KRIMBILL v. TALARICO
417 P.3d 1240
| Okla. Civ. App. | 2017Background
- Plaintiff H. Michael Krimbill sued defendants Louis C. Talarico III and LCT Capital, LLC for libel based on an October 2015 email from Talarico to an NGL audit-committee member alleging misrepresentations and inaccurate public filings under Krimbill's leadership.
- Defendants moved to dismiss under the Oklahoma Citizens Participation Act (OCPA), asserting the email was protected speech concerning a matter of public concern.
- The district court denied the OCPA motion; defendants appealed.
- The core procedural question was the proper application and scope of the OCPA dismissal procedure (12 O.S. Supp. 2014 § 1434), including burdens of proof and whether disputed facts may be resolved at the dismissal stage.
- The court applied a de novo review and analyzed (1) whether the Act covered the speech, (2) the plaintiff’s burden to make a prima facie showing by “clear and specific evidence,” and (3) whether defendants could show affirmative defenses by a preponderance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the OCPA applies to the email | Krimbill implicitly conceded Act could apply but emphasized exceptions | Talarico: email is protected speech on a matter of public concern (marketplace/service) | Court assumed Act applied for purposes of decision (did not decide commercial-exemption) |
| Standard and scope for plaintiff to avoid dismissal ("clear and specific evidence" / prima facie) | Krimbill: prima facie may be shown by pleadings and admissible affidavit, including circumstantial evidence of actual malice | Defendants: pleadings and affidavit insufficient; Act imposes stricter standard | Court: prima facie = traditional meaning; "clear and specific evidence" does not impose elevated evidentiary standard; pleadings and admissible affidavits may be considered; circumstantial evidence can support malice |
| Whether defendant may obtain dismissal by proving defenses (truth, privilege) by preponderance at motion stage when there are disputed facts | Krimbill: truth and privilege are affirmative defenses for defendant to prove, but disputed factual issues preclude dismissal | Talarico: §1434(D) permits dismissal if defendant proves defenses by preponderance | Court: disputed questions of material fact cannot be resolved at OCPA dismissal stage; only defenses that are purely legal may be decided; cannot conduct fact-finding that usurps jury role or violate constitutional concerns |
| Application of privileges (litigation privilege, fair comment, opinion) | Krimbill: statements are factual and provably false; privilege not clearly established on limited record | Talarico: email privileged (reporting/anticipatory litigation) and/or opinion/fair comment | Court: privilege and fair-comment defenses raise fact-intensive inquiries; on limited record cannot determine privilege or truth; denial of dismissal affirmed |
Key Cases Cited
- In re Fletcher's Estate, 308 P.2d 304 (Okla. 1957) (statutes adopted from other states may be construed as construed by courts of that state)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (TCPA requires prima facie showing; circumstantial evidence may satisfy "clear and specific evidence")
- Kirschstein v. Haynes, 788 P.2d 941 (Okla. 1990) (recognizes absolute privilege for communications preliminary to proposed judicial or quasi-judicial proceedings under Restatement standards)
- Grogan v. KOKH, LLC, 256 P.3d 1021 (Okla. Civ. App. 2011) (sufficiency of evidence to support actual malice is a question of law)
- Martin v. Griffin Television, Inc., 549 P.2d 85 (Okla. 1976) (adopts New York Times actual malice standard)
- New York Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964) (actual malice standard for public-official/figure defamation)