Peter HOFFMAN, et al. v. David BAILEY, 257 F. Supp. 3d 801

SECTION: “G”

(5) ORDER NANNETTE JOLIVETTE BROWN, UNITED STATES DISTRICT JUDGE In this litigation, Plaintiffs Peter and Susan Hoffman (collectively “the Hoff-mans”) allege that Defendant David Bailey (“Bailey”) sent an email to the Louisiana State Historic Preservation Office in which Bailey allegedly made defamatory statements against the Hoffmans by, according to the Hoffmans, accusing them of fraudulently participating in a Louisiana tax incentive program. Pending before the Court is Plaintiff Peter Hoffman’s “Motion for Partial

Summary Judgment (FRCP 56).” Having considered the motion, the memoranda in support and in opposition, the record, and the applicable law, the Court hereby grants in part and denies in part the motion. I. Background A. Factual Background In their complaint, the Hoffmans state that Susan Hoffman is owner of Seven Arts Pictures Louisiana, LLC (“SAPLA”), which owns real property located at 807 Esplanade Avenue in New Orleans,. Louisiana (“the Property”).

The Hoffmans aver that SAPLA engaged in substantial rehabilitation of the Property in order to restore its historic character and to convert the Property so that it could be used as a motion picture post-production facility. The Hoffmans contend that SAPLA obtained a letter from the Louisiana Department of Economic Development certifying that the Property was eligible for Louisiana film infrastructure tax credits and received certification from the United States Department of the Interior that the Property qualified for United States historical rehabilitation tax credits.

The Hoffmans also allege that SAPLA has requested, but has not yet received, certification from the Louisiana State Historic Preservation Office (“SHPO”) that the Property qualifies for Louisiana historic rehabilitation tax credits. According to the Hoffmans, Peter Hoffman was the Chief Executive Officer of Seven Arts Pictures Pic (“SAP Pic”), an English public limited company, until November 9, 2011. Bailey worked as the company’s Finance Director from August 2009 until he left in December 2009.

Subsequently, on November 29, 2012, Bailey allegedly sent an e-mail to SHPO stating: Dear Jessica I was interested to read that Peter and Susan Hoffman have applied for rehabilitation tax credits on 807 Esplanade, and have included them as revenue in accounts filed with the SEC. This appears to contradict other evidence which strongly indicates that Peter Hoffman and Susan Hoffman are the architects not of a building, but of a major economic fraud. http://stock-bb.c6m/seven-arts-pictures-plc-pink-sapx/ has several discussions on this matter.

Who should I write to with the evidence I personally have that indicates that all the applications made by the Hoffmans are fraudulent, that the amounts claimed were probably not spent, and that some or all of the funds used to renovate the property were improperly diverted from SAP Pic by way of a transfer to a related party within 2 years of a SAP Pic becoming insolvent?

David J Bailey The Hoffmans claim that Bailey’s statements in the November 2012 e-mail were “untrue and [were] made maliciously without any basis in fact and with an intent to damage plaintiffs’ reputations, successes, and good will,” and were intended “to embarrass plaintiffs and to damage plaintiffs’ business relationships.” The ■ Hoffmans contend that Bailey had never seen the relevant reports summarizing the rehabilitation expenditures and had no responsibility for those expenses during his time as SAP Pic’s Finance Director.

The Hoff-mans argue that Bailey’s conduct constitutes defamation and defamation per se. In response, Bailey contends that the Hoffmans’ lawsuit is without merit and “part of their scheme of harassment, threats, intimidation, and retaliation” against Bailey for providing assistance to the government in its investigation of the Hoffmans. According to Bailey, while he was employed as Finance Director of SAP Pic in 2009, he had access to accounting records and other financial documents related to the Hoffmans’ “plans and schemes” to receive tax credits on the 807 Esplanade Property.

Bailey asserts that he became aware of inconsistencies and misstatements in SAP Pic’s records and of efforts by the Hoffmans to “apply for and obtain and then resell for cash millions of dollars of tax credits with respect to the 807 Esplanade Property.” Bailey further alleges that a series of articles published in 2012 informed him that the Hoffmans were seeking millions of dollars in tax credits with respect to the 807 Esplanade Property to help finance “$13.5 million” in redevelopment costs, which Bailey asserts he knew was a false and inflated number.

Thus, Bailey alleges that he sent his November 24, 2012 email that is the subject of this defamation-action to Louisiana governmental employee Jessica Richardson. B. Procedural Background The Hoffmans filed a complaint in this matter on July 23, 2013. On July 24, 2013, the matter was assigned to

Section “A” of the Eastern District of Louisiana. On August 26, 2013, Bailey filed a motion to dismiss for lack of personal jurisdiction, for improper service of process, and for improper venue, and in the alternative, a special motion to strike pursuant to Louisiana Code of Civil Procedure

article 971. On January 14, 2014, Judge Zainey stayed discovery proceedings in this matter pursuant to Louisiana Code of Civil Procedure

article 971(

D) until the Court issued a ruling on the motion to strike. On January 27, 2014, Judge Zainey denied both the motion to dismiss and- the special motion to strike. On February 6, 2014, Judge Zajney held a status conference at which Bailey expressed his intention to seek certification for an interlocutory appeal of Judge Zai-ne^s order denying Bailey’s special motion to strike. On that same day, Judge Zai-ney administratively stayed this matter “pending resolution of that appeal.” However, no appeal was filed at that time.

Rather, on February 21, 2014, Bailey filed a motion for reconsideration of Judge Zainey’s January 27, 2014 prder on the new grounds that Peter Hoffman was indicted in the Eastern District of Louisiana on February 6, 2014, on six counts of conspiracy and wire fraud relating to his submission of false applications for more than $1.1 million of tax credits with respect to the property at issue in this case. On February 25, 2014, Bailey also filed a motion to lift the administrative stay so his motion for reconsideration could be considered.

On February 25, 2014, Judge Zainey recused himself “[ijn light of the indictment recently filed against one of the plaintiffs,” and the case was randomly realloted to this Court,

Section “G.” On December 23, 2015, this Court lifted the stay imposed by Judge Zainey, as Bailey was not pursuing an interlocutory appeal of Judge Zainey’s Order denying Bailey’s special motion to strike. The same day, the Court denied Bailey’s motion for- reconsideration, as Bailey had not previously raised the Rulel2(b)(6) arguments that he made in his motion for reconsideration and had not moved for reconsideration of the denial of his special motion to strike. The Court further noted that “if Bailey wishes to file a motion to dismiss or a motion for

summary judgment, the Court will consider such a motion at that time.” On December 80, 2015, Bailey filed a new motion to dismiss pursuant to Rule 12(b)(6), in which he requested that the Court take judicial notice of several filings in the criminal actions against the Hoff-mans and argued that the Hoffmans failed to state a claim upon which relief could be granted in light of those criminal convictions. On February 3, 2016, the Court denied the motion.

The Court determined that, on a motion to dismiss, it could only take judicial notice of the fact that the 'Hoffmans were convicted of mail fraud, wire fraud, and conspiracy to commit mail or wire fraud generally, but not of the facts underlying the convictions that Bailey pointed to in support of his motion to dismiss. The Court further concluded that the Hoffmans had sufficiently alleged that Bailey’s email constitutes defamation per se, and thus the Court denied Bailey’s motion to dismiss under Rule 12(b)(6).

On February 10, 2016, Bailey filed a notice of appeal to the Fifth Circuit on the grounds that he was entitled to immunity from the defamation claims, which the Fifth Circuit dismissed for lack of jurisdiction. Since this action was filed, the Hoffmans have been convicted on multiple counts of wire fraud, mail fraud, and conspiracy in connection with tax credit applications regarding the 807 Esplanade Property.

On September 14, 2016, Bailey filed counterclaims against the Hoffmans to recover damages caused by the Hoffmans’ allegedly “threatening, harassing, intimidating, and retaliatory litigation” against Bailey under 18 U.S.C. § Í514A and Louisiana state law for malicious prosecution. On April 26, 2017, the Court granted the Hoff-mans’ motion to dismiss pursuant to Rule 12(b)(6) and dismissed Bailey’s counterclaims for failure to state a claim upon which relief could be granted. The Court determined that:

(1) Bailey had failed to allege that he complied with the statutory prerequisites necessary to file an action under 18 U.S.C. § 1514A, and thus dismissed his claim under

Section 1514A; and

(2) Bailey failed to allege that there had been a “bona fide termination” of this proceeding in his favor as required to assert a malicious prosecution claim under Louisiana state law. The Court dismissed Bailey’s premature malicious prosecution claim without prejudice. On April 26, 2017, the Court denied the Hoffmans’ motion for sanctions against Bailey’s counsel for filing Bailey’s counterclaims. On March 2, 2017, Peter Hoffman (“Hoffman”) filed the instant motion for partial

summary judgment. On March 15, 2017, the Court granted Bailey’s expedited motion for an extension of time to file an opposition to Hoffman’s motion for

summary judgment and continued the submission date for Hoffman’s motion to April 19, 2017. On April 12, 2017, Bailey filed an opposition. On April 19, 2017, Hoffman filed a reply with leave of Court. On April 19, 2017, with leave of Court, Bailey filed an amended opposition memorandum. On April 26, 2017, Bailey filed a sur-reply with leave of Court. On April 28, 2017, with leave of Court, Hoffman also filed.a sur-reply. II. Parties’ Arguments A Peter Hoffman’s Arguments in Support of the Motion In his motion, Hoffman moves for entry of partial

summary judgment on seven issues pursuant to Federal Rule of Civil Procedure 56. In particular, Hoffman argues that there are no disputed issues of material fact with regard to the following:

(1) Bailey’s email constitutes defamation per se;

(2) Bailey’s email was published on November 24, 2012, to Jessica Richardson, an employee of SHPO;

(3) Bailey made the defamation without any reasonable grounds for believing the statement was true;

(4) Bailey is not entitled to any conditional privilege; (5) the statements in Bailey’s email are false; (6) because Bailey’s email constitutes defamation per se, the Hoffmans “suffered presumed injury to reputation and pain, humiliation and suffering, irrespective of proof of any pecuniary loss;” and (7) the Hoffmans are entitled to recover punitive or exemplary damages pursuant to Louisiana Civil Code

article 3546. Hoffman avers that this motion will resolve all issues in this action except for whether Bailey acted with malice or “reckless disregard” of the-truth or falsity of his statements. 1.

Defamation per se First, Hofftnan asserts that, in the February 13, 2016 Order denying Bailey’s motion to dismiss pursuant to Rule 12(b)(6), this Court “ruled that the Bailey Defamation is defamation per se under Louisiana law.” Hoffman further contends that Bailey’s email constitutes defamation per se because Bailey allegedly accused the Hoff-mans of committing fraud, which Hoffman asserts implicates criminal conduct and tends to injure the Hoffmans’ personal and professional reputations. 2. Publication Second, Hoffman avers that Bailey has admitted to publishing his email to SHPO on November 29, 2012.

Hoffman also points out that Bailey was “deemed to have admitted publication of the Bailey Defamation” by the Magistrate Judge when he failed to timely respond to the Hoffmans’ request for admissions regarding publication. 3. Fault Third, Hoffman argues that, as this Court noted in its Order denying Bailey’s motion to dismiss, fault, as well as falsity and damage, are presumed in cases of defamation per se under Louisiana law.

Thus, Hoffman contends that he must only establish a prima facie case of negligence, and that the ultimate burden is on Bailey to prove that he did not act negligently when making the allegedly defamatory statements. However, Hoffman further asserts that the Louisiana Supreme Court case that set a minimum standard of fault of negligence for defamation cases was decided on First and Fourteenth Amendment grounds.

Because Judge Zainey held that Bailey has no First Amendment rights, Hoffman avers, the Louisiana Supreme Court’s holding in Kennedy does not apply, and thus “Hoffman in this case need not prove even negligence.” Nonetheless, Hoffman contends, negligence is presumed in defamation per se cases. Additionally, Hoffman argues that the undisputed facts show that Bailey acted with “reckless disregard” for the truth or falsity of his statements, and thus was at least negligent. Hoffman asserts that he “testified to Bailey’s personal animus toward him” in his affidavit “arising out of Mr.

Hoffman’s criticism of Bailey’s incompetence as a public company financial director” and Bailey’s alleged false representations about his skills. Hoffman points out that Bailey’s Answer relies only on the alleged truth of his statements, and not on a “good faith mistake” defense. Moreover, Hoffman argues that “Bailey’s negligence, if not reckless disregard of the truth or falsity of the Bailey Defamation, is established by” a number of allegedly undisputed facts. For example, Hoffman points to:

(1) Bailey’s inclusion of Mrs. Hoffman in his statements, even though Hoffman contends that Bailey has never met Mrs. Hoffman or spoken with her;

(2) Bailey's deemed admissions that the Property was rehabilitated, that the “before” and “after” photos of the Property are authentic, that the expenses incurred by SAPLA are set forth in the Compilation Report, that the renovated Property met the standards for historic rehabilitation, and that SAPLA was entitled to Historic Credits for its qualified rehabilitation expenditures; (3) that no investigation or criminal charges have ever been brought against the Hoffmans regarding SAPLA’s claim of Historic Credits, which Hoffman contends was the subject of Bailey’s email, as opposed to the “very different claims for Infrastructure Credits, wholly irrelevant to Historic Credits,” upon which the Hoffmans’ criminal convictions were based; and

(4) Bailey, whose employment at SPA Pic ended in 2009, did not review or have access to any documents submitted for the certified Compilation Report in 2012. Additionally, Hoffman argues that Bailey had “no knowledge whatsoever of the items claimed as qualified historic rehabilitation expenses in the Compilation Report in 2012,” as he did not have responsibility for these expenses while employed at SPA Pic. Hoffman contends that Bailey also did not have knowledge of any evidence in the possession of the U.S. Attorney on the date of his allegedly defamatory statements. 4.

Conditional Privilege Fourth, Hoffman asserts that Bailey has no conditional privilege defense. Hoffman avers that he has requested in a separate motion that the Magistrate Judge strike Bailey’s Answer, and thus Bailey has not affirmatively pleaded conditional privilege. Hoffman argues that, even if the Court were to consider Bailey’s Answer, his affirmative pleading of a conditional privilege is insufficient, as it merely claims “the benefit of the doctrine of privilege/ conditional privilege” generally without specifying which type of privilege Bailey affirmatively asserts.

U Common interest privilege Hoffman further contends that Bailey has no “common interest” or “duty to speak” conditional privilege, as he had no duty to report any alleged fraud that occurred after Bailey left his employment at SPA Pic and his employment agreement prohibited disclosing confidential information learned during his employment Additionally, Hoffman alleges that Bailey had no interest in the Historic Credits, as they were filed by different legal entities that Bailey did not work for.

According to Hoffman, Bailey cannot claim the common interest privilege because he is a “vitriolic, disgruntled ‘volunteer’ who seeks to harm the Hoffmans for his own reasons unrelated to his former duties to [SAP Pic.]” ii.

Public interest privilege Moreover, Hoffman avers that Bailey is not entitled to the “public interest” conditional privilege as defined by the Restatement (Second) of Torts, as it applies only to communications “to law enforcement officers of expected criminal authorities” in support of “prevention of crimes and apprehension of criminals.” However, according to Hoffman, Bailey was fully aware that the Hoffmans were under investigation at the time he made the allegedly defamatory statements, and thus there was no interest present in preventing a crime or preventing a criminal from “escaping detention.” Hoffman further contends that Bailey sent his email to SHPO, which is not a law enforcement agency and does not enforce Louisiana’s tax laws.

According to Hoffman, the public interest privilege is also limited to victims or witnesses of a suspected crime, and’ not “disgruntled” volunteers who “have, no percipient knowledge of the alleged‘crime.’” 5. Falsity Fifth, Hoffman argues that falsity is presumed in defamation per se cases, and thus the burden shifts to Bailey to rebut it. Hoffman also avers that “issuance of the Certificátions” and the Compilation Report further shows the falsity of Bailey’s 'various statements.

For example, Hoffman points out that Bailey did not provide any evidence or documents to support his allegedly defamatory statement that he had “evidence that indicates that all the applications made by the Hoffmans are fraudulent.” According to Hoffman, Bailey also could not know whether his statement that the “amounts claimed [in the tax credit application] were probably not spent” was true, as he never saw any of the proofs of payments or other records delivered to auditors. Indeed, Hoffman states that all the amounts claimed in the Compilation Report were paid.

Hoffman also argues that Bailey’s statement that “some or all of the funds used to renovate the property were improperly diverted from [SPA Pic] by way of transfer to a related party” is false, as no money “used to renovate the property” were due to SPA Pic. 6. Presumed Damages Sixth, Hoffman contends that injury to reputation and humiliation and suffering is presumed in cases of defamation per se.

Hoffman argues that Judge Zainey has determined that Bailey has no First Amendment rights, and even if the First Amendment were applicable, it does not limit presumed damages awards in defamation cases against non-media defendants such as Bailey.

Moreover, Hoffman alleges that his testimony establishes that Bailey’s statements were a “painful humiliation with state officials” and “dramatically affected [Hoffman’s] business in.Los Ange-les and with his principal lender.” Hoffman asserts that he “is widely known in the motion picture business,” and avers that his testimony establishes presumed damages to Hoffman’s reputation of $250,000. 7. Punitive Damages According to Hoffman, Louisiana Civil Code

article 3546 provides that punitive damages cannot be awarded in Louisiana unless authorized by “the law of the state where the resulting injury occurred” or “the law of the state where the person whose conduct caused the injury is domiciled.” Hoffman avers that he is a resident of California, and that punitive damages for defamation áre permitted by the laws of California if the defamation was made with malice.

Moreover, Hoffman argues that Bailéy is a resident of England, and that “the law of England and Wales” provides the Court with discretion to award punitive damages if the “decision to publish was made knowing it to be wrong or reckless as to whether it was wrong.” B. Bailey’s Arguments in Opposition to the Motion Bailey opposes Hoffman’s motion for partial

summary judgment. The Court notes that, in his opposition memorandum, Bailey does not specifically address Hoffman’s arguments on any of the seven issues raised by Hoffman.

Rather, Bailey provides the Court with a series of factual allegations and exhibits drawn largely from Bailey’s Declaration attached to the opposition which Bailey contends demonstrates that all of the material facts of this case are in dispute, According to Bailey, Peter Hoffman, Susan Hoffman, and their business partner, Michael Arata (“Arata”), purchased the 807 Esplanade Property to renovate it and convert it into a post-production film facility.

Bailey avers that Louisiana’s film infrastructure .tax credits allows individuals or businesses to receive an amount equal to 40% of their qualified and audited film infrastructure expenditures, and that, upon certification, the applicant can sell the Certification to local' businesses and individuals to use as state tax credits. Bailey contends that on February 26, 2009, the Hoffmans and Arata applied for the Louisiana film infrastructure tax credits “for money they cláimed had been spent” on the 807 Esplanade Property/and on June 19, 2009, they received approximately $1.1 million in tax credits.

Bailey asserts that Arata then purchased the tax credits at a discount and sold them to local businesses and individuals for a profit. Bailey alleges that on May 15, 2014, the Hoffmans were indicted by a grand jury for, among other actions, submitting false and misleading tax credit applications and submitting false and misleading internal .accounting records and invoices to auditors to make it appear that certain expenditures were made.

Bailey avers that the Hoffmans were convicted of the conspiracy to commit mail or wire fraud charge, and Peter Hoffinan was convicted of sixteen counts total in relation to their rehabilitation of the Property. Bailey alleges that, in addition to the infrastructure tax credits, the Hoffmans also applied for State and Federal Historic Preservation tax credits with the Louisiana Division of Historic Preservation. According to Bailey, Susan Hoffman, on behalf of SAPLA, applied for the federal tax credits on January 11, 2008, May 9, 2008, and June 29, 2012.

Bailey asserts that the federal tax credits were certified and that the owner of the building at the time, Steven Markoff, received more than $2.4 million in federal tax credits, ie. 26% of the final rehabilitation cost of $9,298,234. However, Bailey argues that it “doesn’t add up” that the estimate of rehabilitation costs went from $2,000,000 on May 9, 2008, to the final alleged cost of over $9 million. Bailey avers that Susan Hoffman testified that she only spent $3.5 million. Bailey points out that Susan Hoffman, on behalf of SAPLA, did not apply for the state historic tax credits until July 9, 2012.

In that application, Bailey asserts, Susan Hoffman again estimated the cost of rehabilitation at $2 million; however, according to Bailey, that was nine days after Susan Hoffman represented in her federal historic tax credit application that the rehabilitation was completed and that the total cost was over $9.2 million. Bailey alleges that the Louisiana Department of Revenue has refused to grant these applications for state historic tax credits. Next, Bailey states that on July 28, 2009, he was selected to be Chief Financial Officer of SAP Pic.

Bailey represents that he was a chartered accountant and had previously trained with Deloitte for seven years, where he was an auditor and a Forensic Accountant specializing in the investigation and prosecution of fraud and money laundering.

Bailey argues that he had “substantial evidence upon which to allege that the entirety of the seven arts structure was tainted by fraud, and had the professional skills, ability, and professional advice from attorneys and law enforcement to be certain of this.” According to Bailey, he knew, or had reasonable grounds to believe, that: (1) funds were diverted from SAP Pic in the United Kingdom to SAPLA in Louisiana without proper authorization or recording;

(2) Peter Hoffman and his daughter, Kate Hoffman, who served as the COO of SAP Pic, had been engaged in the systematic falsification of corporate documents, financial transactions, signatures, and cash movements since 2008;

(3) Peter Hoffman and Kate Hoffman were engaged in the fraudulent “circular transfer” of funds to inflate or misstate the amount spent on the 807 Esplanade Property; and

(4) Bailey knew those funds which had been spent on the 807 Esplanade Property were tainted by fraud. Bailey states that he continued to track, through public sources, the expenditures on the Property from December 2009 until December 2012. Bailey avers that, prior to sending the email, he had received substantial professional advice from attorneys and law enforcement regarding reporting the Hoff-mans’ activity and did not act negligently in making his allegations. According to Bailey, while he was employed at SAP Pic, he was involved in “detailed work to secure tax credits” on the Property.

Bailey contends that he prepared “financial support and analyses for notes for potential lenders and tax credit brokers,” and that he raised “significant issues” related to SAP Pic’s claim for tax credits to Peter Hoffman and Kate Hoffman directly.

Bailey argues that the “tax credits allegedly due from 807 Esplanade were material to the accounts of SAP Pic and the receipt of cash on the dates due was critical to the solvency of SAP Pic.” Bailey avers that in November 2009, Peter Hoffman visited the United Kingdom to try to resolve some of the accounting issues raised by Bailey and the auditors, and during that visit, members of the accounting team advised Bailey that approximately $857,000 was transferred to SAP Pic from a United States bank used by SAP Inc. Bailey argues that this money was being “circled around” between SAPLA and the Los Angeles office.

According to Bailey, this was done to “create false expenditure records, or to inflate expenditure on which tax credits could be claimed as a matter of routine, not just in respect” to the 807 Esplanade Property.

Bailey points out that in November 2009, he made a report to the Board of SAP Pic and Kate Hoffman in which he informed them that there “appear[s] to be substantial uncertainties over the tax credits and production costs” of a particular production and that there “also appears to have been the circling of $2,511,993 to create production costs ... that were then used to claim tax credits.” Bailey asserts that on November 6, 2009, he reported to the audit committee by email that “he had serious concerns about the accounting records, amounting to a very high risk of regulatory breach or fraud.” According to Bailey, he left SAP Pic on December 10, 2009, because he was owed unpaid wages and because the company lacked cash and risked insolvency, and because of the “clear indications that serious frauds may already have occurred.” Bailey asserts that he then contacted the law firm Peters and Peters and worked'with a “senior partner” there to report the “extensive list of frauds, false accounting, corporate government failures and legal matters” that Bailey discovered while working at SAP Pic.

Bailey argues that he had a professional obligation and legal duty to report his suspicions to the proper authorities in the United Kingdom and United States. According to Bailey, [3AP Pic was made insolvent on November 9, 2011. Bailey contends that he worked with the authorities in the United Kingdom to investigate and gather information on the allegedly fraudulent activities of SAP Pic, and that in May 2011, the Serious Fraud Office in London referred the case to the SEC in New York.

Bailey argues that the reports he provided to the Serious Fraud Office officially established him as a “whistleblower” in the United Kingdom and granted him “full legal protection from harassment and prosecution by SAP Pic or any of its directors in the UK.” Bailey states that on August 2, 2012, he mailed a “bundle of documents, a statement, and findings in respect of 807 Esplanade to” Jim Letten at the U.S. Attorney’s Office for the Eastern District of Louisiana to “ask him to investigate SAPLA and the transactions that funded 807 Esplanade.” Bailey alleges that he did not receive a response.

Bailey asserts that there are “many items” that were part of the Hoffmans’ felony convictions “that also apply to the expenditures for the historic credits.” Finally, Bailey states that he sent the email to SHPO and reported this “to protect the public and the state of Louisiana,” and because he had a professional duty to report “what he determined to be illegal activity.” In his Declaration attached to his opposition, Bailey further avers that Peter Hoffman was quoted in an

article published on June 29, 2012, as saying that the 807 Esplanade Property “was bought for $1.7 million, but by the time other expenditures were added in, the project grew to $13.5 million.” Bailey contends that he was “immediately aware that- these numbers conflicted with claims made in 2009.” Bailey asserts that the public reports regarding the application for historic rehabilitation credits for the 807 Esplanade Property were “widely at odds with the financial facts, as Mr. Bailey knew them to be from first hand,” and that the numbers “could not possibly be true.” Bailey argues that “[g]iven that Mr.

Bailey was aware that SAPLA had no income of its own, other than that which had passed from SAP Pic and SAE Inc., and given that Mr. Bailey was fully aware of the total amount spent by December 2009, it was reasonable and Mr. Bailey was entitled to say ... that the monies had not been spent as claimed.” Bailey avers that in November 2012, he made various telephone calls to Louisiana and New Orleans departments to determine who to send his information to and was led to Jessica Richardson at SHPO.

Thus, according to Bailey; he emailed Jessica Richardson and Nichole Morris, “who ran the Historic Buildings team,” “with a question as to whom Mr. Bailey should report the allegations and evidence” he had regarding the Hoffmans’ allegedly fraudulent activity. C. Hoffman’s Arguments in Further Support of the Motion In his reply memorandum, Hoffman points out that Bailey’s opposition does not address any of the seven issues raised by Hoffman in his motion, make any legal arguments, or cite to any cases.

Thus, Hoffman “presumes all these issues are stipulated and conceded.” Hoffman argues that, to the extent that Bailey’s response opposes the motion, it appears that Bailey contends that his allegedly defamatory statements were true. However, Hoffman argues that Bailey has not produced any admissible evidence establishing that any or all of his factual contentions in his allegedly defamatory statement are true. According to Hoffman, Bailey’s response shows “why this action was necessary to hopefully bring an end to Bailey’s merciless jihad of defamation against Mr.

Hoffman, his family and his associates.” Hoffman asserts that Bailey makes several factual contentions regarding SA-PLA’s applications for the infrastructure tax credits, which was the subject of the Hoffmans’ convictions, but that Bailey’s allegedly defamatory statements addressed the historic tax credits for which no charges have ever been brought.

Hoffman also argues that Bailey produced no competent evidence that the Louisiana Department of Revenue “has refused to allow” the historic credits, and that the Louisiana Department of Revenue “has not and cannot de-certify the state Historic Credits claimed by SAPLA and certified by SHPO.” Hoffman avers that it is irrelevant that the original estimate of construction costs in 2008 was $2 million while the final rehabilitation costs were over $9 million.

Moreover, Hoffman alleges that the 2012 application related to the expenditures accrued up to June 30,2012, and was not solely limited to the expenditures up to December 2009 when Bailey left SPA Pic. Hoffman further asserts that Kate Hoffman “had no involvement whatsoever in any expenditures on the Property or any ‘circular transfer’ of funds” at all, and that Bailey presents no evidence of this. Hoffman contends that Bailey also does not present any competent evidence, from the time of his employment or the “public sources” he cites, that any of the historic tax credit applications were fraudulent.

According to Hoffman, the only overlapping expenditures between the infrastructure tax credits and the historic tax credits are the claims for interest and developer fees, which have nothing to do with the amounts allegedly spent prior to December 2009.

Additionally, Hoffman avers that the basis for the convictions on the infrastructure tax credits was that the interest and developer fees were not paid, but that, with regard to the historic tax credits, “payment is not required for purposes of claiming qualified historic rehabilitation expenditures.” “Therefore, there could be no fraud in seeking Historic Credits by submission of false ‘proof of payment’ because in fact no ‘proof of payment’ was required.” Furthermore, Hoffman provides a number of evidentiary objections to Bailey’s opposition and attachments.

Hoffman argues that Bailey attaches “unverified and unauthentieated Exhibits to his Statement of Contested Material Facts.” Hoffman also objects to Bailey’s Declaration “in its entirety as it is unexecuted and not sworn before a taker of oaths.” Hoffman avers that Bailey is not subject to Louisiana law regarding statements made under penalty of perjury, and thus his statements can be evidence only if sworn.

Accordingly, Hoffman lists over 150 paragraphs in Bailey’s Declaration to which Hoffman objects on foundation, relevancy, lack of personal knowledge, improper opinion, hearsay, authentication, and/or best evidence grounds. Finally, Hoffman argues that Bailey’s allegedly defamatory statements were in fact false, and Bailey has provided no evidence to suggest otherwise. Thus, Hoffman asserts that there is no triable issue of material fact that some or all of the assertions in Bailey’s allegedly defamatory statements are “anything but false.” D.

Bailey’s Arguments in Further Opposition to the Motion In his sur-reply, Bailey disputes that he conceded the issues raised by Hoffman in Hoffman’s motion for partial

summary judgment. Bailey contends that his response was disputing the facts that Hoffman alleges are uncontested. Bailey states that he has always argued that his email to SHPO was not defamation, “because it was true and because Bailey had a conditional privilege to make the statements in the email.” Bailey states that he “has admitted that he sent the email to the SHPO and he has admitted that the email says what it says,” but he has not admitted that it constitutes defamation.

Bailey argues that Hoffman’s assertion that conditional privilege does not apply here because SHPO has no investigative personnel is incorrect.

According to Bailey, Tom Boulton, an Inspector General of the State of Louisiana, “had been in contact with the SHPO and was investigating the historic tax credit application of the Plaintiffs prior to Bailey sending the email asking the SHPO where he should send his information regarding what he knew about fraudulent transactions regarding the tax credit applications for the rehabilitation of 807 Esplanade Avenue.” Bailey asserts that Kristin Sanders, an employee of SHPO, testified in her deposition that she knew of the ongoing inspection by the Inspector General and forwarded Bailey’s email to Boulton, who eventually replied to Bailey and made, further inquiries into the 807 Esplanade Property.

Thus, Bailey argues that because Bailey’s report of fraudulent activity sent to SHPO was correctly forwarded to the Inspector General for investigation, a conditional privilege exists for Bailey’s email communication to SHPO. Bailey avers that, as a qualified chartered accountant with experience in forensic accounting investigating fraud, he had a duty to report what he knew about the Hoffmans’ allegedly fraudulent activity.

Bailey alleges that he had “substantial evidence upon which to allege that the entirety of the seven arts structure was tainted by fraud, and had the professional skills, ability, and professional advice from attorneys and law enforcement to be certain of this.” Bailey represents that he received advice from a “senior partner of Peters and Peters,” who “planned for Bailey to report” what he knew to the criminal and tax authorities in the United Kingdom and the United States.

Bailey contends that he first reached out to United States Attorney Jim Letten in August 2012 to report the irregularities, but he did not receive a response. Subsequently, Bailey avers that he became aware of website and media reports regarding the funding of the rehabilitation of the 807 Esplanade Property in October 2012, and that these reports were “widely at odds with the financial facts” of which Bailey was aware.

Bailey asserts that he made various telephone calls to departments in the “NOLA civil and tax administration to try to find the correct person to send information to,” and this led him to sending his email to Jessica Richardson at SHPO in November 2012. According to Bailey, because he had a duty to report the fraudulent activity to the government agency to whom the Hoffmans were applying for tax credits, Bailey had a conditional privilege to make such a report. Whether Bailey abused such a privilege here, Bailey argues, is a question of fact for the factfinder.

Bailey further argues that he did not concede that the Hoffmans suffered injury to their reputation, as he asserts that any damage to their reputation was caused “by their own acts of being convicted of felony charges.” Bailey also points out that this email was not circulated in the public, and that the Hoffmans “cannot show that anyone knew of this email,” as it was only forwarded to the Inspector General who was already investigating the Hoffmans. Bailey argues that the Hoffmans cannot show that the single email sent to SHPO caused any additional damage.

Moreover, Bailey asserts that Louisiana has a general public policy against punitive damages, and that Peter Hoffman mispre-sents the Louisiana Code that allows for punitive damages in two specific situations. Bailey contends that article 3546(1) does not apply here because it considers the law of the state where the allegedly injurious conduct occurred, which is in Louisiana. Bailey further asserts that article 3546(2) also does not apply here because it considers the law of the state where the injury occurred, which Bailey argues was also in Louisiana.

Thus, Bailey avers that punitive damages are not permitted in this case. Furthermore, Bailey points out that neither of the Hoffmans requested punitive damages in their complaint, and the Hoffmans should be precluded from requesting punitive damages for the first time at this late stage of litigation. E.

Hoffman’s Arguments in Further Support of the Motion In his “Sur-Rebuttal Memorandum,” Hoffman asserts that it appears that Bailey has conceded “fault” as an issue for adjudication, as, according to Hoffman, Bailey “makes no good faith or ‘negligence’ plea in abatement of his offense.” Hoffman also, avers that Bailey is foreclosed from 'contesting the “fault” issue “by his deemed admissions to Mr.' Hoffman’s Request for Admissions.” Hoffman argues that Bailey’s admission of “fault” - also “eliminates the so-called ‘common interest’ privilege, the basis of Bailey’s., mis-de-scribed ‘duty, to speak,’ ” as any such privilege is abused if the defamer is found to be at fault.

Additionally, Hoffman contends that the “common interest” privilege is limited to “appropriate persons within the employer’s walls,” and thus Bailey cannot claim this privilege for defamation, .to SHPO three years after his employment terminated.

Moreover, Hoffman argues that the “public interest” privilege is not triggered by any “duty to speak,” as it is a victim or percipient witness’s right to respond' to ongoing criminal behavior, as opposed to a “disgruntled ‘volunteer’ long removed from and indeed never at the ‘scene, of the crime.’ ” Hoffman points out that Bailey failed to cite to any authority that every “whistleblower” removed from the crime is protected by the “public interest” privilege. Moreover,- Hoffman asserts that, even if Bailey had this right, it did not extend to defaming Hoffman to SHPO, which has no-law enforcement responsibilities.

Finally, -Hoffman avers that Section 3546(1) allows for- punitive damages here, as Bailey prepared and published his email from England and caused injury to Hoffman in California. Hoffman .argues that the “purpose of Section 3546(1) is to not protect a tortfeasor who resides in a jurisdiction that permits punitive damages awards and who injures a,party residing in a jurisdiction that protects him or her with awards of punitive damages.” III. Law and Analysis A. Legal Standard for Motions for Sum-marg Judgment

Summary judgment is appropriate when the pleadings, the discovery, and any affidavits show that “there is no genuine dispute as to any material fact and the mov-ant is entitled to judgment as a matter of law.” When assessing whether a dispute as to any material fact exists, the court considers “all of the evidence in the record but refrains from making credibility determinations or weighing the evidence.” All reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ áre insufficient to either support or defeat a motion for

summary judgment.” If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,” then no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law. The nonmoving party may not rest upon the pleadings, but must identify specific facts in the record and articulate the precise manner in which that evidence establishes a genuine issue for trial. The party seeking

summary judgment always bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Thereafter, the nonmoving party should “identify specific evidence in the record, and articulate” precisely how that evidence supports his claims. To withstand a motion for

summary judgment, the nonmoving party must show that there is a genuine issue for trial by presenting evidence of specific facts. The nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by “unsubstantiated assertions,” or “by only a scintilla of evidence.” Rather, a factual dispute precludes a grant of

summary judgment only if the evidence is sufficient to permit a reasonable trier of fact to find for the nonmoving party. Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. B. Legal Standard for Louisiana Defamation Law A cause of action for the tort of defamation arises out of Louisiana Civil Code

article 2315. “Defamation involves the invasion of a person’s interest in his or her reputation and good name.” The five elements of defamation under Louisiana law are: “(1) defamatory words; (2) publication, to a person other than the one defamed; (3) falsity; (4) malice; and (5) resulting injury.” Some Louisiana courts set forth the “actual or implied malice” requirement as the “fault (negligence or greater) on the part of the publisher.” In sum, the Louisiana' Supreme Court has articulated that, in order to prevail on a defamation claim, a plaintiff must prove “that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages.” If even one of the required elements of the defamation tort is lacking, the cause of action fails.

Nonetheless, even if a plaintiff makes a prima facie showing of the essential elements of a defamation claim, a defendant may prevail by showing either that: (1) the statement was true, as truth is an absolute defense to defamation claims under Louisiana law; or (2) that the statements were protected by an absolute or qualified privilege.

With regard to the first element of a defamation claim, ie. whether the communication consisted of “defamatory words,” the Louisiana Supreme Court has held that “[t]he question of whether a communication is capable of a particular meaning and whether that meaning is defamatory is ultimately a legal question for the court.” To make this determination, courts must consider whether a listener “could have reasonably understood the communication, taken in context, to have been intended in a defamatory sense.” In other words, the legal issue to be decided by the Court is whether a particular statement is “objectively capable of having a defamatory meaning ... considering the statement as a whole, the context in which it was made, and the effect it is reasonably intended to produce in the mind of the average listener.” If the Court con-eludes in the plaintiffs favor that a statement is capable of a defamatory meaning, then the question of whether the “communication capable of a defamatory meaning was so understood by the recipient” is one for the factfinder.

That is, if the Court finds that a “particular statement is objectively capable of having a defamatory meaning,” then “the actual recipient’s subjective understanding or perception of the communication as defamatory becomes a factual issue for the jury.” By contrast, if the Court determines that the words at issue are not objectively capable of having a defamatory meaning, then the plaintiffs claim is not actionable and may be dismissed on a defendant’s

summary judgment.

Louisiana courts have determined that a statement is “defamatory” if it “tends to harm the reputation of another so as to lower the person in the estimation of the community, deter others from associating or dealing with the person, or otherwise exposes the person to contempt or ridicule.” “Words which convey an element of personal disgrace, dishonesty, or disrepute are defamatory.” In Louisiana, defamatory words have also traditionally been defined into two categories: those that are “defamatory per se” and those that are simply “susceptible of a defamatory meaning.” ‘Words which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, without considering extrinsic facts or circumstances, are considered defamatory per se.” When a plaintiff proves (1) the communication of words that are defamatory per s$ and (2) publication of those words to a third party other than the plaintiff (ie. the first and second elements of a defamation claim), then the last elements of (3) fqlsity, (4) malice (or fault), and (5) injury are presumed.

Thus, in cases where the plaintiff demonstrates that the words published were defamatory per se, the burden shifts to the defendant to rebut the presumed elements. When the words are not defamatory per se, the plaintiff must prove each element of the defamation tort. Moreover, as stated supra, even if the plaintiff can make a prima facie showing of all essential elements of his defamation claim, “recovery may be precluded if the defendant shows either that the statement was true, or that it was protected by a privilege, absolute or qualified.” C. Analysis In his motion, Hoffman moves for entry of partial

summary judgment on seven issues pursuant to Federal Rule of Civil Procedure 56. In particular, Hoffman argues that there are no disputed issues of material fact with regard to the following:

(1) Bailey’s email constitutes defamation per se;

(2) Bailey’s email was published on November 24, 2012, to Jessica Richardson, an employee of SHPO;

(3) Bailey made the defamatory statements without any reasonable grounds for believing the statement was true; (4) the statements in Bailey’s email are false;

(5) Bailey is not entitled to any conditional privilege; (6) because Bailey’s email constitutes defamation per se, the Hoffmans “suffered presumed. injury to reputation and pain, humiliation and suffering;” and (7) the Hoffmans are entitled to recover punitive or exemplary damages pursuant to Louisiana Civil Code

article 3546. As a preliminary matter, the Court notes that both parties agree that the allegedly defamatory comments by Bailey were written in one email to SHPO, and neither party disputes the content of Bailey’s communication. However, in Hoffman’s motion for partial

summary judgment, his complaint, his sworn affidavit, and throughout his filings to this Court, Hoffman mischaracterizes the allegedly defamatory statements made by Bailey and the entire basis for this defamation action. For example, in the instant motion, Hoffman implies that Bailey directly stated that “Peter and Susan Hoffman are the architects not of a building, but of a major economic fraud,” and that this was the “false statement!] of fact” that constitutes defamation.

Hoffman also regularly breaks apart one sentence of Bailey’s email and treats each fragment as separate and distinct allegations against the Hoffmans, such as Bailey’s supposedly direct statement that “[t]he amounts claimed [in the application] were probably not spent” and that “... some or all of the funds used to renovate the property were improperly diverted....” However, it appears that Hoffman is relying on incomplete quotations of Bailey’s statements to SHPO.

In fact, based on the undisputed evidence of the email that both parties have relied on, Bailey actually said that he had read that the Hoffmans “have applied for rehabilitation tax credits on 807 Esplanade” and “included them as revenue in accounts filed with the SEC,” and that “[t]his appears to contradict other evidence which strongly indi cates that Peter Hoffman and Susan Hoffman are the architects not of a building, but of a major economic fraud....” Bailey then provides a link for further information, and the remainder of the email asks: “Who should I write to with the evidence I personally have that indicates that all the applications made by the Hoff-mans are fraudulent, that the amounts claimed were probably not spent, and that some or all of the funds used to renovate the property were improperly diverted from SAP Pic by way of a transfer to a related party within 2 years of a SAP Pic becoming insolvent?” Hoffman has pointed to no authority, nor has the Court found any, that supports his implicit argument in his motion for partial

summary judgment that a defamation action may be asserted based on incomplete and partial quotations of the allegedly defamatory statements at issue. In fact, Louisiana courts have made clear that, in deciding whether a statement was defamatory, “the publication must be read as a whole.” Therefore, the Court will consider Bailey’s complete statements in the only email to SHPO pointed to by the Hoffmans or Bailey when deciding each of Hoffman’s arguments in support of his motion for

summary judgment. 1. Hoffman’s objections to Bailey’s Declaration First, the Court notes that in Hoffman’s reply memorandum, he makes a number of evidentiary objections to Bailey’s opposition and attached exhibits to Bailey’s Statement of Contested Material Facts. Hoffman argues that all of Bailey’s “unverified and unauthenticated Exhibits [attached] to his Statement of Contested Material Facts” should be excluded.

Hoffman also objects to Bailey’s Declaration “in its entirety as it is unexecuted and not sworn before a taker of oaths.” Accordingly, Hoffman lists over 150 paragraphs in Bailey’s Declaration to which Hoffman objects by listing one word objections of foundation, relevancy, lack of personal knowledge, improper opinion, hearsay, authentication, and/or best evidence grounds.

Pursuant to Federal Rule of Civil Procedure 56(c)(1), a party asserting that a fact is genuinely disputed must support this assertion by, in relevant part, “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Rule 56(c)(2) further provides that a party “may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Moreover, Rule 56(c)(4) requires that an affidavit or declaration used to support or oppose a motion must be: (1) made on personal knowledge; (2) set out facts that would be admissible in evidence; and (3) show that the affiant or declarant is competent to testify on the matters stated.

Here, in one sentence, Hoffman appears to first object to all 21 of Bailey’s exhibits attached to his opposition memorandum as “unverified” and “unauthenticated.” However, Hoffman offers no explanation or argument as to why his objections have merit, and he fails to cite to any case law or Federal Rule of Evidence that demonstrates that this evidence “cannot be presented in a form that would be admissible in evidence,” i.e. that these exhibits cannot be verified and authenticated at trial.

It is not the Court’s responsibility to comb through the record to determine the basis for Hoffman’s cursory objections or to make arguments on his behalf. Accordingly, the Court denies Hoffman’s objections to all of Bailey’s exhibits at this time.

Second, Hoffman objects to the “entirety” of Bailey’s Declaration, as Hoffman argues it is “unexecuted” and “not sworn before a taker of oaths.” Hoffman further argues that Bailey “is not subject to Louisiana law regarding statements made under penalty of perjury and his statements can be evidence only if sworn.” However, Hoffman offers no authority and fails to point to any Federal Rule of Evidence to support this contention, nor does Hoffman provide any reason as to why the evidence of a defendant’s declaration “cannot be presented in a form that would be admissible in evidence,” such as by Bailey testifying.

Hoffman also does not cite to any authority to support his argument that Bailey, who is a defendant facing Hoffman’s civil action in this Court under Louisiana law, is “not subject to Louisiana law” for statements made in court filings, or that Bailey’s declaration, made “under penalty of perjury” and filed in a federal court, can only be evidence if sworn. As the Fifth Circuit noted in Stewart v. Guzman, unsworn declarations made in writing and “under the penalty of perjury” may be admissible evidence.

Additionally, Rule 56(c)(4) only requires that a declaration used to oppose a motion must be: (1) made on personal knowledge; (2) set out facts that would be admissible in evidence; and (3) show that the affiant or declarant is competent to testify on the matters stated. Here, Hoffman offers no sound argument as to why Bailey’s Declaration fails to meet these requirements or would otherwise be inadmissible. Accordingly, the Court denies Hoffman’s objection to Bailey’s Declaration in its entirety.

Third, Hoffman asserts one-word objections to over 150 paragraphs in Bailey’s Declaration, such as “relevance,” “best evidence,” “improper opinion,” “not authenticated,” “hearsay,” and “no foundation.” However, Hoffman again offers no explanation or argument as to why his objections have merit, and he fails to cite to any case law or Federal Rule of Evidence that demonstrates that this evidence “cannot be presented in a form that would be admissible in evidence.” Indeed, most of Hoffman’s one-word objections apply to a large range of paragraphs and assertions in Bailey’s Declaration without specifying which particular statements Hoffman is objecting to.

For example Hoffman objects wholesale to Paragraphs 117 through 130, in which Bailey discusses his personal knowledge of potential “theft” by Hoffman of money the company owed in taxes to the United Kingdom, on “relevance,” “hearsay,” “best evidence,” and “not authenticated” grounds without specifying which statements in the three-pages worth of paragraphs they apply to. As stated supra, it is not the Court’s responsibility to comb through the record to determine the basis for Hoffman’s cursory objections, identify which paragraphs Hoffman might be objecting to, or make arguments on his behalf.

Accordingly, without more information, the Court denies Hoffman’s broad objections to 150 paragraphs of Bailey’s Declaration. 2, Defamatory per se In his motion, Hoffman first argues that Bailey’s statements in his email to SHPO were defamatory per se as a matter of law. such that granting

summary judgment on the issue in Hoffman’s favor is proper. Hoffman contends that Bailey’s statements are defamatory per se because “the words, in accusing the Hoffmans of committing fraud, by their very nature implicate criminal conduct and tend to injure a person’s personal and professional reputation.” Hoffman also appears to rely on the fact that this Court, in denying Bailey’s motion to dismiss pursuant to Rule 12(b)(6), determined that Bailey’s statements were defamatory per se after accepting all allegations in the Hoffmans’ complaint as true.

In Hoffman’s reply brief, Hoffman further contends that Bailey did not address Hoffman’s argument that Bailey’s words were defamatory per se, and therefore Hoffman presumes that the issue was “stipulated and conceded” by Bailey. In response, Bailey asserts that he did not concede that Bailey’s communication is defamatory per se. Bailey avers that he has always argued that his email to.

SHPO was not defamation, “because it was true and because Bailey had a conditional privilege to make the statements in the email.” Bailey also points out that this Court concluded in its Order denying Bailey’s motion, to dismiss that Bailey’s statements were defamatory per se, and thus Bailey contends that the burden shifts to Bailey to establish “the truth of the statements.” ■As a preliminary matter, the Court notes that both parties misinterpret the effect of -the Court’s Order denying a motion to1 dismiss on the Court’s analysis here on a motion for

summary judgment. To survive a motion to dismiss, “a complaint must contain Sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ón a motion to dismiss, asserted claims are liberally construed in favor of the claimant, and all facts pleaded are taken as true.

As the Court rioted in its Order on the motion to dismiss, the Hoffmans’ complaint directly alleges that Bailey’s email to SHPO constitutes defamation per se, and the Hoffmans further allege that Bailey directly accused the Hoffmans of being “architects ... of a major econoihic fraud” and that the “application made by the Hoffmans are fraudulent....” Liberally construing the complaint in favor of the Hoffmans and accepting their well-pleaded allegations as true as required on a Rule 12(b)(6) motion, the Court found for the purposes of analyzing the motion to dismiss that “[sjuch an allegation is considered defamatory per se as the words, in accusing the Hoffmans of committing a fraud,' by their very nature implicate criminal conduct and tend to injure a person’s personal or professional reputation.” Thus, under the motion to dismiss standard, the Court determined that the elements of falsity and malice (or fault) are presumed and that Bailey bore the burden of rebutting that adverse presumption, Here, however, Hoffman is moving for

summary judgment, and thus, unlike on a motion to dismiss brought by the defendant, Hoffman bears the initial burden of showing that there is a genuine absence of disputed fact on the issues for which he requests

summary judgment. Likewise, m considering Hoffman’s motion for

summary judgment, the Court does not liberally construe' the facts in Hoffman’s favor, such as the words in Bailey’s email, or utilize the forgiving standard of whether Hoffman’s allegations “state a claim for relief that is plausible on its face.” Accordingly, to the extent that Hoffman argues that the issue of whether Bailey’s words were defamatory per se was conclusively decided in the Court’s Order denying Bailey’s motion to dismiss pursuant to Rule 12(b)(6), the Court finds such an argument inaccurate and therefore unpersuasive.

As stated supra, the five elements of defamation under Louisiana law are: “(1) defamatory words; (2) publication to a person other than the one defamed; (3) falsity; (4) malice; and (5) resulting injury.” With regard to the first element, under Louisiana law, “defamatory words have traditionally been divided into two categories: those that are defamatory per se and those that are susceptible of a defamatory meaning.” Words which “expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation,” without considering extrinsic facts or circumstances, are considered defamatory per se, Typically, Louisiana courts first consider the “threshold issue” of whether words published to a third party were either “defamatory” or “defamatory per se” in order to determine which party bears the burden of proving or rebutting the remaining three elements.

In his reply brief in opposition to Hoffman’s motion, Bailey states that he “has admitted that he sent the email to the SHPO and he has admitted that the email says what it says.” Thus, it is undisputed that Bailey’s email to SHPO states that the Hoffmans’ application for rehabilitation tax credits and its inclusion of those tax credits as “revenue in accounts filed with the SEC ... appears to contradict other evidence which strongly indicates that Peter Hoffman and Susan Hoffman are the architects not of a building, but of a major economic fraud.” Bailey also asked in the email: “Who should I write to with the evidence I personally have that indicates that all the applications made by the Hoff-mans are fraudulent, that the amounts claimed were probably not spent, and that some or all of the funds used to renovate the property were improperly diverted from SAP Pic by way of a transfer to a related party within 2 years of a SAP Pic becoming insolvent?” Based on the evidence presented by Hoffman, the Court cannot conclude as a matter of law that Bailey’s statements in his email to SHPO were defamatory per se, ie. that Bailey expressly or implicitly accused Hoffman of criminal conduct or that the statements by their very nature tend to injure Hoffman’s personal or professional reputation.

The Court notes that Hoffman has not pointed to any statements in Bailey’s email that reference any criminal statute or directly accuses the Hoffmans of committing criminal activity or violating criminal law. Rather, the Court notes that Bailey’s email is written using circumspect language such as “appears to contradict,” and is limited only to informing SHPO that Bailey had “evidence” which he believed “indicates” or “strongly indicates” a number of things about the Hoffmans’ applications for tax credits, and asking to whom he should send such evidence.

Although Bailey’s email does inform the recipient that Bailey believes the evidence indicates that the Hoffmans are the architects of a “major economic fraud” and that their applications were “fraudulent,” Hoffman has not shown that this establishes that Bailey implicitly or explicitly accused the Hoffmans of criminal conduct as a matter of law, as opposed to possible civil or administrative concerns Bailey could be raising, or that these words “by their very nature” tend to injure Hoffman’s personal or professional reputation, as opposed to merely constituting traditional defamatory words under the circumstances, an issue which Hoffman has not requested

summary judgment on. Thus, this case is distinguishable from such cases as Kennedy v. Sheriff of East Baton Rouge, where the Louisiana Supreme Court found that restaurant employees who directly called law enforcement to accuse a patron of using a counterfeit one-hundred dollar bill was considered defamatory per se. Here, Hoffman himself argues that SHPO, Bailey’s intended recipient of his email, does not enforce criminal laws or have a law enforcement function, and Hoffman has not shown that Bailey directly or implicitly accused the Hoffmans of conducting criminal activity.

By contrast, this case is more analogous to Wood v. Del Giorno. There, the Louisiana Fourth Circuit Court of Appeal upheld a Louisiana trial court’s granting of a defendant’s motion for

summary judgment, in which the court found that the defendant’s allegations that plaintiff was “an absolute fraud” and “a liar” made while they were on-air guests of a radio show could not be considered defamatory or defamatory per se. The Louisiana Fourth Circuit noted that the words, which did not refer to any criminal offense, did not necessarily imply that the plaintiff was engaged in criminal activity in the minds of an ordinary listener and thus were not defamatory per se, and that while the remarks were “rude and insulting,” they did not have a defamatory meaning.

Here, while Bailey’s statements that he had “evidence” that “indicates” that Hoffman was the architect of a “major economic fraud” could be considered “rude and insulting” or constitute defamatory words generally, it cannot be said that, as a matter of law, they accused Hoffman of criminal conduct such that they were defamatory per se. Accordingly, the Court finds that Hoffman has not presented sufficient evidence to establish that the statements in Bailey’s email were defamatory per se as a matter of law.

Hoffman has not shown that Bailey’s email was either explicitly or implicitly accusing Hoffman of criminal conduct, or that Bailey’s statements to a state agency that he had “evidence” which “indicates” certain things about the Hoffmans “by their very nature tend to injure one’s personal or professional reputation” such that Hoffman is entitled to

summary judgment that the words used in Bailey’s email were defamatory per se. . ■ Moreover, the Court notes that Hoffman has also failed to point to any authority that granting

summary judgment on the threshold question of whether Bailey’s email was defamatory per se, which only establishes which party bears the burden to prove or rebut the elements of falsity and malice, is proper on a motion for

summary judgment. Therefore, at this time, the Court denies Hoffman’s motion to the extent that Hoffman argues Bailey’s statements were defamatory per se as a matter of law. Nonetheless, the Court notes that, even if it were to find that Bailey’s statements were defamatory per se as a matter of law, the effect of such a finding would be simply to shift the burden to Bailey to rebut the presumed elements of falsity and malice (or fault). As the Court determines infra, even if the burden shifts to Bailey on this motion for

summary judgment, Bailey .has presented sufficient evidence to rebut both the presumed elements of falsity and malice. Moreover, the Court finds infra that Bailey has presented sufficient evidence in this motion that his statements were true, an absolute defense to a defamation claim under Louisiana law, and that he was entitled to a conditional privileged when making those statements, either of which would -be sufficient to defeat Hoffman’s ultimate defamation claim. 3.

Publication Next, Hoffman argues that there are no genuine issues of material fact with regard to the fact that Bailey published his email to Jessica Richardson, an employee of SHPO, on November 24, 2012. In response, Bailey states that he “has admitted that he sent the email to the SHPO and he has admitted that the email says what it says.!’ As stated supra, one element of a defamation claim.under Louisiana law is the “unprivileged publication to a third party.” Accordingly, the Court finds that there are no genuine issues of material fact with respect to the fact Bailey’s email was. published to a third party.

Therefore, the Court grants Hoffman’s motion to the extent he request

summary judgment, on the fact that Bailey published his email .to a third party containing the allegedly defamatory, statements. However, the Court, notes that it finds ijifra that Hoffman has not established that the publication was “unprivileged” as a matter of law. 4. Fault Next, Hoffman argues that it is undisputed that Bailey made his allegedly defamatory statements (‘without any reasonable grounds for-.-believing the statement was true,” ie. the “fault” element of Hoffman’s defamation claim.

The Louisiana Supreme Court has held that the third element of a defamation action is “fault (negligence or greater) on the part of the publisher.” Courts also refer to the fault requirement as “malice, actual or implied.” That is, “[m]alice (or fault), for purposes of the tort of defamation, is a lack of reasonable belief in the truth of the statement giving rise to the defamation,” ie. negligence. As stated supra, in defamation per se cases, fault is presumed, but may be rebutted by the defendant.

First, the Court notes that Hoffman argues that, as a result of the fact that Hoffman’s Request for Admissions have been deemed admitted by Bailey for his failure to timely respond, Bailey has conceded the issue of fault.

In particular, Hoffman points to Request for Admission Number 3, which states: “Please admit that the qualified historic rehabilitation expenses by SAPLA in connection with the rehabilitation of the Project are set forth in the Audit Report of Silva, Gurtner and Abnez (‘Silva Firm’) dated June 30, 2012 (‘Audit Report’) attached as Exhibit ‘D’ to the Complaint.” However, as this Court determined in its Order affirming the Magistrate Judge’s Order denying Bailey’s motion to withdraw his admissions, Hoffman’s assertion in the instant motion that Bailey’s deemed admission on Request for Admission number 3 means Bailey has admitted fault is a “blatant misrepresentation of the admission.” As the Court noted, Request for Admission Number 3 is vague, and only asks Bailey to admit that the Audit Report sets forth “qualified historic rehabilitation expenses;” it does not ask, as Hoffman seems to imply, that Bailey admit that the expenditures were “legitimate.” The Audit Report provides a list of what it represents are “qualified expenditures,” but it does not prove that the expenses were in fact legitimate or that these expenses were actually incurred by the Hoffmans.

Thus, Bailey’s admission that the document states a particular thing does not in and of itself concede the inference that Hoffman seeks to establish. The Court also noted that there was no evidence presented that Bailey prepared the Audit Report, and neither party has argued that Bailey had any personal knowledge to admit or deny that the report is accurate. Accordingly, the Court finds that Admission Number 3 does not prove Bailey’s “fault” as a matter of law or preclude Bailey from contesting the “fault” element with contradicting evidence.

Second, the Court also notes that Hoffman asserts that satisfying the negligence standard is not a necessary element in this case. Hoffman points out that the case law establishing negligence as a minimum requirement for fault in defamation cases is rooted in constitutional protections under the First and Fourteenth Amendments. However, Hoffman argues that Judge Zainey previously determined that Bailey, as a citizen of the United Kingdom, is not entitled to First Amendment rights. Thus, according to Hoffman, he does not need to prove negligence, although he notes that it is presumed in a defamation per se case.

The Court finds Hoffman's argument that the negligence standard does not apply here unavailing. First, defamation is a quasi-offense actionable under Louisiana Civil Code

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Article 2315 provides that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Indeed, Louisiana courts have recognized defamations actions under

article 2315 since at least 1840, and they have consistently held that a “necessary” element of establishing a defamation cause of action is fault, “negligence or greater,” or “malice.” By contrast, Hoffman has not pointed to any authority that Louisiana courts omit the “fault” requirement for defamation actions against non-citizen defendants. Second, the case cited by Hoffman, Kennedy v.

Sheriff of East Baton Rouge, considered more than just the First Amendment in coming to its decision that the negligence standard should apply to all cases involving private figure plaintiffs, including those in matters of public concern, such as reporting suspected criminal activity. There, the Louisiana Supreme Court noted that the United States Supreme Court previously determined that the First and Fourteenth Amendments require at least a minimum liability standard of negligence for defamation actions against media defendants, and found that this rationale would apply to non-media defendants as well.

However, in addition, the Louisiana Supreme.

Court also determined that the “adoption of a negligence standard promotes simplicity and consistency in the law of defamation, at least insofar as private individuals are concerned.” The court went on to note that it adopted the negligence standard for actions by private individuals involving matters of private concern, and that “[adopting the same standard of liability for private individuals respecting matters of public concern simplifies the law in what has, admittedly, become a complex area.” Moreover, the court cited to the Restatement (Second) of Torts § 580B, which also provides for a standard of negligence for defamation actions involving private persons.

While Hoffman argues that the First Amendment considerations in Kennedy would not apply here, he does not address the Louisiana Supreme Court’s other considerations in Kennedy regarding simplicity and uniformity in the law of defamation for private individuals or the guidance of the Restatement (Second) of Torts, both of which would weigh in favor of applying the negligence standard here. Therefore, in sum, the Court’s finds that Hoffman’s argument that the necessary element of “fault” should not apply here is unpersuasive. Accordingly, the Court will consider whether

summary judgment on this element is proper. In his motion, Hoffman argues that, because he contends this is a defamation per se case, negligence is presumed.

Moreover, Hoffman avers that negligence is established by, among other pieces of evidence: (1) his own testimony that Bailey had “personal animus” towards Hoffman; (2) that Bailey accused Susan Hoffman in his allegedly defamatory statements despite having never met or spoken with her; (3) that Bailey is deemed to have admitted that the rehabilitation of the 807 Esplanade Property occurred, that the “before” and “after” photos are accurate, that the Compilation Report “set[s] forth” the expenses incurred by SAP Pic in connection with the renovation, and that the 807 Esplanade Property was certified as having met the historic rehabilitation standards; and (4) that Bailey did not have access to the documents relied on by the auditors who produced the Compilation Report in 2012, well after Bailey left SAP Pic in 2009.

In sum, Hoffman argues that this evidence shows that “Bailey’s negligence is not a fact subject to material dispute.” In response, Bailey points to numerous pieces of evidence that he had when making the allegedly defamatory statements, which he asserts proves his statements that he had “evidence” which “indicates” certain things about the Hoffmans were true, and therefore that the statements were not negligently made. Among other things, Bailey points out that he was a “qualified” and “highly experienced forensic accountant” with significant experience investigating fraud.

Bailey points out that he “knew from documents in his possession” that the Hoffmans claimed that amounts spent on the 807 Esplanade Property prior to December 2009 were not actually spent and that funds were diverted or moved in a “fraudulent ‘circular transfer.’” For example, Bailey points to a series of memos on tax credits for the 807 Esplanade Property that he contends he helped prepare that he avers demonstrates he had knowledge of these issues, as well as memos that he allegedly drafted each time he discovered Hoffman’s allegedly false expenditure records and “circular transactions.” Bailey asserts that he consulted with legal counsel and public authorities in the United Kingdom before sending his email to SHPO.

Bailey also stated in his Declaration that he worked at SAP Pic in 2009 and continued to track Hoffman’s public activity through 2012, and that he had knowledge that the amounts allegedly spent on the rehabilitation prior to December 2009 were “substantially the same amounts” that the Hoffmans claim were spent in 2012. For example, Bailey points to public statements in 2012 by Hoffman regarding the costs of the rehabilitation of the 807 Esplanade Property and to multiple memos drafted on the tax credits in 2009 that he claims conflicted with the numbers publicly stated by Hoffman.

Based on the foregoing, the Court finds that there are genuine issues of material fact on the issue of fault that precludes

summary judgment on the element of fault. Even assuming that Bailey’s words were defamatory per se and that the burden shifts to Bailey to rebut the presumed element of fault, Bailey has pointed to significant evidence to show that he acted on reasonable grounds for believing the statement was true. In addition to finding that Bailey has presented sufficient evidence to create a disputed issue of material fact on the element of fault, the Court also finds that Bailey has presented sufficient evidence on this motion that his statements were true, an absolute defense to a defamation claim under Louisiana law. Accordingly, the Court denies Hoffman’s motion to the extent that it requests

summary judgment on the element of fault in his defamation claim. 5. Falsity Hoffman also argues that there are no genuine issues of material fact disputing that the statements in Bailey’s email are “false statements of fact.” Hoffman contends that the element of falsity is presumed in defamation per se cases. Nonetheless, Hoffman asserts that the evidence he has presented, particularly the issuance of the Certifications and the Compilation Report, prove the falsity of Bailey’s statements. In response, Bailey argues that his statements were true, and he points to the same evidence discussed supra.

Based on the same analysis, the Court finds that there are genuine issues of material fact on the issue of falsity that precludes

summary judgment. Even assuming that the burden shifts to Bailey to rebut the falsity element, Bailey has pointed to significant evidence to do so. Moreover, the

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