Lopez v. Mona

Background

David Lopez and Miriam Tauber, licensed attorneys in New York, represented Microbot Medical Inc. in a separate lawsuit involving Joseph Mona, Marcus Joseph Mona’s father. Marcus Joseph Mona acted as his father’s agent in managing his father’s savings, including trading Microbot shares. After judgment was entered against Joseph Mona in that separate action, Marcus Mona sent a LinkedIn message to Harel Gadot, Microbot’s chief executive officer and president.

The message criticized the lawsuit under Section 16(b) of the Securities Exchange Act, stated that the interests of Microbot and its executives were not aligned with the attorneys who brought the case, and accused the attorneys of exploiting the law and manufacturing standing. It also threatened possible securities-fraud class-action litigation against Microbot if the existing dispute was not resolved. Lopez and Tauber sued for libel per se and tortious interference. They later stated that they were dropping the tortious-interference claim, leaving only the libel-per-se claim.

Both sides moved for summary judgment, which is a request for judgment without a trial because the moving party claims no important factual dispute requires one.

Discussion

Under New York law, libel generally requires a written defamatory factual statement about the plaintiff, publication to another person, fault, falsity, and either special damages or a statement defamatory on its face. Statements that harm someone’s professional reputation may qualify as libel per se, meaning special damages do not have to be shown.

The court first held that the message was “pure opinion” and therefore not actionable as libel. New York law protects opinions that either explain the facts supporting them or do not imply that they rest on undisclosed damaging facts. The court considered the message’s wording, whether its statements could be proven true or false, and the message’s full context.

The court found that much of the message used vague, exaggerated, or rhetorical language, including descriptions of the lawsuit as “archaic, draconian, and unjust” and the attorneys’ interests as not “equitably aligned” with Microbot’s interests. Some portions—such as statements about Mona’s financial losses and the alleged process for bringing the Microbot lawsuit—could be tested for truth. But the court concluded that the message as a whole did not imply that Mona knew undisclosed facts supporting his opinions. Its litigation-related context, speculative discussion of a possible future class action, and repeated phrases such as “in my opinion,” “I believe,” and “it is my understanding” signaled opinion rather than actionable fact.

The court separately held that it could not determine on summary judgment that the message was defamatory because the message could be read either as accusing the attorneys of violating professional responsibilities or as criticizing the fairness of the law and the lawsuit. Thus, the message did not have only one possible, defamatory interpretation.

The court rejected both privileges that Mona asserted. It found no common-interest privilege because Mona’s interests in the ongoing litigation were directly opposed to Microbot’s interests. It also found that the privilege for statements made before litigation did not apply because resolving the existing lawsuit would not eliminate or otherwise affect the possible securities-fraud lawsuit Mona threatened.

Disposition

Because the court held that the message was pure opinion and not actionable, it granted Mona’s cross-motion for summary judgment and denied Lopez and Tauber’s motion for summary judgment. The clerk was directed to terminate both motions and close the case.