Monday, June 10, 2013

If my picture has been attributed to someone else’s bad conduct incorrectly, do I have a defamation claim/case?



10 June 2013

It is quite likely and depends on the context, content, and presentation of the statement(s)/publication. 
 
In the case of Stanton v. Metro Corporation, it was about a plaintiff’s picture being displayed in association with an article published by Boston Magazine.  Stanton v. Metro Corp., 438 F. 3d 119 (1st Cir. 2006).  The article was about teen sexuality and generally reported that promiscuity was increasing.  It prominently posted a picture of the plaintiff and other teenagers at the beginning of the article.  The plaintiff had nothing to do with the subject matter of the article and Boston Magazine included a disclaimer stating this fact.  After suit was brought, the defendant moved to dismiss the case.  The trial court allowed the motion and dismissed the case largely on the basis of the disclaimer and ruled it was “forced to conclude that the disclaimer adequately negates the negative connotations about [the] plaintiff.” 
  
However, on appeal, the United States Court of Appeals for the First Circuit reversed.  It assessed the presentation of the article and its pictures as a whole and decided that as a matter of law it was quite possible that a reader could believe that the plaintiff was the subject matter of the article, despite the disclaimer.  The court reasoned that a reader may skip the disclaimer.  It clarified the test is whether a reasonable reader could believe that the plaintiff that appeared in the picture is one of the people that is the subject of the article, even if it would be incorrect.  So in this case the plaintiff was able to pursue the claim. 
 
Defamation is generally a showing that the defendant published a false statement of and concerning the plaintiff that could damage the plaintiff’s reputation in the community, with either economic loss occurring or under the law it is actionable without proof of economic loss.  White v. Blue Cross & Blue Shield of Mass, Inc., 442 Mass. 64, 66 (2004).  If you believe that you may have been defamed, whether it be by a picture or otherwise, feel free to give the author a call.

Sunday, June 2, 2013

Before filing bankruptcy, realize it is a liquidation and take the power of the trustee seriously.

2 June 2013

When people file for bankruptcy, their focus is usually entirely on getting rid of their debts.  They typically fail to realize that there is another side of bankruptcy, the liquidation of non-exempt assets. 
What most need to realize is that when they file bankruptcy, a bankruptcy estate is created that contains all of their property (with some rare exceptions).  The bankruptcy trustee then essentially takes legal title to the property and the debtor is not free to do what he pleases with the property.  (If this is not explained to you by your bankruptcy attorney, get a different one.)  Although debtors generally have some right to use their (former) property during the bankruptcy, and there are complexities and subtleties on this subject that extend beyond the scope of this post, for now, understand that the trustee takes title to your property and has significant power. 

Take the case of In re Gentile, where the debtors were sued for damages resulting from a car collision caused by their grandson while driving their car.  In re Gentile, 1st Cir. B.A.P. No. 12-071 (decided May 20, 2013). They had a million dollar plus pre-judgment attachment issued against their real estate before the trial and then lost the case at trial resulting in a million dollar plus judgment being issued against them.  IdThen they appealed the decision and filed bankruptcy.  Id.  
Again, while the debtors were appealing the state court judgment and their bankruptcy case was open, the trustee moved for authority to sell the debtor’s real estate properties, which were non-exempt assets in the bankruptcy.  IdThe debtors argued that the state court judgment was on appeal and that if it was successful, that debt would no longer exist and their remaining debts could be satisfied by a different non-exempt asset that the selling of which would not cause them the harm as the sale of the real estate would.  IdHowever, the bankruptcy court found the appeal did not have enough of a chance of success to justify making the trustee wait to sell the property.  Id.  The debtors appealed the bankruptcy court’s decision and the bankruptcy appellate panel found that the debtors did not have standing, which means they do not have enough interest in the matter to be able to raise legal arguments.  Id.  Why, you ask, since after all the property was theirs (you may still think)? 

The panel relied upon existing precedent, namely, the case of In re Spenlinhauer, which stands for the proposition that a debtor does not have standing to appeal a bankruptcy court order allowing the sale of non-exempt property unless it is likely that the debtor will realize a surplus after paying creditors.  Id.   What that means is that unless the liquidation of the asset would pay all of the debtor’s creditors in full (including expenses of the estate) and there would be a surplus that could go to the debtor, then the debtor could not argue against the sale of the property.  This is because, as In re Spenlinhauer holds, (which is the main point of this post), the debtor does not have an interest in non-exempt property any longer, only the trustee in bankruptcy.  In re Spenlinhauer, 261 F.3d 113 (2001). 
 
Both In re Spenlinhauer and In re Gentile demonstrate the main point here, again, once you file bankruptcy you essentially do not own your property anymore, the trustee does on behalf of the bankruptcy estate.   11 U.S.C. §§ 541(a) and 704.  This may seem odd, but it is the legal reality upon filing for bankruptcy.  Although it is true that most consumer debtors filing chapter 7 retain all of their property despite filing for bankruptcy, it is not always the case.  This is why filing should not be taken lightly, you should get an idea of what to expect, and you should be adequately prepared for the possible ramifications.  This means getting advice from a competent bankruptcy attorney.

In the event that you are considering bankruptcy, please do your best to avoid being one of those debtors that do not realize what they have subjected themselves to until too late.  (Understand that this is not the only subject that should be understood prior to filing bankruptcy.)  In the event that you desire to look before you leap or have a different legal need related to this subject matter, feel free to give the author a call.

Saturday, June 1, 2013

Am I liable for an accident caused by my friend when he was driving my car with my permission?

1 June 2013

Yes, in Massachusetts at least.  When you lend your car to a friend, you take on risk.  As you can imagine, the losses can be significant.  Take the factual situation described in In re Gentile, where a judgment was entered against car owners for millions for an accident caused by their grandson while he was driving their car with their apparent consent.  Gentile v. DeGiacomo (In re Vittorio and Lydia Gentile) B.A.P. Docket No. 12-071 (decided May 20, 2013).  (Even before judgment, the plaintiff in the case obtained a pre-trial attachment on the Gentile’s real estate.)  After judgment, the Gentiles filed for bankruptcy, but to date, that effort has not stopped the trustee from getting approval to sell their investment property.  The story continues on at this time, but it may end that the car owners here lose a significant amount of money from the damages physically caused by their grandson while using their car.  The bottom line is that, as the car owner, you may incur significant liability for the damages caused by another person driving your car.

The moral of the story is to realize that you are taking on risk when you lend your car out to a friend or family member and to consider the same before handing over the keys. 

In the event that you think talking to a lawyer about a legal situation you face, with respect to liability or otherwise, feel free to give this office a call.