TIFFANY ANGELLE 15TH JUDICIAL DISTRICT COURT

VERSUS DOCKET NO.: 2009-3030-I

THE INDEPENDENT WEEKLY, L. L. C. LAFAYETTE PARISH, LOUISIANA

AND LESLIE TURK

MEMORANDUM IN SUPPORT
OF
ARTICLE 971 SPECIAL MOTION TO DISMISS

The Independent Weekly, LLC (The Independent) and Leslie Turk are

defendants in a defamation lawsuit filed by Tiffany Angelle in connection with their

reporting of the local impact of the Stanford company’s financial collapse that the

Securities and Exchange Commission has characterized as “a fraud of shocking

magnitude that has spread its tentacles throughout the world”1. Published estimates of

the economic impact of this “fraud” are $8 billion world-wide2, $1 billion in the Baton

Rouge market and $250 million in purported CDs (certificates of deposit) in the

Lafayette area3.

ANTI-SLAPP MOTION

SLAPP is the acronym for Strategic Litigation Against Public Participation4.

Louisiana is one among several states in the US along with Canada, Australia and

Europe to have enacted legislation to quickly and effectively dismiss SLAPP lawsuits.

Louisiana CCP Article 971 was enacted by the Legislature as Acts 1999, No.

734. In that Act, the Legislature found and declared:

1
U. S. Securities and Exchange Commission, 2/17/2009, Press Release, www.sec.gov
2
See Footnote 1
3
“The Human Cost of Scandal”, Baton Rouge Business Report, 2/20/2009, www.businessreport.com
4
http://www.thefirstamendment.org/antislappresourcecenter.html
 “…that there has been a disturbing increase in lawsuits brought primarily
to chill the valid exercise of the constitutional rights of freedom of speech
and petition for redress of grievances. The legislature finds and declares
that it is in the public interest to encourage continued participation in
matters of public significance, and that this participation should not be
chilled through abuse of the judicial process. To this end, it is the
intention of the legislature that the Article [971] enacted pursuant to this
Act shall be construed broadly.”

The essential provisions of CCP Article 971 relevant to this proceeding are as

follows:

1) A cause of action against a person arising from any act of that person
in furtherance of that person’s right of free speech under the U.S. or
Louisiana Constitutions in connection with a public issue shall be
subject to a dismissal unless the plaintiff establishes a probability of
success on the claim.

2) The court shall consider the pleadings and supporting and opposing
affidavits stating the facts upon which the liability or defense is based.

3) The prevailing party shall be entitled to reasonable attorney fees and

costs.

4) The motion shall be filed within sixty days of service of the petition.

5) All discovery proceedings shall be stayed and the stay shall remain in
effect until notice of entry of the order ruling on the motion.

Scope of Article 971

The Third Circuit discussed the scope of Article 971 in Darden v Smith5. There

the plaintiff contended that Article 971 relates only to the defamation claim contained in

a petition. The Court discussed that this article appears to establish a specialized

defense motion akin to a motion for summary judgment, but limited to defamation

actions and allowing a more liberal time for bringing the motion than the motion for

summary judgment allows.

5
Darden v. Smith, 879 So.2d 390, 2003-1144 (La.App. 3 Cir. 6/30/04)
 The Court further found no merit in the plaintiff's contention that Article 971 is

limited to a cause of action in defamation and noted that while the reported cases on

Article 971 are focused on defamation claims, the language of Article 971(A)(1) itself is

broad, stating that it applies to “[a] cause of action against a person arising from any act

of that person in furtherance of the person's right of … free speech ...” particularly in

light of the declaration of legislative intent stating its desire for the Article to be

“construed broadly.”

Burden of Proof

The movant must make a prima facie showing that the matter arises from an act

in furtherance of his or her right of free speech in relation to a public issue. In order to

defeat the motion to strike, the plaintiff is then required to demonstrate a probability of

success on his or her own claim. Darden v. Smith6

The plaintiff’s allegations in her petition judicially admit that The Independent and

Leslie Turk were exercising their right of free speech in publishing the

April 22, 2009 article at issue. The attached Chronology and supporting documents

confirm that this is a public issue with significant impact in our community and world-

wide.

With that prima facie showing, Ms. Angelle must establish the probability of

success of her defamation claim. Black’s Law Dictionary7 defines “probability” as:

Likelihood; appearance of reality or truth; reasonable ground of

presumption; verisimilitude; consonance to reason. The likelihood of a
proposition or hypothesis being true, from its conformity to reason or
experience, or from superior evidence or arguments adduced in its favor.
6
Darden v. Smith, 879 So.2d 390, 2003-1144 (La.App. 3 Cir. 6/30/04)
7
Black’s Law Dictionary, Fifth Edition, West Publishing Company, 1979
 A condition or state created when there is more evidence in favor of the
existence of a given proposition than there is against it.

DEFAMATION

The Louisiana Supreme Court8 and the Third Circuit Court9 of Appeal have held

that the plaintiff in a defamation claim has the burden of proving each of the following

five elements to prevail on their claim:

• defamatory words
• unprivileged publication
• falsity
• malice
• damages

A discussion of each of these elements in this case follows.

DEFAMATORY WORDS

Whether a particular statement is objectively capable of having a defamatory

meaning is a legal issue to be decided by the court, considering the statement as a

whole, the context in which it was made, and the effect it is reasonably intended to

produce in the mind of the average listener10.

On April 22, 2009, The Independent printed an article entitled "Stanford Suits

Hitting Closer to Home". Only the first paragraph of that article is referenced in the

petition11 which goes on to state that the remainder of the article was a “human interest

story” about an "investor who lost his life savings", that mentioned Ms. Angelle "only in

8
Trentecosta v Beck, 703 So.2d 552, 96-2388 (La. 10/21/97)
9
Aymond v Dupree, 928 So.2d 721, 2005-1248 (La.App. 3 Cir. 4/12/06)

10
Aymond v Dupree, 928 So.2d 721, 2005-1248 (La.App. 3 Cir. 4/12/06)

11
Petition at Paragraph 4
passing", and that “that investor's financial advisor was someone other than Ms.

Angelle".

The petition also complains that a large photograph of Ms. Angelle was utilized in

the article and that the defendants “did not have permission to use Ms. Angelle's

photograph or any likeness of her in their publication"12.

This was followed by extensive conclusory allegations focused on Ms. Angelle

being “an attractive blonde advisor”:

“Leslie Turk and The Independent Weekly also provided a physical

description of Ms. Angelle in the April 22, 2009 article, as quoted above,
for no apparent reason other than to further impugne her integrity,
reputation and good name. The sexist description of Ms. Angelle as an
“attractive blonde advisor” was obviously designed to suggest that Ms.
Angelle was the stereotypical blonde who was professionally successful
only because she was attractive. The Independent Weekly has not
physically described anyone else they have discussed in their publication
and Leslie Turk’s intentions are transparent in her efforts to cast
aspersions on Ms. Angelle’s character.” 13

These types of allegations were addressed and dismissed in Guilbeaux v. The

Times of Acadiana, Inc., et al14. There “the Article described Kenneth J. Guilbeaux as

‘violently mad’ and described him as the tall burley [sic] business man.” The Court of

Appeal adopted the reasons of the Trial Court in affirming exceptions of no cause of

action finding that:

“This statement merely describes plaintiff’s physical appearance and

further uses adjectives which describe his state of mind. Clearly, this
statement alone or read in conjunction with the other allegations of the
petition does not rise to the level of defamation.”

UNPRIVILEGED PUBLICATION
12
Petition at Paragraph 5
13
Petition at Paragraph 7
14
Guilbeaux v The Times of Acadiana, Inc., et al, ___ So.2d ____, (La. App. 3 Cir. 8/9/95)
 The United States Bill of Rights expressly prohibits the United States Congress

from making laws that infringe the freedom of speech or the freedom of the press15.

The Louisiana Constitution is also very protective of free speech and a free

press. It provides:

No law shall curtail or restrain the freedom of speech or of the press.

Every person may speak, write, and publish his sentiments on any
subject, but is responsible for abuse of that freedom16.

To further protect the freedom of the press in discussing issues of public interest,

the Legislature enacted the Shield Law17 which provides in pertinent part:

LRS 45:1452. Conditional privilege from compulsory disclosure of

informant or source

Except as hereinafter provided, no reporter shall be compelled to disclose

in any administrative, judicial or legislative proceedings or anywhere else
the identity of any informant or any source of information obtained by him
from another person while acting as a reporter.

LRS 45:1453. Revocation of privilege; procedure

In any case where the reporter claims the privilege conferred by this Part,
the persons or parties seeking the information may apply to the district
court of the parish in which the reporter resides for an order to revoke the
privilege.…The application for such an order shall set forth in writing the
reason why the disclosure is essential to the protection of the public
interest and service of such application shall be made upon the reporter.
The order shall be granted only when the court, after hearing the parties,
shall find that the disclosure is essential to the public interest. Any
such order shall be appealable under Article 2083 of the Louisiana Code
of Civil Procedure. In case of any such appeal, the privilege set forth in
R.S. 45:1452 shall remain in full force and effect during pendency of such
appeal. (emphasis added)

15
U.S. Constitution, First Amendment
16
La. Constitution, Article 1, Section 7
17
LRS 45:1451, et seq
 FALSITY

Ms. Angelle bears the burden of proving that the statements in The

Independent article are false. Her inability to carry that burden may be most obvious in

her complaints of 1) the “sexist” description of her as “an attractive blond advisor” and a

“stereotypical blond”, 2) being depicted pictorially in the article despite the fact that the

defendants “did not have permission to use Ms. Angelle's photograph or any likeness of

her in their publication" and 3) that “The Independent Weekly has not physically

described anyone else they have discussed in their publication.”

Taking each of those allegations in order:

1) Ms. Angelle is depicted on cover of the May-June, 2009 edition of the

008 magazine in a group photo with five other blondes18. That photo is

repeated at the beginning of the section19 entitled “Just ‘Doo’ It – Livin’

On The Edge!” and finally in a full page advertisement20 captioned

“Blondes Truly Have More Fun!” How is one publication defamatory

and the other not?

2) The photograph utilized by The Independent in the article was provided

to The Independent by her employer, Stanford, in connection with her

promotion to vice president with responsibility for overseeing

Stanford’s Lafayette office. No restriction on the use of the photo was

contained in the press kit delivered to The Independent in 2008,

18
Exhibit ?
19
Exhibit ?
20
Exhibit ?
 3) Physical descriptions of the subjects of articles are frequently included

every publication including The Independent. An example of this is

The Independent’s annual “Women Who Mean Business” edition21. In

the July 30, 2008 issue, Ruth Ann Nenutis was described as “the

blonde, perky Ruth Ann Menutis”. And readers were cautioned that

“No one who walks into [Judge Marilyn] Castle’s courtroom is fooled by

the small frame of the attractive judge…”

Nor are physical descriptions in The Independent limited to the feminine gender.

In “The Wasteland” cover story22 the physical description of the subject businessman

opened the story:

“Gordon Doerle has Hollywood good looks. His tan accentuates silvering
hair and the crisp white shirts he’s fond of wearing.”

Ms. Angelle further alleges and has the burden of proving that the “untrue

statements and insinuations” in the April 22, 2009 article “have made her fair game for

others and, as a result of the article, Ms. Angelle “has now been named in lawsuits in

which she would have otherwise not been named”23.

This allegation ignores the fact that Ms. Angelle was a named “relief defendant”

in the April 15, 2009 federal complaint24 filed by the Stanford receiver one week before

21
Exhibit ??
22
“The Wasteland”, The Independent, August 6, 2008
23
Petition at Paragraph 9
24
SEC v Stanford, et al, and Alguire, et al, USDC, Northern District, Dallas Division, Case no. 3-09CV0298-
N
The Independent article at issue in this lawsuit. The receiver’s allegation against Ms.

Angelle was that:

During the period relevant to this Complaint, Angelle was employed by

SGC [Stanford Group Company] as a financial advisor. Between January
2007 and January 2009, Angelle received approximately $675,664 in
fraudulent commissions traceable to Defendants’ [Stanford, et al]
fraudulent scheme, as well as other tainted “compensation” traceable to
the fraud.

Subsequent to the April 22, 2009 article in The Independent, Ms Angelle was

sued as a named defendant by Baton Rouge investors who are represented by Phil

Preis25. Mr. Preis has stated that he was unaware of The Independent article

referencing Ms. Angelle at the time of filing his petition and his affidavit confirming that

fact will be offered at the hearing of this matter.

Ms. Angelle has the burden of proving that any other lawsuits in which she “has

now been named” are the sole product of the reference to her in the April 22, 2009

article published by The Independent rather than the receiver’s action or her own.

FAULT

Ms. Angelle alleges that the April 22, 2009 article accuses her of “violation of her

licenses and/or of criminal conduct” and that “These statements are considered

defamatory per se…”26 Her purpose in reciting these allegations is to avoid her burden

of proving malice by the defendants.

The Louisiana Supreme Court addressed this issue in its Trentecosta decision27:

“Prior to the decision in New York Times v. Sullivan, 376 U.S. 254,
84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the common law imposed strict
25
Starkey, et al v. Green, et al, 19th JDC, East Baton Rouge Parish, LA, Docket No. C578192, Sec. 27
26
Petition at Paragraph 13
27
Trentecosta v Beck, 703 So.2d 552, 96-2388 (La. 10/21/97)
liability for publishing a defamatory statement about a person that turned
out to be false. Thus liability was imposed even if the publisher had
exercised due care to check the accuracy of the statement and reasonably
believed it to be true. The publisher could escape liability only by proving
that the statement was true or by proving that the publisher under the
circumstances enjoyed a privilege to make the statement and did not
abuse the privilege. This qualified privilege was a defense based on the
weighing of (1) the protection of the interest of the offended person
against the harm done to his or her reputation, and (2) the protection of
the interest of the public in receiving the information if it were true. Without
the privilege, there was the danger that persons who should provide true
information would not do so because of fear of a defamation action if the
information ultimately turned out to be untrue.

In the Sullivan case, the Court ruled that the First Amendment
prohibits a public official from recovering damages in a defamation action
unless the official proves by clear and convincing evidence that the person
publishing the offending statement did so with “actual malice”-that is, the
publisher had knowledge of the statement's falsity or made the statement
with reckless disregard of whether it was false or not. The court reasoned,
in an oft quoted pronouncement, that “debate on public issues should be
uninhibited, robust, and wide-open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and
public officials.” Id. at 270, 84 S.Ct. at 721.

Thus the Court not only imposed the requirement of a high degree
of fault in defamation actions brought by public officials, but also shifted
the burden of proof of fault to the public official and imposed a heightened
burden. This constitutional limitation was extended to “public figures” in
Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d
1094 (1967).

A public figure is a non-public official who is intimately involved in

the resolution of important public questions or who by reason of his fame
shapes events in areas of concern to society at large. Butts, 388 U.S. at
164, 87 S.Ct. at 1996.

In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41

L.Ed.2d 789 (1974), the Court held that the federal constitution only
requires the Sullivan actual malice standard in cases brought by public
officials and public figures. The Gertz decision left the standard in cases of
defamation of a private individual in matters of public concern up to the
states, as long as the state does not permit liability without fault. And in
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89
 L.Ed.2d 783 (1986), the Court held that the First Amendment requires
placement on the plaintiff of the burden of proving falsity, as well as fault,
in an action against a media defendant for matters of public concern.”

Thus the allegation of defamation per se does not relieve Ms. Angelle of her

burden of proving actual malice on the part of the defendants.

Similarly, Ms. Angelle alleges that she “is a private individual and has never held

herself out as a public figure”28. This is yet another attempt to shift her burden of proof

to the defendants. Per the Philadelphia Newspapers and Trentecosta decisions above,

that distinction is irrelevant with regard to her burden of proving actual malice on the

part of these media defendants.

However, even if relevant earlier in her career, Ms. Angelle’s status as a private

individual with regard to her Stanford affiliation ended with the filing of the receiver’s

complaint against her as a “relief defendant” on April 15, 2009. The attached

chronology and supporting documents reflects her public association with Stanford as

vice president and financial advisor beginning March, 2008. Since then, the cascade of

press articles, government interventions and public record lawsuits focused upon her

and her employer have rendered her a public figure in a matter of great public interest.

DAMAGES

Ms. Angelle alleges the variety of damages typical in a case such as this:

• damage to her personal and business reputation

• emotional stress and anguish
• physical manifestation of emotional stress
• loss of economic opportunity
• loss of wages and/or income

28
Petition at Paragraph 14
 However, she fails to allege and will be hard pressed to prove how a single

paragraph in a limited distribution, weekly newspaper has or can cause more damage to

her reputation and economic opportunities than the February 17, 2009 national advisory

and April 15, 2009 federal lawsuit initiated by the Securities and Exchange Commission

and its receiver for the Stanford enterprises.

The Baton Rouge Business Report, Bloomberg, the Houston Chronicle and the

Texas Monthly have all published articles on the Stanford debacle prior to The

Independent’s April 22, 2009 article. That body of public information originated without

prompting by The Independent and would continue to exist today even in the absence

of The Independent reporting.

This is a unique twist on res ipsa loquitor as the consequences of Ms. Angelle’s

actions truly speak for themselves whether in the absence or in the presence of fault by

others.

CONCLUSION

This is a classic case for the application of CCP Article 971. Ms. Angelle must

demonstrate the probability that she will succeed in proving all five of the elements of

defamation required by our courts. That is not possible.

This lawsuit should be dismissed with an order directing her to pay all attorney

fees and costs incurred by the defendants in bringing this motion.

RESPECTFULLY SUBMITTED

___________________________________
 Gary McGoffin (#9319)
Ryan M. Goudelocke (#30525)
Durio, McGoffin, Stagg & Ackermann
220 Heymann Boulevard
P. O. Box 51308 (70505)
Lafayette, LA 70503
Tel: (337) 233-0300
Fax: (337) 233-0694
Counsel for Defendants

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing pleading has this day

been forwarded to all counsel of record to this proceeding by hand delivery.

Lafayette, Louisiana, this 10th day of June, 2009.

______________________________________
GARY McGOFFIN – #9319
RYAN M. GOUDELOCKE – #30525