Case 1:14-cv-01252-MHC Document 108 Filed 10/29/15 Page 1 of 39

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

PERRI PEBBLES REID, )

)
Plaintiff, )
) Case No. 1:14-cv-01252-MHC
v. )
)
VIACOM INTERNATIONAL INC., )
VIACOM INC., and KATE LANIER )
)
Defendants. )

PLAINTIFFS RESPONSE IN OPPOSITION TO

DEFENDANTS MOTION FOR SUMMARY JUDGMENT
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Defendants cannot meet their heavy burden for summary judgment to prove

that no genuine issues of material fact exist in the factual record. Plaintiff has

presented evidence that challenged statements and the portrayal of Plaintiff are

false. The false facts and portrayal of Plaintiff can reasonably be interpreted by a

juror as defamatory. The totality of the circumstantial evidence related to the issue

of actual malice raises serious questions about the credibility and reliability of

Defendants sources, the purposeful avoidance of the truth by Defendants, and

Defendants undisputed knowledge of the longstanding ill will of its sources

toward Plaintiff. This is simply not a summary judgment case.

FALSE PORTRAYAL OF PLAINTIFF AND SCENES AT ISSUE

The TLC movie is the posterchild for the adage that no good deed goes

unpunished. Plaintiff, the creative genius behind TLC and its initial success and

rise to stardom is falsely depicted as a conniving and dishonest business woman

who hoodwinked three innocent girls and exploited their talent for her own

personal gain and in the process negatively influenced their personal lives and

deprived them of fair compensation. The movie was not supposed to be a fictional

account of the TLC storythis movie was a biopic or docudrama that was

intended to convey the truth and was publicly advertised as being a true story.

The movie painted a false and defamatory picture of Plaintiff through these

1
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scenes: (1) where TLCs attorney states that he represents TLC and Plaintiff; (2)

where attorney states that he cannot show TLC their contracts without talking to

Plaintiff: (3) showing that Plaintiff controlled TLCs accountants, did not allow

them to share information with TLC, and improperly deducted expenses from their

earnings; (4) showing Plaintiff pressure TLC to sign contracts that created a

windfall for Plaintiff to the detriment of TLC; (5) where Plaintiff tells TLC they

will only make $25.00 per week; (6) showing that Plaintiff made the decision to

remove Chilli from TLC; (7) showing that Plaintiff caused T-Boz to put money

before her health; and (8) implying that Plaintiff caused Chilli to have an abortion.1

ARGUMENT AND CITATION TO AUTHORITY

I. Standard of Review

A party is entitled to summary judgment only when the moving party can

show that there is no genuine issue as to any material fact.2 In determining

whether the moving party has satisfied its burden, the court considers all inferences

drawn from the underlying facts in a light most favorable to the non-movant, and

resolves all reasonable doubts against the moving party.3

1
Plaintiffs complaint lists 15 categories of false and defamatory scenes that are
contained within these eight sets. (Ex 124-131)
2
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
3
Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986); see also Josendis v. Wall
to Wall Residence Repairs, Inc., 662 F.3d 1292, 1324 (11th Cir. 2001) (if moving
2
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[N]either grant nor denial of a motion for summary judgment is to be

preferred. Defamation actions are, for procedural purposes, such as discovery, or

for summary judgment, to be treated no differently from other actions.4 It is no

longer permissible to take into account the chilling effect a libel suit may have on

the exercise of first amendment rights. Id. Instead, on summary judgment all

justifiable inferences are to be drawn in favor of the non-moving party, including

questions of credibility and the weight to be accorded particular evidence.5

I. The scenes at issue are defamatory of Plaintiff

To determine whether the statements at issue are capable of defamatory

meaning, the Court looks to how an average viewer sees the movie. Because it is

still the exclusive duty of the jury to determine whether a plaintiff has in fact been

defamed, however, the role of the court on a motion for summary judgment is

party relies on own evidence, burden may never shift).

4
Loeb v. New Times Communications Corp., 497 F. Supp. 85, 94 (S.D.N.Y. 1980)
(internal citations omitted).
5
Masson v. New Yorker Magazine, 501 U.S. 496, 520 (1991). Nothing in the cases
cited by Defendants urging this court to change the well-established summary
judgment standard in a defamation case support doing so. Indeed, in Blomberg v.
Cox Enters., Inc., the court did not raise any concern over any chilling effect that
defamation cases may have on free speech and stated that only where the
evidence shows that a complainant offered no evidence as to an essential element
of his case is summary judgment appropriate. 228 Ga. App. 178, 180 (1997).
And in Willis v. United Family Life Inc., the court stated that the rule to draw all
inferences in nonmovants favor does not change. 226 Ga. App. 661, 662 (1997).
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limited: the issue is not whether the court regards the language as libelous, but

whether it is reasonably susceptible to such a construction. The court may

notinterfere with the jurys role by treating as non-defamatory a statement that a

reasonable juror may fairly read in context as defamatory.6

A statement is reasonably susceptible of a defamatory meaning if it tends to

expose a person to hatred, contempt or aversion, or to induce an evil or unsavory

opinion of him in the minds of a substantial number in the community.7 A

statement is defamatory per se if it makes charges against one in her profession.8

The movie as a whole is defamatory per se of Plaintiff because it harms her

in her profession. The scenes at issue each play a role in painting her as a

conniving and dishonest business woman. One need look no further than a few of

the comments generated by viewers about Plaintiff after seeing the movie to know

that the movie created a defamatory depiction of her:

Pebbles came off as a crazy, jealous, greedy money hungry manipulative

pushy psycho in that movie.

6
Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348, 360.
7
Id. at 360-61.
8
O.C.G.A. 51-5-4(a)(3); Infinite Energy v. Pardue, 310 Ga. App. 355, 357-58
(2011). Defendants damages argument is incorrect and misplaced. First,
reputational damages are presumed and recoverable upon a showing of actual
malice in a public figure case. Gertz v. Robert Welch, Inc., 418 U.S. 323, 350
(1974). Second, the false portrayal of Plaintiff in the movie as a whole and at least
Scenes 1-2 and 4-5 are defamatory on the face of the movie.
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Pebbles hustled them.

#pebbles please dont try and make a comeback. U have been ruined in the
first 30minutes lol #tlc

As for Pebbles, she is a dirty and despicable degenerate and I wish her no
good in life. PS: She made Cruelia look like Mary Poppins!!!9

Defendants arguments that the portrayal of Plaintiff is not defamatory is

hard to take seriously given the overwhelming viewer response was to view her

with scorn, some going so far as to refer to her as the devil incarnate.10 These

comments leave no doubt that Plaintiff was exposed to public hatred, contempt,

and ridicule and that her professional reputation was injured, all that is required to

show that someone was defamed.

Defendants argue that reading the scenes in context changes the equation.

It does not. First, the context of the movie was that it was represented and sold to

the viewing public as the truth. Viacom specifically advertised the movie to the

public as the true story of TLC.11 And the record is replete with testimony that

the movie was intended to tell a true story.12

9
(Ex 62 at 4; Ex. 117 at 86; Ex 16 at 77 and 81.)
10
(Ex 117 at 87.)
11
(Ex 86, 121, 122.)
12
(Ex 8 at 38:5-39:25, 40:19-22, 75:19-8; 76:19-21, 77:22-78:1; Ex 11 at 71:2-4;
Ex 6 at 48:10-51:4; Ex 7 at I-104:3-6.) Viacom admits that its intent was that
viewers understand the character of Plaintiff as the real life Plaintiff. (Ex 7 at II-
108:2-12.) Thus, there can be no reliance on the disclaimer stating that no
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Third, the overwhelming viewer response showed that viewers believed they

saw a true storyand they had no reason to think otherwise given Viacoms

advertisement of the movie as the true story of TLC:

Pebbles came off as a crazy, jealous, greedy money hungry

manipulative pushy psycho in that movie. I believe it all. Why would
TLC open themselves up to slander lawsuits if it wasnt true? She
deserves to get dragged from Twitter all the way to Timbuktu!13

Im sure that T-Boz and Chilli and their production company had
lawyers involved in this project from the beginning to ensure that they
would not be sued by Pebbles if she was portrayed in a fraudulent
light. This is all vetted ahead of time, because no one wants to be
involved in a costly lawsuit. This leads me to believe that Pebbles did
take advantage of the girls and treat them poorly. 14

It is not reasonable to assume that the viewers were mindful of viewing a genre

that was not meant to convey factual information.

The other cases cited by Defendants regarding the need to view statements

in context are distinguishable. First, the Bollea case was about a movie

advertised as a satire or fiction movie.15 Viacom admits that the TLC movie was

statement or inference of fact regarding any person is intended to inform the

audience that what they are seeing is anything other than the true story of TLC
with regard to the characters of the band members and Plaintiff. (Ex 120.)
Further, the disclaimer is at the end of the movie, after all the credits and does not
appear on the screen long enough to be read, providing no value to the audience to
understand a different context of the movie other than as advertised itthe truth.
13
(Ex 62 at 4 (emphasis supplied).)
14
(Ex 115 at 64 (emphasis supplied).)
15
Bollea v. World Championship Wrestling, Inc., 271 Ga. App. 555, 558 (2005).
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not fiction. Second, the Davis case states that use of composite scenes or

telescoping of events is appropriate and unexceptional only if the context is not

distorted when dealing with public and political figures.16 Here, Plaintiff alleges,

and a juror could find, that the context was distorted as to her. Indeed, the movie

portrays exactly the opposite of the truth as to Plaintiff in several instances.

First, the truth is that TLC and Plaintiff never had the same lawyer.17 But

the movie states unequivocally that they did.18 And the movie assumes that

Pebbitone and LaFace were one and the same.19 But the truth is, they were not.20

Second, the truth is that TLCs lawyer never told any member that he could

not show her TLCs contract without first checking with Plaintiff.21 But the movie

states he told TLC exactly that.

Third, the truth is that each TLC member reviewed her contracts with

independent attorneys before signing and Plaintiff was not present at those

meetings.22 But the movie portrays that Plaintiff presented the contracts to the

16
Davis v. Costa-Gavras, 654 F. Supp. 653, 658 (S.D.N.Y. 1987).
17
(Ex 133 at 6-7; Ex 15 at 32:9-11; Ex 4 at 11:13-13:9; Doc. 97 at 57:11-23.)
18
(Ex 7 at I-84:13-17; Ex 8 at 55:24-56:9.)
19
(Stone 88:23-91:6.)
20
(Ex 3 at 115:2-116:8; Ex 2 11:24-12:9, 22:23-25, 23:15-22; Ex 1 at 76:12-15,
77:14-78:16, 83:16-19, 84:1-85:1.)
21
(Ex 4 at 110:11-112:3, 114:22-115:4; Ex 10 at 31:18-23.)
22
(Ex 10 at 15:14-16:3, 16:14-17; Ex 4 at 113:7-10; Ex 132 at 4.)
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members of TLC and pressured them to sign.

Fifth, the truth is that TLC members were paid in line with industry standard

contracts that garnered them at least $75,000 per year even as an unknown band

and had a very generous benefactor in the form of Perri Reid who spent at least

$100,000 of her own money to pay for their housing, medical, and personal

needs.23 But the movie says TLC members only received $25 per week.

These instances of changing fact to fiction can be viewed as nothing other

than a distortion of context such that the scenes cannot be viewed as mere

compression or telescoping of events.24

A. The movie reasonably imparts defamatory implications

First, the scenes that show that Plaintiff presented TLC members with their

contracts and pressured them to sign and denied them access to their contracts

(Scene 4), are defamatory as to Plaintiff. Defendants argue the movie simply

23
(Ex 17 at 258:17-20; 299:3-9; 324:9-20; Ex 132 5).)
24
To the extent Defendants argue that the viewers should understand they are
watching T-Boz and Chillis perspective, it is not reasonable to assume that the
viewer would believe that Viacom would allow T-Boz and Chilli to share their
perceptions to tell lies about Plaintiff. Indeed, Viacom claims that would be
improper. (Ex 7 at I-106:25-107:4; Ex 7 at II-43:5-47:18.) And the lies portrayed
are not how group members felt about Plaintiff, the lies are about what they claim
she actually did. For example, there is no such thing as a perception that a lawyer
is shared by TLC and Plaintiff. Either the lawyer represents both parties or he does
not. The movies writer admits as much. (Ex 9 at 35:8-17.)
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collapses the events and a mere omission of fact is not actionable.

But the movie is not a mere collapsing of the truth, which was that TLC

reviewed its contracts with independent counsel, signed without Plaintiff

pressuring them to sign, and always had a source other than Plaintiff to gain access

to their contracts. Instead, the movie changes fact to fiction when it (1) shows

Plaintiff (not counsel) present TLC their contracts, (2) shows band members start

to ask questions and look uncomfortable and Plaintiff heavy handily tells them to

take it or leave it (instead of counsel reviewing the contracts with TLC),25 and (3)

shows TLC members clueless about the contents of their contracts and Plaintiff

refusing to provide copies (instead of TLC having reviewed the contracts with

counsel and having a source other than Plaintiff to obtain the contracts). The

viewer is left to assume that the only person TLC met with or could meet with

about their contracts was Plaintiff and she pressured them to sign and would not

explain the contracts and did not want them to know the substance of the contracts.

The movie did not merely omit a fact, it significantly changed a fact

(counsel reviewed contracts with TLC and negotiations took place apart from

Plaintiff) to fiction (Plaintiff presented the contracts without explanation on a take

25
The Court must consider the tone and demeanor of the actors and not just words.
Silvester v. Am. Broadcasting Co.s, Inc., 650 F. Supp. 766, 770 (S.D. Fla. 1986).
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it or leave it basis and denied access to the substance of the contracts). But even

an omission is significant if it leads to a gross distortion of the truth, as here.26 The

fact that TLC did have separate and reputable counsel who reviewed the contracts

with them (outside the presence of Plaintiff) is a significant fact that if shared with

the viewers would change the perception of Plaintiff as taking advantage of and

manipulating TLC. This point is driven home by one viewer comment: They

shoulda (sic) had a lawyer with them to sign the contract.27

Second, the movie does portray that Plaintiff improperly deducted expenses

(Scene 3) from TLCs earnings by showing them upset and surprised by the

recording costs expenses and her production costs and car purchases during the

attorney scene and later when they are allegedly forced to break into an office to

get access to the detail of their expense deductions and they again express surprise

and disgust at what is paid. Further, the movies false portrayal of Plaintiff as the

only person controlling access to and the contents of the contracts and how

expenses were handled is part and parcel of the portrayal that she improperly

deducted expenses from TLCs earnings. Plaintiff does not complain that the

26
Huckabee v. Time Warner Entmt Co. L.P., 19 S.W.3d 413, 426 (Tex. 2000);
Brokers Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1138 (10th
Cir. 2014); Carson v. Lynch Multimedia Corp., 123 F. Supp. 2d 1254, 126263 (D.
Kan. 2000) (material omission constitutes false statement of fact).
27
(Ex 155 at 88.)
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movie shows she did deduct expenses from TLCs earnings, but rather it is the

implication that she was wrong, greedy, sneaky, and controlling in doing so, which

is what the viewers took from the film.28

Third, Defendants are simply wrong when they claim that no reasonable

viewer would conclude that the movie implied Plaintiff only paid TLC $25 per

week throughout their relationship (Scene 5). The movie states exactly that and it

adds to the false narrative that Plaintiff was greedy and withheld money from TLC.

Defendants cling to the words right now spoken by Plaintiffs character, which

they claim shows that the viewers had to know that the payments to TLC changed

at some point. But the viewers do not so cling. Instead they see TLC upset and

shocked that they are not making any money and firing Plaintiff. Any

statements later that they received more money were after Plaintiff was TLCs

manager, leaving the viewer with no other conclusion than that when they were

with her, they made only $25 per week, which was the conclusion viewers drew.29

28
(See, e.g., Ex 62 at 4; Ex 116 at 81, 85-86, 88-89.)
29
(See, e.g., Ex 116 at 79; Ex 118 at 97.) Just as Defendants claim the Court
should not strain to find defamatory meaning, the Court cannot strain to avoid it by
over reading the phrase right now. The phrase right now certainly did not
sway viewers into understanding the truth, which was that TLC members made at
least $75,000 per year during the early stages of their career with Plaintiff when
they were unknown artists (in addition to the personal expenses that Plaintiff paid
on their behalves). Viewer reactions to Plaintiffs payments to TLC make that
clear.
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Fourth, the movie does imply that Plaintiff pressured T-Boz to put money

before her health (Scene 7). The fact that a reasonable viewer could conclude this

is clear from viewer reactions: Pebbles Be Like Thats Coming Out Yo Pay

and pasting a picture of an injured person in hospital bed.30

Fifth, the movie implies that Plaintiff was part of Chillis abortion decision

(Scene 8). Chilli knew that the movie implied it: when asked in an interview

whether the abortion played out as told in the movie, Chillis answer went straight

to Plaintiff, I was so scared Id be kicked out of the group.31

Defendants repeatedly state in their brief that no reasonable viewer could

watch the movie and conclude the defamatory implications that Plaintiff alleges,

while they knew thats exactly what the viewers did conclude and the Viacom staff

loved the viewer reactions and celebrated the press that stemmed from the

animated viewer reactions.32

B. The scenes at issue are defamatory as a matter of law

First, Defendants argument that the attorney scene portraying that Plaintiff

30
(Ex 118 at 98.) Defendants mention Plaintiff inquiring, How you feeling, Ti-
Ti? as evidence that the movie portrays Plaintiff as caring about T-Bozs health as
opposed to pressuring her to put money first. Viewing this scene along with the
tone and demeanor of the characters, particularly T-Bozs reaction tells the viewer
that T-Boz did not receive the comment as sincere. (Ex 128 at 2.)
31
(Ex 83.)
32
(Ex 53; Ex 11 at 106:16-22; Ex 67; Ex 68 at 34634.)
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and TLC had the same attorney (Scene 1) does not defame Plaintiff but instead

only the attorney is bizarre. The movie shows TLC using the realization that the

bands attorney was also Plaintiffs attorney as a reason to fire her as TLCs

manager and thus injuring her in her profession.33

Further, TLCs current manager testified that the attorney scene reflected

poorly on Plaintiff and not the attorney because a bands manager sets the direction

for the attorney.34 And Charles Stone, the movies director, admits that the

attorney scene portrays that Perri Reid is unethical, or at least potentially

unethical.35 It can hardly be said that the attorney scene did not expose Plaintiff to

injury in her profession given that the movie makers themselves formed a negative

opinion of Plaintiff as an entertainment manager from that scene.36

Second, Defendants claim that Plaintiffs refusal to provide TLC copies of

their contracts is not defamatory of Plaintiff. Defendants strain to read this

statement too narrowly. The scenes at issue (Scene 2) show not only that Plaintiff

33
(Ex 134 (showing that following the attorney meeting when T-Boz states TLC
will do something new, TLC meets with L.A. Reid and tells him they are not
going to work with Plaintiff anymore).)
34
(Ex 5 at 113:19-5.)
35
(Ex 6 at 62:7-63:9.)
36
Defendants reliance on the Romaine v. Kallinger is misplaced. There, the court
distinguished between an allegation that someone was present while another
person engaged in wrongdoing versus also involved in the wrongdoing; the latter
being defamatory. 109 N.J. 282, 292 (1988). Here we are dealing with the latter.
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did not provide TLC members copies of their contracts, but that she specifically

instructed their counsel not to show them their contracts without talking to her

first, which as stated above, Diggins and Stone both agree reflect negatively on

her. Further, as mentioned above, the refusal to provide the contracts was part of

the portrayal of Plaintiff having pressured TLC to sign the contracts without the

benefit of an attorney and her being TLCs only access to their contracts.

Third, the portrayal in the movie that Plaintiff removed Chilli from TLC

(Scene 6) are defamatory because it is part of the overall defamatory painting of

Plaintiff. The movie shows that Plaintiff was trying to control Chillis

relationships with men and kicked her out of the group to demonstrate her

dominance over the group and deprive Chilli of income. Viewers had no problem

making the connection.37

C. The scenes at issue are not protected opinion

The scenes at issue express facts that are untrue and defame Plaintiff.

Plaintiff did not bring this lawsuit because Lisa Lopes character said she was

greedy or that T-Boz felt she would be taken care of by signing the contracts or

that Chilli felt they were ripped off, as Defendants suggest. Plaintiff lawsuit is

based on unequivocal statements of fact in the movie that Plaintiff had the same

37
(Ex 62 p. 4; Ex 118 at 94.)
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attorney as TLC, denied TLC copies of their contracts, improperly deducted

expenses, pressured them to sign contracts that were detrimental to them, only paid

them $25 per week, improperly removed Chilli from the band, pressured T-Boz to

put money before her health, and pressured Chilli to have an abortion. All of these

statements are capable of being proven true or false; they are not feelings or

beliefs, which makes them actionable and not protected opinions.38

Further, drawing all reasonable inferences in favor of Plaintiff, as required at

this stage, the evidence shows that TLC did not believe or feel that there were

conflicts of interest between TLC and Plaintiff because of shared legal

representation or that Plaintiffs marriage to L.A. Reid caused a conflict with

LaFace. This is true because TLC has the same legal counsel today that they had

when Plaintiff was TLCs manager (Joel Katz) and until L.A. Reid dropped TLC

from his record label because his children were upset that their mother (Plaintiff)

was portrayed as a villain in the movie and did not want him to be associated with

TLC (L.A. Reids label was TLCs record labeland had been TLCs record label

at all times prior).39 It is simply not credible to think that TLC would continue to

38
Infinite Energy v. Pardue, 310 Ga. App. 355, 357-58 (2011). Defendants pluck a
few distinct parts of some of the scenes at issue and argue they are opinion.
Defendants do not and cannot argue that removal of those distinct lines erase any
defamatory meaning as to Plaintiff and thus these arguments are irrelevant.
39
(Ex 5 at 11:17-12:2, 54:20-23, 70:3-22; 71:24-72:20, 73:21-23; Oct. 27, 2015
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do business with LaFace and Katz if it believed LaFace and Katz had engaged in a

conflicted relationship with Pebbitone its detriment.

II. The scenes at issue are false and are not substantially true

Scene 1 (shared attorney representation). Defendants present no evidence

that TLC and Plaintiff had the same attorneys. At all relevant times, TLC was

represented by Joel Katz and Plaintiff was represented by Jody Graham Dunitz.40

Defendants contend that despite being false, the scene is not actionable

because either (1) the scene is a compression of true events, or is substantially true

because (2) Plaintiff referred TLC to the bands attorney, (3) at some point Joel

Katz represented L.A. Reid personally (though not in relation to TLC contracts), or

(4) Plaintiff paid TLCs legal bills. All four excuses fail.

First, the scene does not compress any true events. TLC and Plaintiff did

not have the same attorney. Period. So there is no compression of true events to

have an attorney representing to TLC that he represents them and TLC. This

portrayal is particularly disturbing because it cannot even be said that TLC

believed that their attorney also represented Plaintiff because TLC members

Smith e-mail to Wood; Ex 2 at 89:12-90:7, 93:18-21, 103:4-9.)

40
(Ex 4 at 11:13-9; Ex 133 at 6; Ex 15 at 32:9-11.) The different attorney
representations are also apparent on the face of the contracts. (MCN Decl. Ex 2-3
(Doc.s 100-40-41), 7-9 (Doc.s 100-40-45-47).)
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knew they had separate counsel.41

Second, Defendants claim that referring someone to an attorney is the same

thing as sharing an attorney with the person referred is simply not true. An

attorney has no fiduciary or other responsibility to the referring party; an attorneys

responsibility is to the client. Thus, the person who referred parties to Katz

(Plaintiff) is not thereby deemed to herself be a client of Katz.42

Third, L.A. Reid being personally represented by Joel Katz in matters

unrelated to TLC is not substantially the same thing as Plaintiff and TLC sharing

the same attorney during contract negotiations between those two parties. First the

only record evidence is that Katz did not represent L.A. Reid at the time he

represented TLC.43 Further, Viacom claims that Katz representing L.A. Reid (a

25% owner of LaFace)44 is the same as Katz representing Plaintiff or her

41
During discovery, Chilli and T-Boz changed their story to claim they always
knew that TLCs attorney was also the attorney for Pebbitone and LaFace. (Ex 4
at 13:10-16, 21:10-21, 27:13-28:13, 30:6-34:5; Ex 10 at 27:21-30:7.) The three
entities never shared legal representation, but if Chilli and T-Boz claim they
actually believed it and always did, then it would not have surprised them and
caused them to fire Plaintiff as portrayed in the movie.
42
Defendants also point to the fact that Plaintiff stated she would pay Katz for the
consultation if TLC did not do so. There is no evidence Plaintiff ever did so.
Further, any such payment would have been before any attorney-client relationship
was entered between Katz and TLC.
43
(Doc. 97 at 57:11-23.)
44
(Ex. 15at 7:12-9:2.)
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companies because the movie claims that Plaintiff and L.A. Reid and Pebbitone

and LaFace were one and the same.45 And that is not true Plaintiff had no

interest in LaFace and L.A. Reid had no interest in Pebbitone; they were separate

companies.46 At the very least, it is within the purview of the jury to decide

whether those two things are substantially the same.

Fourth, Defendants cling to two bills from Katzs law office that were

addressed to TLC c/o Pebbitone as alleged proof of Plaintiffs control over TLCs

attorneys. There is no evidence that these bills were actually sent (they do not

appear on letterhead like other bills) and there is no evidence that Plaintiff or her

companies paid these bills.47 In fact, it is illogical to think anyone paid these bills

because they were attached to a proof of claim form submitted in TLCs

bankruptcy filing, meaning they were owed as of 1995, a time when Plaintiff was

no longer managing or actively involved with TLC. So even if Plaintiff paying

TLCs legal bills proved control and that control was substantially the same as

Plaintiff and TLC sharing attorneys, there is no evidence it happened.

45
(Ex 6 at 88:23-91:6.)
46
(Ex 3 at 115:2-1116:8; Ex 2 at 11:24-12:9, 22:23-25, 23:15-22; Ex 1 at 76:12-15,
77:14-78:16, 83:16-19, 84:1-85:1.)
47
(Ex. 60.)
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Scene 5 (payment of only $25 per week). It is undisputed that TLC received

more than $25 per week during any time that Plaintiff was their manager.

Defendants claim that the statement is substantially true because they

claim TLC members only received $38.33 or $85 weekly. But that is not all they

received. They received at least $75,000 per year and Plaintiff spent at least

$100,000 of her own funds to help TLC members with expenses.48

At the summary judgment stage, the question is whether a reasonable juror

could decide whether $25 per week to cover food and expenses is substantially

the same as someone making at least $75,000 per year and Plaintiff spending at

spending at least $100,000 of her own money to make sure that the members of

TLC had food, housing, medical, clothing, and other personal expenses covered.

Those statements are not the same, but at a minimum, a jury must decide.49

48
(Ex 17 at 258:17-20; 299:3-9; 324:9-20; Ex 132 5.)
49
Defendants citation to Rogers v. Dallas Morning News, Inc. is inapposite. There
the court found that 10% and 43% were substantially the samea difference of
4.3%. 889 S.W.2d 467, 471-72 (Tex. App. 1994). Here, even excluding all the
personal money that Plaintiff spent on TLC, the band members received at least
$75,000/year57.69% higher than shown in the movie. The jury must also
consider that the movie portrays what the members of TLC were receiving to live
onsomething all jurors can put in context. A juror may consider someone
making $1,300/year substantially different than making $75,000/year. One is well
below poverty level wages and one is well above median household income.
19
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Scene 6. There is a dispute as to whether Plaintiff or the other members of

TLC made the decision to remove her from the group.50 Thus, the truth or falsity

of this scene cannot be decided at this stage. Defendants argument is about who

communicated the decision to Chilli, which is not disputed or part of the case.51

III. Defendants acted with actual malice in publishing the movie

In order to establish actual malice, a plaintiff must demonstrate that the

evidence of record would permit a juror, by clear and convincing evidence, to

conclude that the defendant published a defamatory statement with actual malice.52

The actual malice test is a subjective one and requires proof that a defendant

published a defamatory statement with knowledge that it was false or with

reckless disregard of whether it was false or not.53 While this test is subjective, a

court will infer actual malice from objective facts since a plaintiff may rarely be

successful in proving awareness of falsehood from the mouth of the defendant

himself.54 A defendant cannotautomatically insure a favorable verdict by

testifying that he published with a belief that the statements were true. St. Amant

50
(Ex 1 at 261:6-262:2.)
51
Defendants make no claim that the statements from Scenes 2-4 and 6-8 were true
or substantially true.
52
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56 (1986).
53
New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).
54
Herbert v. Lando, 441 U.S. 153, 170 (1979).
20
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v. Thompson, 390 U.S. 727, 732 (1968).

Moreover, circumstantial evidence can suffice to establish actual malice

and can override a defendants protestations of good faith and honest belief that the

statements were true.55 The Supreme Court, recognizing the difficulty of this

determination, has noted that what constitutes sufficient circumstantial evidence to

demonstrate knowledge of falsity or reckless disregard of the truth cannot be fully

encompassed in one infallible definition and inevitably its outer limits will be

marked out through case-by-case adjudication.56

Circumstantial evidence that a plaintiff can use to establish actual malice

takes many forms and should provide evidence of negligence, motive, and intent

such that an accumulation of the evidence and appropriate inferences supports the

existence of actual malice.57 The Court must consider all the circumstantial

evidence in the aggregate, and not conduct a piecemeal evaluation.58

In discussing the role of the Court in ruling on summary judgment motions

in defamation actions, the Supreme Court has admonished that the clear and

55
St. Amant, 390 U.S. at 732, Harte-Hanks Commcns v. Connaughton, 491 U.S.
657, 668 (1989).
56
St. Amant, 390 U.S. at 731.
57
Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 183 (2d Cir. 2000)
(internal citations omitted).
58
McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1510 (D.C.C. 1996);
Tavoulareas v. Piro, 817 F.2d 762, 794 n.43 (D.C.C. 1987).
21
 Case 1:14-cv-01252-MHC Document 108 Filed 10/29/15 Page 23 of 39

convincing standard of proof for actual malice does not lessen the role of the jury

and all credibility determinations and drawing of inferences are for the jury:

Our holding that the clear and convincing standard of proof should be
taken into account in ruling on summary judgment motions does not
denigrate the role of the jury. It by no means authorizes trials on
affidavits. Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury
functions. Neither do we suggest that the trial courts should act
other than with caution in granting summary judgment.59

With these legal principles in mind, the Court must review the inferences

properly drawn in Plaintiffs favor to determine if the sum total of those inferences

could support a juror finding by clear and convincing evidence that the defamatory

statements were published with actual malice.

A. The evidence creates a jury issue on actual malice

The evidence creates material issues of fact where a juror could find by clear

and convincing evidence that Viacom published the movie with actual malice.

1. Defendants relied exclusively on biased and unreliable sources

Bias or unreliability of a source and unbelievable accounts are all evidence

of actual malice.60 Internal inconsistencies or apparently reliable information that

59
Anderson, 477 U.S. at 255.
60
Celle, 209 F.3d at 183; Copp v. Paxton, 45 Cal. App. 4th 829, 847 (1st Dist.
1996).
22
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contradicts the libelous assertions also shows recklessness.61

Viacoms sole sources were T-Boz and Chilli, who Viacom knew were

biased against Plaintiff. Specifically, Viacom was aware that TLC and Plaintiff

had a degraded relationship and that the views of T-Boz and Chilli were not

objective with regard to Plaintiff.62 Viacom-hired producer Alex Motlagh of

POPcom also was aware that TLC and Plaintiff had a falling out.63

Viacom was aware that T-Boz and Chilli were unreliable as sources because

their stories frequently changed and were unbelievable. During the script writing

process, Lanier wrote to Malina that, Theres def (sic) some revising of incidents

as previously told to me.64 Viacoms corporate representative wrote back, I

know they keep revising things.65 In another e-mail, Lanier wrote that there was

lots of revising re: what ACTUALLY happened.66

Stone was skeptical of at least parts of the story about how TLC ultimately

obtained copies of their contracts and had them explained by an attorney.67 And

the movie and script reflect at least five changes to the attorney scene alone:

61
Id.; Curtis Publishing Co. v. Butts, 388 U.S. 130, 161 n.23 (1967).
62
(Ex 7 at I-182:3-18; Nov. 11, 2013 Viacom letter to Wood at p. 2.)
63
(Ex 8 at 129:7-11.)
64
(Lanier-625 at 625.)
65
(Id.)
66
(Lanier-629 at 629 (emphasis in original).)
67
(Ex 21 at p. 5.)
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First draft: Members of TLC break into Pebbitones office and steal
their contracts and take them to a third-party attorney and ask him to
review the contracts. The attorney explains why he believes TLC is
not making any money. He describes Plaintiffs double dipping as
being because shes married to L.A. Reid and no other reason. There
is no mention in the first draft of shared legal representation.

Fourth draft: Language added so that the lawyer tells TLC that the
lawyer reviewed the contracts for TLC were also their lawyers.

Tenth draft: Scene deleted where TLC steals the contracts.

Eleventh draft: The attorney that TLC visits becomes TLCs attorney.
Chilli asks the attorney how he can represent TLC and Plaintiff.

Aired version: At some point the scene is changed so that Chilli asks
TLCs attorney directly how he can represent TLC and Plaintiff,
though there is no draft of such a script. 68

Lanier testified that the changes were made to reflect information from T-Boz and

Chilli, meaning their stories changed at least five times.69 Given that the truth does

not change, all the story changes from T-Boz and Chilli coupled with specific

68
(Ex 32 at 5360-3; Ex 35 at 18349; Ex 54 at 18185; Ex 54 at 18185; Ex 27 at 100;
(Doc. 100-28.) Given that the movie as aired was never in the form of a written
script, a juror could conclude it was never vetted.)
69
(Ex 9 at 67:21-25, 70:12-24, 74:23-75:6.) As this cited testimony shows,
initially Lanier testified that it was the first draft of the script that would contain
what T-Boz and Chilli told her. (Ex 9 at 42:7-12; 49:24-2.) Later she changed that
testimony and said that anything in any draft was what they told her. Lanier also
admitted, however, that sometimes she added scenes simply to create tension.
(Ex 9 at 93:22-94:10.) Either T-Bozs and Chillis stories constantly changed or
Lanier was not concerned about the truth, but rather tension, when writing the
script. Either is sufficient evidence for a juror to find actual malice.
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skepticism and conflicting stories on a crucial point in their attorney and contract

stories should have raised concerns about the truth of what they were sharing.

2. Defendants purposefully avoided the truth

While a failure to investigate will not alone support a finding of actual

malicethe purposeful avoidance of the truth is in a different category and a

finding of actual malice is supported where it is likely that the [defendants]

inaction is a product of a deliberate decision not to acquire knowledge of facts that

might confirm the probably falsity. Harte-Hanks, 491 U.S. at 692.

At the same time, failure to investigate that does not rise to the level of

purposeful avoidance can be considered as part of the plaintiffs aggregate

circumstantial evidence demonstrating actual malice. Reckless conduct may be

evidenced in part by failure to investigate thoroughly and verify the facts or where

the information is from a source known to be hostile to the plaintiff.70

Despite having reasons to doubt T-Boz and Chilli because they were biased

sources, their unbelievable stories were constantly changing, Viacom was aware of

other sources and deliberately chose to avoid the truth.71 While Defendants argue

70
Celle, 209 F.3d at 190, quoting Babb v. Minder, 806 F.2d 749, 755 (7th Cir.
1986 (internal citations omitted); Fisher v. Larsen, 138 Cal. App. 3d 627 at 640;
Hunt v. Liberty Lobby, 720 F.2d 631, 645 (11th Cir. 1983)
71
During discovery, Viacom repeatedly testified that the only effort taken to verify
the accuracy of the information from T-Boz and Chilli was through legal
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that at every turn they corroborated TLCs story and found no evidence to

contradict it. It is simply not true that they did so.

Viacom did not talk to Plaintiff. This is true despite the fact that Stone

suggested they reach out to the real people and Malina had specific concerns

about the Pebbles stuff.72 Further, a clearance report used by Viacom would

not clear any scenes regarding Plaintiff unless it was assumed the movie was

fiction and suggested that someone should consult legal counsel regarding all

references to Plaintiff.73 Viacom denied discovery on whether it happened or not.

Plaintiff heard information through the grapevine that the movie makers

were really trashing that lady [referring to her, Plaintiff] and saw Internet trailers

that caused her concern about how she may be portrayed in the movie.74 As a

result, she engaged counsel and reached out to Viacom to express her concern and

seek an opportunity to speak with the production team to ensure truth in the

channels. (Ex 7 at I-61:25-62:4.) Viacom refused to allow discovery on what

was done through those channels stating that it was not relying on advice of
counsel and as a result all such information was privileged. Defendants now seek
to rely on these alleged fact-checking exercises. This is improper and Plaintiff has
filed a motion under Rule 56(d) simultaneously herewith.
72
Malina wanted Diggins to confirm, but Diggins was not involved with TLC
during the relevant time period and he has no first-hand knowledge of any of the
facts portrayed in the movie as to Plaintiff. (Ex. 58 at 19154; Ex 5 at 153:14-18,
166:1-4, 196:10-18, 201:2-14, 220:22-221:1, 246:2-8.)
73
(Ex 45 at 13009-10, 12.)
74
(Ex. 1 at 368.)
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movie.75 That letter was ignored and still no one spoke to Plaintiff. No one from

Viacom responded to Plaintiff until after she sent a retraction demand. And that

letter claimed the movie was pure fiction and that no reasonable person would

view it as a literal recreation of historical events.76 Defendants attempt to change

the genre of the movie to avoid a lawsuit is further evidence of actual malice.

No one reached out to any other real people to confirm T-Boz and Chillis

accounts. Not L.A. Reid.77 And not Joel Katz. When asked specifically if Viacom

spoke to Joel Katz, Viacoms corporate representative testified that Viacom did

not.78 When asked if anyone spoke to Bill Diggins about Joel Katz, Viacoms

corporate representative testified that Viacom did not.79

Yet now, in its motion, Viacom claims for the first time that Diggins sent a

copy of the script to Joel Katz for his review and that Katz did not respond by

advising Viacom of any inaccuracies. Thus, Defendants would urge that Viacom

was allowed to be comforted that the script was accurate by Katzs silence. This is

a leap of logic that is not factually supported. First, there is no proof that Katz

actually reviewed the scriptthat is an inference that Defendants are not allowed

75
(Ex. 22 at 1.)
76
(Ex. 26 at 1.)
77
(Ex 2 at 110:25-112:9.)
78
(Ex 7 at I-36:4-17.)
79
(Id. at 252:13-15.)
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to have drawn in their favor at the summary judgment stage.80

Second, Viacom could not have possibly relied on Katzs lack of a response

as assurance that the story about the legal representation was true because

according to Viacom they did not know who Joel Katz was until after the lawsuit

was filed and Plaintiffs counsel told them during a deposition.81 The actual malice

standard focuses on the defendants subjective state of mind at the time of

publication.82 And neither Malina nor anyone else from Viacom was on Diggins

e-mails to Katz and there is no evidence that she was aware of itbesides the

eleventh hour and self-serving declaration that contradicts sworn deposition

testimony.83 A reasonable juror could not find that Viacom relied on Katzs

80
Viacom makes reference to Dallas Austins blessing of the script as evidence
that they did not publish with actual malice. First, there is no evidence that Austin
was aware of the details of TLCs business relationship with Plaintiff. Second,
Viacoms corporate representative testified that she was not interested in Austins
confirmation of the script. (Ex 7 at I-at 253:11-254:2.) Chilli testified that it was
important to her to share the script with Austin because they share a son. (Ex 4 at
99:20-100:4) It is not reasonable to infer (and the Court should not at this stage)
that Viacom relied on Austins review for any fact-checking purpose.
81
(Ex 7 at I-252:10-15.) Katz was also not listed as a knowledgeable witness for
Defendants. (Ex 19).
82
Bose Corp. v. Consumer Union, 466 U.S. 485, 486-87, 513 (1984).
83
If Viacom wants the knowledge of Diggins (allegedly obtained by a non-
response from Katz) imputed to it (without credible evidence that Viacom was
aware), then all the knowledge of its executive producers (including T-Boz and
Chilli) should be imputed, which would mean they had actual knowledge that (1)
TLC and Plaintiff did not have the same counsel; (2) TLC reviewed their contracts
with independent counsel outside of the presence of Plaintiff before they signed;
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 Case 1:14-cv-01252-MHC Document 108 Filed 10/29/15 Page 30 of 39

alleged review of the script (followed by silence) for any fact-checking purpose.84

Malina is the only person that provides any testimony that she reviewed any

news articles for the purposes of allegedly corroborating any of the information in

the movie and her claim is not credible given other evidence in the record and

nothing she points to actually corroborates the scenes at issue in this case.85

Besides Malina (who now claims to have fact checked), no one else even

pretends to have done so. Lanier testified that she did not even know what that

phrase fact checking meant and did not understand why she would need to fact

check.86 She admitted that her only sources were T-Boz and Chilli.87 And

Diggins, Stone, and Motlagh all testified that they did not fact check.88

(3) TLCs counsel never told the band members that he could not discuss their
contracts without Plaintiffs permission; and (4) TLC members were paid at least
$75,000 while Plaintiff was their manager.
84
Further still, the script at the time it was sent to Katz was not as aired and
reflected a third-party attorney and not TLCs attorney. Thus, even if one assumes
Katz reviewed the script (which assumption is not permitted at this stage), it may
not have raised the alarm bells that the final version would have raised.
85
It is also not credible that Defendants claim to be repeating an already told story
given that Viacoms stated goal was to tell the untold story of TLC and in a way
that was different than it had been told in the past in Behind the Music and other
outlets. (Ex 37; Ex 75 at 37753.)
86
(Ex 9 at 36:4-14, 24:17-20, 25:16-23.)
87
(Ex 9at 21:19-22:1.)
88
(Ex 5 at 122:19-124:3, 131:10-17, 141:2-7; Ex 6 at 27:5-28:4, 97:25-98:13; Ex 8
at 23:24-28:2, 42:10-43:21, 44:7-44:25, 46:11-47:4, 48:11-24, 63:5-23, 80:4-16,
127:3-20.) After a break in the deposition, Diggins changed his initial testimony
that he was not involved in fact-checking. After admittedly conferring with
29
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Motlagh testified that he did review some news articles, but his purpose was

to find headlines to use in the film to convey some of the information instead of

having the actors perform scenes, such as the news reports of the burning of Andre

Risons house and TLCs bankruptcy filing.89 Malinas declaration states that the

only newspaper articles she reviewed were those supplied to her by Motlagh (not

gathered for fact checking purposes).90 None of the newspaper articles or the

Behind the Music Documentary (also published by Viacom) listed in Malinas

declaration corroborates the information Plaintiff complains of in this lawsuit.

Viacom clings to vague statements of conflicts in the relationship between

Plaintiff, LaFace, and TLC and general statements of TLC members making less

money than they felt they deserved. Those general statements do not support what

was published in the movie.

No one reviewed or even attempted to obtain documents relating to the TLC

counsel, Diggins testified that he did engage in fact checking, but only by going
over stories with T-Boz and Chilli. (Ex 5 at 132:6-23.) Diggins credibility on this
point is already in question given the change in testimony, but even more so
because T-Boz and Chilli testified that they were never asked to double check any
information. (Ex 10 at 109:16-111:7.) Diggins himself is a biased source because
he viewed the movie as his Hail Mary pass for TLCs comeback and wanted
TLC viewed favorably and sympathetically. (Ex 5 at 130:24-131:3, 167:18-168:4,
239:23-240:4; Diggit-529.)
89
(Ex 8 at 42:10-43:21.)
90
(Doc. 100-3 37.)
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bankruptcy filing even though it was always available in the public record.91 If

anyone had bothered to check the bankruptcy docket, they would have found

testimony from members of TLC and LaFaces counsel stating that there was never

any shared legal representation between TLC, Plaintiff, or LaFace.92

No one reviewed the raw interview footage from the Behind the Music

documentary,93 TLCs contracts, royalty statements, communications between or

among TLC, Pebbitone, or LaFace, royalty statements, TLC tax records, or

documents from the Reid divorce.94 If anyone had bothered to consult this

multitude of sources, they would have found that Pebbitone and LaFace were

separate companies and Plaintiff had no access to LaFace information, TLC and

Plaintiff had different attorneys (as shown on the face of the contracts themselves),

and that TLC members were paid at least $75,000 while Plaintiff managed them.

91
(Ex 6 at 76:14-17; Ex 9 at 21:4-6, 82:16-18, 89:25-91:5; Malina (Vol. I.) at
66:11-69:8, 75:17-76:1, 77:18-78:15, 79:15-80:21, 81:2-82:3; Ex 7 at II-66:5-8; Ex
4 at 193:14-16.)
92
Viacoms testimony about the time it took to get the bankruptcy documents after
Plaintiff filed her lawsuit does not explain away the failure to even attempt to get
the documents before the movie was published because the actual malice standard
focuses on the subjective mindset at the time of publication.
93
Malina claims she reviewed some of the raw footage, but she could not
remember which interviews she reviewed. (Ex 7 at II-88:12-24.)
94
(Ex 6 at 76:23-77:5, 80:9-12, 82:19-86:1; Ex 9 at 18:12-19:11, 21:7-11, 21:15-
19, 45:2-5, 51:14-17, 81:11-82:2, 82:3-11, 82:19-24, 89:25-91:5; Ex 7 at I-117:17-
118:3; Ex 7 at II-50:18-25, 51:1-13, 51:23-62:4; 81:19-21.)
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Defendants attempt to create evidence of fact checking after the fact and

their attempt to hide behind an alleged legal review alone raises concern about

their credibility and their own skepticism that they got it right.

Defendants claim that Plaintiff has never contradicted the stories previously

told about her relationship with TLC. This is not true, she did protest, as those

news articles show on their faces.95 Indeed, the previous news stories and T-Boz

and Chillis statement in the Behind the Music documentary do nothing but

highlight their bias against Plaintiff. Far from providing cover to Viacom for its

vicious portrayal of Plaintiff in the movie, this information was a further clue to

Viacom that its only sources were biased and contradicted.96

3. Defendants consistently rejected information favorable to Plaintiff

Consistent rejection of favorable inferences in favor of the most damaging

inferencesinferences that are alleged to be falsecan also demonstrate bias and

a reckless disregard for the truth. Time, Inc. v. Ragano, 427 F.2d 219, 221 (5th

Cir. 1970). This is the case because a defendant who knowingly and consistently

95
(See, e.g., Doc. 100-14 at p. 5 of 7.)
96
Defendants make vague reference to Plaintiffs testimony that TLCs prior lies
hurt her. They do not and cannot make an argument that she is a libel-proof
plaintiff. Being falsely accused once does not mean she cannot be further injured
when she is falsely accused again. Stern v. Cosby, 645 F.Supp.2d 258, 270-271
(That someone has been falsely called a thief in the past does not mean that he is
immune from further injury if he is falsely called a thief again.).
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suppresses information favorable to the plaintiff, is more likely to have entertained

subjective doubts as to the accuracy of his story and acted with actual malice. Id.

And an inference of actual malice can also be drawn when a defendant publishes a

defamatory statement that contradicts information known to him, even when the

defendant testifies that he believed that the statement was not defamatory and was

consistent with the facts within his knowledge.97

Defendants chose to publish information contrary to information known to

them and selected the most damning light for Plaintiff at every turn. Even though

TLC was aware that TLC had reviewed their contracts with attorneys before

signing them and at one point had included dialogue in the script to acknowledge

that attorneys for TLC reviewed the contracts, it was removed because Viacom

(producer) thought it would confuse the issue.98 A juror could reasonably find

that Viacom removed that line because it confused other scenes showing that TLC

did not know what was in their contracts and could not gain access to their

contracts because their only source for the contracts as shown in the movie was

Plaintiff and she refused to provide copies to TLC.

Further, at some point Motlagh suggested allowing Plaintiff to have her

97
Montandon v. Triangle Publications, Inc., 45 Cal. App. 3d 938, 948-49 (1st Dist.
1975); Barber v. Perdue, 194 Ga. App. 287, 236 (1990).
98
(Ex 55 at 18313; Ex 48 at 14362.)
33
 Case 1:14-cv-01252-MHC Document 108 Filed 10/29/15 Page 35 of 39

say or at least including some interview sound bites.99 Malina nixed the idea.100

4. Defendants intended the defamatory impression of Plaintiff

Defendants claim that Plaintiff cannot show that they intended a defamatory

portrayal of her. To the extent Plaintiff is required to present evidence that

Defendants intended the defamatory impression, it is not difficult to do so.101

Viacom advertised Plaintiff to the world in a press release about the movie

as a not quite ethical businesswoman who doesnt seem to like paying them

and distracts them from the fact that shes never let them see their contracts!102

Charles Stone, the movies director, admits that Perri Reid is portrayed unethically

in the movie and views her as an antagonist in the movie.103 Part of Viacoms

strategy was for viewers to have an emotional attachment to the pain and struggle

[TLC] endured, implying they wanted to produce sympathy for TLC.104

Further, MCA owns Plaintiffs album art as Pebbles and when Viacoms

movie making team asked for permission to use it, MCA conditioned its use on the

99
(Ex 61 at 34274; Ex 56 at 18755.)
100
(Ex 56 at 18751.)
101
The law Defendants cite requiring this demonstrate does not apply to Scenes 1-2
and 4-5 because Plaintiff challenges direct false and defamatory statements therein
(not just their implications).
102
(Ex 66 at 34587; Ex 41 at 11173; Ex 7 at I-120:6-8, 125:24-126:6.)
103
(Ex 6 at 62:7-63:9, 87:9-12.)
104
(Ex 75 at 37752.)
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use being non-defamatory and non-derogatory in nature.105 None of the art was

used. A reasonable juror could find that because they wanted to use the album art,

but did not do so only after MCA mandated that it not be used in a defamatory or

derogatory manner, then Viacom intended to portray Plaintiff in such a manner.

Finally, after the movie premiere, when viewers took the blogs and social

media to express their extremely negative impressions and reactions (going so far

as to refer to Plaintiff as the devil incarnate), members of Viacoms marketing

staff celebrated the reactions to Plaintiffs portrayal.106 And Viacom testified that

[the movie] was a success and we were very happy with the audience's

response. (Ex 7 at I-102:4-6 (emphasis supplied).)107

CONCLUSION

This movie defamed Plaintiff. The record evidence shows that the

challenged statements were false, or at a minimum, there is an issue of fact on truth

for the jury to decide. And viewing the circumstantial evidence as a whole, a jury

could find by clear and convincing evidence that Defendants falsely defamed

Plaintiff with actual malice. Defendants motion should be denied.

105
(Ex 78 at 41962.)
106
(Ex 53; Ex 64; Ex 11 at 106:16-22.)
107
Viacom had an interest in in creating excitement about TLC and to portray them
positively because Viacom and Epic were both benefiting from a re-launch of
TLCs career. (Ex 11 at 76:12-77:6; Ex 38 at 10565; Ex 5 at 171:23-172:25.)
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 Case 1:14-cv-01252-MHC Document 108 Filed 10/29/15 Page 37 of 39

Respectfully submitted this 29th day of October 2015.

L. LIN WOOD, P.C. S.G. EVANS LAW, LLC

/s/ L. Lin Wood Stacey Godfrey Evans

L. Lin Wood stacey@sgevanslaw.com
lwood@linwoodlaw.com State Bar No. 298555
State Bar No. 774588
1180 West Peachtree Street
1180 West Peachtree Street Suite 2400
Suite 2400 Atlanta, Georgia 30309
Atlanta, Georgia 30309 404-891-1404
404-891-1402 678-868-1230 (fax)
404-506-9111 (fax)

COUNSEL FOR PLAINTIFF

36
 Case 1:14-cv-01252-MHC Document 108 Filed 10/29/15 Page 38 of 39

CERTIFICATION UNDER L.R. 7.1D

Pursuant to Northern District of Georgia Civil Local Rule 7.1D, the

undersigned counsel certifies that this PLAINTIFFS RESPONSE IN

OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY

JUDGMENT is a computer document and was prepared in Times New Roman 14

point font, as mandated in Local Rule 5.1C.

This 29th day of October 2015.

/s/ L. Lin Wood
L. Lin Wood
 Case 1:14-cv-01252-MHC Document 108 Filed 10/29/15 Page 39 of 39

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing PLAINTIFFS

RESPONSE IN OPPOSITION TO DEFENDANTS MOTION FOR

SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system

which will automatically send e-mail notification of such filing to the attorneys of

record.

This 29th day of October 2015.

/s/ L. Lin Wood

L. Lin Wood