the rules in the Library, so treat the list as a check for your draft after the first pass and again before you stop writing.
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