Week Ending 9/21/12: Clay Corporation v. Colter

Alan Schorr’s Case of The Week ending September 21, 2012

Clay Corporation v. Colter, Norfolk County, Massachusetts, Civ. No. 12-01138, Appellate Docket 2012-J-0350.

What happens when an employee’s siblings, angry over the termination of their sister suffering from cancer, decide to litigate the case via social media, while the employee herself is in the process of bringing the matter through the Court system? What happens when the employer, determined to fight back with every weapon possible, hires a public relations firm to counter the social media blitz while taking extremely aggressive legal measures? Judge Renee Dupuis of Norfolk County, Massachusetts answered that question emphatically last week, ordering a pre-judgment attachment of $1.5 million against the assets of the employee’s brothers.

According to Judge Dupuis’ Order, Jill Colter was hired by Clay Nissan in 2010 as a service writer. According to the Order, Clay’s manager testified that she was aware that Ms. Colter had cancer when they made the decision to hire her. Clay claims that, following her hiring, Ms. Colter’s conduct in her interactions with employees and customers was problematic and unacceptable. About ten months after she started, Ms. Colter suffered a recurrence of her illness, and again took leave. Shortly after her return from leave in May 2012, she was terminated. Clay contends that, following her return, there were several more incidents of inappropriate behavior brought to her manager’s attention and thus the decision was made to terminate her employment.

Ms. Colter and her family were irate. They claim that the Clay dealerships had terminated other cancer patients and that they had a pervasive policy of discrimination against cancer patients. They claim to have documentary evidence, in the form of e-mails, from other cancer patients wrongfully terminated by Clay. The Clay dealerships deny the charges, insisting that there were two other cancer patients working in the service department who have been fully supported and that the manager’s own son had suffered from cancer.

While Jill’s attorney was filing a claim with the Massachusetts Commission Against Discrimination (MCAD), a procedural requirement before actual suit can be commenced, Jill’s brothers, Adam and Jonathan Colter, decided that a lawsuit was not enough and launched a social media campaign. They created a Facebook site called “Boycott Clay Nissan”. The site quickly went viral. At the time of this writing, the site had over 44,000 “likes”. A picketing campaign was also organized. Clay Nissan quickly mounted a two barreled defense. They hired the Ebben Zall Group to help them with public relations and hired a law firm to file suit to try to block the web site.

On the public relations front, they launched an anti-boycott Facebook site called “Boycott Clay Nissan Really?”, subtitled “Do not Boycott Clay Nissan”. Currently, it has more than 6.000 “likes”. On its Facebook site, some unidentified person who claims to be unaffiliated with the Clays rebuts every statement that is made on the Colters’ site. At the same time, Clay has launched a website called Clayfamilycares.com, where they post updates of the legal proceedings and attack the Colters from every direction. Just today, both sides continued to fire salvos at other. Today Adam Colter posted that Clay has agreed to pay Jill Colter a full year of salary without asking for any release in return. The anonymous unidentified and unaffiliated person immediately responded.

In the meantime, Clay Nissan sued Jill’s two brothers for what was alleged to be defamation and interference. They sought a restraining order asking the web site to be taken down, and, on the interference claim, asked the Court to assess pre-litigation attachment against the brothers. The brothers protested, claiming that truth is a defense and that their boycott site was protected by the First Amendment. The Court, over the strenuous objection of the brothers, who were represented by counsel, held a two day evidentiary hearing. The Court heard from Clay’s management, their public relations firm and Ms. Colter’s brother Adam, who was most closely related to the Facebook site. Because Jill’s case was in separate litigation at the MCAD, and perhaps for other strategic reasons, the Colters did not produce much of Jill’s evidence at the hearing.

Judge Dupuis completely credited the testimony of the Plaintiffs and discredited Adam Colter’s testimony, and accordingly found that the Plaintiffs had established a likelihood of success on the merits. Based only upon the testimony of Clay’s CFO that Clay had net losses of $320,000 in 2012, $160,000 of which came in July 2012, Judge Dupuis ordered that a $1.5 million pre-judgment attachment be placed against the two brothers and that all of their banks and savings be disclosed to the Court within seven days. At the same time, the Court recognized that the Colters’ Facebook page and speech, even if defamatory, is protected by the First Amendment, and therefore refused to enjoin the Facebook page. The Court did not rule on the Colters’ anti-SLAPP suit (Strategic Litigation Against Private Persons) counterclaim.

Clay’s public relations firm sprung into action, distributing the order to the media and the story went viral, with many major web sites carrying links to the Court’s order. Every single media story erroneously reported that the Judge had awarded or entered judgment against the brothers, when, in fact, the Judge had only made a pre-judgment attachment (not that the pre-judgment attachment is not a severe penalty).

Not surprisingly, the Colters have filed an emergent interlocutory appeal to get the attachment reversed. That matter is presently pending. In the meantime, the parties continue to assault each other on Facebook and social media. In the meantime, Jill’s matter is at MCAD, and it is my understanding that her cancer has gone into remission, so amongst the other doom and gloom, there is at least one silver lining.

There are many lessons to be learned from this case. Clearly, if the Colters’ purpose was to inflict damage on Clay, they have accomplished their goal. A lawsuit would not injure Clay in the same way, since their insurance would cover it. They have also succeeded in getting their sister a sizable payment pre-suit and without waiver. But clearly there has been a great personal cost to them, and it remains to be seen who will win both the court litigation and the social media litigation. The problem is that once a party decides to litigate in the social media, it becomes difficult to maintain control, and, as this case demonstrates, the Courts are still perplexed by Facebook First Amendment issues, as I discussed in my article for August 17, 2012, Bland v. Roberts.

I reached out to plaintiff’s counsel, who declined comment, but provided a copy of Judge Dupuis’ Order. I have linked that extraordinary order along with the interlocutory appeal filed by the defendants. I will update this story as there are new developments.

Plaintiff’s counsel: Scott Silverman, Silverman Advisors, PC

Defendant’s counsel: John R. Bita, Milligan & Coughlin LLC

Trial Court Judge: Renee Dupuis, J.S.C.

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