Defamation suit against the Case Law Repository for failing to note that the case had been settled publicly distributes a wide range of judicial opinions, with precedent and without precedent, from across the country. Unlike Westlaw, Lexis, and Google Scholar, it is Google searchable, so when a party’s name is Googled, any opinion that mentions the party is likely to appear.

[1.] John D. Thomas was involved in Modarres v. Thomas, which went all the way to the California Court of Appeals and turned out badly for him. From the introduction to the opinion (which also appears on Leagle):

John David Thomas and 184 Diamond, LLC (Defendants), appeal from a default judgment entered after the trial court imposed vacated sanctions against Thomas for abuse of discovery. After an evidentiary hearing, the court awarded plaintiff Farah Modarres a total of $217,000 in compensatory damages against the defendants and $1 million in punitive damages against Thomas alone. Defendants argue that the trial court abused its discretion in imposing severance sanctions against Thomas because a lesser sanction would have been sufficient. They also challenge the punitive damages award against Thomas on the grounds that Modarres presented insufficient evidence of Thomas’ net worth at trial, the amount of the punitive damages award was unconstitutionally excessive, and the award erroneously excluded 184 Diamond, LLC, which was otherwise jointly and severally liable. with Thomas for damages.

We conclude that the trial court did not abuse its discretion in imposing severance sanctions against Thomas for abuse of discovery. We also conclude that Modarres has failed to present admissible evidence of Thomas’ current financial condition sufficient for us to make an informed decision as to whether the amount of punitive damages awarded was unconstitutionally excessive. Therefore, we reverse the judgment to vacate the award of punitive damages and order a new default judgment hearing only on the issue of the amount of punitive damages. Revised, the judgment is affirmed.

The case was then returned to the trial court:

Modarres is entitled to punitive damages. The judgment was modified to vacate the award of $1 million in punitive damages. The case is returned for a new hearing to prove the absence only in relation to the amount of punitive damages. We direct the trial court to issue an order under Civ. Code section 3295, subdivision (c), permitting Modarres to make discovery of Thomas’ current financial condition. Revised, the judgment is affirmed. Modarres will reimburse the costs of the appeal process.

And on remand, the case settled (according to a later appellate decision, “Modarres and Thomas settled the lawsuit without involving the law firm [that had represented Modarres]whereby the law firm is allegedly deprived of fees”).

[2.] Now, a new lawsuit, filed Tuesday and marked up Thomas v. Leagle, Inc. (SD Cal.): Thomas sues Leagle for defamation and misrepresentation on the basis that it published an earlier opinion of the California Court of Appeals (without alleging that the opinion itself was misrepresented). Here is the explanation:

The defendants have released and continue to release information regarding the legal case against the plaintiff who gave the false impression that a judgment was in effect against him, including for fraud, when in fact the case was dismissed….

After the Court of Appeal made a decision on this and the case was returned to the High Court, the lawsuit was dismissed with prejudice, and the previous judgment was invalid. The case published by the defendants failed to disclose this fact and created the false impression that a final judgment had been entered finding Thomas guilty of civil fraud…

Because of this posting, Leagle falsely implied that Thomas was finally found guilty of civil fraud and held for punitive damages.

The lawsuit seeks compensatory and punitive damages, as well as a “preliminary and permanent injunction against the defendants from publishing the case in question unless there is a visible and clear explanation that the case has been dismissed.”

[3.] Now I actually think that publishing a report of a state proceeding suggesting guilt without including information about an actual exculpatory proceeding could indeed be defamation. “[A]accurately reporting … a charge … but failing, in the same article, to report a subsequent denial of the charge is not covered by the fair reporting privilege.” (See my Defamation by omission of exculpatory legal decisions for more on that.) And then there’s the argument I made in mine The duty not to continue to distribute your own slander (pp. 343-46) that people who hold certain material on legal proceedings have (to simplify a bit) a duty to update it with such exculpatory subsequent decisions once they are informed that subsequent decisions have been made. (That, however, is subject to a statute of limitations, and here the statute of limitations is long; plus 47 USC § 230 may also exclude such liability, where Leagle publishes material that comes from other sources, such as government sites.)

But there is none here liberating decision, in the sense that an acquittal or reversal of conviction could be inculpatory. After the Court of Appeal confirmed the verdict, the parties settled; it is not a judicial decision that the defendant is actually not guilty. To cite one instance where this question arose (albeit from republished material), Petro-Lubricant Testing v. Adelman (NJ 2018),

Wintermute argues that Adelman should be impeached [fair report] privilege because the modified article did not report that Wintermute and Laforgia had settled the case. A settlement in a lawsuit, however, is not a judgment on the truth or falsity of the allegations in the complaint. Fair reporting privilege may not protect a publication that merely reprints allegations but not a favorable verdict. A settlement, however, is different from a favorable judgment. The settlement generally “reflects equivocally on the merits of the lawsuit” and does not determine whether the allegations are true or false.

And the court cited a California case that reasoned: “Generally, termination resulting from a settlement does not constitute a favorable decision [for purposes of the malicious prosecution tort] because ‘… the dismissal ambiguously reflects the merits of the claim since it arises from the joint action of the parties, thus leaving open the question of the guilt or innocence of the accused.'” Pender vs. Radin (Cal. App. 1994). Sound analysis, I mean.

Therefore, it seems to me that Thomas should not prevail in this case. I’m not sure if Leagle will appear to be defending himself: his corporate branch in Arkansas has been revoked, and when I ran into him recently in my research, I couldn’t find anyone there. But I think Thomas’ claim is sufficiently without merit as a matter of law that the court should deny any motion for a default judgment that Thomas might make.

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