(CN) – The 5th Circuit dismissed a businessman’s claim that a newspaper defamed him by accusing him of selling contaminated jet fuel to the military. The plaintiff failed to meet the requirement under Louisiana law that he would likely win his case, a three-judge panel ruled.
The ruling addresses one of the state’s methods of eradicating meritless defamation claims meant to chill speech.
A provision in Louisiana law requires a potential plaintiff to show a “probability of success on the merits” before suing someone for defamation.
Plaintiff Mark Henry was the owner and president of the Chennault Jet Center from 1995 to 2005. His company, which operated out of the Chennault International Airport in Lake Charles, La., contracted with the Defense Logistics Agency to refuel military aircraft.
In February 2005, the government launched an investigation of the fuel quality sold by Henry’s company, and later terminated the contract.
From May 2005 to January 2006, American Press published a series of articles about the investigation that Henry claimed were false and defamatory. He sued Lake Charles American Press, Shearman Co. and reporter Hector San Miguel in state court in Texas, and American Press removed the case to federal court.
The defendants moved to dismiss the case, arguing that Henry failed to meet the probability-of-success requirement. The district court denied their motion, twice.
The New Orleans-based federal appeals court reversed.
Henry has not met the requirement “on an essential element of his defamation claim,” Judge Prado wrote. “Leaving aside the other elements, Henry has not established a probability of successfully proving fault.”
American Press pointed out that Henry offered no evidence that the newspaper failed to follow up on communication from Henry’s attorney, David K. Andersen, who said he warned the defendants that the information in the articles was false.
“But even assuming that the stories were false,” Prado wrote, “Andersen’s affidavit does not show that American Press acted unreasonably in investigating and publishing the stories.”
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