It is those stricken allegations, which were thrown out of the lawsuit, which you obviously intend to recklessly repeat in the Story. In addition to striking “John Doe’s” gratuitous and inflammatory allegations, the Court also dismissed all nineteen of his causes of action against my client, and threw the whole case out. The Court also specifically held that the agreement at issue, which “John Doe” had challenged, was valid and enforceable. Note also that in addition to the Court striking out numerous wild allegations which had improperly been included in “John Doe’s” lawsuit, many of the documents filed in that action were placed under seal by the Court.
As to the other specious lawsuit, which was filed by two other “Doe” plaintiffs unwilling to sue in their own names, their allegations of purported lecherous conduct were the very allegations that the Court struck from the security guard’s “Doe” lawsuit. The case by the two “Doe” plaintiffs was subsequently dismissed. You can confirm that in the Court’s records.
As you should be aware, Platinum Equity is a large organization, with over 140 employees. As such, it is not unexpected for employment disputes to arise from time to time. When properly viewed in context, the “Doe” lawsuits are of little significance. Yet, it is evident that the Story’s intended angle is to falsely state or imply that the allegations in those lawsuits are indicative of Platinum. If that were true, with 140 employees, one would expect to see literally dozens of such lawsuits. The fact that the inflammatory allegations appeared in lawsuits filed by just three “Doe” individuals should suffice to put you on notice that it would be extremely reckless to extrapolate from the isolated “Doe” allegations that they somehow indicative of Platinum and its conduct.
It is the Reader’s obvious intention to falsely make it appear either directly or by implication that the allegations of inappropriate behavior and sexual wrongdoing in the “Doe” lawsuits had merit, when the opposite is true. It is apparent that the Reader’s reporters have been on the hunt for inflammatory negative information to publish about Platinum Equity ever since it acquired the Union-Tribune. The San Diego Reader has a brief but already well-established pattern of taking swipes at my client. The Reader had a history of attacking its perceived competitor the Union-Tribune before Platinum acquired that paper, and since its acquisition earlier this year, the Reader has transparently shifted its criticism to Platinum. For example, last month, the Reader published an extremely negative article about Tom Gores and his family which contained numerous inaccuracies. Your paper subsequently published lengthy “Just For the Record” statements from Tom Gores and Alec Gores to correct its errors. In addition, the Reader’s “Scam Diego” blog page authored primarily by Don Bauder has been filled with numerous negative articles about Platinum, Tom Gores, and/or the Union-Tribune since May 1st. For example, after CNBC broadcast the negative and inaccurate piece about Platinum last week which obviously inspired your Story, the Reader posted a story about the CNBC segment on its “Scam Diego” blog. The Readers’ negative bias against my client is evident as it relishes highlighting disparaging aspects of the CNBC story, gleefully noting that “Gores got the worst of it.” Referring to Mr. Gores in this derisive manner reveals the Reader’s preordained negative point of view.
The Story which is now being prepared transparently continues the San Diego Reader’s pre-conceived agenda to attack, disparage and defame my client. Be advised that Constitutional malice can be shown through the calculated use of the journalistic devices of pre-conceived storylines, themes, or angles. Gertz v. Robert Welch, Inc., 680 F.2d 527, 539 (7th Cir. 1982), cert denied, 103 S.Ct. 1233 (1983). That is what is occurring here. In the event that the defamatory Story is published and this matter proceeds to litigation, we are confident that the Reader’s pattern of publishing negative stories about my client, culminating in the upcoming Story, would establish the Reader’s use of these journalistic devices, and would supply ample evidence of malice.
The Reader’s Constitutional malice will also be revealed through examination of its financial motives for publishing a Story such as this, attacking the owner of what it perceives as its primary competitor. As the Ninth Circuit explained in Suzuki Motor Corp. v. Consumers Union of United States, Inc., 330 F.3d 1110, 1136 (9th Cir. 2003), circumstantial evidence of financial motives can support a finding of actual malice, holding: “There is sufficient circumstantial evidence of a financial motive to support the ultimate conclusion of actual malice. While [defendant] is correct that financial motive cannot, by itself, prove actual malice, it nonetheless is a relevant factor bearing on the actual malice inquiry.”
Even that is hardly the only evidence of the Reader’s Constitutional malice, however. The fact that you attempted to provide my client with an absurdly short window in which to provide comment to the Story (initially insisting on comment within just a few hours after informing my client of the Story) although you will not go to press until Wednesday of next week suggests an intention to deprive my client of an opportunity to provide a meaningful response. This purposeful avoidance of the truth evidences Constitutional malice. Harte-Hanks, Inc. v. Connaughton, 491 U.S. 657 (1989).
If you publish a Story reporting on the unproven specious allegations of bawdy behavior, we caution you that omitting key information, misleadingly characterizing events, or otherwise implying or stating that my client engaged in wrongdoing, would result in a false and defamatory portrayal which would lend credence to the unproven, stricken and dismissed allegations of the “Doe” lawsuits. Publication of incomplete and hence misleading information may give rise to liability for defamation since the incomplete presentation of facts may imply an actionable false assertion of fact. Ringler Associates Inc. v. Maryland Cas. Co., 80 Cal.App.4th 1165, 1180, 96 Cal.Rptr.2d 136, 149 (2002); see also, Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S.Ct. 2695, 2706, 111 L. Ed. 2d 1,18 (1990) (incomplete facts may still imply false assertion of fact). “Although the truth of an alleged libel may be proven as a complete defense it is not a defense to show that a statement contained in a publication, if taken alone, is literally true, when other facts are omitted which plainly refute the false impression of the partial statement. A statement is not true or even substantially true if, by implication, an entirely untrue impression is made by omission of part of the facts.” Express Publishing Co. v. Gonzalez, 350 S.W.2d 589, 592 (Tex. 1961); see also Toney v. WCCO Television, Midwest Cable and Satellite, 85 F.3d 383, 392 (8th Cir. 1996) (recognizing cause of action for implied defamation where defendant omits important facts).