604 F. App'x 863
11th Cir.2015Background
- Wells Fargo sent a one-page attorney trust overdraft report to the Florida Bar Staff Counsel on March 25, 2014, indicating an overdraft and related details tied to a person named Richard Alan.
- The report suggested that a trust account overdraft of $7,468.07 existed, a $35,338.00 check was returned, and a $35.00 fee was charged.
- The Florida Bar requested an explanation from Alan; after he provided one, the investigation was closed.
- Alan alleges he has never had, nor attempted to open, an attorney trust account with Wells Fargo.
- Alan filed a Florida defamation per se complaint in April 2014; Wells Fargo removed the case to federal court and moved to dismiss, which the district court granted with prejudice, finding the overdraft could not refer to Alan and that the statement was privileged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Defamation privilege. | Alan argues the overdraft report is not absolutely privileged. | Wells Fargo contends the report is privileged under Tobkin and related Florida authorities. | Affirmed: overdraft report entitled to absolute privilege. |
| Defamation per se claim viability. | Alan maintains the claim is cognizable despite privilege issues. | Wells Fargo argues the privilege forecloses per se claim liability. | Dismissal upheld on basis of absolute privilege; per se defect not reached. |
Key Cases Cited
- Tobkin v. Jarboe, 710 So.2d 975 (Fla. 1998) (absolute privilege for complaints to Florida Bar; public comments outside process defeat immunity)
- Nodar v. Galbreath, 462 So.2d 803 (Fla. 1984) (defamation privilege is a question of law)
- Magre v. Charles, 729 So.2d 440 (Fla. 5th DCA 1999) (privilege extends to information necessary to investigate a complaint)
- Valencia v. Citibank Int'l, 728 So.2d 330 (Fla. 3d DCA 1999) (defamation elements in Florida; per se considerations)
- Richard v. Gray, 62 So.2d 597 (Fla. 1953) (florida defamation standards; what constitutes per se damages)
- Wolfson v. Kirk, 273 So.2d 774 (Fla. 4th DCA 1973) (definition of libel per se and injury presumptions)
- Diplomat Elec., Inc. v. Westinghouse Elec. Supply Co., 378 F.2d 377 (5th Cir. 1967) (choice-of-law considerations for defamation or privilege analyses)