Ashley Furniture's Defamation Claim Against Law Firm Found Baseless

, New Jersey Law Journal

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Robert Ottinger
Robert Ottinger

A law firm has won dismissal of defamation claims brought by an Ashley Furniture Homestore over blog posts about a suit against the company.

U.S. District Judge Dennis Cavanaugh in Newark ruled Wednesday that the company had failed to state a claim, finding the statements on the firm's blog were merely a description of the pending litigation.

In Perez v. Factory Direct of Secaucus LLC, d/b/a Ashley Furniture Homestore, former human resources director Isabel Perez alleges she was fired for being a lesbian and in retaliation for complaining about discriminatory comments by a higher-up, including a racial epithet.

CEO Eugene Chrinian, also a defendant, owns seven Ashley Furniture stores and a distribution center.

A few days after the suit was filed, Perez's lawyers at the Ottinger Firm in New York took note of the event on its blog.

The two-sentence entry said the firm sued Ashley "for firing our client over her sexual orientation," and mentioned that the matter "has generated media interest due to the outrageous nature of the alleged conduct and also because gay rights is becoming a national issue."

Ashley Furniture denied the allegations and lodged third-party claims of defamation, false light defamation and tortious interference with prospective economic advantage against the firm.

The company contended the statements being authored by a lawyer and posted on a law firm website heightened the defamatory harm because readers would be more inclined to view them as true.

But Cavanaugh said the context "makes it clear to a reasonable reader that the statements...describe disputed facts in a lawsuit."

The third-party claims also targeted two posts by Robert Ottinger in response to a Jan. 21 post about Perez's case on the Google Plus page of Pam Spaulding, a civil rights blogger on race and LGBT issues, who has thousands of followers.

The first said: "As the firm representing Ms. Perez in this case, we appreciate you spreading this news on Google plus!" The other read: "As one of the lawyers working on this case, I could not agree more. This is an important issue. Obama even mentioned gay rights in his speech yesterday—good sign."

Cavanaugh said it was likely that the second comment was responding to one above it saying that it was "not fair what they did" to Perez, but in any event, neither was defamatory. The first was a "simple expression of appreciation" and the other, an opinion, he said.

Ashley Furniture also complained about statements it claimed were defamatory in an AOL article titled "Furniture Chain Exec Allegedly Fired Lesbian Because 'God' Spoke to Her."

Those statements included remarks allegedly made to Perez by Kathy Martin, the director of People Services and Development, that Perez "may not be the best Christian" or fit the company "culture."

The store also complained of AOL's description of an alleged incident in which Martin spotted a sticker on Perez's car for the Human Rights Campaign, a gay rights group, and asked her "Is that for the gays, for the lesbos?"

Perez claims she told Martin it was an "equality symbol," to which Martin allegedly responded by saying she was not sure Perez should have been hired and she would "speak to God" about her continued employment.

Perez further alleges she was terminated the next business day, after only two weeks on the job, with Martin saying she had prayed, God had spoken and Perez did not fit the culture or "embody our mission statement."

Cavanaugh noted that AOL did not say the firm sent the quotes, adding that even if it did, they were Perez's words.

The only thing AOL attributed to the firm was a statement that managers have a right to exercise their own beliefs in their personal lives but it is illegal under New Jersey law for a private employer to fire an employee based on sexual orientation—which is true, Cavanaugh said.

Ottinger calls the third-party complaint an attempt to intimidate and says Cavanaugh's ruling will help prevent a chilling effect. The firm stopped commenting about the case and added the words "Lawsuit Alleges Employee" in front of the original blog post heading "Fired for Being Gay," he says.

The firm is considering amending Perez's suit to add a retaliation claim for filing the third-party complaint.

Ashley Furniture's attorney, Stephen Harz of Archer & Greiner in Hackensack, did not return a call. •

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