The Oregon Supreme Court recently reversed the Oregon Court of Appeals in Neumann v. Liles, a defamation lawsuit involving a negative review of a wedding venue. The plaintiff, an operator of the venue, was the target of a review on google.com calling her, among other things, "two faced, crooked, and . . . rude." She sued the author of the review, who had been a guest at a wedding hosted at plaintiff's venue. The Oregon Court of Appeals found that the trial court improperly granted the defendant's special motion to strike under Oregon's anti-SLAPP statute, finding that the review contained potentially defamatory statements regarding the plaintiff's honesty and business ethics.
In reversing the Oregon Court of Appeals, the Oregon Supreme Court announced a framework, adopted from the Ninth Circuit, for analyzing whether a defamatory statement is entitled to First Amendment protection. The first question is whether the statement involves a matter of public concern. If it does, then the dispositive question is whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact. To answer that question, the following three-part inquiry must be applied: (1) whether the general tenor of the entire publication negates the impression that the defendant was asserting an objective fact; (2) whether the defendant used figurative or hyperbolic language that negates that impression; and (3) whether the statement in question is susceptible of being proved true or false.
Considering the content of the review as a whole, the Oregon Supreme Court held that a reasonable factfinder could not conclude that the defendant's review implied an assertion of objective fact; rather, the review expressed an opinion on matters of public concern that is protected under the First Amendment. On that basis, the Supreme Court concluded that the trial court properly dismissed the defamation lawsuit.
In a major policy shift, the EEOC recently announced that it will release Respondents' position statements and non-confidential attachments during an investigation upon request by Charging Parties or their representatives. The procedure applies to requests for position statements made to Respondents on or after January 1, 2016. Charging parties will be notified at the time they file a charge that they may obtain a copy of the Respondent's position statement. Charging parties will then have 20 days to respond to the position statements.
In contrast, the EEOC will not release the Charging Party's response to Respondents during the investigation. Consistently with past practice, Respondents will receive only a copy of the Charge until the EEOC has closed the file. This means that Respondents must continue to use a FOIA request to obtain copies of the Charging Party’s submissions after the EEOC provides notice that it has closed the file.
The EEOC’s new procedures afford Charging Parties a significant tactical advantage over Respondents in the investigation process, as well as a head start in litigation. While a Charge typically contains a minimum of facts about the Charging Party's claim, the Respondent will ordinarily provide facts about the company, its policies, and the circumstances, both for context and to directly meet the specific allegations in the Charge. Knowing that information will now be shared with the Charging Party and possibly the public, Respondents will need to carefully evaluate which facts, witnesses, and documents to identify in their position statements. For example, Respondents will need to consider whether to provide confidential data about the company and whether to require the EEOC to issue a subpoena before producing information pertaining to individuals other than the Charging Party. Respondents that historically prepared their own responses should now consider involving counsel in the process.
The EEOC announcement is available here.