October 22, 2012 Articles

Early Mitigation of Defamation Damages

A business defendant needs to know what it can and should do before a suit is filed.

By Amy B. Ginensky and Brian A. Berkley

While it may not be true that the pen is mightier than the sword, in the defamation world, it is unquestionably the case that the pen (or more appropriately in this digital age, the keystroke) can lead to the award of significant monetary damages. In recent years, defamation claims have resulted in multi-million-dollar verdicts. The cases are not limited to media defendants. Non-media businesses face serious risk. For instance, in 2008, in what was at the time the largest jury verdict in a defamation matter in U.S. history, a Mexican contractor obtained a $188 million verdict against a businessman who was found to have made libelous statements in a U.S./Mexican publication. See Rebello, Justin, “Where Are They Now? A Look Back at the Top Verdicts of 2008,” Lawyers Weekly USA (2010) (referring to Cantu v. Flanigan, Case No. 05-3580 (E.D.N.Y.), which was appealed and affirmed in part and remanded in part, but the full verdict was eventually affirmed at 705 F. Supp. 2d 220 (E.D.N.Y. 2010)).

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