Opinions are protected by the First Amendment. The real question is whether the statement is opinion or not. Opinions are not capable of verification, but facts are capable of verification. Sometimes statements are a mixture of both opinion and facts. If a statement includes a disclosure of true facts, but expresses a subjective belief of the author or the publisher, then that cannot be proven false, and therefore it is protected.

 

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The best thing that you can do when you start a business is to put it in writing. Set forth the responsibilities of the parties, whose going to take care of what. Also, you have to set forth the ownership interest. What percentage of the company is each person going to own. Set forth what contributions are going to be made by each member. Are they going to be supplying capital, services, or are they going to be providing property of some kind. What happens if one of the owners wants to cease being an employee? Who gets to determine who fires, not only members who are owners of the company, but also employees, generally? And setting forth what happens in the event the company is sold, how the proceeds are distributed.

 

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Generally, suits on guarantees are permitted even though the original guarantor filed for bankruptcy. There is an exception where a corporation files for bankruptcy and the guarantors are principles of that corporation. Sometimes the bankruptcy court will stay suits on the guarantee because proceeding with the suits may interfere with the reorganization of the corporation.

 

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Depending on the jurisdiction, convenance not to compete can be enforceable. But, they have to be reasonable as to the scope of the restriction, the geographic area that’s being restricted and the time, or the length, the duration of the restrictive period.

Usually it’s a post employment restrictive covenant. And if they are unreasonable or found to be unreasonable, courts in some jurisdictions can revise them, calling “blue penciling” and make them more reasonable. Especially in the age of the Internet, the geographic area is always an issue.

But the safest thing to do when entering into a covenant not to compete, or restrictive covenant, is to tailor and match the restriction to what the employee actually was doing. If it’s broader than that, it might be deemed to be anti-competitive, or not made for legitimate business purpose.

 

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A suit can be filed against John Doe defendants if the identity of the authors of the statements are not known. The problem is that the plaintiff has to act quickly, because the online service providers generally do not keep records of the IP addresses for a long time. And subpoenas have to be served on the online service providers and internet service providers to try and determine the identify of the anonymous posters.

 

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The defenses for online defamation are the same for ordinary defamation and they include truth, because that’s actually an element, falsity is an element of defamation. Opinion, if it’s pure opinion and not mixed opinion. Privilege. Privilege comes in basically two varieties, absolute and qualified. Absolute is a privilege, for instance, anything spoken during a judicial proceeding in court or testimony or in filed papers in court are absolute privilege. There are qualified privileges, including privileges, for instance when a former employer gives information about a former employee to a perspective employer. There’s a privilege called the fair report privilege when somebody is reporting about a judicial proceeding or government proceeding and that has to be full and fair reporting to give it that qualified privilege.

 

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Defamation claims vary from jurisdiction to jurisdiction, but basically it is a statement made to third parties about or of and concerning the plaintiff. It has to be statement of fact, and cause injury to the reputation of the plaintiff or cause people not to associate with the reputation.

If the plaintiff is a public official or public figure, then a higher level of fault is needed and that’s called actual malice and requires either that the person knew that the information that the statement was wrong, or had reckless disregard for whether the statement was true or false.

 

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When reporting on a public proceeding, there is a privilege against defamation called the fair report privilege. That requires that the statements made in reporting on the proceeding or the record have to be full and fair. This varies from one jurisdiction to another, but some jurisdictions also require that it has to be impartial as well. Then if that is done, then there would be a qualified privilege against defamation.

 

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Generally, in commercial litigation, the first stage is the pleading stage where the parties set forth the complaint and there’s answers. Sometimes there’s motion such as in the form of a motion to dismiss for failure to state a claim. Then there’s the discovery phase where the parties ask either written questions or demand for documents and request for admissions and take depositions. And that’s where people sit in front of a court reporter and their testimony is taken down for later use at trial.

And then there’s the motion practice. Usually, some re-judgment stage where one side or the other will move for some re-judgment asking the court that based on the evidence that’s in the documents so far, that either the complaint should be dismissed or judgment should be granted in favor of the plaintiff. And then finally there’s the trial stage. And that’s, of course, where witnesses are called to testify in each side, puts on their evidence, and the case is decided by the fact finder, either a judge or a jury.

 

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