H. MICHAEL KRIMBILL, Plaintiff/Appellee, v. LOUIS C. TALARICO, III, an individual; and LCT CAPITAL LLC, a Delaware Limited Liability Company, Defendants/Appellants.
Case Number: 114777
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV
Decided: 10/27/2017
Mandate Issued: 05/09/2018
2018 OK CIV APP 37 | 417 P.3d 1240
HONORABLE LINDA G. MORRISSEY, TRIAL JUDGE
AFFIRMED
John J. Carwile, Clayton J. Chamberlain, MCDONALD, MCCANN, METCALF & CARWILE, L.L.P., Tulsa, Oklahoma, for Plaintiff/Appellee
Joel L. Wohlgemuth, Ryan A. Ray, NORMAN WOHLGEMUTH CHANDLER JETER BARNETT & RAY, P.C., Tulsa, Oklahoma, for Defendants/Appellants
P. THOMAS THORNBRUGH, VICE-CHIEF JUDGE:
¶1 Defendants/Appellants, Louis Talarico, III (Talarico), and LCT Capital, LLC (LCT)(collectively, Defendants or Talarico Defendants), appeal from the trial court‘s order denying their motion to dismiss the petition of Plaintiff/Appellee H. Michael Krimbill (Krimbill), pursuant to the Oklahoma Citizens Participation Act,
BACKGROUND
¶2 The parties are involved in protracted litigation in the state of Delaware, where LCT has filed claims of breach of contract, unjust enrichment, and fraudulent misrepresentation against Oklahoma-based, publicly traded NGL Energy Partners, LP, and its general partner, NGL Energy Holdings, LLC (collectively, NGL), resulting from a transaction known as the “TransMontaigne acquisition.” In October 2015, Talarico sent the following email to James Kneale, the head of NGL‘s audit committee:
From: Lou Talarico
Sent: Thursday, October 8, 2015 1:51 PM
To: jimckneale@gmail.com
Subject: NGL Litigation
Attachments: Amended Complaint (as filed, 9-29-15).pdf
Jim,
I am contacting you regarding a complaint that LCT Capital has filed against NGL Energy Holdings and NGL Energy Partners regarding fees due in connection with the TransMontaigne transaction. An amendment to the original complaint was filed on September 29 and is attached for your review. Given the materiality of the claim as well as the nature of the events detailed in the complaint, I thought it important that the audit committee and board of directors be aware of the complaint.
We believe the misrepresentations made to LCT Capital, as detailed in the Complaint, are illustrative of broader, more systemic issues at the company under Mike‘s leadership -- issues that have affected the accuracy of NGL‘s public filings and Mike‘s public statements about the business.
We are available to discuss the complaint or other issues with you and the audit committee or the board at your convenience.
Regards,
Lou Talarico
LCT Capital, LLC
¶3 On October 16, 2015, Krimbill filed a petition in Tulsa County District Court alleging the email had libeled him personally. On October 30, 2015, Defendants moved to dismiss Krimbill‘s petition with prejudice, pursuant to, inter alia, the OCPA. On February 26, 2016, the district court denied this motion. Defendants now appeal.
STANDARD OF REVIEW
¶4 There is no established appellate standard of review in this case.1 It is clear that the OCPA provides a new summary process/dismissal procedure in certain cases, however, and that, traditionally, Oklahoma appellate courts have reviewed decisions pursuant to such procedures by a de novo standard. The OCPA also requires dismissal if a plaintiff fails to show a prima facie case, and is hence similar to a motion for directed verdict. Directed verdict challenges also are reviewed de novo. Finally, Texas, which has an almost identical act, has adopted a de novo standard of review.2 Hence, we find a de novo standard indicated by existing precedent and persuasive authority, and we adopt that standard here.
¶5 Oklahoma‘s Act, which became effective in 2014,3 mirrors that of the Texas Citizens’ Participation Act (TCPA or Texas Act), enacted in 2011 under the title, “Actions Involving the Exercise of Certain Constitutional Rights,”
I. “ANTI-SLAPP” ACTS
¶6 The legislature enacted the OCPA “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of [persons] to file meritorious lawsuits for demonstrable injury.”
A. The Purpose of “Anti-SLAPP” Acts
¶7 The legislation is an example of “anti-SLAPP” (Strategic Lawsuit Against Public Participation) legislation, the purpose of which is to curb “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”
¶8 Anti-SLAPP acts may be generally characterized as “narrow” or “broad.” See Shannon Hartzler, Protecting Informed Public Participation: Anti-SLAPP Law and the Media Defendant, 41 Val. U.L. Rev. 1235, 1236 (2007). A narrow act protects only certain speech made in limited circumstances, often when the speech is discussing a political or municipal issue.5 The acts of Texas, Oklahoma and California are, by comparison, “broad” acts, directed at protecting a wide spectrum of First Amendment speech, with limited exceptions.6
B. The OCPA Procedure
¶9 In an OCPA proceeding, the initial burden is on the defendant seeking dismissal to show that the plaintiff‘s claim “is based on, relates to, or is in response to the [defendant‘s] exercise of the right of free speech, the right to petition, or the right of association.”
¶10 The three basic issues thus presented by the text of the Act, and by this appeal, are (1) whether the defendant has shown the plaintiff‘s action is based on, relates to, or is in response to the defendant‘s exercise of rights protected by the Act; (2) whether the plaintiff has demonstrated a prima facie case; and (3) if so, whether the defendant shown a “valid defense by a preponderance of the evidence.”
II. INTERPRETING THE OCPA
¶11 Interpreting the OCPA requires balancing the unusual judgment/dismissal provisions of
¶12 Section
¶13 However, OCPA
¶14 Once a defendant has shown that the Act applies, the burden shifts to the plaintiff to show “by clear and specific evidence” the requirements of
A. Prima Facie Case Under the Act
¶15 Oklahoma jurisprudence does define prima facie case. See, e.g., Hill v. State, 1983 OK CR 161, ¶ 3, 672 P.2d 308, quoting Black‘s Law Dictionary, 4th Rev. Ed., 1968, and defining “prima facie case” as, “Such as will suffice until contradicted and overcome by other evidence. A case which has proceeded upon sufficient proof to that stage where it will support finding if evidence to contrary is disregarded.” Because the Legislature would not have stated two contradictory standards in the same sentence, we presume that its definition of “clear and specific evidence” in
¶16 The Texas courts have recognized this issue, and reached the same conclusion regarding the TCPA. In In re Lipsky, 460 S.W.3d 579 (Tex. 2015), the Texas Supreme Court noted:
The statute . . . requires not only “clear and specific evidence” but also a ”prima facie case.” In contrast to “clear and specific evidence,” a ”prima facie case” has a traditional legal meaning. It refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted.
¶17 We find such reasoning consistent with Oklahoma law. We hold that, even though the Oklahoma Act initially demands more information about a plaintiff‘s underlying claim by requiring a showing of a prima facie case, “the Act does not impose an elevated evidentiary standard or categorically reject circumstantial evidence.” Id. at 591.
B. What Evidence Should the Court Consider while Examining for a Prima Facie Case?
¶18 Defendants argue that, in determining whether a prima facie case has been shown, the court may not consider the pleadings. We disagree.
¶19 The OCPA is clear that a district court “shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.”
IV. “VALID DEFENSES” SHOWN BY A “PREPONDERANCE OF THE EVIDENCE”
¶20 One of the most unique features of the Act is the structure of
¶21 The Legislature stated in
A. Violation of § 1440 of the Act
¶22 As noted above, OCPA
¶23 The existence of a prima facie case inherently establishes the existence of disputed questions of fact, in that it shows “sufficient proof to that stage where it will support findings if evidence to contrary is disregarded.” In all other actions where the burden of proof is by a preponderance of the evidence, once a plaintiff shows a prima facie case, summary judgment is available only on issues of law. If read literally, however,
B. Right to Jury Trial
¶25 In addition to rejecting a literal interpretation of
C. “Special law” Pursuant to Oklahoma Constitution, art. 5, § 46
¶26 A literal interpretation of
The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law . . . Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings.
¶27 “The terms of art. 5, § 46 command that court procedure be symmetrical and apply equally across the board for an entire class of similarly situated persons or things.” Zeier v. Zimmer, Inc., 2006 OK 98, ¶ 13, 152 P.3d 861. “In a special laws attack under art. 5, § 46, the only issue to be resolved is whether a statute upon a subject enumerated in the constitutional provision targets for different treatment less than an entire class of similarly situated persons or things.” Id. “The test is whether the provision fits into the structured regime of established procedure as part of a symmetrical whole. If an enactment injects asymmetry, the § 46 interdiction of special law has been offended.” Id.
¶28 An interpretation of
¶29 “By mandating uniformity of procedure, the terms of art. 5, § 46 command that all citizens of the state shall have equal access to legal institutions for application of the general ordinary forensic process.” Zeier, 152 P.3d at 867. If the OCPA‘s evidentiary requirements herald a more stringent test for a special class of claims than generally applied to demurrers to the evidence and motions for directed verdict or summary judgment, and thus changes the fact-finder for an apparently arbitrary group of plaintiffs, the law also may run afoul of art. 5, § 46.10
D. The Right to File a Meritorious Lawsuit for Demonstrable Injury
¶30 We finally note the OCPA‘s clearly stated legislative purpose is to weed out meritless suits while protecting “the rights of a person to file meritorious lawsuits for demonstrable injury.”
¶31 Oklahoma jurisprudence previously has not countenanced sanctions for acts that are neither frivolous nor without reasonable basis. If genuine questions of material fact or law exist as to the right of recovery, and it is necessary to weigh the evidence in order to decide the case on the merits, it appears highly improbable that the case was meritless from the outset. A cognizable legal theory and a disagreement of material fact, supported by evidence on both sides, pursuant to the common law standard presupposes that the suit is not meritless, and that it should not be subjected to immediate summary dismissal or a sanction. The OCPA specifically prohibits the abrogation of these common law principles.
¶32 If more than one interpretation is possible, this Court will not interpret an act of the Legislature so as to render it unconstitutional. In combination with the directives of
¶33 Having established these basic principles, we turn now to the facts of the case at hand.11
¶34 Defendants were initially required to show that Krimbill‘s libel suit relates to Defendants engaging in activity protected by the OCPA, i.e., the exercise of the right of free speech; the right to petition; or the right of association. The Legislature has defined these protected activities in
2. “Exercise of the right of association” means a communication between individuals who join together to collectively express, promote, pursue or defend common interests;
3. “Exercise of the right of free speech” means a communication made in connection with a matter of public concern;
4. “Exercise of the right to petition” means any of the following: . . .12
¶35 Subsection
a. health or safety,
b. environmental, economic or community well-being,
c. the government,
d. a public official or public figure, or
e. a good, product or service in the marketplace;
¶36 The district court found that Defendants’ speech was “a communication made in connection with a matter of public concern regarding a good, product or service in the marketplace,” pursuant to
A. The “Commercial Speech” Exemption
¶37 If speech is made in connection with a matter of public concern regarding a good, product or service in the marketplace, as found by the trial court here, the speech must cross a second threshold before the Act applies. Pursuant to
2. A legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct the action is based upon arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer[.]
¶38 Oklahoma has not attempted to reconcile the covered speech noted by
1. Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71 (Tex. App. 2013)
¶39 In Newspaper Holdings, 416 S.W.3d 71 (Tex. App. 2013), an assisted-living hotel and its owner sued a newspaper and its source, alleging that the paper had published defamatory statements about the hotel. The court stated that in determining whether a speech falls under the commercial speech exemption to the TCPA, courts should examine whether the following circumstances exist:
(1) the cause of action is against a person primarily engaged in the business of selling or leasing goods or services;
(2) the cause of action arises from a statement or conduct by that person consisting of representations of fact about that person‘s or a business competitor‘s business operations, goods, or services;
(3) the statement or conduct was made either for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person‘s goods or services or in the course of delivering the person‘s goods or services; and
(4) the intended audience for the statement or conduct [is an actual or potential buyer or customer].
Id. at 88 (quoting and following Simpson Strong-Tie Co., Inc. v. Gore, 230 P.3d 1117 (Cal. 2010)).
2. Backes v. Misko, 486 S.W.3d 7 (Tex. App. 2015), and Whisenhunt v. Lippincott, 474 S.W.3d 30 (Tex. App. 2015)
¶41 Backes and Whisenhunt expanded on the meaning of the Newspaper Holdings’ element that “the statement or conduct was made either for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person‘s goods or services or in the course of delivering the person‘s goods or services.” Backes and Whisenhunt clarified that, for the commercial speech exemption to apply, a statement regarding “securing sales in the person‘s goods” required that the statement must be made for the purpose of “securing sales in the goods or services of the person making the statement.” Backes at 21 and Whisenhunt at 42 (emphasis added).
3. Epperson v. Mueller, 01-15-00231-CV, 2016 WL 4253978 (Tex. App. 2016)
¶42 Most recently, in Epperson v. Mueller, 01-15-00231-CV, 2016 WL 4253978 (Tex. App. Aug. 11, 2016), memorabilia dealers Epperson and Mueller sued one another for defamation. Epperson moved to dismiss Mueller‘s counterclaim pursuant to the TCPA.13 The trial court cited the test used in Newspaper Holdings but reached the conclusion that the commercial speech exemption applied, holding that Epperson and Mueller were in the same business (memorabilia), and that Epperson‘s intended audience was comprised of the parties’ actual or potential customers rather than the general public. Hence, the Court held Epperson‘s statements were not protected by the Texas Act. Id. at *12. The Court emphasized that Epperson and Mueller were in the same business and that Epperson‘s statements were not merely criticisms of Mueller but also were intended to promote Epperson‘s own goods/services over Mueller‘s. Id. at *11.
B. Interpreting the “Commercial Speech” Exemption
¶43 For the TCPA “commercial speech” exemption to apply, the Texas cases discussed above appear to require that (1) the parties are involved in the same general area of business; and (2) the statements forming the basis of the suit were made at least partially for the purpose of promoting sales of the goods or services of the person making the statement. If both of these requirements are met, the Courts held the TCPA does not apply and cannot be interposed as a defense.
¶44 In the case at hand, the speech at issue appears to be “on the border” of these principles, and may be “commercial speech” exempt from the Act. However, based on the limited evidence adduced in the trial court, it would be speculative at best for this Court to determine that Defendants and Krimbill are involved in the same business, or that Defendants made the statements at issue to promote their business aims. We therefore do not base our decision on an interpretation of the OCPA‘s “commercial speech” exemption, but instead presume that Defendants met their initial burden and that the Act applies in this case.
VI. THE PRIMA FACIE CASE AND AFFIRMATIVE DEFENSES
¶45 The Act‘s requirement that a plaintiff show a prima facie case to avoid dismissal raises a further question concerning the line of demarcation between the “elements” necessary to a prima facie case and the “defenses” to a libel claim. This question has received little attention by the courts because its significance was limited. Since early statehood, Oklahoma has statutorily defined “libel” as follows:
Libel is a false or malicious unprivileged publication by writing, printing, picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation, or any malicious publication as aforesaid, designed to blacken or vilify the memory of one who is dead, and tending to scandalize his surviving relatives or friends.
¶46 Section
In all civil actions to recover damages for libel or slander, it shall be sufficient to state generally what the defamatory matter was, and that it was published or spoken of the plaintiff, and to allege any general or special damage caused thereby. As a defense thereto the defendant may deny and offer evidence to disprove the charges made, or he may prove that the matter charged as defamatory was true and, in addition thereto, that it was published or spoken under such circumstances as to render it a privileged communication. (Emphasis added).
A. The Affidavit
¶48 Krimbill presented the pleadings and his own affidavit to show a prima face case. Defendants argue, however, that Krimbill presented no evidence whatsoever. They contend the pleadings cannot be considered, and that this Court should disregard the affidavit because “the [trial] court did not rely on it,” and also because it was inadmissible. If neither the pleadings nor a personal affidavit may be used, then showing a prima facie case under the Act presents a substantial burden for a plaintiff.
¶49 As discussed in Part IIIA above, the pleadings may be considered. We therefore reject Defendants’ contention otherwise.
¶50 Defendants’ first argument concerning the affidavit is based on their observation that the district court did not refer to the affidavit in its decision. While it is true that the court did not specifically identify the evidence it considered, there is no requirement in the Act that it do so. Legal error may not be presumed from a silent record; it must be affirmatively demonstrated. Hamid v. Sew Original, 1982 OK 46, ¶ 7, 645 P.2d 496. We find no merit in the argument that we should not consider the affidavit because the district court “did not rely on it.” Such a restriction is not consistent with the de novo standard of review. Furthermore, “[this] Court is not bound by the trial court‘s reasoning and may affirm the judgment below on a different legal rationale.” Hall v. GEO Grp., Inc., 2014 OK 22, ¶ 17, 324 P.3d 399.
B. The Admissibility of the Affidavit
¶51 Defendants next argue that Krimbill‘s affidavit must be disregarded because it is conclusory, citing as authority the cases of In re Lipsky, 460 S.W.3d 579 (Tex. 2015), and Concorde Res. Corp. v. Kepco Energy, Inc., 2011 OK CIV APP 39, ¶ 29, 254 P.3d 734. The Court in Concorde noted, “The party responding to a motion for summary judgment has an obligation to present something which shows that, when the date of trial arrives, he will have some proof to support his allegations. . . . A general statement in a summary judgment affidavit opining liability, without providing any information and without offering any reason for the conclusions, [is] not sufficient.” Id. (emphasis added; citations omitted).
¶52 The Texas Court in Lipsky addressed the sufficiency of an affidavit stating that a libel plaintiff had “suffered direct economic losses and lost profits” without elaborating on the cause of that harm. Lipsky at 592-93. The opinion did not dispute that the affidavit served as evidence of alleged losses, but found that it did not connect the losses to the plaintiff‘s activities. The affidavit was thereby found to be insufficient as evidence of the element the defendants sought to prove, which was that the plaintiff‘s activities had caused defendants losses rather than simply that the defendants had suffered losses.
¶53 Concorde and Lipsky are both distinguishable from the present case. The affidavit in Concorde opined conclusively as to the ultimate legal issue of liability without supplying any facts to support that conclusion. If Krimbill‘s affidavit had simply stated, “I have been libeled,” without further elaboration, the result here would be the same as in Concorde. That situation is not present here, however. The holding in Lipsky is even more distinguishable, because the Court did not reject the affidavit for being conclusory, but for being so insufficient that, even if true, it failed to show a required element.
¶54 As noted above, OCPA
¶55 Oklahoma law also is clear that a witness may testify about any matter of which the witness has personal knowledge, and that “[e]vidence to prove personal knowledge may consist of the witness‘s own testimony.”
¶56 Defendants argue that Krimbill is a “public figure,” and as such, he must show a prima facie case for the additional element of malice. Assuming without deciding that the “public figure” status applies here, the actual malice standard requires proof that a defendant acted with knowledge that a publication was false “or with reckless disregard of whether it was false or not.” Martin v. Griffin Television, Inc., 1976 OK 13, ¶ 28, 549 P.2d 85 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)); see also Huckabee v. Time Warner Entm‘t Co., 19 S.W.3d 413, 420 (Tex. 2000).
¶57 Reckless disregard is a subjective standard, focusing on a defendant‘s state of mind. Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002). Mere negligence is not enough. Id. Rather, the plaintiff must establish “‘that the defendant in fact entertained serious doubts as to the truth of his publication,‘” or had a “‘high degree of awareness of . . . [the] probable falsity‘” of the published information. Id. (quoting Harte-Hanks Commc‘ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989)). Actual malice generally consists of “‘[c]alculated falsehood.‘” Bunton, 94 S.W.3d at 591 (quoting Garrison v. Louisiana, 379 U.S. 64, 75 (1964)). When a defendant‘s words are reasonably subject to more than one interpretation, the plaintiff must establish either that the defendant knew the words would convey a defamatory message or had reckless disregard for their effect. See Bunton, 94 S.W.3d at 603.
¶58 The “actual malice” element presents an especially difficult problem when it becomes part of the procedure mandated by the Act, inasmuch as malice is decided by a subjective standard, focusing on the defendant‘s state of mind, knowledge, and intent. The difficulty to a plaintiff of showing a prima facie case for a subjective belief or knowledge by the defendant in a “trial” held before discovery cannot be overestimated. “The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law.” See Grogan v. KOKH, LLC, 2011 OK CIV APP 34, ¶ 15, 256 P.3d 1021, (citing Harte-Hanks Commc‘ns). Unless a defendant includes his/her mental processes and subjective understanding as part of a motion to dismiss, a plaintiff would appear to have little chance of adducing any direct proof whatsoever of this element beyond the plaintiff‘s own belief that the defendant acted with actual malice. Given the practical improbability of direct evidence, unless the Oklahoma Legislature‘s intention was to effectively abolish defamation actions by public figures, it appears that a prima facie case for this element may be shown by circumstantial evidence.
¶59 The Texas appellate courts appear to have adopted the latter approach in cases under the TCPA:
A defendant‘s state of mind “can--indeed, must usually--be proved by circumstantial evidence.” Campbell, 471 S.W.3d at 629; see also Lipsky, 460 S.W.3d at 584 (concluding “clear and specific evidence under the” TCPA “includes relevant circumstantial evidence“). The evidence must be viewed in its entirety. Campbell, 471 S.W.3d at 629. “In addition, the supreme court has stressed that proof of actual malice is not defeated by a defendant‘s self-serving protestation of sincerity.” Id.
MacFarland v. Le-Vel Brands LLC, 05-16-00672-CV, 2017 WL 1089684, at *12 (Tex. App. Mar. 23, 2017).
¶60 In the case at hand, the trial court found that the limited circumstantial evidence indicated the possibility of actual malice. We find no error in this holding. We find that Krimbill presented a prima facie case of libel, and that the burden therefore shifted to Defendants to show an absolute defense to that prima facie case, as allowed by the Act.
D. The “Privilege” Question
¶61 Defendants argue that Krimbill was required to provide evidence that Defendants’ statements were “not privileged” as part of establishing a prima facie case. As discussed above, however, privilege is an affirmative defense pursuant to
¶62 Defendants also argue that their statements were in fact privileged, and that they therefore have a valid defense pursuant to the OCPA. Whether a communication is privileged is initially a question of law to be determined by the court. Samson Inv. Co. v. Chevaillier, 1999 OK 19, 988 P.2d 327. As set forth in
A. A privileged publication or communication is one made:
First. In any legislative or judicial proceeding or any other proceeding authorized by law;
Second. In the proper discharge of an official duty;
Third. By a fair and true report of any legislative or judicial or other proceeding authorized by law, or anything said in the course thereof, and any and all expressions of opinion in regard thereto, and criticisms thereon, and any and all criticisms upon the official acts of any and all public officers, except where the matter stated of and concerning the official act done, or of the officer, falsely imputes crime to the officer so criticized.
¶64 The courts have generally restricted the reach of
We have determined we will recognize an absolute privilege for communications made preliminary to proposed judicial or quasi-judicial proceedings in favor of attorneys, parties and witnesses generally under the standards set forth at the Restatement (Second) of Torts §§ 586, 587 and 588 and the comments thereto. (Emphasis added).
¶65 The main focus of Kirschstein was placing reports, documents or other statements made in anticipation of, or in preparation for, litigation inside the privilege granted by
¶66 Restatement § 587 states:
A party to a private litigation . . . is absolutely privileged to publish defamatory matter concerning another . . . during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding.
Comment ‘c’ further notes that:
c. Relation of statement to proceedings. It is not necessary that the defamatory matter be relevant or material to any issue before the court. It is enough that it have some reference to the subject of the inquiry. Thus, while a party may not introduce into his pleadings defamatory matter that is entirely disconnected with the litigation, he is not answerable for defamatory matter volunteered or included by way of surplusage in his pleadings if it has any bearing upon the subject matter of the litigation. The fact that the defamatory publication is an unwarranted inference from the alleged or existing facts is not enough to deprive the party of his privilege, if the inference itself has some bearing upon the litigation. (Emphasis added.)
¶67 This standard suggests that material otherwise irrelevant to the subject matter of litigation may still be a legitimate part of the pleadings or proceedings, and therefore privileged, if it has “any bearing upon the subject matter of the litigation.” Precisely how a court should determine whether material with no relevance to the question under litigation still has a “bearing upon the subject matter of the litigation” is not explained, and we find only three reported cases addressing the issue covered by “Comment c.”15 Clearly, however, the inquiry is highly fact-based, and extremely difficult to perform accurately in a summary dismissal procedure held before a defendant has even filed an answer.
¶68 The factual questions presented in the case at hand include whether the allegations of false public statements and inaccurate filings contained in Talarico‘s email are in fact a part of the pleadings or proceedings in the underlying Delaware case, and whether such statements had some bearing on the subject of the case. If so, the email may qualify as a “fair and true report of a judicial proceeding.” Defendants argue that paragraphs 75, 87-91, 94, 99, 102, 104 and 119-20 of the amended petition cover the same allegations made in the email, and that the comments in the email therefore are privileged as a report of a pleading.
¶69 Although two of the cited paragraphs do allege some form of inaccurate public filing, we agree with the trial court that, absent a much more extensive overview of the Delaware litigation, some of the email appears to have no bearing upon the subject matter of the Delaware litigation. We therefore find that pursuant to the limited record before us, we cannot determine if the statement central to this case was covered by a litigation privilege.
¶70 Defendants next contend that the statements in question were opinions rather than statements of fact. The First Amendment provides protection for statements that cannot “‘reasonably be interpreted as stating actual facts‘” about an individual. Milkovich v. Lorain Journal Co., 497 U.S. 1, 17 (1990), (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988)). As a general rule, statements which are opinionative and not factual in nature, and which cannot be verified as true or false, are not actionable as slander or libel under Oklahoma law. See, e.g., Miskovsky v. Oklahoma Pub. Co., 1982 OK 8, ¶ 32, 654 P.2d 587. However, if the defendant expresses a derogatory opinion without disclosing the facts on which it is based, there may be liability “if the comment creates the reasonable inference that the opinion is justified by the existence of unexpressed defamatory facts.” McCullough v. Cities Serv. Co., 1984 OK 1, ¶ 8, 676 P.2d 833, citing Restatement (Second) of Torts § 566 (1977); see also Metcalf v. KFOR-TV, Inc., 828 F. Supp. 1515, 1529 (W.D. Okla. 1992)(fact that a statement claims to be an opinion is not conclusive of whether the statement is actionable; if the statement implies the existence of a fact susceptible of being proved true or false, it may be actionable). Whether a statement is one of fact or opinion, for purposes of determining defamation liability, is a question of law. Id.
¶71 The statements in this case alleging inaccurate public filings appear to be inherently factual and capable of verification. Defendants argue that, even if the allegation of inaccurate filings is not opinion, its statement that, “We believe the misrepresentations made to LCT Capital, as detailed in the Complaint, are illustrative of broader, more systemic issues at the company under Mike‘s leadership” is a statement of opinion. Even if this is so, however, we find no provision in the Act for some form of “partial dismissal” at a pre-answer stage.
F. The “Falsehood” Element
¶72 Talarico stated in the email that Krimbill‘s behavior had “affected the accuracy of NGL‘s public filings and [Krimbill‘s] public statements about the business.” Defendants argue that it is Krimbill‘s burden under the OCPA to produce evidence that the implication of inaccurate public filings and statements is false in order to demonstrate a prima facie case for libel. We disagree pursuant to our analysis of
G. Common Law Fair Comment
¶73 Defendants argue that the statements in question were also covered by the “common law fair comment” privilege.
The common law fair comment privilege extends to fair expressions on matters of public interest. It differs from both: (1) the common law fair report privilege--which affords a qualified or conditional privilege to the media when they republish defamatory material in an account of a public or official proceeding, i.e., judicial proceedings, legislative sessions, judicial hearings, or official news conferences; and 2) its statutory counterpart,
12 O.S. 2001 § 1443.1 --which embodies a similar statutory privilege as a complete defense to libel. Although all three concepts overlap, the scope of the common law fair comment privilege, encompassing expressions of opinion on all matters of public opinion, is broader than either the common law fair report doctrine or the terms of the statute--both of which have their roots in political speech concepts and encompass public interest reports of official actions or proceedings.
Grogan, 256 P.3d at 1035 (quoting Magnusson v. New York Times Co. d/b/a KFOR, 2004 OK 53, ¶ 10, 98 P.3d 1070, for the principle that the common law fair comment privilege developed as a defense to actions for defamation, invasion of privacy and intentional infliction of emotional distress). Grogan further notes that the fair comment defense “protects statements that (1) involve matters of public concern, (2) are based on true or privileged facts, (3) represent the opinion of the speaker, and (4) are not made for the sole purpose of causing harm.” Grogan, 256 P.3d at 1035, citing Magnusson (emphasis added).
¶74 As we have already found, the record here reveals questions of fact as to the truth of Talarico‘s statements, and because, on the limited record before us, we cannot determine whether the email statements are privileged as a matter of law, we cannot determine if the “fair comment” privilege currently applies in this case.
midpage-ps n=“1250“/>CONCLUSION
¶75 The OCPA as written has certain inherent contradictions. It may be interpreted as radically changing the mode of procedure in many cases, and establishing an unprecedented system of mandatory bench trials on the merits before an answer is even filed. However, the Act also contains clear legislative statements that it “shall not abrogate or lessen any other defense, remedy, immunity or privilege” and that the purpose of the OCPA is to weed out meritless suits while protecting “the rights of a person to file meritorious lawsuits for demonstrable injury.” We have interpreted the Act in a manner consistent with these principles while at the same time avoiding an interpretation that the Act is unconstitutional. We find that the district court did not err in denying the motion to dismiss pursuant to the OCPA in this case.
¶76 AFFIRMED.
WISEMAN, J., and RAPP, J. (sitting by designation), concur.
Notes
A cause of action against a person arising from any act of that person in furtherance of the person‘s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.