UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
AYMAN A. DIFRAWI a/k/a ALEC DIFRAWI
INTERNET SOLUTIONS CORPORATION,
a Nevada corporation,
Plaintiffs, CASE NO: 6:07-cv-1854-ORL-22KRS
vs.
LES HENDERSON,
DANIEL BRUCE SCALF a/k/a FRANK TORELLI,
et al,
Defendants.
/
JOINT TRIAL BRIEF OF DEFENDANTS HENDERSON AND SCALF
Defendants Henderson and Scalf set forth in this trial brief a discussion of the
evidence relevant to the claims asserted against them in this case by the Plaintiffs Ayman
Difrawi and Internet Solutions Corporation along with certain legal issues with respect to
those claims that they anticipate will arise at trial.
Proposed findings of fact and conclusions of law are respectfully submitted
herewith.
Factual Background
The Plaintiffs claim that the defendants made defamatory statements about them.
The defendants are both authorities on issues of consumer fraud.
Defendant Scalf has provided research material to Rip Off Report, one of the
largest consumer feedback sites in the world, and is a forensic investigator.
Defendant Henderson operates a public awareness website and has written books
dealing with the topic of consumer fraud.
Over the past ten years Henderson has received glowing endorsements from
consumer protection agencies, newspaper reporters, securities officials, police forces and
countless individuals from around the world.
Just a few of these include the National White Collar Crime Center, the U.S.
Administration on Aging, the Division of Aging and Seniors at Health Canada, the White
Collar Crime Fighter, a State Office of Consumer Affairs, the RCMP’s Nigerian Fraud
Task Force, the Dallas County Sheriff's Department, the Oklahoma Department of
Securities, the San Antonio Texas Police Department, the Nebraska Bankers Association
and perhaps most applicably, the Commodity Futures and Trading Commission.
The Defendant’s site has been featured or referenced in newspaper articles on
fraud around the world including the St. Petersburg Times, The Tampa Bay Tribune, the
Toronto Star, the Washington Post, The Register (UK), the Christian Science Monitor,
the Financial Times, USA Today, Smart Business magazine, Conde Nast and the
Pittsburgh Tribune Review.
Defendants believe that the action is purely vexatious, statute-barred and entirely
without merit. Plaintiff Difrawi is a twice-convicted criminal with a long history of
running businesses that purport to offer employment opportunities to the general public
when this is not the actual primary business model of his enterprises as listed in their
promotional materials or corporate filings.
Plaintiffs are high-profile public figures who have, over several years, if not
decades, attracted the international scrutiny of several mainstream media outlets that have
Defendants’ Trial Brief 2
reported that the operations associated with Plaintiff Difrawi are primarily viewed as
being designed to mislead the general public, if not outright frauds.
Plaintiff Difrawi alternately refers to himself as either a consultant or President
and beneficial owner of the corporations he represents. He seems to switch on a whim,
either to prevent discovery of his true ownership, or to profess his responsibility for its
purported success. Case in point is his Internet Solutions Corporation, co-Plaintiff.
In a perceived effort of silencing their critics, Plaintiffs have initiated several
related actions for defamation against other parties in other courts across the country and
have openly debated this issue on public forums. Several such cases are running
concurrent to this one. Plaintiff ISC has even brought one of the cases which was heard
by Judge Anne C. Conway to the televised Florida Supreme Court on March 3, 2010,
thereby attracting even more public discussion of the entity.
Plaintiffs have failed to inform this court of such pendancy of related actions as
well as deliberately failing to properly list related parties in their mandatory filings.
Defendants will show that any relevant statements regarding Alec Difrawi in
“Under Investigation” and elsewhere were substantially true; and that both Difrawi and
Internet Solutions Corporation are limited public figures and cannot satisfy the New York
Times v. Sullivan standard of "actual malice."
Defendants’ Trial Brief 3
CONCLUSIONS OF LAW
I. MOST OF PLAINTIFFS’ CLAIMS WILL QUICKLY FAIL DUE TO STATUTE
OF LIMITATIONS RESTRICTIONS
Chapter 95.11 4(g) of the Florida Statutes regarding the statute of limitations for
torts related to libel and slander limits the period by which the plaintiffs may pursue a
legal remedy to two years.
Florida courts have held that a cause of action for defamation accrues on
publication of the allegedly defamatory material. Dessasau v. Cook, 2001 WL 34395880,
*3 (11 Cir. 2001) (not reported) (citing Wagner, Nugent, Johnson, Roth, Romano,
Erickson & Kupfer, P.A. v. Flanagan, 629 So.2d 113, 114-15 (Fla.1993)).
The two-year limitation period begins running on the date the statements were
made. See Molenda v. Hoechst Celanese Corp., 60 F.Supp.2d 1294, 1302-03 (S.D.Fla.
1999).
Although Plaintiffs commenced their action on November 21, 2007, Plaintiff
Difrawi seeks damages against the Defendants for activities which allegedly occurred at
some date prior to 2004 and which he has been fully aware of since that time.
Therefore, Plaintiff’s claims based on statements allegedly made by the
Defendants prior to November 21, 2005 are barred by the statute of limitations.
Any statements made on or after November 21, 2005 were simply repetitions of the
earlier ones, not new publications, and therefore are not actionable under the single
publication rule.
Under the statute of limitations, the plaintiffs had two years from the accrual of
their causes of action in which to file suit. See § 95.11(4)(g), Fla.Stat (2000) (“Actions
Defendants’ Trial Brief 4
other than for recovery of real property shall be commenced as follows: . . . . (4)
WITHIN TWO YEARS. – . . . . (g) An action for libel or slander.”); § 95.031, Fla. Stat.
(2000) (“Except as provided . . . elsewhere in these statutes, the time within which an
action shall be begun under any statute of limitations runs from the time the cause of
action accrues.”). “A cause of action for defamation accrues on publication.” Wagner,
Nugent, Johnson, Roth, Romano, Erikson & Kupfer, P.A. v. Flanagan, 629 So. 2d 113,
115 (Fla. 1993). See also § 770.07, Fla. Stat. (2000) (“The cause of action for damages
founded upon a single publication or exhibition or utterance . . . shall be deemed to have
accrued at the time of the first publication or exhibition or utterance thereof in this
state.”).
Section 770.07 applies “to all civil litigants, both public and private, in
defamation actions.” Wagner, 629 So. 2d at 115. How section 770.07 applies when
defamatory matter is posted on the internet is, however, apparently a question of first
impression in Florida. The issue is whether posting on the internet is “a single
publication,” § 770.07, so that any cause of action accrues on posting, even though the
defamatory matter remains accessible and later “hits” actually occur.
“Aligning ourselves with other courts that have considered the question, we reject
appellants’ argument that a defamatory statement is republished, so that the limitations
period begins anew, each time another internet user accesses the defamatory statement.
See Firth v. State, 775 N.E.2d 463, 465-66 (N.Y. 2002) (holding “each ‘hit’ or viewing of
the [defamatory item on the internet is not] a new publication that retriggers the statute of
limitations,” and that the statute of limitations runs from the initial posting on the
internet); see also Lane v. Strang Communications Co., 297 F. Supp. 2d 897, 900
Defendants’ Trial Brief 5
(N.D. Miss. 2003) (holding that where article was published in a magazine and then
posted online on the defendant’s website, the “claims began to run at the latest on .
. . the date that . . . the article[] w[as] posted online on the Defendant’s website”); Mitan
v. Davis, 243 F. Supp. 2d 719, 724 (W.D. Ky. 2003); Van Buskirk v. New York Times
Co., 2000 WL 1206732, at *1-2 (S.D.N.Y. Aug. 24, 2000); Traditional Cat Ass’n Inc. v.
Gilbreath, 13 Cal. Rptr. 3d 353, 404 (Cal. Ct. App. 2004); McCandliss v. Cox Enters.,
Inc., 593 S.E.2d 856, 858 (Ga. Ct. App. 2004). “To hold otherwise and treat internet
publications differently would result in the endless retriggering of the statute of
limitations.” Abate v. Maine Antique Digest, 2004 WL 293903, at *1 (Mass. Super. Jan.
26, 2004). Although a later hit may mean another person will see the defamatory material
for the first time, an analogous situation obtains when a library patron checks out a book
published years earlier.” (Jack Rudloe et al v. Dr. David Michael Karl et al Case No.
1D03-4651, Florida First District Court of Appeal)
Difrawi even seeks to bring forward similar claims to that which have already
appeared in a case dating from 2004 brought by his former business associate, Louis J.
Pearlman, against the same Defendants. (48-2004-CA-4844-O, 9th Judicial Circuit)
During 2004 Difrawi established a series of websites whose sole purpose was to
discredit the Defendants’ consumer advocacy efforts by defaming them. On June 27,
2005 Defendant Henderson was compelled to bring suit against Difrawi in Ontario,
Canada for a series of defamatory postings he made and afterwards received a judgment
against Difrawi and others. (Superior Court of Ontario - Case #C8937/05)
Defendants’ Trial Brief 6
In apparent retaliation for that litigation, Difrawi initiated the current action for
the sole purpose of harassing the Defendant Henderson and suppressing the factual
criminal background and deceptive business practices of the Plaintiff from consumers.
Clearly, given this preponderance of interactivity between the Plaintiffs and the
Defendants, Difrawi was fully aware of the allegedly defamatory statements arising from
2003 that he wishes to revive at this time, contrary to the application of any statutory
limitations which should prevent him from doing so.
Accordingly, those libel and slander allegations contained in Plaintiff’s complaint
that are time-barred will fail.
II. FAILURE TO PROVIDE NOTICE UNDER STATUTE 770.01
Florida Statute 770.01 requires that before any civil action is brought for
publication or broadcast, in a newspaper, periodical, or other medium, of a libel or
slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in
writing on the defendant, specifying the article or broadcast and the statements therein
which he or she alleges to be false and defamatory. 16070, 1933; CGL 1936 Supp.
This is something that the Plaintiffs failed to do with regards to either defendant.
III. PLAINTIFFS’ CLAIMS WILL FAIL AS REGARDS THOSE THAT ARE
REPRESENTATIVE OF THE INTERESTS OF DEFUNCT NON-PARTIES
Plaintiffs make numerous references to allegedly defamatory statements made by
the Defendant Henderson and Scalf about various defunct modeling agencies such as
Trans Continental Talent, Options Talent and Wilhelmina Scouting Network, yet not one
of these entities have operated since 2003, when they went bankrupt under the direction
Defendants’ Trial Brief 7
of then owner Louis J. Pearlman. At no time did Difrawi have an ownership position in
any of these limited liability corporations.
Since these non-existent corporations could not possibly be listed as co-Plaintiffs
at this time, it is highly unlikely, if not impossible, that the Plaintiff Difrawi has legal
standing to represent their interests either now, or at any time in the past.
IV. PLAINTIFFS’ CLAIM FAILS TO PROVIDE PARTICULARS OR EXHIBITS
IN SUPPORT OF QUANTUM OF DAMAGES
Despite repeated requests, assurances of compliance, even orders of this court, the
Plaintiffs have failed to provide to the Defendants any evidence of a computation of
damages claimed, including materials bearing on the nature and extent of injuries
suffered as alleged.
Without some substantiation of the damages claimed, or their proximate cause,
beyond mere hearsay, the action cannot stand.
V. PLAINTIFFS HAVE FAILED TO SUBSTANTIATE CLAIMS THAT
CERTAIN STATEMENTS WERE MADE AT ALL
The Plaintiffs have brought forward no evidence whatsoever to suggest that either
Defendant have made any statements about the Plaintiff ISC at any time.
Plaintiffs have also failed to specifically identify the statements they feel are
defamatory in any exhibits they wish to present, nor did they sufficiently plead those they
now claim to bring at trial.
Defendants’ Trial Brief 8
VI. ANY PUBLICATIONS OF THE DEFENDANTS WERE NOT FALSE AND
DEFAMATORY
Although the Plaintiff ISC has produced no evidence or specifics to substantiate
its claim in any way, the Defendants rely upon being able to show that the defamatory
statements of others regarding ISC are, in fact, true or so substantially true as to negate
any defamatory sting.
Plaintiffs have not yet shown that defendants’ statement concerning either
Plaintiff was in some significant respect a false statement of fact* and tended to expose
Plaintiff to hatred, ridicule, or contempt or tended to injure Plaintiff in his business,
reputation, or occupation or charged that Plaintiff committed a crime.
A statement is in some significant respect false if its substance or gist conveys a
materially different meaning than the truth would have conveyed. Defendants will show
the context in which any statement was made and rely upon the court to disregard any
minor inaccuracies that do not affect the substance of the statement.
There can be little doubt that anything anyone who has researched him might say
about the Plaintiff Difrawi would be predominantly defamatory in nature. The
Defendants shall prove that such a statement would invariably be based on truth and that
the more persuasive force and effect of the entire evidence in the case does not support
the claim of the Plaintiffs.
*In some instances a statement of opinion may be interpretable as a false statement of
fact expressly stated or implied from an expression of opinion. Milkovich v. Lorain
Journal Co., 497 U.S. 1, 110 S. Ct. 2695 (1990), Florida Medical Center, Inc. v. New
York Post Co., 568 So. 2d 454 (Fla. 4th DCA 1990).
Defendants’ Trial Brief 9
VII. DEFENDANTS MADE NO ARTICULABLY FALSE STATEMENTS
ABOUT THE PLAINTIFFS
Defendants will show that any alleged statements make no "articulably false
statement" about Difrawi or ISC and thus cannot support a defamation claim. The
Supreme Judicial Court has recognized that certain statements about a plaintiff, though
pejorative, are "too vague to be cognizable as the subject of a defamation action." Nat'l
Ass'n of Gov't Employees, Inc. v. Cent. Broad. Corp., 379 Mass. 220, 229, 396 N.E.2d
996, 1002 (1979). Because "[t]he meaning of these statements is imprecise and open to
speculation . . . [t]hey cannot 131 be proved false" and therefore "cannot be held
libellous."[11] Cole, 386 Mass. at 312, 435 N.E.2d at 1027.
Defendants will also show that certain statements, which are alleged to be
defamatory, are mere hyperbole.
In Milkovich v. Lorain Journal Co., the Supreme Court clarified that First
Amendment protection for speech that potentially harms the reputation of others takes
shape essentially in two lines of cases, or two free speech doctrines. 497 U.S. 1, 110 S.Ct.
2695, 111 L.Ed.2d 1 (1990). One doctrine "recognize [s] constitutional limits on the type
of speech which may be the subject of state defamation actions." Id. at 16, 110 S.Ct.
2695.
Speech properly categorized as "rhetorical hyperbole," "parody," "loose" and
"figurative" finds constitutional protection by this doctrine. See id. at 16-17, 110 S.Ct.
2695 (citing Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 90 S.Ct.
1537, 26 L.Ed.2d 6 (1970) (describing the statements at issue as "rhetorical hyperbole"
and "a vigorous epithet"); Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99
Defendants’ Trial Brief 10
L.Ed.2d 41 (1988) (outlining constitutional protection of parody); Letter Carriers v.
Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974) (describing statements at
issue as being used "in a loose figurative sense")). This doctrine "provides protection for
statements that cannot `reasonably be interpreted as stating actual facts' about an
individual." Id. at 20, 94 S.Ct. 2770 (quoting Falwell, 485 U.S. at 50, 108 S.Ct. 876)
(alterations omitted). Such statements are immune from defamation actions.
VIII. PLAINTIFFS’ DEFAMATION CLAIMS RELATED TO SELF-ADMITTED
TRUTHS
Central to this action, Plaintiff Difrawi brings forward claims for defamation
regarding statements made in Henderson’s book regarding his extensive criminal history
and encounters with law enforcement. (Second Amended Complaint at 31, 51)
Since truth is arguably the ultimate defense, the court should not waste its time
with patently unsustainable claims. Lipsig v. Ramlawi, 760 So. 2d 170, 180 (Fla. 3rd DCA
2000) ; see also Art. I, § 4, Fla. Const.
There is simply no disputing the fact that Mr. Difrawi is a convicted criminal who
was arrested, convicted and incarcerated for fraud-related offenses related to non-existent
job opportunity offers for which a restitution order in the amount of over $2 million for
13, 000 victims remains unpaid. While he seeks to sugarcoat or omit the finer details, the
Plaintiff himself admits this in the Second Amended Complaint at paragraph 102.
Plaintiff Difrawi has two major federal criminal convictions. He was convicted in
DC on a charge of conspiracy to commit mail, wire and bank fraud in violation of 18
Defendants’ Trial Brief 11
U.S.C. 371. Prosecuted by Eric Holder Jr., that case number is Criminal No. 94-0162, and
the plea was entered on November 8, 1995.
His business partner at the time, David Elliot, testified under oath that Difrawi
had orchestrated several job scams in addition to a variety of other fraudulent acts meant
to deceive the public.
Difrawy has also been indicted and prosecuted for 1) Aggravated Child Abuse; F.
S. 827.03 (1) (a) Second Degree Felony; and 2) Child Abuse; F. S. 827.04 (1) Third
Degree Felony. Hillsborough County 13th Judicial Circuit Court, Criminal Case 91-
14205.
Therefore, any claims related to the suggestion that Difrawi is a convicted
criminal, job scammer, cunning liar, accused child abuser or other truthful, factual and
uncontestable statements should fail due to judicial admission.
There can also be no disputing the fact that Mr. Difrawi is a public figure with a
reputation so besmirched by his own activities that his reputation is indefensible.
In fact, numerous companies under his control, direction or involvement have
received negative media coverage in countless mainstream papers (Washington Post, LA
Times) and on national television programs focusing on consumer protection dating back
from the early 1990’s up to the present day. (Dateline, WFTV Action 9)
That the Plaintiffs seek to blame this negative coverage on the Defendants
through some purported, but factually non-existent, supposition that Henderson and Scalf
have conspired to control the media is ludicrous. (Second Amended Complaint at 131.)
It should also be noted that not once in the past fifteen years, despite the plethora
of negative mainstream media coverage, has either Plaintiff brought a civil action for
Defendants’ Trial Brief 12
defamation against any media outlet or the Better Business Bureau, choosing instead to
stifle free speech through a continuous stream of vexatious litigation against numerous
individuals from around the world who lack the financial resources of Difrawi or his
operating entity of the moment, in this case The Internet Company, formerly Three Stars
Media, formerly Internet Solutions Corporation.
One need only look so far as the Plaintiffs’ in-house counsel’s email address to
IX. STATEMENTS A FAIR REPORT OF MATTERS OF PUBLIC RECORD
Damages shall not be awarded in a libel action for the publication or broadcast of
a fair and true report of matters of public record.
X. ANY DAMAGES MITIGATED BY ACTIONS OF OTHERS OR THE
PLAINTIFFS THEMSELVES
The Plaintiffs assert that the generalized warnings posted by the Defendant are
solely responsible for unproven, unquantified damages, yet consistently fail to
acknowledge their simultaneous nationwide litigation against numerous other defendants
for the very same claims and purported damages.
Plaintiff suggests on-going harm being caused when potential businesses or
employees search for the name Internet Solutions Corporation but fails to state that all
recruitment efforts no longer use the name of the defunct corporation, but instead used
that of first Three Stars Media and most recently The Internet Company, none of which
claim any affiliation to each other.
This shall be only the latest name change made by a marketing consultant
business operated by Mr. Difrawi in the past four years, operating out of the same address
Defendants’ Trial Brief 13
with the same staff, not including the roughly four thousand variants of his affiliated
websites or the multitude of fictitious and unregistered entities purporting to be actual
corporations but lacking registration or official status.
When a discardable corporation has a purposely-limited lifespan, its ownership
diminishes the value of its reputation far more than any outside influence ever could.
XI. DEFENDANTS WILL SHOW THAT THE PLAINTIFFS ARE LIMITED
PURPOSE PUBLIC FIGURES
First of all, since a claim for defamation per se is unavailable to limited public
figures the first count of the complaint shall fail, once this is proven.
On the second count, neither defendant Henderson nor defendant Scalf are liable
for defamation because: (1) the plaintiffs are public figures as a matter of law and (2) the
plaintiffs cannot show by clear and convincing evidence that either defendant acted with
actual malice when any allegedly defamatory statements were made.
In determining whether an individual is a public figure, the court should examine
the nature and extent of the individual's participation in the particular controversy giving
rise to the defamation.
Plaintiffs arguments fail if the court determines that they "invited attention and
comment" through either their position or conduct.
Plaintiffs openly advertise themselves as representing Fortune 500 companies and
as being a leader in their industry. Plaintiff ISC has established numerous “the truth
about” websites designed solely for the purpose of airing their side of the public
controversy surrounding their interaction with hundreds of thousands of job applicants.
One of its fictitious business names is actually the Consumer Business Bureau.
Defendants’ Trial Brief 14
Plaintiff Difrawi has promoted his virtues online as both a congressional
candidate and a strong supporter of free speech on the Internet, going so far as to create a
charitable non-profit Florida corporation by the name of Internet Decency Foundation,
Inc.
Not only will the Defendants produce evidence of local newscasts in Orlando
which question the activities of the Plaintiff in the public eye, but also several examples
of national news coverage from esteemed media outlets suggesting that the Plaintiffs are
running a dubious and questionable operation which affects job-seekers nationwide and
generates widespread public interest.
Defendants’ free-right commentaries on the activities of the Plaintiffs were a
matter of national public interest which elevated the Plaintiffs to public figure status long
ago.
As regards the issue of malice one often refers to “when the publisher’s
allegations are so inherently improbable that only a reckless man would have put them in
circulation…” Here, the issue is not so much that the alleged defamatory statements
might be improbable, but that overwhelming evidence suggests that they are almost
irrefutably true, or so close to being accurate, that no actionable harm could arise from
making them.
Anyone, but for the Plaintiffs and loyal staff, would reasonably have concern
about this company’s activities after reading the deluge of negative mainstream media
reports or assessing the volume of posted concerns on a multitude of online forums
unrelated to the Defendant Henderson’s website.
Defendants’ Trial Brief 15
Defendants rely on a thorough, responsible investigation to negate the existence
of gross irresponsibility or malice as a matter of law.
XII. DEFENDANTS HAD A QUALIFIED PRIVILEGE TO MAKE STATEMENT
Even if the statements can be shown to be false, the Defendants had a qualified
privilege to make a false defamatory statement since they had reason to speak about
either Plaintiff to an appropriate audience on a particular subject or occasion. Such
persons are not liable without proof of “express malice”.
The qualified privilege is granted to one having an interest or a legal, moral, or
social duty in regard to a certain subject, when speaking to another “having a
corresponding interest or duty.”
Whether there was a privilege, apart from the question or its abuse, may be
determined by the court if the evidence is undisputed.
A conditional privilege may be recognized only where the statement is made in
good faith, without malice, and in an honest belief in the truth of the statement, and in
discharge of a public or private duty.
Privilege exists where "circumstances are such as to lead any one of several
persons having a common interest in a particular subject matter correctly or reasonably to
believe that facts exist which another sharing such common interest is entitled to know.
In the case at hand you have a well-known authority on consumer fraud writing a
carefully researched book that mentions the plaintiff Difrawi, a convicted criminal with a
history of consumer fraud offences.
Defendants’ Trial Brief 16
You also have a forensic investigator providing research to a large consumer
protection website.
Any statements made outside the book were made in furtherance of protecting the
general public from being victimized by the suspicious activities of the Plaintiff in his
business dealings with consumers.
Defendants’ alleged defamatory statements regarding Difrawi’s criminal charges
are also privileged for those that reflect statements made in the course of, or pertinent to,
any stage of judicial proceedings.
XIII. NEITHER DEFENDANT CAN BE SHOWN TO HAVE ACTED WITH
MALICE
There is no clear and convincing evidence which shows that either defendant
knew when any purportedly defamatory statement was made that it was false, or that he
had serious doubts then as to its truth.
Not only is there no evidence that is precise, explicit, lacking in confusion, and of
such weight that it produces a firm belief or conviction, without hesitation, about the
matter in issue, but there appears to be no evidence whatsoever. If anyone can be shown
to be malicious it is the Plaintiffs themselves.
When an author outlines the facts available to him, thus making it clear that the
challenged statements represent his own interpretation of those facts and leaving the
reader free to draw his own conclusions, those statements are generally protected by the
First Amendment." Partington, 56 F.3d at 1157. This principle "assumes, however, that
the factual basis itself is true." Flowers, 310 F.3d at 1129; Standing Committee v.
Yagman, 55 F.3d 1430, 1440 (9th Cir.1995) ("Where a publication sets forth the facts
Defendants’ Trial Brief 17
underlying its statement of opinion and those facts are true, the Constitution protects that
opinion from liability for defamation." (internal quotations and alterations omitted));
Dodds, 145 F.3d at 1067 (noting that opinions based on disclosed facts are not actionable
"where the underlying facts are not actionable because they are nondefamatory" and
"where [the underlying facts] are not actionable because there is an absence of actual
malice"); Franklin, 10 Cal.Rptr.3d at 438.
Henderson’s book is not a pamphlet prepared on the spur of the moment. It is a
512-page book that documents the research involved in its preparation through a listing
of footnotes over forty pages long.
Coming to the logical conclusion that the historical activities of the Plaintiff make
him a despicable character does not make one malicious, merely observant.
Respectfully submitted this 6th day of March 2010,
____________________________________
Les Henderson
____________________________________
Daniel Bruce Scalf
Defendants’ Trial Brief 18
CERTIFICATE OF SERVICE
An unsigned copy of this trial brief was submitted in WordPerfect compatible format
to the Judge’s chambers via email this date.
I HEREBY CERTIFY that on this 8th day of March, 2010, the foregoing has been
mailed to the clerk of the Court for filing and uploading to the CM/ECF system
which will send a notice of electronic filing to Myra Nicholson at
[email protected] . I further certify that I mailed the foregoing document
by first-class mail to
Myra Nicholson
1743 Park Center
Drive, Orlando, FL 32835
______________________________________
Les Henderson
2072 Fire Route O
Azilda, Ontario, Canada
P0M 1B0
Tel: 705-983-9060
Fax: 866-801-1150
[email protected]
________________________________
Daniel Bruce Scalf
12125 W. Dove Wing Way
Peoria, AZ 85383
Fax: 623-399-4030
Self-Represented Defendants
Defendants’ Trial Brief 19
