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Junior Achievement case swells with defendants

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Retired Junior Achievement CEO Jeffrey M. Miller has taken full advantage of a judge’s order for news outlets to identify people who posted comments on their websites.

Miller and his wife, Cynthia, have sued 12 parties for defamation since Marion Superior Judge S.K. Reid issued an order earlier this year to IBJ, The Indianapolis Star and WRTV-TV Channel 6.

Most of the comments stem from the news outlets’ reporting on turmoil at Junior Achievement of Central Indiana in early 2010. A construction project at the organization’s headquarters had come to a halt after the Glick Fund at Central Indiana Community Foundation stopped paying on a $2 million grant, pending an audit.
 

miller-jeff-mug.jpg Miller

Miller already had retired from Junior Achievement, but he was president of a related entity that was overseeing the construction.

The fact that posters were responding to news articles could boost defendants’ arguments that they simply were expressing opinions, which would not amount to defamation, said Andrew Klein, the Paul E. Beam professor of law at Indiana University Robert H. McKinney School of Law in Indianapolis.

That’s exactly what Andrew Wirick, an attorney for commenter Dave Wilson, has argued. Wilson, who works at 500 Festival Inc., admitted to posting two comments on the IBJ site from an office computer.

Although Wilson’s comments refer to a misuse of funds – something Miller was not accused of in IBJ articles – “Wilson was merely commenting and editorializing on the contents of the articles,” Wirick, a partner at Hume Smith Geddes Green and Simmons, argued in a recent court filing.

Miller’s attorney, Kevin Betz, did not respond to voice messages.

Wilson is one of several defendants hoping to be dismissed from the case after a Dec. 8 hearing. The case, which now has a total of 17 defendants, is set for trial January 2013.

Several of the defendants hoping for dismissal – including Federal Express Corp., Junior Achievement of Western Pennsylvania and Sanjo Steel Inc. of Greenwood – are companies where computers were used to post the comments.
 

miller-15col.jpg Turmoil around a project at the Junior Achievement building on North Keystone Avenue in 2010 prompted media coverage and anonymous comments from readers. (IBJ File Photo)

James Leagre, founder of Children’s Theatre Institute, which rented space in JA’s Keystone Avenue headquarters, is in a similar situation. A comment posted by his wife, Suzy, was traced to the Internet connection in his name, and he was named as a defendant.

The companies argue that supplying Internet access doesn’t make them liable, and they are protected by the Communications Decency Act, the same statute that protects Internet service providers.

That argument hasn’t been tested at the appellate-court level in Indiana, said Steven Springer, senior partner at Kightlinger & Gray, which represents Federal Express. “If Indiana follows the other states, that should be the end of it,” he said. “Our position is, we don’t even belong in the lawsuit.”

Miller retired from Junior Achievement at the end of 2008, but he remained president of the Experiential Learning and Entrepreneurship Foundation.

The foundation owns JA’s headquarters, and it was overseeing construction of a 25,000-square-foot addition to house a culinary school in late 2009. That’s when the Glick Fund stopped payment on its grant.

The issue hit headlines in early 2010, after contractors, who complained they hadn’t been paid, stopped working. The Central Indiana Community Foundation was holding up the grant until it had audited money it had previously released, IBJ reported at the time.

CICF has never made public the results of its audit, but it ultimately withdrew the grant.

In March 2010, Miller filed his defamation suit against Junior Achievement; its current CEO, Jennifer Burk; CICF; and its president, Brian Payne.

Miller claimed that he lost out on a job opportunity in Indianapolis Mayor Greg Ballard’s office because of rumors spread by Burk and Payne that he misused money. Later, he also sued Sarah Dansker Cotterill, wife of Ballard’s chief of staff, Chris Cotterill.

Miller alleges that Sarah Cotterill told her husband Junior Achievement was preparing a suit of its own against Miller.

Miller’s lawsuit also alleges that a consulting firm Miller and his wife formed has lost business because of the various defamatory statements.

Not all the comments posted online relate to Junior Achievement. One defendant, who is identified only as John Doe No. 7, made potentially embarrassing allegations about Miller’s personal life.miller-factbox.gif

That kind of statement leaves Miller with far fewer legal hurdles to clear, Klein said.

“He might be able to go after that commenter and argue that statement was not related to his arena of the public, which means the defendant would be forced to raise truth as a defense,” he said.

Most defamation cases boil down to “actual malice” – in other words, knowingly asserting something that isn’t true, or acting with a reckless disregard for truth. In those cases, the plaintiff bears the burden of proof.

John Doe No. 7 is one of three defendants who remain unidentified, possibly because Miller wasn’t able to trace the Internet protocol address to a specific person. In the case of John Doe No. 3, also known as “DownWithTheColts,” The Indianapolis Star refused to turn over the information.

All three media outlets objected to Miller’s request for the commenters’ Internet addresses, but Reid ruled in Miller’s favor. IBJ and Channel 6 complied with the judge’s order, but The Star filed an appeal.

The Star has cited Indiana’s shield law for journalists and First Amendment protection for anonymous speech. The Indiana Court of Appeals will hear oral arguments on that matter Dec. 12.

Reid’s order was the first of its kind that Jan Carroll, co-chairwoman of the media practice at Barnes and Thornburg has seen. Because lower-court decisions aren’t published, she said, it’s hard to tell whether Reid is the first judge in the state to issue such an order.•

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This story originally ran in the Dec. 5, 2011 issue of Indianapolis Business Journal, a sister publication of Indiana Lawyer.

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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