Defamation and Slander

Everybody has experienced this -- someone has spread rumors or nasty comments about you or your activities to others. When does this conduct rise to the level of defamation?

Defamation is defined (Blacks Law Dictionary) as: "intentional, unprivileged, false communication, either published or publically spoken, that injures another’s reputation or good name". Generally, defamation is a general heading for for the two specific torts of libel (written defamation) and slander (spoken defamation). For the purposes of this general overview, both the tort of libel and the tort of slander follow the same requirements as general defamation.

To prove a case of defamation, the plaintiff must show:

• 1. The offending party acted intentionally, and
• 2. The offending party's statement was publicly uttered (i.e. it was published or spoken), and
• 3. The offending party's statement was false, and
• 4. The offending party's statement caused some economic loss

For #4, the amount of lose required to be proven varies on the individual making the claim, and the type of damages sought. Generally, a business suing under a defamation cause of action is not required to prove damages -- it is understood that economic damages result in any untrue statements to could reasonably cause another person to do business elsewhere.

Key aspects of defamation to remember:

• The statement must be false.
Merely because you don't like what the other party said, or you feel it was unfair, does not give rise to a defamation cause of action. The statement made must be false, and it must be more than a mere opinion.
• The statement must be public.
All types of defamation require the offending party to utter their defamatory words to another. Just emailing, calling or writing to you is not enough. It must be documented and it must be to someone else.
• The action must be intentional.
The offending party had to make his/her/their statement knowing it was false and intending to harm the plaintiff. Misquoting or inadvertently slandering another by omission or mistake does not give a cause of action under defamation statutes or common law.

The first step in a defamation case is the "cease and desist" letter -- or a "notice" letter. This letter, drafted by an attorney, puts the offending party on notice that they are either in danger of, or have already committed, some form of defamation. The letter should be specific, and it should indicate the action that gave rise to the complaint. After the offending party receives the "notice", any further defamatory acts on his/her/their part constitutes intentional conduct, per se, as they have been notified of their conduct regarding the plaintiff. It should be noted that, if the offending party, upon receipt of the plaintiff's notice, retracts their statement, or contacts to the plaintiff to explain their action in such a way as to remove "intentional defamation" from their conduct, the ability to show intent, and therefore a valid cause of action under defamation, decreases significantly. The law encourages this. The purposes of defamation lawsuits is to punish those that either intentionally defame others or refuse to stop egregious conduct. When a party is notified they have wronged the plaintiff, and after notification, stops and attempts to correct the malfeasance, a finding under defamation is much harder (although when the offending party's conduct is truly abhorrent, and slanderous or libelous, a finding may still be had...just for less damages).

Can punitive damages be had in a defamation case? Yes. Called an "intentional tort", defamation, and it's children torts, permit suing for punitive damages (called "special damages" in some jurisdictions), when the plaintiff can show direct, economic loss stemming from the defamation, no remedial action on the part of the offending party when put on "notice", or the conduct continued after being put on "notice", and the plaintiff is not in a special category that limits or removes the right to sue for punitive damages (public figures, for example).

If you are not eligible for punitive damages, what relief can you get? In a defamation case, the primary relief is equitable -- it's called an injunction. An injunction is a court order telling a person, group, or organization to "do" something. In this case, the court would order the offending party to stop their conduct, and possibly publish a retraction. Additionally, if the plaintiff suffered economic loss, including attorney fees, the offending party could be made to pay that amount back to the plaintiff (not punitive..strictly reimbursement for documented loses).

When is a false statement more than an opinion? Opinions do not give rise to defamation suits. No matter how insulting or frustrating an opinion may be -- when an offending party states a private opinion, they are protected under the 1st amendment. But how far can a statement go, and still be considered an opinion?

Generally, the court looks at these factors:

• 1. Is the statement an overt fact? (i.e. Sam broke into my store and stole my shovel.)
• 2. Would a reasonable person believe the statement to be fact? (i.e. I used the placement agency before, and have years of experience in consulting work. The placement firm is dishonest and mistreats its applicants.)

Remember, because much of defamation law is controlled by common-law (meaning, the scope, reach, and interpretation is created by cases heard and decided in court, not statutes passed by an elected assembly), application of defamation laws vary widely from jurisdiction to jurisdiction and state to state.

Do you need assistance with a cease and desist letter? Have you received a notice from another attorney? A phone discussion is free, and a thorough analysis of your case is only $150 -- and we credit that towards full representation if you opt to go with Hanover Law!

Sean R. Hanover, Esq
HanoverLawPC.com
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How to win a B2 visa application interview

How to win a B2 visa application interview:

This post really applies to individuals who have been denied a B2 visa in the past. For a full list of US Consulate criteria for passing a visa interview (for non-immigrant visas -- all types), see www.hanoverlawpc.com/immigration_visa_tests.php.

Of course this list is NOT a substitute for talking to an immigration attorney (that would the Hanover Law firm). Additionally, this has NOTHING to do with out-of-status, or illegal immigration. This only applies when you are attempting to get a visa at an overseas US consulate.

Non-immigrant visa application questions you should have answers to (specifically for B1, B2, but actually for ALL non-immigrant visas):

Family Situation

1. Discuss any living, immediate, family members (brothers, sisters, mother, father, children, spouse, etc.) Specifically, name, age, living address, contact information (phone/email), and nationality. Indicate the level of closeness with these family members.

2. Indicate if your family owns property in any country (i.e. family home, estate, etc.). If so, what address, and who manages this.

Personal Situation

1. Discuss your current living arrangements. Specifically, address, phone number, landlord, rent, other roommates (and their contact information), and duration at this location. If under 3 years, please provide the same information for your last residence immediately preceding this the one in which you currently live.

2. Discuss your job. Who employs you (name of organization, amount of income, address, contact information)? A letter from your employer would be helpful (I believe you said you have a job at a resort, but Dr. Kornylak indicated that you also worked at a Yoga center…anything showing employment ties – even unpaid – is fine).

3. Discuss your relationship to Dr. Kornylak. Why are you making this trip? How long have you known him? If he is not family, how did you meet him?

4. How much money do you have in savings? Will you need to work while you are in the US? (The consulate needs to know that you have plenty of funds to pay for your stay and return back in good order.)

5. What bank ties to do you have outside of the US? (Include address, bank statement, and contact information for the banks with which you did business).

6. Do you have any business ties outside of the US? (i.e. are you a partner, member, or shareholder in any company outside of the US)? If so, provide all the location/contact information for those ties.

7. Do you own any assets in Germany or India? Specific examples include cars, pets, professional tools, etc. If so, provide a detailed list showing the type of asset, how long you have had it, and where it is located. (Try to find some things of value that you own, and list them – the more you can show valuable things left behind, the more likely the consulate will believe you intend to return.)

8. Number of previous trips to the US? When? Duration?

Travel Plan

9. What is the duration of your planned visit (current trip)?

10. Provide copies of your airplane tickets for your anticipated travel dates (This is perhaps your strongest argument for a B2 visa; a person who has purchased a return airline ticket is not likely to throw that money away, and shows clear intent to…return! Be sure to get either trip insurance or a refundable ticket so if you departure date changes, you can modify the flight with only minimal impact.). Assume that a visa will take three weeks to process (ought to be significantly faster…but I like to be conservative).

11. Where do you plan to go (trip itinerary)? Be specific about what you are intending to do.

Questions about consulate interviews? Come see us! Initial discussions on the phone are free. A thorough analysis of your case is only $150 -- and we credit that towards full representation if you opt to go with Hanover Law!

Sean R. Hanover, Esq
HanoverLawPC.com
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Military Spouses -- Another tool to Get Legal!

Members of the military often face special challenges when bringing foreign born nationals into the United States. The Department of Defense recognizes any spouse, regardless of nationality, where the marriage to the service member is legal. However, for immigration purposes, foreign born spouses present unique challenges when returning to the United States. The ability to remain in the US legally (that is, "in-status") and to obtain a green card (LPR status) can be challenging.

This blog article deals only with the challenge of military spouses who did NOT properly obtain a valid visa when entering, or allowed their visa to lapse AFTER entering the US but before filing for I-485 adjustment of status (converting to an LPR). The standard, I-130/I-485/I-601 (and soon, I-601A) method for correcting this status can still be used -- however, military spouses have an additional tool in their arsenal -- the Del Mundo Case (Del Mundo v. Rosenberg, 341 F.Supp. 345). A rather old case, the law is still valid, and the holding has not been overturned.

Essentially, this case does two things. First, it establishes that an active duty service member is entitled to have his/her spouse accompany him/her on all duty assignments, including those in the US (this prevents deportation of an alien spouse). The for this is: (a) is the US citizen an active duty military members? (2) is the lawful evidence of a marriage between the active duty military member and the illegal alien? If both of these are true, then the illegal alien spouse is no longer illegal, but rather has "in-status" standing so long as he/she is married to the active duty military member. This is important! If the alien spouse is "in-status", then there is no need for I-601 filing, and an I-485 can be submitted immediately.

The second aspect of this case is the establishment that INA section 284 supports an active duty service member who is ALSO a US Citizen from being deprived of his right to be with his spouse due to orders. This is reading the section in opposite of how it is presented. Section 284 indicates no alien service member will be deprived of his/her rights to be in the US on account of his/her alienship. The Court interpreted this section liberally, indicating that it would make no sense to prevent an alien service member rights to be in the country because of military orders, but deny a US citizen the right to be in the country due to military orders simply because his/her spouse was an alien. Essentially, the Court extended the coverage of Section 284 to US citizens who have foreign national wives or husbands.

Military immigration issues can be very complicated, but this case holding, and the interpretation it presents of INA section 284, are handy tools to get the relief many spouses need. If you are in the military, and need immigration assistance, please contact us for a free consultation. We can help!



Sean R. Hanover, Esq
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I'm married to a US Citizen -- What Happens Next?

Marriage is a wonderful thing -- but how does it effect immigration law? Legal status? LPR (legal permanent resident or lawful permanent resident) and work status (EAD -- employment authorization documentation)?

It is important to remember that immigration is roughly divided into to sections -- innies and outties. Alright, perhaps the simplistic description is misplaced here, but the concept is the same. Are you inside the country, or outside the country? If you are outside the country, the process is I129F, I130, K3 (spouse). If you are inside the country, the process is I130, I485, and if illegal, I601 (waiver/hardship -- tricky here, as there are proposed rules changes with the 601/601A).

What are all these "I" forms, and what do they do?

First, "I" stands for "Immigration" and designates a type of government form related to USCIS (United States Customs and Immigration Service). You will occasionally also see EOIR forms (Executive Office of Immigration Review -- that's the immigration court), and DHS (Department of Homeland Security) or DS (Department of State) forms. However, for today's discussion, we're only focusing on "I" forms.

The I130 is arguably the most important form of the "spousal" immigration group. It notifies USCIS that a US citizen or LPR (green-card holder)has a family member (in this case, his/her spouse) that is eligible for entry into the US. By itself, the I130 does nothing. However, without the document, nothing else can be done to convert a non-immigrant status to an immigrant (i.e. wants to stay permanently) status.

An I129F is filed to request that a foreign national, currently outside of the United States, be granted a "K" visa. K visas permit finances (K1), family members (K2), and spouses (K3) entry into the United States for a set duration (in the case of a K3, the amount of time is 2 years, and includes permission to file an I765 once in the country to permit work). An actual "K" visa is not a form. It is a stamp/processing placed inside the foreign national's passport indicate the type of entry permitted. The form required is the I129F (F = Fiance, however, it is used for K2/K3 visas, also) filed by the US citizen/LPR. Once approved by USCIS, it is forwarded to the consulate in the area where the fiance/family member/spouse resides, and the fiance/family member/spouse can then contact the consulate to setup and interview and background check. Once they complete the interview and background check, the family member/fiance/spouse's passport is stamped, and they may enter the US under the immigrant visa classification "K".

Next blog will discuss the "in country" (innies!) processing of family members/fiances/spouses.

Have an immigration law question? Ask us! This is something we do everyday. From simple phone discussions to complex immigration court litigation. We're here to help -- and your first call is always free.

Sean R. Hanover, Esq
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Duration of H1B Visas in terms Business Contracts

Interesting contract drafting exercise today. I was working with business contracts -- specifically, an employment agreement between an employer and an employee. During the course of writing the document, we hit both business law and immigration law -- It made me think it might be useful to discuss foreign workers and their impact on employment agreements in my blog. It certainly applied to today's contract, and it seems to be a growing trend. To address this problem, you really need a business lawyer who also specializes in immigration law. Look no further!

The frustration for many employers is the cost of the H1B visa -- and the omnipresent risk that once an employee obtains a visa, they will "jump ship" and work for another company who pays more because they did not have to "foot the bill" for the visa expenses. For those of you who are not aware, an H1B visa costs about $1500 in legal fees to pursue, and that does NOT include the cost of filing with the USCIS.

The employer with whom I was working wanted to create an employment agreement that locked an employee in for a term of no less than the full three years that an H1B would be valid (i.e. the foreign worker is awarded the H1B and is locked into working for this employer for three years.....or else!). This sounds reasonable, but in fact, it is non-defensible. Might work if it's never challenged, however, there are laws against involuntary servitude, and locking a person into a contract where the only recourse for leaving is a tremendous fine ($15,000 for example) acts as a defacto massive limitation on the average worker's ability to do anything but continue working for the company...and then leave the country (3 years are up...good-bye!).

So how does an employer even the playing field? Bluntly, they can't ensure the employee will not leave before the three years. But an employer can share the risk! That means an agreement that locks the employee in for a year with penalties for terminating early will be enforceable; and additional one year extensions after that can be equally enforceable. It's possible to push for up to a year-and-a-half, but that's probably really eeking the limit.

Ultimately, the employer protects his/her investment by paying a fair wage, and vetting an employee before embarking on the H1B adventure. Passing the cost of the H1B on to the employee is not only illegal from an immigration standpoint (that creates a situation where the employee is buying their visa), but also smacks of poor business sense. Conversely, it is both reasonable and prudent to protect your investment by requiring that a highly trained employee (H1B candidate) not simply quit immediately after you hire them. Employment for term is still the way to go...an equal and balanced employment contract is key.

Need help determining how to negotiate the H1B framework, as well as building a powerful employment agreement that protects the employer while being fair and straightforward with the employee? Come to talk to the business contracts experts!

You may reach us at 703-402-2723. We're happy to help, and your first call is always free.

Sean R. Hanover, Esq
HanoverLawPC.com
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Privity and the Ties that Bind...

As a business owner myself, I completely understand the frustration of not getting paid! Or, still better -- being the sub-contractor on business contracts that for reasons not related to your conduct, the prime does not get paid, and so YOU don't get paid.

We at Hanover Law are business lawyers (among other things!). Payment is often the number one reason why clients come to us with business disputes, and the first discussion Hanover Law has with them -- are you in privity?

As a concept, privity stems from the root word "privy" meaning, "to be a party to". Privity developed as a formal legal doctrine in the mid-1800's in England as an attempt to define why, without consideration, a third-party had no rights in a contract (i.e. "privity" was the term coined to describe this state). While there are some clear exceptions to the rule of privity, essentially, the original meaning still stands.

An example of "in privity" would be:

ABC Company signs a contract with Parent Company to produce 1000 widgets. ABC fails to produce the widgets, so Parent company refuses to pay. ABC sues Parent claiming their failure to perform was caused by negligence on the part of Parent.

This example has both Parent and ABC in privity of contract (i.e. parties to the contract) and, as such, each party may correctly bring action to enforce the terms or agreements stipulated in the contract, or bring action in equity or at-law for damages stemming from a breach.

An example of "no privity" would be:

ABC Company signs a contract with Parent Company to produce 1000 widgets. Florida Firm completes the widget order and sends the product to Parent Company per instructions from ABC. Parent Company decides NOT to pay ABC Company for a non-defenseable reason. ABC Company fails to pay Florida Firm, siting Parent's failure to pay ABC, but refuses to sue Parent Company for fear of losing future business. Florida Firm sues Parent Company to make them pay because ABC Company won't.

While Parent Company and ABC are still in privity, Florida Firm is NOT in privity with Parent Company. Therefore, a suit by Florida Firm against Parent Company fails.

Frequently, privity problems create very awkward situations. In the case of the example above, it is completely reasonable to assume that Florida Firm had a good and long term working relationship with ABC Company. However, if Florida Firm can't sue Parent Company for not paying -- who must they sue? You got it -- they must sue ABC, the company with which they DO have a contract. This creates tense situations between long-time suppliers and trusted accounts. If Florida Firm sues ABC, then ABC would have to sue Parent Company to get the money back they owe Florida Firm.

Follow the paper! The trick to understanding privity is to follow the business contracts. With whom does each party have a written agreement? While this is not always the only indication of privity, it is an excellent starting point. To claim a breach of contract, you must show privity. Generally, to show privity, you must show a contract between your company and the individual or firm that breached the contract.

It is possible to use the concept of privity as a defense in a tort action (specifically negligence). However, most jurisdictions have depreciated this use, citing to the standard established by Judge Cardonozo in the early 20th century where conduct that is "foreseeable" as effecting this plaintiff is sufficient to overcome the burden of privity (the test is a little more complicated, but is but summarized as "foreseeable plaintiff").

If you are currently under contract and have a dispute, let us help! We're business lawyers. Get a business attorney on your side. You may reach us at 703-402-2723. We're happy to help, and your first call is always free.

Sean R. Hanover, Esq
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Difference between an employment CONTRACT and employment AT-WILL

At Hanover Law, we frequently are called upon to draft employment agreements. I thought I would take a moment to explain the basic difference between employment at-will, and employment for a specific duration or case (called "term"). I should note that there is a difference between independent contractors and term employees -- I'll write about independent contractors at a later time. I won't be focusing on them in this blog today. Additionally, do note that "term employees" is not slang for "terminated employees" or "employees who are going to be terminated." Think of "term" in the sense of life insurance -- for a stated duration or purpose only. Once the time-frame or purpose has elapsed, the contract is extinguished. While there may be "closing" or "residual" obligations stemming from the contract, an extinguished contract is just that -- over.

Generally, the term "at-will" means that an employer or employee may end the working relationship with or without reason, so long as such ending is not contrary to law. Employment at-will has a speckled past. It seems to first have appeared in the late 1800's as a means of providing some rationale for how employees could leave an otherwise constraining job (absent which you would be stuck, even without a contract). Until that time, leaving a job could open you up to lawsuits -- just for leaving! (see a rather interesting, and caustic review of at-will employment here: http://www.rbs2.com/atwill.htm). Over time, though, it began to favor employers who would use the broad scope of the rule to cashier anyone they no longer wanted to work with. In order to better stabilize the work place, the Federal government and many states began issuing laws that limited the scope of at-will employment by making certain terminations contrary to law and thereby outside the breadth of the "at-will" permissive firing doctrine. Arguably, the most famous of these were the FLSA (Fair Labor Standard Act), Title IV (anti-discrimination law), ERISA/ADEA (age related protections), and ADA (health related exclusions). This is not an exhaustive list, of course, but you can begin to see how the Fed/states can control the employment relationship, even reaching into the otherwise extremely broad "at-will" arena, in order to promote a "longer lasting" employment environment. A really interesting discussion can be had on how laws are used to control the scope of the "at-will" environment, thereby modifying the socio-economic fabric of our economy. However, I won't bore anyone here (laughing).

In contrast to "at-will", one finds "contract" employment. A contract (henceforth, "term") employee is a person who works for a company in an employee capacity (company maintains control of the work environment and work-product, as well as the means, methods, and mode of work), but only for a specific duration, and/or only for specific purpose. Term employees were the defacto arrangement prior to at-will, and still constitute a strong showing in the consulting and hourly professional services arena.

So why would any employer, even given the Fed/state constraints, want to move away from at-will employment?

A tricky question -- and ultimately, I argue, one of defense and protection. Under "at-will" employment, the presumption is that any ending of the employment relationship is permitted. The burden falls on one party to show that the ending of the at-will relationship was premised on a reason prohibited by law. However, with the myriad of laws available to protect employees (and even employers!), there is almost always some law -- legitimate or otherwise -- that an employee (or employer) can claim that caused the ending of the employment relationship(at least on the surface). Such a minimal claim (called "prima facie" -- on the face/first glance) is sufficient to grant a trial and incur considerable expense to the defending party. However, a term employee, while still having such defenses during the course of the term, has none once the term ends, as the presumption is that the contract ran its course and the employee (or employer) is not entitled to any further benefit. Ergo, the natural ending of a term contract employee is almost bullet-proof from any claim of discrimination or malfeasance. Awarding follow-on contracts can open the door to discriminatory problems or claims of actions as contrary to law; however, any hiring action brings that possibility, so the risk is not really related to "at-will" versus "contract".

Interestingly, as I often recommend to my clients, employees hired under a specific "term" can be held accountable in ways that general, "at-will" employees cannot. For example, a contract may call for a reduction in hourly rate payment for failure to produce a certain grade, or failure to show to work, or any other performance metric. While such a metric could certainly be challenged as discriminatory against a certain group, a well defined contract eliminates this threat while preserving considerable control to both contracting parties as to expenses, and specific terms of the employment relationship. This is extremely handy when dealing with third-party placement consultants (hired by your company, but actually located and/or working in another agency or firm).

Would a discussion about your current hiring practice, or the terms of your current contracting/employment relationship be helpful? Call and ask us (703-402-2723)! We're happy to help, and your first call is always free.

Sean R. Hanover, Esq
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