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Viral Attack

December 2012, F&I and Showroom - Cover Story

by Stephanie Forshee

Erik Syverson, a Los Angeles-based attorney who specializes in Internet defamation, has noticed a unique trend taking hold over the last 10 years: The more popular social media gets, the more defamation suits he sees.

“[Social media] has allowed every citizen in the country to publish statements about other people, businesses and entities that are accessible by the entire planet,” he says. “Before this, defamation was a relatively distinct, relatively rare type of claim,” one used primarily against media outlets and other entities with a wide audience.

But Syverson points out that winning any defamation case is a tall order. To prevail, a court must conclude that claims made against an individual or business are demonstrably false. Plaintiffs must also prove that the statements in question caused them to suffer an economic loss.

Social media, however, adds another twist. Courts are now forced to determine the limits of First Amendment rights.

Erik Syverson
Erik Syverson

That’s the challenge Norwood, Mass.-based Clay Nissan faces in its $1.5 million defamation suit against the brothers of a former employee. They claim the dealership fired their sister, Jill Colter, this past June from her service writer position because she had stage IV brain cancer. Dealer Scott Clay says Jill, who was deemed cancer-free before her dismissal, was let go from the dealership because of her conduct, adding that the dealership not only knew of her illness when she was hired, but also accommodated her as she endured treatments.

The brothers believe otherwise, and they took their fight online, launching a social media campaign to protest the dealership’s actions. Their Facebook page has already attracted more than 55,000 followers in support of their “Boycott Clay Nissan” drive. But Clay says the brothers’ campaign is built on falsehoods and inaccuracies, and the negative publicity cost his dealership more than $100,000 in sales in July.

Syverson, however, says the dealer will be hard-pressed to prevail on his position that the Colters’ accusations are false. “There are so many defenses, because the First Amendment is so strong in America,” he says, adding that “many judges are very skeptical that content on the Internet is taken as a statement of fact,” a requisite to prove defamation occurred.

Adam and Jonathan Colter organized two separate protests this summer at Clay Nissan of Norwood, Massachusetts. The brothers claim the dealer fired their sister because she had cancer, charges the dealer has denied.
Adam and Jonathan Colter organized two separate protests this summer at Clay Nissan of Norwood, Massachusetts. The brothers claim the dealer fired their sister because she had cancer, charges the dealer has denied.
Let the Boycott Begin
Adam and Jonathan Colter launched their “Boycott Clay Nissan” campaign on June 21, nine days after their sister Jill was dismissed. They created a Facebook page, a Twitter account, a website dedicated to the boycott, and posted a petition on Change.org. And Facebook commenters were quick to share their outrage for what happened to Jill.

There’s the comment from Nona Johnson, who questioned Clay’s ethics. “Apparently, the people of this dealership [were] raised with no moral compass,” she wrote. “And I believe there is a very special place in HELL for them.”

Then there’s Cheryl Ruskiewicz. She was among the hundreds who vowed to boycott the dealership, and contacted Clay directly to let him know. She called Clay’s actions “deplorable” and, at the time, joined a force of nearly 1,500 strong to sign the Change.org petition. The petition, which is now closed, boasts signatures from about 2,300 people, while the “Likes” and reposts on Facebook continue to pile on.

Adam says he and his brother took to social media simply to get Clay’s attention, which they did. The dealer received thousands of hateful online posts, voicemails and e-mails, and the complaints are still pouring in. The brothers even staged protests in front of the dealership over the summer. For Clay, it wasn’t just the accusations the brothers have made about him and his operation that pushed him to file suit on July 10, it was the fact that he had no way to defend himself against their charges.

In September, a Norfolk Superior Court judge agreed with Clay that the damage done to his operation’s reputation is worth $1.5 million, an amount the brothers will be ordered to pay Clay if he is successful in his defamation suit. And as the court highlighted, the Colters never allowed Clay to respond to the claims they made on their Facebook page. They also removed any post or follower in favor of Clay from their page, leaving only derogatory content visible to the public.

“Folks that find it necessary to swing things in favor of Clay Nissan, and/or undermine the efforts of this campaign will be banned from the site … Anyone who defends their actions has ulterior motives,” read a post from Adam that Clay included in his complaint.

Clay also included a list of false accusations he says the brothers have made. There’s the claim the Colters made about another former Clay employee who supposedly was dismissed due to illness. The court, however, found insufficient evidence to investigate that charge since Adam was unable to produce e-mails he claimed to have received from the former employee.

“It’s beyond me how they could say we defamed them,” Adam told F&I and Showroom. “We wanted an open apology from Scott Clay. That’s all we wanted, and it has yet to come. Instead, what has come is a massive campaign attacking us and a lawsuit attacking us, and now they have managed to turn everything around and make it appear that my sister really deserved to be terminated.”

Adam Colter
Adam Colter
Adam accuses Clay of telling falsehoods of his own. He says his sister e-mailed Clay two days after her termination to request her employee file. But Clay claimed on the ClayFamilyCares.com website — created in response to the brothers’ campaign — that he did not learn of her termination until June 25, 13 days after Jill was dismissed.

“It just does not sit well with me,” Adam says. “It doesn’t make sense to me that he would not know that a person, who just returned three weeks prior from a two-month leave of absence to do stage IV cancer treatment, was terminated. And then all of a sudden a petition site goes up, a boycott site goes up, and then — and only then — does he reach out to my sister.”

Comment

  1. 1. Sharyn [ February 16, 2013 @ 11:33AM ]

    To the best of my knowledge no physical threats have been made against Clay Nissan. All the Colter family has done is publicized the shameful way a Clay employee was treated. The public is at liberty to take its business where it chooses and should it choose to deliberately avoid "boycott" a business that is the public's right. I am sorry for Jill's continuing battle with cancer. I am a three-time survivor and over the last 25 years have received nothing but compassion and support from employers. I am saddened by this business's focus on the almighty dollar and not the health and well-being of its employees.

  2. 2. Missy [ February 16, 2013 @ 01:18PM ]

    Having been a FB follower of the page to Boycott Clay - I have not read anything threatening or derogatory about Clay - they have simply stated the facts. I continue to keep Jill in my prayers and hope that her brothers win the battle in court.

  3. 3. Russ Phelps Sr. [ February 16, 2013 @ 01:57PM ]

    I just cannot believe that anyone can be so ruthless and think that they can treat employees the way that this company does.. My heart goes out to Jill..Who does not deserve any of this..They should be ashamed.....God bless the Colter bros....... And help them with there fight for what is to look out for Jills best interest..We are all behind you on this Jill.. <3

  4. 4. Katie [ February 16, 2013 @ 02:42PM ]

    Sharon- HOw do you know there have been no physical threats?? Why dont you do some research before you post such things. There were indeed threats - they have been documented. the problem is Adam Colter does not post any of the these things. He hides everything that he feels will make others think twice about who's bandwagon they are jumping on. A court has already decided that the facebook page was full of lies and misleading and truth will prevail once again.

  5. 5. katie [ February 16, 2013 @ 03:07PM ]

    stated the facts Missy? are you serious? have you even read this?
    The Norfolk Superior Court decision states that the Boycott organizers lied consistently to their followers about Jill Colter’s situation and Clay’s response. “[Adam Colter] clearly misled his readers with many of his posts…The Colters have been exposed to many additional facts which would cause a reasonable person to conclude that Jill’s termination was not based in any way upon her illness...”

    > Read the entire Court Decision Try googling the case. The facebook page you are following deletes and bans anyone who tries to post the truth. What a scary bandwagon you have jumped on.

  6. 6. Mark [ February 17, 2013 @ 10:15AM ]

    The Colter brothers had plenty of opportunities to prove their claims in court and came up with NOTHING. The website was found to mislead its followers. Clay should and will continue to protect its reputation against this baseless slander. Jill was given many opportunities to negotiate and bowed out. She also turned down job opportunities offered.

 

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