First Amendment Attorney Marc Randazza Bankruptcy Challenges by Liberty Media

Marc Randazza Bankruptcy and Liberty Media

"In the meantime, Randazza's old employer, Liberty Media, is challenging his Nevada court filing seeking Chapter 11 bankruptcy protection. In that filing, Randazza claimed assets of up to $10 million, and liabilities of up to $50 million. Randazza included in his liabilities a potential $10 million judgement against him in a lawsuit with a blogger, Crystal Cox of Washington; $1 million to Liberty; as well as another $1 million judgement against him in a lawsuit he's embroiled in with Roca Labs of Largo, Florida."

Source and More
http://1701news.com/node/1183/so-who-klingon-lawyer-marc-randazza.html

Liberty Media Opposition Motion (Doc. 38)

"In an effort to avoid payment of the entire monetary component of the IAA, and before the
IAA could be confirmed by the state court, Debtor, by and through its counsel L&Z, initiated
settlement negotiations with E/L. During these negotiations, Debtor consistently used the threat of
a bankruptcy petition in an attempt to negotiate a sum of payment significantly reduced from that
awarded to E/L in the IAA. Not only did Debtor use the threat of bankruptcy as a cudgel, but he andhis allegedly estranged wife have initiated sealed divorce proceedings, and dissipated assets."

"Debtor attempted delay for two reasons: (1) in a misguided effort to stay the award of attorneys fees by the Arbitrator, as well as the confirmation of the IAA by the state court; and (2) to push the date of petition out more than 90 days, so that Debtor’s fraudulent, improper, and preferential transfers could not be clawed back, including payments to his attorneys L&Z.

According to Debtor’s schedules filed on September 11, 2015, Debtor has deposited with
L&Z sums totaling $94,000. [ECF 15] On September 22, 2015, L&Z filed the instant Application
to Employ and Retain Larson & Zirzow, LLC as Attorneys for the Debtor Nunc Pro Tunc to the
Petition Date."

"According to the retainer agreements and statements made therein, L&Z entered into
representation of Debtor as of June 11, 2015 for “pre-bankruptcy settlement negotiations and to
attend a settlement conference. The Debtor paid L&Z a flat fee of $10,000.00 for this engagement.”

"L&Z also purports to have been retained, via two separate retainer agreements, for representation in both a bankruptcy action, and a potential adversary proceeding."

"the second was for potential nondischargeability litigation. "

"L&Z’s Application is deficient as it relates to exactly what the scope of services are that it
has billed for as of yet. In fact, L&Z only informs as to the fact that it has received a total sum of $94,000 for legal services in connection with Debtor’s Chapter 11 case. “Of this sum, L&Z billed and was paid the sum of $26,908.82 prior to the Petition Date, and L&Z currently holds in trust the remainder sum of $67,091.18 (the “Remaining Retainer”) a portion of which has been allocated pursuant to the Representation Agreements for potential adversary proceedings.” [ECF 18 at ¶16 (emphasis added)] This Application utterly fails to identify and delineate what services were provided totaling $26,908.82."

"In any event, all transfers were made within 90 days of the filing of Debtor’s Petition. As
such, the “pre-bankruptcy” retainer fees charged and collected by L&Z constitute an avoidable preferential transfer, and the funds must be clawed back to the estate. As a result, L&Z will lose their status as “disinterested parties” and are therefore not qualified to serve as attorneys for the Debtor.

II. L&Z’S APPLICATION IS INSUFFICIENT TO SATISFY THE TEST FOR
APPROVAL OF HIRING OF PROFESSIONALS.

L&Z’s employment as attorneys for the debtor in possession in a Chapter 11 case is
governed by § 327(a) of the Bankruptcy Code, which requires court approval for the attorney's employment. The bankruptcy court is charged with “ensur[ing] that attorneys who represent the debtor do so in the best interests of the bankruptcy estate.” In re Park–Helena Corp., 63 F.3d 877, 880 (9th Cir.1995). Under § 327, an attorney for a debtor cannot “hold or represent an interest adverse to the estate”; he or she must be a “disinterested person.” 11 U.S.C. § 327(a).

Any creditor of the estate, or anyone with “an interest materially adverse to the interest of the estate ... by reason  of any direct or indirect relationship to, connection with, or interest in, the debtor,” is not a disinterested person. 11 U.S.C. §§ 101(14)(A), (C). A “creditor” includes any “entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor.” § 101(10)(A). 

A “claim” includes any “right to payment.” § 101(5)(A).

To enable the Bankruptcy Court to evaluate an attorney's potential employment, Rule
2014(a) requires that an application for employment of an attorney under § 327 “shall be
accompanied by a verified statement of the person to be employed setting forth the person's
connections with the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States trustee, or any person employed in the office of the United States trustee.” Fed. R. Bankr.P. 2014(a). This disclosure requirement is applied “strictly.” Park–Helena, 63 F.3d at 881.

An attorney approved for employment under § 327 must apply for interim or final
compensation, which is subject to approval of the Bankruptcy Court. 11 U.S.C. §§ 328–31; see also In re Chapel Gate Apartments, Ltd., 64 B.R. 569, 575 (Bankr.N.D.Tex.1986) (noting that “fees in bankruptcy cases ... are subject to review, modification, and outright cancellation by the Court”).

Rule 2016(a) requires an attorney seeking compensation and/or reimbursement of expenses to file an application “setting forth a detailed statement of (1) the services rendered, time expended and expenses incurred, and (2) the amounts requested.”

The fee application must also include, inter alia, “a statement as to what payments have theretofore been made or promised to the applicant for services rendered or to be rendered in any capacity whatsoever in connection with the case, [and] the source of the compensation so paid or promised.” Id. After notice and a hearing, the court may award “reasonable compensation for actual, necessary services rendered,” as well as “reimbursement for actual, necessary expenses.” §330(a)(1)."

Source and Full Filing
http://ia800807.us.archive.org/26/items/gov.uscourts.nvb.348854/gov.uscourts.nvb.348854.38.0.pdf


Liberty Media Move for Order to Modify Stay
http://ia800807.us.archive.org/26/items/gov.uscourts.nvb.348854/gov.uscourts.nvb.348854.60.0.pdf

Doc. 60-2 to above Motion
http://ia600807.us.archive.org/26/items/gov.uscourts.nvb.348854/gov.uscourts.nvb.348854.60.2.pdf

Motion to Confirm Arbitration Award Exhibit - 60-6
http://ia600807.us.archive.org/26/items/gov.uscourts.nvb.348854/gov.uscourts.nvb.348854.60.6.pdf

Liberty Media Reply
http://ia800807.us.archive.org/26/items/gov.uscourts.nvb.348854/gov.uscourts.nvb.348854.80.0.pdf

COMPLAINT by Liberty Media and Others to Determine Non-Dischargeable Debt
http://ia800807.us.archive.org/26/items/gov.uscourts.nvb.348854/gov.uscourts.nvb.348854.83.0.pdf

Doc. 120 filed by Liberty Media, First Amended Complaint, Demand for Jury Trial
http://ia800807.us.archive.org/26/items/gov.uscourts.nvb.348854/gov.uscourts.nvb.348854.120.0.pdf

Marc Randazza Bankruptcy Case Docket
http://ia600807.us.archive.org/26/items/gov.uscourts.nvb.348854/gov.uscourts.nvb.348854.docket.html


Doc. 148 Settlement
http://ia800807.us.archive.org/26/items/gov.uscourts.nvb.348854/gov.uscourts.nvb.348854.148.0.pdf
http://ia800807.us.archive.org/26/items/gov.uscourts.nvb.348854/gov.uscourts.nvb.348854.157.0.pdf

EX PARTE APPLICATION FOR ORDER DIRECTING EXAMINATION
PURSUANT TO FED.R.BANKR.P.2004 OF MARC J. RANDAZZA

Doc. 187

"Creditors Excelsior Media Corp. (“Excelsior”) and Liberty Media Holdings, LLC
(“Liberty” and together with Excelsior, “Creditors”), by and through their counsel, James D.
Greene, Esq. of Greene Infuso, LLP pursuant to section 105 of the Bankruptcy Code and Rule
2004 of the Federal Rules of Bankruptcy Procedure and Rule 2004 of the Local Rules of
Bankruptcy Practice and Procedure, hereby apply to the Court for entry of order directing Debtor
Marc J. Randazza (“Debtor”) to appear for and submit to examination under oath before certified court reporter at the office of Greene Infuso, LLP, 3030 South Jones Blvd. Suite 101, Las Vegas, Nevada 89146 on a date and time to be determined, providing that notice of said examination is to be provided no less than 10 judicial days before such examination date. In support of this
application (“Application”), Creditors state as follows:

LEGAL ARGUMENT

An examination pursuant to Bankruptcy Rule 2004 can be ordered [o]n motion of any

party in interest.” In re Stasz, 387 B.R. 271, 273 n.3 (B.A.P. 9th Cir. 2008); see also In re Lifeco

Inv. Grp., Inc., 173 B.R. 478, 480 (Bankr. D. Del 1994), quoting Fed. R. Bankr. P. 2004(a).

Bankruptcy Rule 2004 further provides that the Court may order the examination and the

production of documentary evidence concerning any matter that relates “to the liabilities and

financial condition of the debtor, or to any matter which may affect the administration of the

debtor’s estate, or… any other matter relevant to the case or tot the formulation of a plan.” Fed.

R. Bankr. P. 2004(b); see also In re Dinubilo, 177 B.R. 932, 936 n.6 (E.D. Cal. 1993) (noting that

“[u]nder Rule 2004, a court may order the examination of any person on motion of any party in

interest.”). 

Generally, examinations under Bankruptcy Rule 2004 are for the “purpose of

discovering assets and unearthing frauds.” In re Rafsky, 300 B.R. 152, 153 n.2 (Bankr. D. Conn.

2003) (citation omitted); In re N. Plaza LLC, 395 B.R. 113, 122 n.9 (S.D. Cal. 2008).

The scope of a Bankruptcy Rule 2004 examination is “unfettered and broad,” as the plain

language of the rule indicates. See 9 Collier on Bankruptcy ¶ 2004.02[1] at 2004-6 (15th ed. Rev.

1997); In re Dinublilo, 177 B. R. at 939 quoting In re GHR Energy Corp., 33 B.R. 451, 453

(Bankr. D. Mass. 1983). 

The broad latitude of Bankruptcy Rule 2004 examination furthers the purpose of the rule, which is “to allow the court to gain a clear picture of the condition and the whereabouts of the bankrupt’s estate. In re Int’l Fibercom, Inc., 283 B.R. 290, 292 (Bankr. D. Ariz. 2002) (permitted Bankruptcy Rule 2004 examination aimed at “obtaining information that will … potentially uncover additional claims that may exist for the benefit of the estate”); see also In re W & S Investments, Inc., 985 F.2d 577 (9th Cir. 1993) (“Bankruptcy Rule 2004 is a broadly construed discovery device…”); In re French, 145 B. R 991, 992 (Bankr. D.S.D. 1992) (“Bankruptcy Rule 2004… does not offer the procedural safeguards available under Rule 26 of the Federal Rule Rules of Civil Procedure.”)."

"The information and documents which Creditors seek through this Application relate to

matters that are clearly with the permitted scope of Rule 2004, including: (i) property of the

Debtor’s bankruptcy estate; (ii) transactions and business dealings involving the Debtor and

family members and corporate entities; (iii) potential claims the Creditor may have against third

parties; and (iv) other matters affecting the administration of the Debtor’s estate."

Source and Full Document

http://ia800807.us.archive.org/26/items/gov.uscourts.nvb.348854/gov.uscourts.nvb.348854.187.0.pdf

Above Order Granted
http://ia800807.us.archive.org/26/items/gov.uscourts.nvb.348854/gov.uscourts.nvb.348854.188.0.pdf


Doc. 191 Liberty Media SUPPLEMENTAL BRIEF IN SUPPORT
OF MOTION FOR ORDER CONFIRMING INTERIMARBITRATION AWARD
http://ia600807.us.archive.org/26/items/gov.uscourts.nvb.348854/gov.uscourts.nvb.348854.191.0.pdf


CAN YOU SAY PATTERN AND HISTORY ???

More On First Amendment Attorney Marc Randazza Bankruptcy
https://marcrandazzabankruptcy.blogspot.com/

In Randazza v. Cox, Nevada Judge Gloria Navarro issued an unconstitutional TRO against Blogger Crystal Cox and Gave Marc Randazza massive online content and intellectual property. Thereby shutting down Cox's speech and flat out stealing blogs, online content and redirecting MY WORK and PROPERTY to Randazza's Legal Blog SLAMMING me and Promoting him and his law firm. In that Case it was OK and seemingly Lawful for a Federal Judge to go ahead and take my Constitutional Rights. Check Out this case below where WORLDS Most Hypocritical Lawyer Marc Randazza Makes the OPPOSITE CASE AGAIN.

"In the motion to dissolve the order, attorney Marc Randazza points out that fashioning a libel lawsuit as a tortious interference lawsuit doesn't change the ultimate goal of the litigation: to silence criticism."


"Judge Decides Free Speech Is Still A Right; 
Dumps Prior Restraint Order Against Mattress Review Site

A couple of weeks ago, a federal judge in Utah decided prior restraint was the best way to handle a recently-filed defamation suit against Honest Mattress Reviews by Purple Innovations, makers of the Purple Mattress.

Purple's lengthy filing contained numerous allegations of harm caused by Honest Mattress Reviews' extended commentary on the white plastic powder covering every mattress Purple ships. It also alleged HMR was just a front for site owner Ryan Monahan's brand management work with Purple's competitor, Ghostbed. Rather than give HMR a chance to respond, the judge decided the review site could publish nothing further about Purple or the lawsuit. It wasn't even allowed to refer to its previous rating of Purple's mattress.

Honest Mattress Review didn't care much for this decision -- one it had been given no chance to contest. It immediately posted an article about the case and offered to comply with the letter of the order, but perhaps not its spirit.

This temporary order commands that we take down all reviews, and even cease rating this company with a rating of “Poor.” Yes, indeed, we are no longer even permitted to rate this company as Poor. I guess we will change its rating to “💩.”

[...]

Do you trust a company that, rather than compete in the marketplace, decides that it will just try and sue negative reviews out of existence?

Purple Innovations immediately returned to court, demanding it find HMR in contempt of its order, in particular pointing to the poo emoji and HMR's claims about the unconstitutionality of the order and Purple's alleged disingenuousness in filing the libel suit.

That review has since been reinstated and given this header image.

And HMR has published a long list of court documents it has filed in this case. This includes a motion to dissolve the restraining order and a preliminary examination of the powdery substance Purple claims is harmless and that HMR claims could be hazardous to purchasers' health.

In the motion [PDF] to dissolve the order, attorney Marc Randazza points out that fashioning a libel lawsuit as a tortious interference lawsuit doesn't change the ultimate goal of the litigation: to silence criticism.

The action is a quintessential SLAPP suit designed to suppress negative consumer journalism. Plaintiffs have cleverly attempted to disguise this defamation claim as a Lanham Act claim – presumably to ensure the availability of Federal Court jurisdiction and to try to side-step the clear case law that cuts against them in defamation actions. But, no matter how eloquently someone may call a “dog” a “chicken,” it will never lay eggs. And styling a specious defamation claim as a Lanham Act claim does not remove the underlying speech from the protections afforded by the First Amendment.

He also points out that Purple's claims that the plastic packing dust is harmless haven't been supported by anything Purple's willing to let customers and competitors view. Instead, it's only made vague assertions about its safety. And those statements are ultimately meaningless when examined closely.

Plaintiff sells mattresses that are made of a rubber honeycomb, which they then dust with a powder that they claim is made of plastic and has been shown to be polyethylene microspheres. In other words, someone who sleeps on these mattresses would be expected to inhale these microspheres. The Plaintiff claims that it is “non toxic” and “food grade” plastic – but this does not assuage the concerns. After all, a plastic fork is “food grade” and “non toxic” but you most certainly would not want to actually eat it. The same goes for what a person wants to put in their lungs. It was reasonable to be concerned about this “plastic powder” since (a) if the particles that make up this plastic “powder” are of a certain size, they will pass through the alveoli into the bloodstream; or (b) if they are a bit larger, they will simply lodge themselves inside the lungs.

To support its claims, HMR put a Harvard Professor of Pathology to work. Dr. John Godleski's report[PDF] is far from complete at this point, but what's contained in his preliminary examination of the powder doesn't appear to agree with Purple's assertions of harmlessness.

By Fourier Transformed Infrared spectroscopy (FTIR), the white powder particles were shown to be polyethylene, and the purple frame was found to be polyethylene-polypropylene copolymer. The foam portion of the mattress is still understudy, but has characteristics of butadiene, and may be a form of butadiene polymer.

Polyethylene is a common plastic formed into many structures. As inhalable microspheres, these have the potential to cause respiratory irritation especially when inhaled in large numbers as shown in my laboratory (1- 4). In addition, polyethylene has been associated with allergy in the form of either asthma or contact dermatitis in sensitized individuals (5-7). Based on this assessment, it is important for consumers to be aware of the composition of this fine particulate matter in the mattress which may be released into the air and has the potential for the development of respiratory or dermal hypersensitivity in some individuals.

Also included in the filed documents is an affidavit that undercuts Purple's claims about HMR's site owner being a competitor's "brand manager." This is central to Purple's Lanham Act claims -- the claims it's using to sidestep anti-SLAPP motions. The affidavit from the competitor (Ghostbed) notes HMR's site owner has never been directly employed by Ghostbed and that Ghostbed told him to stop referring to himself as its "brand manager" after noticing that statement on his Twitter profile.

The judge presiding over the case appears to have been overwhelmed by the pile of documents landing on his desk. A short order [PDF] issued on the 15th shows what can happen when a normally adversarial process is allowed to be, you know, adversarial.

For the reasons set forth in the parties’ briefing and at oral argument, the court finds a lack of “clear and unequivocal” support for a right to relief that is necessary for the entry of the “extraordinary remedy” of a preliminary injunction. Greater Yellowstone Coal v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003). As such, the court hereby grants Defendants’ motions to dissolve the Temporary Restraining Order (Dkt. No. 36), and denies Plaintiff’s oral Motion to convert the Temporary Restraining Order into a Preliminary Injunction. The court similarly denies Plaintiff’s Motion for Leave to Conduct Expedited Discovery (Dkt. No. 39) and Motion for Order to Show Cause Why Defendants Should not be Held in Contempt (Dkt. No. 17). The court further denies Defendants’ request for sanctions, finding that such sanctions are not warranted here.

The restraining order is lifted and HMR's turd-laced post isn't in danger of being found contemptuous. The lawsuit should continue in a more constitutional fashion from this point forward.

Source

https://www.techdirt.com/articles/20170318/11382836946/judge-decides-free-speech-is-still-right-dumps-prior-restraint-order-against-mattress-review-site.shtml

"Conclusion and Relief Sought

Because Defendants are likely to succeed on a motion to vacate the TRO, before this Court or on appeal, a stay of the TRO is warranted. Defendants’ fundamental First Amendment rights must not be stymied by the speculations of a Plaintiff who wishes to shut down discussion rather than answer legitimate questions, no matter how hyperbolically raised. Plaintiff has no likelihood of success on its underlying claims and was not entitled to the TRO.

Case 2:17-cv-00138-DB Document 28 Filed 03/09/17 Page 23 of 25

- 24 -

The exigency and urgency of dissolving this temporary restraining order can not be

overstated. Even a temporary suppression of First Amendment rights is itself irreparable harm.

However, given that this is information consumers need to make an informed decision about the health risks inherent in use of the Purple Mattress, even a temporary suppression of this information could be the proximate cause of actual illness or injury."

" Plaintiff is clearly aggressively intent on suppressing this information. At this point, the reporting has been shored up by the expert report of Dr. Godleski. The Purple Mattress, as currently manufactured, appears to be a public health hazard. This Court should abide no further censorship. "

Source of Above and Full Hypocritical Filing

https://assets.documentcloud.org/documents/3520097/028-Motion-to-Dissolve-and-Stay.pdf

Blurred lines: Ninth Circuit applies same First Amendment protections to bloggers as traditional media

"The Ninth Circuit last week became the first federal court of appeals to find that bloggers are entitled to the same First Amendment protections as traditional print and broadcast media when sued for defamation. Obsidian Fin. Grp. v. Cox, -- F.3d --, 2014 WL 185376 (9th Cir. Jan. 17, 2014). The court also delivered a victory to online publishers by recognizing that their use of informal and hyperbolic language reduces their exposure to libel claims because such language is often protected opinion.

Cases involving traditional publishers set the groundwork for examining First Amendment issues in the digital age. In New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court held that public officials must show actual malice—that the speaker/defendant knew or acted with reckless disregard as to whether a statement was false—to prevail on a defamation claim. Courts later expanded that holding to public figures. Ten years later, Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), established that private figure defamation plaintiffs must prove negligence, and may only recover actual (not presumed or punitive) damages with respect to statements about matters of public concern. In each case, the speaker/defendant was a traditional media outlet.

But as the Supreme Court has since observed, “[w]ith the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United v. Federal Election Commission, 558 U.S. 310, 352 (2010). Indeed, the Internet, which enables the publication of content through blogs, Facebook posts, tweets, and other modes of communication, has forced courts to examine whether the identity of the speaker matters to First Amendment protections. Last week, in Obsidian, the Ninth Circuit answered that question with a resounding “No.”

Background and Court’s Decision

The case arose when Obsidian Finance Group and its principal, Kevin Padrick, sued blogger Crystal Cox for publishing posts accusing them of fraud, corruption, money laundering, and other illegal activities in connection with Padrick’s Chapter 11 trusteeship of a company called Summit Accommodations, Inc. The district court granted summary judgment in Cox’s favor on all but one statement, on the grounds that the majority of the statements were constitutionally protected opinions. Obsidian Fin. Grp., LLC v. Cox, 812 F. Supp. 2d 1220, 1232-34 (D. Or. 2011). At trial, the jury found for the Plaintiffs as to the one remaining statement—a post claiming Padrick committed tax fraud—and awarded $2.5 million in compensatory damages.

Ruling on pre- and post-trial motions, the district court found that Padrick and Obsidian were not required to offer proof of fault—whether negligence or actual malice—nor actual damages to establish liability against Cox because Cox failed to submit “evidence suggestive of her status as a journalist,” Obsidian Fin. Grp., LLC v. Cox, No. 3:11-cv-00057-HZ, 2011 WL 5999334, at *5 (D. Or. Nov. 30, 2011); Padrick and Obsidian were not public figures; and the blog post did not refer to a matter of public concern. Obsidian Fin. Grp., LLC v. Cox, No. 3:11-cv-00057-HZ, 2012 WL 1065484, at *4 -7 (D. Or. Mar. 27, 2012). Cox appealed, and Plaintiffs cross-appealed from the district court’s dismissal of the remaining blog posts.

The Ninth Circuit squarely rejected the district court’s first holding, finding the same First Amendment rules apply to all speakers, whether institutional media or individual speakers such as bloggers. “In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue—not the identity of the speaker—provide the First Amendment touchstones.” Obsidian, 2014 WL 185376, at *5. The Court reasoned that the Supreme Court had not limited its holding in Gertz to institutional media and had repeatedly refrained from affording greater First Amendment protection to media in other contexts. Id. at *4. Most recently, in Citizens United, 558 U.S at 352, the Supreme Court noted that it has “consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” And while the Ninth Circuit had not addressed whether the same First Amendment defamation rules apply to individual speakers as institutional media, every other circuit to consider the question had found that they do. Obsidian, 2014 WL 185376, at *5.

With respect to the level of fault, the Court found the allegation that Padrick committed tax fraud was a matter of public concern and, under Gertz, the trial court erred by failing to instruct the jury that it must show Cox acted negligently to find her liable for defamation. (Consumer review sites and their contributors will take comfort in the Court’s statement that “even consumer complaints of non-criminal conduct can constitute matters of public concern,” likewise warranting protection under Gertz). The Court refused to consider whether the result would differ if the statement was not a matter of public concern (a question Gertz left unanswered), and affirmed the district court’s ruling that the defendants were not public figures. Thus, the Court remanded for a new trial on the lone statement for which Cox had been found liable.

The Court also rejected the plaintiffs’ cross-appeal, finding that the trial court properly held that Cox’s other statements were non-actionable opinion, applying a three-part test announced in Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990). As to the first prong, the Court observed that the general tenor of the blog posts and the fact they were posted on websites with names suggesting a one-sided viewpoint (e.g., obsidianfinancesucks.com) negated the impression that Cox was asserting objective facts.

Second, Cox’s routine use of hyperbolic language dispelled any reasonable expectation that her statements asserted facts. Finally, viewed in the context of a non-professional website with hyperbolic language, the blog posts were not sufficiently factual to be proven false. Obsidian, 2014 WL 185376, at *7.

Takeaways

Obsidian is a major win for individuals who blog, share, tweet and otherwise publish their views online. While the Court initially framed the question as “What First Amendment protections are afforded a blogger sued for defamation?” (emphasis added), its decision applies the First Amendment protections it has bestowed on “institutional media” to all “individual speakers” or “other speakers.” The Court stated that the applicability of such protections does not turn on “whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story.” Id. at *5. Under this reasoning, an individual blogger, website operator or social media users speaking publicly on the Internet enjoy the same First Amendment protections from defamation claims as traditional media publishers."

Source
https://www.lexology.com/library/detail.aspx?g=70eecbf8-59ac-46b1-8a8a-253e26d7b843

keep in mind that ANY financial or Tax Information Cox posted, SHE had an inside source, a CPA whistleblower who gave her financial information. 

"Cox, the blogger, sought protection under the First Amendment, raising two standards in defense. "

"The Ninth Circuit has extended an additional level of protection for company publications that take the form of blogs. In reference to the level of fault required to prove liability for an allegedly defamatory posting, the court explained that it is irrelevant whether a blogger is a member of an institutional press corps or a private entity.

In Obsidian Finance Group, LLC v. Cox, Nos. 12-35238 & 35319 (9th Cir., Jan. 17, 2014), the Ninth Circuit considered a defamation suit brought by a bankruptcy trustee against a blogger who falsely accused the trustee of failing to pay taxes owed by the company in bankruptcy. Cox, the blogger, sought protection under the First Amendment, raising two standards in defense. 

First, citing the Supreme Court’s New York Times Co. v. Sullivan, 376 U.S. 254 (1964) decision, she argued that, because the bankruptcy was a matter of public concern, Obsidian must prove actual malice on the part of Cox. In the alternative, Cox relied on the Court’s Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) decision that identified the negligence standard for private defamation actions.

The district court denied both arguments because Cox failed to prove her status as a journalist. The court also rejected the contention that the matter was of public concern, relegating Cox to either prove the statements were true or that they did not harm the defendant. Cox appealed.

During appeal, Obsidian argued for a narrow interpretation that the Gertz standard applies only to journalists because of the need to shield “the press and broadcast media from the rigors of strict liability for defamation.”  418 U.S. at 348. According to Obsidian, because Cox was not a member of the press, she was not afforded the Gertz protection.

But the Ninth Circuit disagreed. “The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story.”  Obsidian Finance, 12-35238 at II.B.1.

Instead, in defamation cases, the First Amendment standards turn on the public importance of the statement, not the identity of the speaker.

In addition, the court pointed out that, even assuming Gertz is limited to matters of public concern, the blog post from Cox qualified because public allegations that someone is involved in a crime generally satisfy the requirement."

Source
https://www.lexology.com/library/detail.aspx?g=4e736527-7711-4a01-bfb1-00f9f39d916a

"The Ninth Circuit agreed with Cox, finding that "the holding in Gertz sweeps more broadly" and is "not limited to cases with institutional media defendants."

"When blogging became mainstream, many wondered if blogging would have an effect on the legal protections afforded to professional journalists.

Would courts treat every blogger as a journalist? Or would the influx of bloggers undermine the protections afforded to the press by landmark court rulings and state shield laws?

Happily, courts seem to have moved toward expanded First Amendment protection for non-journalists, rather than diminishing protection for the traditional press. A notable example is the Ninth Circuit's recent opinion in Obsidian Finance Group, LLC v. Cox.

In Obsidian Finance, defendant Crystal Cox had published blog posts accusing Obsidian and Kevin Pradick, its principal, of fraud in connection with a bankruptcy case. Cox was not a professional journalist, and the appeals court would later note, citing to a New York Times column about Cox, that she “apparently had a history of making similar allegations and seeking payoffs in exchange for retraction.” (Cox has since asked the court to amend its opinion to remove this statement, which Cox says is not supported by adjudicated evidence and is not an accurate representation of the New York Times column.)

Obsidian and Pradick sued Cox for defamation. A jury awarded the plaintiffs $2.5 million, and Cox appealed.

The main issue on appeal was whether Gertz v. Robert Welch, Inc. applies only in cases brought against the traditional press. Gertz established that states are free to set standards of liability for defamation claims brought by private individuals, but must at least require a showing of negligence—they may not impose strict liability for defamation.

The district court found that the Gertz standard applied only to institutional media defendants, and instructed the jury not to consider whether Cox knew whether the statements at issue were true or false, or her intent or purpose in publishing the statements.

On appeal, Cox argued that the Gertz standard should not be limited to cases involving institutional media defendants, citing the 2010 Supreme Court opinion in Citizens United v. Federal Election Commission, which notes that the Court has "consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers."

The Ninth Circuit agreed with Cox, finding that "the holding in Gertz sweeps more broadly" and is "not limited to cases with institutional media defendants." 

The panel found that "[t]he protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities," but instead, the public-figure status of a plaintiff and the public importance of the statement at issue will "provide the First Amendment touchstones."

The court found that Cox's statements were a matter of public concern, reversed the district court judgment and remanded for a new trial.

Obsidian Finance suggests a trend toward greater First Amendment protections for non-journalists, and while the question of who counts as a journalist will continue to arise in cases involving shield laws, for the purposes of applying Gertz, that question is now settled, at least in the Ninth Circuit."


Source
https://www.lexology.com/library/detail.aspx?g=a096ac52-39f6-4f3d-a57d-811236d47be8

"Ninth Circuit holds blogger has same First Amendment rights as institutional media"

"In Obsidian Finance Group, LLC v. Cox, Nos. 12-35238, 12-35319 (9th Cir. Jan. 17, 2014), the Ninth Circuit held that First Amendment protections under the Supreme Court’s landmark opinion in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), applied to a blogger, not just the institutional media.  In Obsidian, a blogger accused a Chapter 11 bankruptcy trustee of fraud and other illegal activities in the bankruptcy case.  

The trustee sued for defamation for several of the blog posts.  The district court allowed one of the trustee’s claims to go to trial on the grounds that the blog post at issue had made false factual assertions.

The Ninth Circuit reversed, holding that the blog post was protected by the First Amendment under Gertz, in which the Supreme Court held that private defamation suits against the media require proof of negligence and actual damages.

The Court refused to distinguish between the institutional media and private individuals, explaining that First Amendment protections for the media “do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others' writings, or tried to get both sides of a story.”

The Court noted that the Supreme Court had not decided whether Gertz onlyapplied to matters which are of no public concern, but the Court said that made no difference in the instant case because the blog topic raised issues that were clearly of public interest, namely allegations of criminal activity and fraud in a bankruptcy case.

Nonetheless, the Court did not adopt all of the blogger’s arguments; it notably rejected the defense that the bankruptcy trustee was a public official, highlighting that the trustee was not elected or appointed to a government position and was paid by the debtor’s estate, not the court."

Source
https://www.lexology.com/library/detail.aspx?g=41ae20be-a102-4ede-ae4b-51690a82e23b

When I First Spoke to Marc Randazza he said that the Big Media had a Monopoly on Free Speech and there was Not Much I Could Do about it. Guess I Proved First Amendment Attorney Marc Randazza VERY Wrong.

Investigative Blogger Crystal Cox was the FIRST to gain Equal Free Speech Rights for ALL Bloggers to that of Institutional Press Journalists.

It was ruled for the first time that a blogger is entitled to the same free speech protection as a journalist.
On 2014, blogger Crystal Cox accused Obsidian and Kevin D. Padrick of corrupt and fraudulent conduct. Although the court dismissed most of Cox's blog posts as opinion, it found one post to be more factual in its assertions (and, therefore, defamatory).

It was ruled for the first time,[17][18] by the Court of Appeals for the Ninth Circuit,[19] that a blogger is entitled to the same free speech protection as a journalist and cannot be liable for defamation unless the blogger acted negligently.[20] In the decision, journalists and bloggers are equally protected under the First Amendment[17] because the "protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others' writings, or tried to get both sides of a story."[19]:11–12[21]

Source and more https://en.wikipedia.org/wiki/Freedom_of_the_press_in_the_United_States

I, Crystal Cox was the FIRST, because I refused Settlements over and over. I wanted a precedent to FREE all Citizen Journalists, Investigative Bloggers and Whistleblowers

#DefamationCase #FreeSpeech #ConstitutionalLaw #CrystalCoxCase #Whistleblower #InvestigativeBlogger #Ant-Slapp #CitizenJournalist #FirstAmendment #Defamation #DefamationLawsuit