Ritter v. Sarasota Herald-Tribune Motion to Dismiss

8/16/2019 Ritter v. Sarasota Herald-Tribune Motion to Dismiss

1/72

CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUITIN AND FOR SARASOTA COUNTY, FLORIDA

CARL RITTER and

CAROL RITTER,

Plaintiffs,

vs.

HALIFAX SARASOTA, LLC, JESSICA FLOUM,ANTHONY CORMIER, MICHAEL BRAGA,PATRICK DORSEY, BILL CHURCH, andEMILY LE COZ,

Defendants.

Case No. 2016-CA-000733

DEFENDANTS’ MOTION TO DISMISS

OR ALTERNATIVELY FOR SUMMARY JUDGMENT

Defendants Halifax Sarasota, LLC (the “ Herald-Tribune”), Jessica Floum (“Floum”),

Anthony Cormier (“Cormier”), Michael Braga (“Braga”), Patrick Dorsey (“Dorsey”), Bill

Church (“Church”), and Emily Le Coz (“Le Coz”) (collectively “Defendants”), pursuant to Fla.

R. Civ. P. 1.140, or alternatively, Fla. R. Civ. P. 1.510(c), hereby move for an Order dismissing

with prejudice the Complaint filed by Plaintiffs Carl Ritter (“Mr. Ritter”) and Carol Ritter

(“Mrs. Ritter”) (collectively “Plaintiffs”), as follows:

Summary of Argument

This case is about the downfall of a prominent Sarasota charity, The Center for Building

Hope (the “Center”), and the decisions of its Chief Executive Officer, Mr. Ritter, that contributed

to its failure. This case is also about whether the First Amendment and Florida law protect the

Herald-Tribune’s meticulous investigative journalism covering the Center’s downfall and

Mr. Ritter’s role in its demise. Mr. Ritter’s leadership ultimately led to his termination by the

Filing # 41868427 E-Filed 05/23/2016 05:48:24 PM


2/72

2

Center’s Board of Directors (the “Board”). Between June 7, 2015 and February 3, 2016, the

Herald-Tribune ran thirteen (13) articles that in some way described the Center’s troubles, and

the role Mr. Ritter played in them (the “Articles”). These Articles addressed the Center’s

financial problems, Mr. Ritter’s business background, and his strategic decisions that were

revealed to be ethically questionable and ultimately, financially disastrous. In publishing the

Articles, the Herald-Tribune relied upon numerous publicly-filed government records fully

disclosed to all readers, often including links to the complete public record referenced in the

Articles. Braga Aff., Exhs. 1-14; Article 1.1 In the course of reporting on these events of great

public concern to the community, the Herald-Tribune even published Mr. Ritter’s defense of his

conduct and the Center’s defense of him. See Article 1.

In a sprawling and wildly imprecise Complaint, Mr. Ritter now claims that all 13 of the

Articles, and all one hundred and twenty-six statements referenced therein (the “Statements”),

somehow defamed him. In doing so, Mr. Ritter ignores – and asks this Court to do likewise:

(a) his own published admissions of the truth of many of the Statements, (b) constitutional

guarantees of free speech and free press, (c) Florida’s Fair Report Privilege (among many others)

protecting the media’s ability to rely and opine upon the content of disclosed public records;

(d) basic and fundamental pleading rules (both generally and specific to libel claims), requiring

1 The Court is free to consider and dismiss the Complaint based upon the Articles attached to the Complaintincluding the documents and public records to which the Articles link, as those linked documents are part of theArticles. See Fla. R. Civ. P. 1.130. For instance, because Article 1 is attached to the Complaint and considered part of the pleading, and because it impliedly incorporates the referenced legal documents into the article, the

Court may consider it in deciding this motion. See One Call Prop. Servs. Inc. v. Sec. First Ins. Co. , 165 So.3d749, 752 (Fla. 5th DCA 2015) (“[W]here the terms of a legal document are impliedly incorporated by referenceinto the complaint, the trial court may consider the contents of the document in ruling on a motion to dismiss.”); Adelson v. Harris, 973 F. Supp. 2d 467, 483-85 (S.D.N.Y. 2013) (court may consider hyperlinked documents indeciding a motion to dismiss). The Court should also consider these documents – and the other public recordsthe Articles relied upon – pursuant to Rule 1.510. Pursuant to Fla. R. Civ. P. 1.510(c), Defendants rely upon thefollowing “summary judgment evidence” in support of this Motion: the Affidavit of Michael Braga and theexhibits attached thereto filed on even date herewith (hereinafter cited as “ Braga Aff., Exh. __ ”). Many of the public documents relied upon in the Articles are too voluminous to file with the Court, so only the relevantexcerpts are provided. Defendants will produce full copies upon the Court’s request.


3/72

3

proper notice of the precise statements claimed actionable, and how and why those statements

could plausibly be deemed to be false and defamatory or satisfy the many steep hurdles

defamation claims against the press must overcome. This Court should follow established

constitutional and Florida law, and readily dismiss Plaintiffs’ Complaint, to safeguard, rather

than jeopardize, the significant constitutional interests of free expression and a free and robust

press at stake.

Introduction and Background

The Complaint alleges that 126 different Statements in 13 different Articles, published

from June, 2015 through February, 2016, all defamed Plaintiffs. The 126 Statements are

catalogued in “Schedule A” to the Complaint.2 All 126 Statements are relied upon as the basis

for the libel claim in Count I. The content of the Articles is generally summarized as follows.

a. Mr. Ritter Takes Over the Center’s Leadership

As set forth in the Articles, the Center was a tax-exempt, nonprofit organization that

provided free programs to individuals impacted by cancer. Braga Aff., Exh. 1 (2012 Form 990).

In 2009, the Center obtained a $5.5 million bond to build a new facility in Lakewood Ranch,

placing a significant burden on the Center’s finances at precisely the time the world economy

was tanking, and, correspondingly, charitable contributions were drying up.3 Enter Mr. Ritter,

who the Board hired as CEO in September, 2010. Before joining the Center, Mr. Ritter served as

the CEO of Carbiz Inc. (“Carbiz”), a Canadian company that focused on “Buy Here-Pay Here”

car dealerships “who use their own money to finance vehicles for customers with sub-standard or

2 For convenience, this Motion will adopt the numbering system set forth in the “Schedule A” to the Complaint,e.g., the Articles are referred to as “Article 1” through “Article 13,” and the 29 Statements at issue withinArticle 1 are identified as numbered “1.1” through “1.29.”

3 See Article 1; Braga Aff., Exh. 1 (2009 Form 990).


4/72

4

poor credit.”4 As the Herald-Tribune reported, Carbiz’s publicly available filings with the SEC

reveal that, between 2004 and 2009, Carbiz lost millions of dollars while Mr. Ritter’s salary

increased. Article 1; Braga Aff., Exh. 4.

When the Board hired Mr. Ritter in September 2010, they were “convinced they had

found someone with the financial skills to save center,” even though Mr. Ritter had twice filed

for bankruptcy in Canada.5 After assuming the helm at the Center, Mr. Ritter shifted its focus

from donations to a retail venture. With the Board’s approval, the Center took out a $675,000

loan from a prominent community lending organization, The Gulf Coast Community

Foundation, to purchase a small Oregon non-profit that sold used wedding dresses. Article 1.

Renamed Brides Against Breast Cancer (“BABC”), this new component of the Center held bridal

shows, selling donated wedding dresses and charging vendors to participate. Id. This expanded

retail operation brought with it significant new operating costs. Id. While the Center claimed, and

the Herald-Tribune reported, that BABC generated positive revenue, the Center’s finances

continued to deteriorate. Braga Aff., Exh. 1 (2010 Form 990 – 2014 Form 990).

b. Mr. Ritter Switches Vendors And Personally Profits

Making matters worse for Mr. Ritter was an apparent conflict of interest between the

Center and another business which he owned with Mrs. Ritter. Plaintiffs own a company that

developed an application for processing credit card transactions for BABC. In February 2015,

Mr. Ritter changed BABC’s credit card processor from Eventbrite to a company he and his wife

owned and controlled named Sarasota Finance Management, LLC (“SFM”) – with the entire fee

charged the consumer deposited directly in a bank account in Mrs. Ritter’s name. Article 2.

According to Center insiders, Plaintiffs charged BABC at least sixteen percent as a processing

4 See Article 1, incorporating a hyperlink to Carbiz’s 2009 10K filed with the U.S. Securities ExchangeCommission (“SEC”).

5 See Article 1, providing links to Mr. Ritter’s Canadian bankruptcy records. Braga Aff., Exh. 2.


5/72

5

fee, which, according to industry experts interviewed by the Herald-Tribune, was exorbitant and

about eight times the customary rate for nonprofits. Article 2. Various members of the Center’s

Board told the Herald-Tribune that only a few of the Board members knew about the

arrangement. Articles 2, 3.

c. The Center Fires Mr. Ritter; He Sues

On or about July 31, 2015, the Center’s Board fired Mr. Ritter. Article 3. On August 10,

2015, the Center closed BABC. Article 6 . The next day, on August 11, 2015, Mr. Ritter filed suit

against the Center claiming he was fired without cause and entitled to compensation. Braga Aff.,

Exh. 9 (Mr. Ritter’s civil complaint against Center). Meanwhile, the Center’s financial troubles

came to a head, and on September 3, 2015, it was forced to lay off its remaining staff, and

transition its cancer support services to Jewish Family and Children’s Services (“JFCS”). Article

9. As the Center’s interim CEO, Ron Gelbman, told the Herald-Tribune, the Center could no

longer pay its bills. Id. When Gelbman took over in August, 2015, he “discovered the Center

had only $18,000 in cash and hundreds of thousands of dollars’ worth of unpaid bills.” Id.

d. Criminal Charges Filed Against Mr. Ritter

According to a criminal complaint filed with the Sarasota County’s Sheriff Office

(“SCSO”) by Board member Brian Mariash, the entire Board did not learn about the fee

arrangement with Plaintiffs’ company until July 10, 2015, months after it was implemented.

There was never a written agreement between the Center and SFM, and, after the arrangement’s

discovery, Mr. Ritter was immediately instructed by the Board to turn over all funds collected.

Incredibly, Mr. Ritter refused to turn over approximately $20,000. On January 22, 2016, a

Probable Cause Affidavit was sworn out by a Sarasota County Sheriff’s Office Detective


6/72

6

detailing Mr. Ritter’s diversion of funds from the Center, and attesting that probable cause

existed to believe that Mr. Ritter had committed grand theft in violation of Florida law. 6

Through intensive investigation, including numerous interviews and extensive research

into multiple public records, the Herald-Tribune meticulously documented the Center’s demise,

and the prominent role Mr. Ritter played in it.7 Plaintiffs, however, claim the Herald-Tribune’s

Articles defamed them. The First Amendment and Florida law do not entitle Plaintiffs to the

press they want, however, and all of their claims fail as a matter of law.8

ARGUMENT

I. The Elements of Libel

To state a Florida common law libel claim, Plaintiffs must allege sufficient ultimate facts

establishing: (a) a false and defamatory statement of fact, (b) “of and concerning” the Plaintiff,

(c) an unprivileged publication to a third party, (d) fault on the publisher’s part, and (e) damages

proximately caused by the libel. See, e.g., Weintraub v. Halifax Media Group, LLC , Case No.

2014 CA 2822 (Sarasota Co. Cir. Ct. 2014) aff’d Weintraub v. Halifax Media Group, LLC , 2016

WL 1066265 (Fla. 2d DCA Mar. 18, 2016)9 (citing Mile Marker, Inc., v. Petersen Publishing,

LLC , 811 So.2d 841, 845 (Fla. 2d DCA 2002); Angelastro v. Novotny, Case No. 2012 CA 98

(Sarasota County Cir. Ct. 2013), aff’d Angelastro v. Sarasota Herald-Tribune, 145 So.2d 838

6 See Article 8, relying upon the criminal complaint filed against Mr. Ritter. Braga Aff., Exh. 10 (criminalcomplaint and Probable Cause Affidavit).

7 The Complaint is directed to the thirteen Articles published by the Tribune, twelve of which were authored by

Floum. The Complaint, however, contains no facts, and certainly no ultimate facts, about Defendants Cormier,Braga, Dorsey, Church and Le Coz. Even viewing the Complaint in a light most favorable to Plaintiffs, there areno allegations establishing those Defendants’ participation in the purported “conspiracy,” let alone any factssuggesting when the supposed agreement to carry out this conspiracy was reached. The claims against thoseDefendants are thus implausible and should be dismissed on this ground alone.

8 It is unclear what the basis for Mrs. Ritter’s libel claim is. In the Articles attached to the Complaint, Mrs. Ritteris only mentioned in connection with her ownership of the fee processing company BABC used.

9 A copy of this Court’s Order in Weintraub granting Defendants’ Motion to Dismiss or Alternatively for

Summary Judgment is annexed hereto for the Court’s convenience as Exhibit “A.”


7/72

7

(Fla. 2d DCA 2014);10 Hay v. Ind. Newspapers, Inc., 450 So.2d 293, 294 (Fla. 2d DCA 1984)

(libel claim requires a defamatory statement “of and concerning” the plaintiff); Brown v. New

World Communications, Inc., 712 So.2d 395, 395 (Fla. 2d DCA 1997); Delacruz v. Peninsula

State Bank , 221 So.2d 772, 775 (Fla. 2d DCA 1969). “Words are defamatory when they charge a

person with an infamous crime or tend to subject one to hatred, distrust, ridicule, contempt or

disgrace or tend to injure one in one’s business or profession.” Seropian v. Forman, 652 So.2d

490, 495 (Fla. 4th DCA 1995). The first element of the claim, “[a] false statement of fact[,] is the

sine qua non for recovery in a defamation action.” Hallmark Builders, Inc. v. Gaylord Broad.,

Co., 733 F.2d 1461, 1464 (11th Cir. 1984) (quoting Byrd v. Hustler Magazine, Inc., 433 So.2d

593, 595 (Fla. 4th DCA 1983)).

a. False Statement of Fact

Importantly, the first element, a false statement of fact , means that statements of opinion

are not actionable, and that a statement must generally be capable of being proven true or false to

support a defamation claim. Zorc v. Jordan, 765 So.2d 768, 772 (Fla. 4th DCA 2000). As courts

have uniformly held, “there is no such thing as a false idea.” From v. Tallahassee Democrat,

Inc., 400 So.2d 52, 56 (Fla. 1st DCA 1981); Palm Beach Newspapers, Inc. v. Early, 334 So.2d

50, 52 (Fla. 4th DCA 1976). Indeed the ability of any individual (and in particular the press) to

express an opinion freely, without fear of harassing lawsuits, lies at the very cornerstone of the

freedoms protected by the U.S. and Florida Constitutions. Opinion “occurs when the defendant

makes a comment or states an opinion based on facts which are set forth in the article or which

are otherwise known or available to the reader or listener as a member of the public.” From, 400

So.2d at 57 (plaintiff’s position and performance in community provided assumed facts upon

10 A copy of this Court’s Order in Angelastro granting Defendants’ Motion to Dismiss or Alternatively forSummary Judgment is annexed hereto for the Court’s convenience as Exhibit “B.”


8/72

8

which the author could base his opinion); Rasmussen v. Collier Cty. Pub. Co., 946 So.2d 567,

571 (Fla. 2d DCA 2006) (“Commentary or opinion based on facts that are set forth in the article

or which are otherwise known or available to the reader or listener are not the stuff of libel.”);

Hay, 450 So.2d at 295. Importantly, whether “a statement is one of fact or one of opinion is a

question of law” for the Court to decide at the outset. Rasmussen, 946 So.2d at 571.

As set forth in greater detail below, applying this first element of a libel claim knocks out

the vast majority of the Statements at issue here. Indeed, most of the Statements are either

indisputably true, as conceded by Plaintiffs, or are merely expressions of protected opinion based

on fully disclosed facts, most of which are set forth in public records linked to in the Articles. To

give but one example, the very first Statement Plaintiffs allege is defamatory is: “Nonprofit

CEO’s salary climbs while its finances remain shaky.” Compl., Exh. A, §1.1. The Center’s tax

returns are public records, expressly referenced in and linked to in Article 1, which reflect both

large financial deficits continuing throughout Mr. Ritter’s tenure, and increases in Mr. Ritter’s

compensation during that period.11 Mr. Ritter has never disputed (nor can he, plausibly) that his

compensation increased while serving as CEO from 2010 to 2014. To the contrary, both

Mr. Ritter, and the Center’s Chairman, admitted to the salary increase in the body of Article 1

and in the formal Response to Article 1, which the Herald-Tribune also published via a link in

Article 1 itself.12 Accordingly, Statement 1.1 is comprised of a factually accurate statement (that

11 See Article 1 (online version), attached to the Complaint as Exh. 1(a) thereto. The second sentence of Article 1references and includes a link to the Center’s publicly-available IRS Form 990 for the fiscal year ending inJune, 2014, with specific notations demonstrating both the Center’s $787,579 deficit, as well as Mr. Ritter’scompensation.

12 See Article 1 (online version), attached to Complaint as Exh. 1(a) thereto, at p.2 (“Response: The Center for

Building Hope wrote a lengthy response to the findings in this story. That response can be found here.”

(hyperlink indicated)). Braga Aff., Exh. 8 (the Center’s published response). The fourth page of the Responsespecifically addresses the Center’s justification for Mr. Ritter’s salary increases. Likewise, Article 1 itselfreflects Mr. Ritter’s and the Center’s admission, and justifications, for his salary increases: “The Center’s boardmembers insist the raises are appropriate.” Id. at 2. “Ritter and others defend his large salary increases, sayinghe took on a bigger workload, deferred some of the payments and forgave $100,000.” Id.


9/72

9

Mr. Ritter’s salary climbed), based on public tax records, combined with a characterization

(while the Center’s finances remained “shaky”), that plainly amounts to pure opinion based on

disclosed facts. Thus, Statement 1.1 is simply nonactionable.

As set forth below, this reasoning holds true for the vast majority of the Statements at

issue, which do not satisfy the first, or the remaining, elements of a libel claim.

b. Reasonably Susceptible of Defamatory Meaning

In addition to the burden of pleading and proving “falsity,” a libel plaintiff must

demonstrate that each challenged statement is actually defamatory, i.e., materially damaging to

the plaintiff’s reputation, given its ordinary meaning in context. As this Court noted recently,

“[t]he Court has a prominent function in determining whether a statement is defamatory, and if a

statement is not capable of a defamatory meaning, it should not be submitted to a jury.”

Weintraub, Exh. “A” hereto, at 6, citing Smith v. Cuban American Nat’l Foundation, 731 So.2d

702 (Fla 3d DCA 1999). Many of the Statements at issue are not susceptible of a defamatory

meaning. To take just one example, Statement 1.14,13 amounts to nothing more than a

generalized assessment by a disinterested consultant offering his view that nonprofits ought to

refrain from borrowing. As a mere general principle or personal suggestion regarding nonprofit

finance, it cannot reasonably be construed as damaging Plaintiffs, and is thus not capable of

defamatory meaning.14 Any claims based on such nonactionable, non-defamatory Statements

must be dismissed.

13 Compl., Exh. A at 2 (“‘When we work with a nonprofit, our recommendation is that they never borrow money,especially for a building, because it’s hard to pay back,’ said David Condon, a nonprofit consultant based out ofConnecticut. ‘Then the money is going to debt service instead of the organization’s mission.’”)

14 As with many of the Statements pleaded, 1.14 suffers multiple defects and is subject to multiple privileges.Aside from not being reasonably susceptible of defamatory meaning, Statement 1.14 is clearly “pure opinion,”and not “of and concerning” Plaintiffs (addressed infra). As noted herein, the Complaint’s “kitchensink/shotgun” pleading style, lumping together dozens of Statements containing innocuous and irrelevantcontent, needlessly complicates the Defendants’ and this Court’s burden in analyzing the issues on this Motion.


10/72

10

c. “Of and concerning” Plaintiff

In addition to proving that a challenged statement is factual, provably false, and capable

of defamatory meaning, another fundamental requirement for a libel claim is that the statement is

actually about the Plaintiff himself, rather than some generalized group or nonparty. 15 As set

forth below, many of the Statements at issue here fail this test. Statement 1.25 is one glaring

example. Statement 1.25 generally addresses conditions at the Center before Mr. Ritter’s arrival,

stating: “ It [the Center] faced tremendous debt and needed to raise money to avoid foreclosure.

Morale was at an all-time low, said two long-term program facilitators.” Compl., Schedule A, 4

(Statement 1.25). Leaving aside Mr. Ritter’s admissions in the Complaint that the Center was

financially troubled upon his arrival,16 even if Statement 1.25 were somehow false, because it

concerns the Center’s finances and morale before Mr. Ritter took over, it is not “of and

concerning” Mr. Ritter, and cannot possibly be deemed to defame him. As set forth below and in

the attached Appendix “A,” a multitude of the 126 Statements at issue here fail the “of and

concerning” test, and any claims related to those Statements must be dismissed.

II. The Core Privileges and Defenses That Defeat Plaintiffs’ Claims:

Fair Report, Pure Opinion, Judicial Proceedings, Common Interest

As noted, many of the Statements pleaded fail to satisfy the basic elements of a Florida

libel claim. Even assuming the Statements pleaded could be deemed factual, false, defamatory,

and of and concerning Plaintiffs, the vast majority of the Statements are nonactionable because

they are subject to one or more of many privileges under Florida defamation law. See, e.g.,

Nodar v. Galbreath, 462 So.2d 803 (Fla. 1984) (addressing multiple privileges); Demby v.

15 This requirement arises because plaintiffs often perceive general statements about a group, organization, or third party to be perceived to reflect poorly upon and damage them, individually, even when that is not a reasonableinterpretation of the statement.

16 Compl., ¶53 (“prior to Mr. Ritter joining the Center as [CEO] … the Center had been operating at significantannual deficits for years. …”).


11/72

11

English, 667 So.2d 350, 353 (Fla. 1st DCA 1995) (even if statement is false, defendant not liable

if one of many privileges apply). In the attached Appendix “A,” Defendants have generally

summarized multiple, overlapping, privileges and defenses under Florida law that render each of

the 126 Statements pleaded nonactionable. For brevity’s sake, Defendants focus below on the

core privileges that apply to the vast majority of the 126 Statements, and thus to the Articles

taken as a whole in context, rendering them nonactionable and subject to dismissal.

a. Fair Report Privilege: Under the First Amendment, the Florida Constitution and

Florida common law, the press is given wide latitude to report freely on the contents of public

and governmental records. Without such a privilege, the press could not perform its vital

watchdog function central to our democracy and system of government. Woodward v. Sunbeam

Television Corp., 616 So.2d 501, 503 (Fla. 3d DCA 1993). Generally, the press is immune from

liability for fair and accurate reports of the contents of public records. See, e.g., Weintraub v.

Halifax Media Group, LLC , (Sarasota Co. Cir. Ct. 2014) aff’d Weintraub v. Halifax Media

Group, LLC , 2016 WL 1066265 (Fla. 2d DCA Mar. 18, 2016); Angelastro v. Novotny, (Sarasota

Co. Cir. Ct. 2013), aff’d Angelastro v. Sarasota Herald-Tribune, 145 So.2d 838 (Fla. 2d DCA

2014) (citing Rasmussen, 946 So.2d at 571.

Because the Articles are largely comprised of and based upon accurate reports of publicly

available records (including the Center’s IRS tax records, Carbiz’s SEC filings, Mr. Ritter’s

Canadian bankruptcy filings, Oregon Dept. of Justice filings, court filings, and Sarasota County

criminal records),17 the Articles are protected by the Fair Report Privilege and Defendants are

immune from liability. Here, the grounds for Fair Report Privilege immunity are even stronger

than in most reported cases. Defendants not only summarize, reference and cite to the content of

17 See Braga Aff., Exhs. 1-4, 6-8 and 14 (all of which are linked to in Articles 1 and 10).


12/72

12

the various public records substantiating their diligent reporting, the online versions of the

Articles generally included hyperlinks to the public record at issue, with digital highlights to the

particular section or line-item, meticulously corroborating the particular assertion in a given

Article.18 Thus, any accusation that Defendants selectively “cherry-picked” particular facts from

public records to support a predetermined narrative falls flat; directly to the contrary, the reader

is invited to view the record for herself, and to then draw her own conclusions. 19

Plainly, the bulk of what Mr. Ritter takes issue with are simply facts that were taken

directly from publicly available records – facts Mr. Ritter would prefer to keep quietly tucked

away in the files of the SEC, the IRS, or Canadian Bankruptcy Courts. The factual content of

those public records, however, is both indisputable and incapable of supporting a valid cause of

action for defamation. Rasmussen, 946 So.2d at 571. If by some chance any of the facts reported

from those public records contain errors (which seems unlikely here), Mr. Ritter is more than

free to take the matter up with the government agencies involved, to correct, amend or

supplement the public record in whatever manner he deems fit. What Mr. Ritter cannot do, under

Florida’s Fair Report Privilege, is to hold a newspaper liable for publishing those facts or the

18 E.g , Article 1 alone includes links to (a) the Center’s own tax records filed with the IRS to inform its readersabout the Center’s budget deficit and Mr. Ritter’s increasing salary, (b) Mr. Ritter’s Canadian BankruptcyRecords from 1989 and 2002, (c) Carbiz’s SEC Filings showing Mr. Ritter’s salary and Carbiz’s cessation of business, and (d) Oregon Department of Justice Records naming BABC’s predecessor one of Oregon’s “worstcharities.” Most of the other Articles include a link back to Article 1.

19 For example, the Herald-Tribune’s statements that Mr. Ritter was in Canadian Bankruptcy Court in 1985 and2002 for debts of $31,000 and $500,000, respectively, merely recite what appears in Mr. Ritter’s CanadianBankruptcy Reports. Braga Aff., Exh. 2. Similarly, the statements about Carbiz’s finances and failure, like thefact that Carbiz never turned an annual profit, were taken directly from Carbiz’s own SEC Filings. Id., Exhs. 7-9

(Carbiz 2009 Form 10K; “[w]e commenced operations in March 1998. We have incurred net losses in eachfiscal year since inception.”). The reports detailing the criminal complaint filed against Mr. Ritter merelyrecount the criminal complaint itself. Article 8; Braga Aff., Exh. 9 (“Mr. Mariash said that on 7/10/15 it wasdiscovered that [Mr.Ritter], the suspect, had set up his own company, [SFM], and diverted the organization’sdonations into that company account. The suspect had no signed agreement to set up such transactions.”). Thenumbers detailing the Center’s faltering finances, and Mr. Ritter’s ever-improving salary, are lifted straightfrom the Center’s own Tax Filings. Braga Aff., Exh. 1 (2013 Form 990; showing Center’s deficit of $787,492and Mr. Ritter’s earnings of over $335,000), (2012 Form 990; showing Center’s deficit of $14,579, and Mr.Ritter’s earnings of over $207,000), (2011 Form 990, showing Center’s gains of $339,689, and Mr. Ritter’searnings of over $125,000).


13/72

13

records that contain them. The law is crystal clear that newspapers may freely publish, without

fear of liability, and without confirming the accuracy of, the contents of public records.

Woodward, 616 So.2d at 503. Likewise, it is equally clear that journalists are free to publish

opinions based upon disclosed facts, particularly when those facts are set forth in public records.

Early, 334 So.2d at 52 (characterization of plaintiff’s tenure in office as unsuccessful was

opinion and non-actionable). The Articles, and the Statements therein, consist of virtually

nothing more than accounts of facts in public records and opinions based upon those and other

fully disclosed facts. As such, the Articles and the Statements therein are protected by the Fair

Report and other privileges, and Plaintiffs’ claims must be dismissed.

b. Judicial Proceedings Privilege: Fair and accurate reports of judicial and quasi-

judicial proceedings have long been privileged under Florida law. Huszar v. Gross, 468 So.2d

512, 516 (Fla. 1st DCA 1985); Jamason v. Palm Beach Newspapers, Inc., 450 So.2d 1130, 1132

(Fla. 4th DCA 1984). This privilege applies to multiple Statements here because the Herald-

Tribune accurately reported on Mr. Ritter’s Canadian bankruptcy proceedings, and his civil and

criminal proceedings related to his termination by the Center.20 The Complaint’s allegations that

many of Statements related to the Canadian bankruptcy proceedings, Mr. Ritter’s civil suit

against the Center, and the criminal charges against him are “defamatory” are entirely conclusory

and lumped in with all of the 126 Statements.21 Nowhere does the Complaint even attempt to

identify, which, if any, Statement concerning any of those judicial proceedings is inaccurate –

because they are not. The Statements related to those judicial proceedings are fair and accurate,

20 See Article 1 (citing and linking to Mr. Ritter’s Canadian Bankruptcy Court filings); Article 7 (Mr. Ritter’slawsuit against the Center); Article 8 (criminal charges against Mr. Ritter).

21 See Appendix “A” (identifying Statements covered by the Judicial Proceedings Privilege, e.g., 1.5, 1.15-1.16,2.7, 2.12, 3.6, 4.7, 5.4 (Canadian bankruptcy proceeding), 1.24 (Mr. Ritter’s references’ bankruptcy proceedings), 12.1, 13.1 (Center’s bankruptcy proceeding), 8.1-8.3, 8.6 (SCSO Criminal Complaint).


14/72

14

Plaintiffs have failed to allege facts otherwise, and thus those Statements are privileged and

cannot give rise to liability under Florida law.

c. Opinion Based on Disclosed Facts: Many of the Statements Plaintiffs complain

of are nonactionable as pure opinion based on disclosed facts. Indeed, many of the Statements

amount to nothing more than the personal view of various experts Defendants consulted in the

course of researching and investigating the Articles.22 As this Court recently held in Weintraub,

such opinion or commentary based on disclosed facts and records, even harshly worded views

such as “fraud,” constitutes “protected opinion” and is nonactionable. 23 Aside from expert

opinions, Plaintiffs also complain of many other general characterizations or conclusions drawn

from the documents or facts set forth in detail in the Articles. Because these characterizations are

based on fully disclosed facts, all are equally protected as pure opinion based on disclosed facts.

Hay, 450 So.2d at 293(affirming dismissal of claim based on opinion calling plaintiff “crook”

and “criminal); Rasmussen, 946 So.2d at 571; Della-Donna v. Yardley, 512 So.2d 294 (Fla. 4th

DCA 1987); Morse v. Ripken, 707 So.2d 921, 923 (Fla. 4th DCA 1998) (affirming dismissal on

opinion grounds).

d. Common/Corresponding Interest Privilege: “A communication made in good

faith on any subject matter by one having an interest therein, or in reference to which he has a

duty, is privileged if made to a person having a corresponding interest or duty, even though it

contains matter which would otherwise be actionable, and though the duty is not a legal one but

only a moral or social obligation.” Nodar , 462 So.2d at 809. The common/corresponding interest

privilege is intended to allow those with a shared interest or obligation to speak their mind freely

22 See, e.g ., Statements 1.7 (opinions of seven experts’ in various fields); 1.14 (opinion of disinterested consultant);1.20 (quoting banking professor); 1.28 (retail expert); 1.29 (report by nonprofit watchdog GuideStar); 2.8 (bankvice president); 2.10 (industry expert).

23 Weintraub, supra, at 6 (“In examining the quotes of commentators regarding the term ‘fraud’ the Court findsthat as a matter of law the comments are also protected opinion ….”).


15/72

15

to help further those shared interests, without fear of liability in the event a member of the group

disagrees or is offended. In particular, comments made in or about the workplace by co-workers

or volunteers have long been protected by this privilege. See, e.g., McCurdy v. Collis, 508 So.2d

380 (Fla. 1st DCA 1987) (former employer’s statement that plaintiff was a “safety threat”

privileged). This privilege shields numerous Statements at issue here, including all quotations or

reports based on the comments and views of numerous individuals with some connection to the

Center, e.g., current or former Board members, employees, consultants, lenders, vendors, donors

or beneficiaries of the Center, or others with any business or social connection to the Center. The

vast majority of any such Statements amount to little more than those individuals expressing

their good faith concern for the Center, its mission, its finances, and the questionable transactions

at issue, and are thus nonactionable and privileged as a matter of law.

e. Fair Comment Privilege: “Matters of public interest are generally considered

legitimate subjects of criticism, however, severe, unless made maliciously. Private corporations

which claim the confidence of the public and seek the possession of public funds are among the

subjects of that may be criticized in accordance with the rules of fair comment.” Murphy v.

Daytona Beach Human Soc., Inc., 176 So.2d 922, 923-24 (Fla. 5th DCA 1965). Thus, an

individual is privileged “to make a ‘fair comment’ on a public matter relating to an individual

who has voluntarily made himself newsworthy.” Colodny, 936 F. Supp. at 927. The fair

comment privilege applies here for precisely the same reasons that the Articles touch on a matter

of public concern. They report on the mismanagement and ultimate downfall of a prominent

local charity and its CEO, both of whom depended upon charitable, tax-exempt donations from

the public, or loans from community organizations, for their livelihood.


16/72

16

f. Neutral Report Privilege: Florida courts have recognized a neutral reporting

privilege under which a publication is privileged if it “disinterested and neutral.” Gross, 468

So.2d at 516; Brake & Alignment Supply Corp. v. Post-Newsweek Stations of Florida, Inc., 472

So.2d 517, 518 (Fla. 3d DCA 1985). The neutral reporting privilege bars Plaintiffs’ claims

because the Herald-Tribune was disinterested in the accusations that others – including members

of the Board – levelled at Mr. Ritter. Indeed, as noted herein, the Herald-Tribune steadfastly

maintained its neutrality in its reporting by, among other things, repeatedly publishing Plaintiffs’

defense of his actions (even if made to other news outlets), and others’ statements in his defense.

g. Summary of Key Privileges Applied to Each Article

Plaintiffs’ Complaint is simply too unwieldy to confront on a statement-by-statement

basis in the body of this Motion. While the pleading as a whole leaves much to be desired, both

in terms in clarity and compliance with the basic pleading rules, it is impractical to parse each of

the 126 Statements in question. Plaintiffs make this point in the Complaint when they allege

most of the Articles repeat information in previous Articles. Plaintiffs allege that 42 separate

statements in Articles 1 and 2 alone are somehow “defamatory.” Many of these statements, or

some iteration of them, are effectively repeated or paraphrased in the following Articles 3-13.

Simplifying matters further, the Statements on which Plaintiffs’ entire claim is based fall within

three general categories: (1) Statements related to the Center’s finances and Mr. Ritter’s salary;

(2) Statements related to Mr. Ritter’s time at Carbiz; and (3) Statements related to SFM’s fee

arrangement with BABC. Any Statements in the remaining Articles that do not fall under at least

one of these categories is still not actionable, either because it is true, not defamatory, privileged,

or otherwise nonactionable, and those Statements are addressed in Defendants’ “Appendix A,”

which corresponds to Plaintiffs’ Schedule A annexed to the Complaint. Accordingly, for brevity,


17/72

17

the following generally summarizes the gist or sting of each Article and the key privileges and

defenses applicable to each:

1. Article 1, published June 7, 2015, reported on the Center’s financial

situation, before and after Mr. Ritter became CEO, his background, hiringas CEO, and escalating salary. The gist of the article was that the Center –a well-known charity that depended in large part upon donations from the public – was in financial trouble at the same time it was increasingMr. Ritter’s salary. The Herald-Tribune interviewed and recounted thestatements and opinions of numerous individuals (including Mr. Ritter andBoard members), the Center’s lenders, outside experts, and relied uponand cited numerous public records (e.g. The Center’s Tax Filings,Mr. Ritter’s Canadian bankruptcy records and Carbiz’s SEC filings). The Herald-Tribune even published favorable opinions of Mr. Ritter, as wellas the Center’s Response to the Article and defense of Mr. Ritter. Article 1

was comprised primarily of reports and opinions based on disclosed publicrecords, and is thus protected under the fair comment, fair report, judicial proceeding, corresponding interest and neutral report privileges.

2. Article 2, published on July 30-31, 2015, reported that the Center’sChairman, Jim Braun, resigned from the Board “amid accusations that theCenter … is involved in a secret business arrangement with a companycontrolled by” Plaintiffs. The Article details Plaintiffs’ processing feearrangement with BABC, and how only two of the Board’s elevenmembers knew of the arrangement. The Herald-Tribune publishedstatements and opinions of members of the Board, the Center’s chieflender and business partner, people familiar with credit-card processingfee arrangements and a former employee of the Center. The Article alsorecounts the Center’s financial problems, the hiring of Mr. Ritter, and the purchase of BABC as noted in Article 1. The gist of Article 2 was thusthat the Center’s problems were not limited to its finances, and thatMr. Ritter’s fee processing arrangement with BABC was a potentialconflict of interest and outside industry norms. These views werevindicated as accurate, as Mr. Ritter was terminated shortly after Article 2appeared, and a Center Board member filed a criminal complaint againsthim less than a month later. Again, Plaintiffs allege no specificinaccuracies in Article 2, and certainly none that alter its gist or sting.Article 2 is plainly privileged under the fair comment, fair report, judicial

proceedings, corresponding interest and neutral report privileges.

3. Article 3, published August 1, 2015, reported that the Center fired Mr.Ritter on July 31, 2015 after learning that he was profiting from the fee processing arrangement with BABC. It discussed the unusually large feePlaintiffs were charging, the Center’s other leadership and financial problems, and the challenges the Center faced going forward. It recountedinformation in prior Articles about Mr. Ritter’s stint at Carbiz and


18/72

18

escalating salary. Thus, the gist or sting of Article 3 was that Mr. Ritterwas terminated because of his fee processing arrangement, of which theentire Board was unaware, the latest in a mounting series of the Center’s problems. Article 3 includes interviews and opinions of Board members,industry experts, the Center’s chief lender, and relies upon publicly filed

government documents. Again, Plaintiffs never allege any particularinaccuracy, but even if they had, Article 3 would still be privileged underthe fair comment, fair report, judicial proceeding, corresponding interestand neutral report privileges.

4. Article 4, published August 4-5, 2015, detailed the challenges facing theCenter in the wake of Mr. Ritter’s termination and what to do with BABC.Article 4 describes how BABC provided only 23% of its revenues to theCenter’s mission, though it led customers to believe it was much more. Itreports on BABC’s falling sales, relying upon public documents, and thestatements, opinions and experiences of board members, experts onfundraising and vendors who paid to participate in BABC’s events. Thegist of Article 4 was that Mr. Ritter’s decision to change the Center’sfocus from donors to BABC was questionable, and the Center’s Board hadto decide what to do with BABC. Article 4 was replete with opinions and proven substantially true, as the Board shut-down BABC less than one (1)week later. Article 4 was thus privileged under the fair comment, fairreport, judicial proceedings, corresponding interest and neutral report privileges.

5. Article 5, published August 6, 2015, reported that the Center fired sixemployees, including Mr. Ritter’s children, and was forced to cancelfundraising events and withhold paychecks. The article quoted one of the

Center’s consultants as attributing the firings to the Center’s financial problems previously reported (thus showing their veracity). The Articlequoted some of the recently-ousted employees, but could not obtaincomments from Mr. Ritter’s children. Article 5 recapped prior reports onthe Center’s financial problems and Mr. Ritter’s termination, published aCenter insider’s opinion of the Board’s decisions to hire Mr. Ritter, as wellas one of the fired employee’s defense of Mr. Ritter and his family. Thegist Article 5 was that the Center’s financial problems were continuingand causing lay-offs, and the Center’s ability to continue operating wasquestionable. While Article 5 is mostly opinion and substantially true, it isalso privileged under the fair comment, fair report, judicial proceedings,

corresponding interest and neutral report privileges.

6. Article 6, published August 11-12, 2015, reported that the Center closedBABC on August 10, 2015. The article noted that BABC’s closure was thelatest development in the Center’s ongoing financial troubles, relied upongovernment records to detail the Center’s history of budget deficits, andrecounted some of the Herald-Tribunes’ earlier reporting on the Centerand Mr. Ritter. Article 6’s gist or sting was focused on the failure of


19/72

19

BABC and the Center’s future, which was growing bleaker. The article’sgist was not directed at Mr. Ritter, but was substantially true and primarily based upon the opinions of one former Board member. Even so, Article 6is privileged under the fair comment, fair report, corresponding interestand neutral report privileges.

7. Article 7, published August 19-20, 2015, reported on Mr. Ritter’s lawsuitagainst the Center claiming it owed him over $300,000. It recounts priorreporting on Mr. Ritter’s tenure, describes his new company, CelebritiesAgainst Cancer, Inc., which appeared to be operating on a business modelsimilar to BABC and under a registration number of the Center’s parentcompany, Health Support Network, and quotes the opinion of the CenterInterim CEO on another’s use of the Center’s name and trademark. Thethrust of Article 7 is thus directed at Mr. Ritter’s civil lawsuit against theCenter, and his new business, and cannot reasonably be characterized asdefamatory or substantially untrue. Like the rest of the articles, however, itis also fully-privileged under the fair comment, fair report, judicial proceedings, corresponding interest and neutral report privileges.

8. Article 8, published September 3-4, 2015, reports that Center Boardmember Brian Mariash filed a criminal complaint against Mr. Ritter basedupon his fee processing arrangement with BABC, and Mr. Ritter’s refusalto return “about $20,000” of the Center’s money. It describes Mr. Ritter’songoing civil suit against the Center, and restates much of Article 7 as toMr. Ritter’s new company. Plaintiffs do not deny that criminal chargeswere filed or challenge any other details. Article 8’s gist concerns Mr.Ritter’s ongoing legal proceedings, and is not only substantially true, butalso privileged under the fair comment, fair report, judicial proceedings,

corresponding interest and neutral report privileges.

9. Article 9, published September 4-5, 2015, reports the Center laid-off itsremaining staff because it could no longer pay its bills, and that its freecancer services would continue under the direction of JFCS. Article 8recounts much of the prior reporting. Article 8’s gist or sting is plainlydirected at the failure of the Center’s leadership as a whole to properlymanage the Center’s funds, and the future of the Center’s services underJFCS’ direction. The article relies upon the statements and opinions ofCenter insiders and Board members, Ritter’s civil and criminal legal proceedings, as well as JFCS employees. Article 8 is thus comprised

primarily of non-actionable opinion and is substantially true. It is also privileged under the fair comment, fair repor, judicial proceedings,corresponding interest and neutral report privileges.

10. Article 10, published September 12-13, merely recaps – or, as the article’stitle puts it, “maps” – the Center’s failure. A plain reading of Article 10shows that its thrust is directed at the Center’s leadership as a whole, andtheir failings before and after Mr. Ritter was hired. It relies on and quotes


20/72

20

the statements and opinions of Center insiders, board members,employees, public and government documents, and interviews with thosewho defended Mr. Ritter and the Board’s decision to hire him in the first place. Article 10 is thus substantially true, and brimming with opinion. Buteven if it were not, it is still privileged under the fair comment, fair report,

judicial proceedings, corresponding interest and neutral reporting privileges.

11. Article 11, published September 15, 2015, reports on Mr. Ritter’s recentappearance on a local television news program where he defended hisconduct, proclaiming the Center’s failure was not his fault. When notusing the Herald-Tribune’s previous reporting as background, the thrust ofArticle 11 is clearly directed at Mr. Ritter’s self-defense on another newsoutlet, and devotes much of its ink to recounting his statements. Whatever problems Mr. Ritter has with Article 11, the article as a whole issubstantially true and protected by the fair comment, fair report,corresponding interest and neutral report privileges. Further, Article 11 isyet another example of the lack of actual or express malice, since it offersPlaintiffs’ own view and defense of any claims in the Statements at issue.

12. Article 12, published December 28, 2015, is apparently and end-of-the-year list of the “Top 20” local news items during 2015, containing asolitary short paragraph recapping the reporting on the Center’s collapse.Because it simply recaps prior Articles, it is protected by the same privileges and defenses noted above.

13. Article 13, published February 2-3, 2016, reports on the cancer supportservices JFCS offers after taking over for the Center. It contains a lone

sentence about Center firing its CEO and shutting down, while the rest ofthe article is devoted to the services JFCS was providing. The gist ofArticle 13 thus has nothing to do with Mr. Ritter. Yet even if somehow thearticle was deemed substantially untrue, it would still be privileged underthe fair comment, fair reporting, judicial proceedings, correspondinginterest and neutral reporting privileges.24

24 The Complaint is pleaded in a needlessly confusing and compound manner. While purportedly identifyingspecific Statements complained of in “Schedule A,” Plaintiffs select everything from broad swaths of entire

articles, to solitary snippets, and even graphs or charts, and simply claim in one Count that all are “defamatory.”Yet Plaintiffs never identify how each selected Statement, paragraph or chart is or could be deemed defamatory.For instance, Plaintiffs fail to identify which Statements contain alleged false assertions of fact, which factswithin the often lengthy Statements are alleged false, which create a “false implication” or which are basedupon “juxtaposition” of facts. Instead, Plaintiffs attach 13 Articles and use the same stock paragraph tosummarily conclude each Article is defamatory. Plaintiffs never bother informing the Court or Defendants precisely how each Article is supposedly defamatory. Dozens of the 126 Statements at issue are redundant,mere repetitions or paraphrasing of a prior Statement. Adding to the confusion, Plaintiffs lump all thirteenArticles and 126 separate snippets into a single Count for libel. This shotgun/kitchen-sink pleading styleviolates Fla. R. Civ. P. 1.110 (“Each claim founded upon a separate transaction or occurrence and each defense


21/72

21

III. Plaintiffs Cannot Establish Express or Actual Malice

Because all thirteen of the Articles are protected under Florida common law privileges, it

is Plaintiffs’ burden to show express malice. Nodar , 462 So. at 810. To satisfy this burden,

Plaintiffs must allege sufficient facts establishing the primary motive for the statement was an

intent to injure Plaintiffs. Id. at 806. Claiming the Articles are false, Defendants disliked

Plaintiffs, or Defendants failed to conduct an adequate investigation before publishing is not

enough to show express malice. Coogler v. Rhodes, 21 So. 109, 112 (Fla. 1897) (express malice

cannot be inferred from statement’s falsity); John Hancock Mutual Life Ins. Co. v. Zalay, 581

So.2d 178, 180 (Fla. 2d DCA 1991)(insufficient investigation does not go to express malice);

Nodar , 462 So.2d at 812 (ill will or hostility to plaintiff will not establish express malice).

Plaintiff has no facts to support the claim that Defendants acted out of some unexplained

desire to injure Plaintiffs. Indeed, the content of the Articles directly rebut this. The notion that

Defendants published articles with the primary intent to injure Plaintiffs, while also publishing a

five-page rebuttal to the main Article in the series, and Mr. Ritter’s interview defending himself,

given to a completely different media outlet, is particularly far-fetched. Boehm v. American

Bankers Ins. Group, Inc., 557 So.2d 91, 94 (Fla. 3d DCA 1990) (“It is insufficient that the

speaker have generalized feelings of hostility and malice towards the Plaintiff.”). Plaintiffs do

not, and cannot, allege any ultimate facts overcoming Defendants’ common law privileges. As a

result, the Complaint should be dismissed with prejudice.25

other than denials shall be stated in a separate count or defense when a separation facilitates the clear presentation of the matter set forth.”). The Complaint is subject to dismissal on these grounds alone.

25 Because Plaintiffs’ libel claim in Count I fails as a matter of law, so do their claims for conspiracy and loss ofconsortium in Counts II-IV. “[I]n order for an actionable civil conspiracy claim to be made, there must be anactionable underlying tort against at least one of the alleged conspirators. The conspiracy to defame claimcannot stand where, as here, the defamation action fails. There being no defamation, the gist of the defamationconspiracy, there can be no conspiracy claim.” Pierson v. Orlando Reg'l Healthcare Sys., Inc., 2010 WL1408391, at *24 (M.D. Fla. Apr. 6, 2010), aff'd , 451 F. App'x 862 (11th Cir. 2012). Further, Plaintiffs offernothing beyond a conclusory assertion of an agreement, “and the general allegation of an agreement among


22/72

22

Likewise, Plaintiffs’ claims fail to clear the high hurdles erected by the First

Amendment. Mr. Ritter is at least a limited purpose public figure for First Amendment purposes,

and thus his claim must satisfy the heightened actual malice standard. Gertz v. Robert Welch,

Inc., 418 U.S. 323, 344 (1974). Individuals are considered “limited public figures” when they

voluntarily involve themselves in public controversies. Mile Marker , 811 So.2d at 845 (public

figure status is question of law for the Court). Here, Mr. Ritter admits he was “known and

recognized professionally as an outstanding leader … an innovator in the field of venture

philanthropy … served as a role model for leadership in the for-profit world and the not-for-

profit field in Florida for 13 years,” and enjoyed a well-deserved good name and excellent

reputation – personally and professionally – in the community. Compl ., ¶¶12-15. Thus, Mr.

Ritter admits he is at least a limited public figure. Chapin v. Knight-Ridder, Inc., 993 F.2d 1087,

1092 n.4 (holding leader of charity “irretractably admitted” he was a public figure when he

complained about damage to his public reputation as a “charitable leader”); Gadd v. News-Press

Publ’g Co., 412 So.2d 894 (Fla. 2d DCA 1982) (administrator of hospital at center of

controversy about its operations held limited public figure).26

A public figure plaintiff pleading a state law defamation claim based on speech on a

matter of public concern must establish with clear and convincing proof not only that the

statements were false and defamatory, but also that they were made with actual malice. Nodar ,

these many Defendants do not sufficiently state a plausible claim of civil conspiracy in any event.” Id. BecausePlaintiffs have no libel claim, their derivative loss of consortium claims must also be dismissed. Bey v. Gee,2015 WL 4751631, at *11 (M.D. Fla. Aug. 11, 2015) (derivative claim for loss of consortium fails in absence ofa viable claim against defendant).

26 A public controversy swirled around Mr. Ritter, and the Center – already a highly public, tax-exempt institution – as it sought money from the public while struggling financially and failing to make required deposits in itsemployees’ tax-exempt retirement accounts. The investigation into the Center’s finances and employeecontributions ultimately shed light on Mr. Ritter’s questionable conduct, and the resulting criminal and civil proceedings. Mr. Ritter was intimately involved in this public controversy, and voluntarily inserted himself intoit when he tried to publicly defend the Center’s conduct. Arnold , 427 So.2d at 219. The Complaint’s devotion ofso many allegations to show Defendants acted with malice reveals Mr. Ritter’s recognition that he is at least alimited public figure.


23/72

23

462 So.2d at 806. Actual malice requires knowledge that the allegedly defamatory statement was

false, or was made with reckless disregard as to its truth. Id. at 806. Actual malice requires more

than a departure from reasonable journalistic standards, or alleged failure to investigate. Don

King Prods., Inc. v. Walt Disney Co., 40 So.3d 40, 46 (Fla. 4th DCA 2010); Michel v. NYP

Holdings, Inc., 816 F.3d 686, 703 (11th Cir. 2016). Here, Mr. Ritter’s claims that Defendants did

not credit his stance that he was blameless for the Center’s failure, or interview his preferred

supporters, or emphasize favorable facts (Compl., ¶¶ 42-43, 56) fall far short of demonstrating

actual malice. The failure to print a public figure’s denials is not evidence of actual malice, nor

does it make other sources less reliable. Dockery v. Fla. Dem. Party, 799 So.2d 291, 296 (Fla. 2d

DCA 2001). The Herald-Tribune was “not required to continue its investigation until it found

somebody who would stand up for” Mr. Ritter, and the decision on which interviews to include

“is at heart an editorial decision” best left to journalists, not courts. Levan v. Capital Cities/ABC,

Inc, 190 F.3d 1230, 1243 (11th Cir. 1999); Miami Herald Publ’g v. Tornillo, 418 U.S. 241, 258

(1974) (treatment of public issues is exercise in editorial control and judgment which cannot be

subject to government or court oversight).

Regardless, the Articles themselves flatly belie Mr. Ritter’s characterization of

Defendants’ newsgathering, and unquestionably demonstrate a thorough, diligent and indeed

meticulous body of investigative journalism. Appel v. Lexington Ins. Co., 29 So.3d 377, 379 (Fla.

5th DCA 2010) (complaint should be dismissed when allegations contradicted by attached

exhibits). Here, the Articles’ characterizations of the Center’s problems and Mr. Ritter’s conduct

was based upon, among other things, sources within the Center, public records, judicial

proceedings, criminal complaints, probable cause affidavits, consultations with experts, lenders,

vendors and business partners of the Center, and individuals within the community who dealt


24/72

24

with Mr. Ritter and the Center. Walt Disney Co., 40 So.3d at 46 (no actual malice where

defendant interviewed people with direct knowledge of events in question, and “although it

exercised editorial discretion by creating a particular theme for its program, there is no evidence

that it published the challenged statements with knowledge of their falsity or with any serious

doubt as to their truth”).

The Articles on their face also contradict the Complaint’s half-hearted attempt to satisfy

the actual malice standard. First, Defendants reported Mr. Ritter deferred his own salary. Compl.,

¶31; Articles 9, 11. Second, Defendants acknowledged BABC’s initial success. Compl., ¶32;

Articles 1, 2, 4. Third, Defendants reported that some in “leadership” knew about the BABC fee

arrangement. Compl., ¶ 32. Articles 2, 3, 5, 7, 10, 11. Fourth, Defendants repeatedly published

positive statements about Mr. Ritter by the Center’s Board and Mr. Ritter’s references. Compl.,

¶43; Articles 1, 4. Fifth, the Articles repeatedly acknowledge the Center had financial problems

when Ritter took over in 2010. Compl., ¶53; Articles 1, 2, 5, 10. Sixth, Defendants published the

Center’s complete defense of Mr. Ritter, and Mr. Ritter’s personal defense of the Center’s

finances and his leadership. Articles 1, 11, 10; Michel , 816 F.3d at 703 (including information

contrary to the general conclusions reached in article shows lack of malice); Levan, 190 F.3d at

1241, n.32 (existence of conflicting evidence, allowing plaintiff to defend himself, establishes

absence of actual malice). At bottom, Mr. Ritter never alleges any facts remotely suggesting the

Articles are not protected by the First Amendment. In light of the weighty interests at stake and

the necessity for a free press with plenty of breathing room, Mr. Ritter’s Complaint must be

dismissed with prejudice. Karp, 359 So.2d at 581 (pretrial disposition of defamation is

particularly appropriate because of the “chilling effect” libel suits have upon the exercise of First

Amendment freedoms).


25/72

25

Conclusion

Mr. Ritter plainly is unhappy with the manner in which our community’s free press has

chosen to report on his conduct, and the results he obtained, at the helm of a prominent local

charity. Few subject to media scrutiny enjoy it or agree with all that journalists report. That is

precisely why a free press, free from harassment by meritless lawsuits, is a fundamental

cornerstone of our democracy and legal system: The constitutional guarantee of a free press

would be meaningless if anyone subjected to fair and legitimate criticism was permitted to tie up

journalists in court with the burdens of endless litigation. To overcome the many hurdles

required to plead a plausible defamation claim takes much more than Plaintiffs offer here. Mr.

Ritter’s claims in essence come down to displeasure with the publication of undisputed facts, and

disagreement with the opinions drawn from a fair, reasonable and diligent assessment of public

records and extensive sources. Such disagreement or displeasure with another’s opinion, based

on meticulously detailed facts and records, is insufficient to support a claim for defamation. The

First Amendment does not guarantee positive press, or grant the subject of a publication any

editorial control. Even accepting Plaintiffs’ allegations as true, none of them – individually or

collectively – overcome the high bar set by the First Amendment and Florida defamation law.

The Complaint fails to plead plausible claims of defamation and must be dismissed.

WHEREFORE, for all of the foregoing reasons, Defendants respectfully request that the

Court dismiss Plaintiffs’ Complaint, with prejudice, or alternatively grant Defendants summary

judgment on all claims.


26/72

26

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 23rd day of May, 2016, I electronically filed theforegoing with the Clerk of the Court by using the State of Florida e-portal system which willserve an electronic copy to: Joshua E. Burnett, Esq.

s/Gregory W. HerbertGregory W. HerbertGREENBERG TRAURIG, P.A.Florida Bar Number: [email protected] Colin S. BakerFlorida Bar Number: 66352 [email protected] 450 South Orange Avenue, Suite 650Orlando, Florida 32801

(407) 420-1000Attachments:

Exhibit A: Weintraub OrderExhibit B: Angelastro OrderDefendants’ “Appendix A” (Summary of Key Privileges/Defenses to 126 Statements)

ALB 1930360v11

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


27/72

E hibit "A"


28/72


29/72


30/72


31/72


32/72


33/72


34/72


35/72


36/72


37/72


38/72

Defamatory Statements Made in Article 1:

“Nonprofit CEO’s Salary Climbs While its Finances Remain Shaky”

(Published on the Sarasota Herald-Tribune Website on Sunday, June 7, 2015)http://watchdogsarasota.heraldtribune.com/2015/06/07/nonprofit-ceos-salary-climbs-while-its-finances-remain-shaky/ “Building Hope Losing Money”

(Published in Print in the Sarasota Herald-Tribune on Sunday, June 7, 2015)

DEFENDANTS’ APPENIDIX A PAGE 1 OF 35

Statement Key Privileges/Defenses1.1 Nonprofit CEO’s salary climbs while its finances

remain shaky.Opinion; Substantially True;Fair Report (IRS Form 990s);Fair Comment; Neutral Report.

1.2 On paper, a Lakewood Ranch charity appears to be indire straits. Its most recent tax form came out threeweeks ago, showing a deficit of more than $785,000.

Opinion; Substantially True;Fair Report (IRS Form 990s); Not Defamatory; Fair Comment; Neutral Report; Not Of &Concerning Plaintiffs

1.3 While the Center for Building Hope struggles to makeends meet, CEO Carl Ritter has seen his salary almost

triple to more than $335,000 — including a recent bump of about $128,000.

Opinion; Substantially True;Fair Report (IRS Form 990s);

Not Defamatory; Fair Comment; Neutral Report.

1.4 The Center’s board members insist the raises areappropriate. They say they are working toward a bright future. But the last few years tell a differentstory.

Opinion; Substantially True; NotDefamatory; Fair Report (Form990s); Fair Comment; CommonInterest; Neutral Report.

1.5 When the former CEO left in 2010, the nonprofitchose an unusual replacement. Ritter, who had neverworked for a nonprofit, once went bankrupt andoversaw a used car company that funneled hundredsof thousands into his pocket even as the business was

collapsing.

Opinion; Substantially True;Fair Report (CanadianBankruptcy Records, CarbizSEC filings); JudicialProceeding (Canadian

Bankruptcy); Fair Comment; Neutral Report.

1.6 Ritter and the board continue to take financial risks:They decided to stop relying as much on donors, bought another nonprofit that was named one of theworst in Oregon and tried to make money by sellingdonated wedding dresses.

Opinion; Substantially True;Fair Report (IRS Form 990s;Oregon DOJ records); FairComment; Neutral Report.

1.7 The Herald-Tribune spoke with seven experts innonprofit governance, retail and accounting, all ofwhom questioned whether the Center is headed in theright direction. ‘I’m literally in tears I am so upset

about what’s happened to that organization,’ saidCharlie Ann Syprett, a donor and former boardmember. ‘If I were sitting on the board and found outthis was going on, I’d do a thorough scrubbing. Iwould have immediately fired him.’

Opinion; Substantially True;Fair Comment; CommonInterest; Neutral Report.

1.8 Missing moneyIn March, the Center’s own employees bore the bruntof its financial troubles. At least 11 workers

Opinion; Substantially True;Fair Comment; Fair Report(IRA regulations); Neutral

http://watchdogsarasota.heraldtribune.com/2015/06/07/nonprofit-ceos-salary-climbs-while-its-finances-remain-shaky/http://watchdogsarasota.heraldtribune.com/2015/06/07/nonprofit-ceos-salary-climbs-while-its-finances-remain-shaky/http://watchdogsarasota.heraldtribune.com/2015/06/07/nonprofit-ceos-salary-climbs-while-its-finances-remain-shaky/http://watchdogsarasota.heraldtribune.com/2015/06/07/nonprofit-ceos-salary-climbs-while-its-finances-remain-shaky/http://watchdogsarasota.heraldtribune.com/2015/06/07/nonprofit-ceos-salary-climbs-while-its-finances-remain-shaky/


39/72






Statement Key Privileges/Defensesdiscovered that a collective $22,000 was missing fromtheir retirement accounts. At least one employee’saccount had a balance of zero. Neither the money setaside by employees nor the amount matched by theCenter had been deposited for more than six months.....The departure of Jenny Alday, former vice presidentof business development, brought the issue to Ritter’sattention in January. Alday resigned to pursue another job and found her account empty.

....But the Center followed the rules in the past. It abided by IRA regulations for two full years after theaccounts were opened. Raymond James gives all new plan owners paperwork explaining contribution rules,account adviser John Freeman said. The Centeropened accounts with Freeman in November 2012,two years after Ritter started as CEO. Everything wasfine until about June 2014, Freeman said. That wasthe last time the organization contributed to theaccounts before depositing the missing money last

month, he said. ‘It just appears that somethinghappened last year,’ Freeman said. They knew what aSimple IRA was. They had one before.’ Freemanfirst noticed the Center wasn’t regularly contributingto its employees’ IRA accounts last August. He saidhe called and emailed Ritter at least six times over thenext nine months to remind him his contributions weredue. ‘Quite frankly, I didn’t know why they werewithholding it,’ Freeman said. ‘I can’t pry into their business.... It’s the employer’s responsibility to sendus a check.’

Report; Common Interest; NotDefamatory; Not Of &Concerning Plaintiffs; SelectiveQuotation; Fair Comment.

1.9 ‘Power at the organization is too centralized,’ Pritchettsaid. ‘We’re not going to turn our heads.’ Pritchettsaid. ‘We’re going to jump in to it and make sure nolaws have been broken and people are on top of thisthing. If organizational changes need to occur they’regoing to occur.’

Opinion; Substantially True; Neutral Report; CommonInterest; Not Defamatory; NotOf & Concerning Plaintiffs; FairComment.

1.10 The Center had not finished paying off the $43,000 itowes to the Ritz-Carlton Sarasota, where it hosted a

Substantially True; Fair Report; Neutral Report; Not



40/72






Statement Key Privileges/Defensesgala last November. Defamatory.

1.11 Left in the lurch...loss of donor support buried it indebt.... The organization lost another $500,000 thatyear when major donor and Sarasota socialite DianaCloud lost almost $7 million in a local Ponzi scheme.Other donors had to either significantly cut back oreliminate their pledges.... The board plunged into theconstruction of the Center’s new building at a timethey were losing donor support, failed to anticipateincreased operational expenses and spent as though

they were flush with cash.

Selective Quotation; Opinion;Substantially True; NeutralReport; Fair Comment; Not Of& Concerning Plaintiffs.

1.12 The budget projected an approximate $144,000 deficitfor the next fiscal year.

Substantially True; NotDefamatory; Neutral Report; Not Of & Concerning Plaintiffs.

1.13 The Center managed to pay off $2.5 million of thecharity’s debt by the time Lockaby left to take another job, but the nonprofit still owed Harris Bank $3million.

Substantially True; NotDefamatory; Fair Report (Form990s); Not Of & ConcerningPlaintiffs; Neutral Report.

1.14 ‘When we work with a nonprofit, our recommendationis that they never borrow money, especially for a building, because it’s hard to pay back,’ said David

Condon, a nonprofit consultant based out ofConnecticut. ‘Then money is going to debt serviceinstead of the organization’s mission.’

Not Of & Concerning Plaintiffs;Opinion; Substantially True; Neutral Report; Not

Defamatory.

1.15 An unusual candidateBoard members hired Ritter in September 2010,convinced they had found someone with the financialskills to save the Center—even though Ritter hadtrouble paying past debts and the last company he ranfailed as he profited.

Opinion; Substantially True;Fair Report (Canadian bankruptcy records, Carbiz SECfilings); Judicial Proceedings(Canadian bankruptcy proceedings); Neutral Report;Fair Comment.

1.16 Ritter first filed for bankruptcy protection in his native

Canada in 1985. He was 25 and $31,000 in debt. Hewas back in Canadian bankruptcy court in 2002, thistime as part of a “commercial proposal” to pay off a$500,000 debt.

Substantially True; Fair Report

(Canadian bankruptcy records);Judicial Proceeding (same); Neutral Report, Fair Comment.

1.17 He settled in Southwest Florida in 2003, then thesteward of a group of ‘buy-here, pay-here’ used carlots. These types of dealerships typically deal with people who have bad credit and cannot get traditional

Substantially True; NotDefamatory; Fair Report (CarbizSEC filings); Fair Comment; Neutral Report.



41/72






Statement Key Privileges/Defensesloans. Ritter’s company, Carbiz, changed interestrates weekly and quickly repossessed vehicles when people could not repay their loans. ‘Collecting is partof the business,’ Ritter said.

1.18 Substantially True; NotDefamatory; Fair Comment;Fair Report (Carbiz SECfilings); Opinion; NeutralReport; Fair Comment.

1.19 Ritter spent 17 years at the helm of Carbiz, whichwent public in the U.S. in 2006. During the threeyears that Carbiz traded as a penny stock on the over-the-counter market—a volatile exchange often subjectto fraudulent schemes—it did not once turn an annual profit.

Substantially True; NotDefamatory; Fair Comment;Fair Report (Carbiz SECfilings); Neutral Report.

1.20 ‘The fact that it came out and never made any money

and the fact that it traded for pennies says there wassomething wrong from the very beginning,’ said IrvDeGraw, a banking professor at St. PetersburgCollege who has spent more than 30 years analyzingand trading stocks. ‘Nobody wants to buy pennystock because it’s worthless.’

Opinion; Not Defamatory;

Substantially True; FairComment; Fair Report (CarbizSEC filings); Neutral Report.

1.21 While the company bled, Ritter’s salary rose. From Opinion; Substantially True; Not



42/72






Statement Key Privileges/Defenses2004 to January 2009, Carbiz lost almost $42 million,and Ritter’s salary more than tripled. In 2009, Carbiz paid Ritter $802,000 — including a bonus of half amillion dollars. The next year, it closed for good.

Defamatory; Fair Report (CarbizSEC filings); Fair Comment.

1.22 Unemployed after the Carbiz failure, Ritter wascasting about for a job.

Opinion; Substantially True; NotDefamatory; Fair Report (CarbizSEC filing).

1.23 He turned to a headhunter for help — the sameheadhunter the Center would use to find its new CEO.Some experts say it is common for headhunters to

provide their clients as candidates. But such anarrangement can be a conflict of interest, said BruceDingman, president of The Dingman Co., an executivesearch firm in California. ‘It’s really not a level playing field for the employer who has hired them togo out and find the best possible candidate,’ Dingmansaid. ‘They’re going to make more money if they also place the candidate who is paying them.’

Opinion; Substantially True; NotDefamatory; Not Of &Concerning Plaintiffs; Fair

Comment; Neutral Report.

1.24 ‘Carl had background history … that fit to what thisorganization was looking for,’ Jim Bos said. But it isunclear how deeply they checked that ‘background

history.’ For one thing, at least four of Ritter’s fivereferences were linked to Carbiz, and at least two hadfinancial backgrounds similar to Ritter’s. InvestorMel Gilbert failed to pay off a $175,000 mortgage in1982 and owed the federal government about $23,000in tax liens in 1991. Former Carbiz Chief OperatingOfficer Paul Whitley filed for bankruptcy in 1999 andowed more than $1.1 million in state and federal taxliens between 1994 and 2006. Whitley would notcomment on his liens. Gilbert said he didn’t recall hisdebts. These men attested that Ritter had the ‘highest

character,’ was a ‘smart businessman’ and a ‘greatteam builder,’ Shaver said. The board looked nofurther into Ritter’s background. He was hired inSeptember 2010.

Opinion; Substantially True; NotDefamatory; Fair Report(Whitley bankruptcy filings, lien

filings); Neutral Report; JudicialProceedings (Whitley bankruptcy filings); NeutralReport; Not Of & ConcerningPlaintiffs.

1.25 Risky business....It faced tremendous debt and needed to raise money toavoid foreclosure. Morale was at an all-time low, said

Opinion; Selective Quotation;Substantially True; NotDefamatory; Fair Report (Form990s); Neutral Report; Common



43/72






Statement Key Privileges/Defensestwo long-term program facilitators. Interest; Not Of & Concerning

Plaintiffs.

1.26 Ritter’s plan for the Center was different than what thenonprofit was used to—he replaced almost 70 percentof the money that came from donors with a retailventure that even Ritter acknowledged was risky. TheCenter acquired a failing Oregon nonprofit that soldused wedding dresses.Called ‘Making Memories Breast Cancer Foundationof America,’ the nonprofit made the Oregon

Department of Justice’s “20 Worst Charities” list in2011. At the time, it spent less than 12 percent of itsdonations on cancer victims.

Substantially true; NotDefamatory; Fair Report (Form990s, Oregon DOJ records); Neutral Report; Fair Comment.

1.27 Brides Against Breast Cancer made a net profit ofabout $681,000 during fiscal year 2013 and has beenself-sustaining since its conception, according tounaudited cash flow reports provided by Ritter.Ritter could not show the Herald-Tribune auditedfinancial statements from this past year, but he saidthe organization is on the right track. ‘Brides AgainstBreast Cancer is the savior,’ Ritter said. But even

Ritter acknowledged that depending on steady incomefrom wedding dress sales is dicey.

Substantially True; Opinion; NotDefamatory; Fair Comment; Neutral Report.

1.28 Each year, Brides Against Breast Cancer puts onabout 150 bridal shows around the country. Thegroup ships donated dresses out on its own trucks and pays for its show managers to fly to the shows.‘I think that is a hugely costly way to do business andvery complicated and logistically impossible,’ saidStan Rutstein, a former retail executive. ‘I don’t thinkit will work.’....

Still, Brides Against Breast Cancer’s overhead costsraise questions about the long-term viability of thesubsidiary, Rutstein said. ‘Do I think that’s thesavior?’ Rutstein asked. ‘I question that.’

Opinion; Substantially True; NotDefamatory; Fair Comment; Neutral Report.

1.29 Ritter gets

Ritter v. Sarasota Herald-Tribune Motion to Dismiss

Documents

Transcript of Ritter v. Sarasota Herald-Tribune Motion to Dismiss