Attorney Robert Zarco, his partner Alejandro Brito and his law firm Zarco Einhorn Salkowski & Brito, P.A. are suing former Cold Stone Creamery franchisee Cecil Rolle and Sedna Consulancy LLC for defamation. A circuit court judge has ordered Cecil Rolle to remove defamatory statements from his sites www.robertzarcofacts.org and www.zarcolawfacts.org websites.
(UnhappyFranchisee.Com) In the online defamation lawsuit ZARCO EINHORN SALKOWSKI & BRITO, P.A., ROBERT ZARCO and ALEJANDRO BRITO, Plaintiffs, v. CECIL ROLLE and SEDNA CONSULTANCY, LLC Defendants, back in September, 2013 Cecil Rolle and Sedna were prohibited by a Preliminary Injunction from publishing false statements of fact relating to or concerning Robert Zarco, Alejandro Brito, or ZESB on the www.robertzarcofacts.org website (or elsewhere). Cecil Rolle was ordered to remove any defamatory statements (ie “false statements of fact”) from his website.
On October 1, 2013, Mr. Rolle submitted an affidavit stating that “Defendants have reviewed the www.robertzarcofacts.org, website] and determined that there are no false statements of facts. Defendants will continue to refrain from publishing false statements of fact relating to or concerning [Robert] Zarco, [Alejandro] Brito, or ZESB as instructed.”
Two years later, on October 5, 2015, Circuit Court Judge Monica Gordo has ruled that a number of statements made on Cecil Rolle’s www.robertzarcofacts.org and www.zarcolawfacts.org websites violate the Preliminary Injunction, are defamatory, and must be removed.
View the complete ruling below, or view it as a PDF.
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Also read: Attorney Robert Zarco Battles Cecil Rolle, RobertZarcoFacts.Org
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ORDER ON PLAINTIFF’S MOTION TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN CONTEMPT OF COURT AND DEFENDANTS’ MOTION TO DISSOLVE TEMPORARY INJUNCTION
ZARCO EINHORN SALKOWSKI & BRITO, P.A., ROBERT ZARCO, Case No.: 13-25737 CA 06 and ALEJANDRO BRITO,
Plaintiffs,
v.
CECIL ROLLE and
SEDNA CONSULTANCY, LLC
Defendants.
THIS CAUSE having come before this Court on May 15, 2015 and September 28, 2015, on (i) Defendants’ Motion to Dissolve Temporary Injunction (“Motion to Dissolve”); and (ii) Plaintiffs’ Motion for Order to Show Cause Why Defendants Should Not Be Held in Contempt for Their Failure to Comply with this Court’s Order Dated September 16, 2013 (“Motion to Show Cause”), and the Court having considered the Motion to Dissolve and Motion to Show Cause, having heard the testimony of the parties and witnesses and the argument of counsel, and being otherwise fully advised in the premises, hereby finds and declares as follows:
1. Sedna Consultancy, LLC (“Sedna”) is a Florida limited liability company. Cecil Rolle (“Mr. Rolle”) is the managing member of Sedna.
2. Mr. Rolle is the registrant of the domain www.robertzarcofacts.org, which was registered on February 22, 2013.
4. On October 1, 2013, Mr. Rolle submitted an affidavit stating that “Defendants have reviewed the www.robertzarcofacts.org, website] and determined that there are no false statements of facts. Defendants will continue to refrain from publishing false statements of fact relating to or concerning [Robert] Zarco, [Alejandro] Brito, or ZESB as instructed.” Rolle Affidavit, ¶36.
5. On November 17, 2013, after submitting the aforementioned affidavit, Mr. Rolle, on behalf of Sedna, registered another domain name: www.zarcolawfacts.org. Thereafter, Mr. Rolle published much of the same content that appeared and continues to appear on the www.robertzarcofacts.org, website on the www.zarcolawfacts.org website.
6. Mr. Rolle, on behalf of Sedna, regularly updates and maintains the www.robertzarcofacts.org, and www.zarcolawfacts.org websites.
7. At present, the www.robertzarcofacts.org, and www.zarcolawfacts.org websites contains various statements concerning Plaintiffs with respect to the case styled: Massey, Inc. et al. v. Moe’s Southwest Grill, LLC et al., Northern District of Georgia, Case No. 07-00741-RWS (“Massey”).1 In particular, the www.robertzarcofacts.org, website states “the highly respected Federal Judge presiding over the case issued an order that highlights Attorney Robert Zarco’s and Attorney Alejandro Brito’s poor professional performance” and “[t]he judge clearly communicated that he was underwhelmed with Attorney Robert Zarco’s and Attorney Alejandro Brito’s shoddy legal practices[,] as well as Attorney Robert Zarco’s and Attorney Alejandro Brito’s lack of attention to the responsibilities owed their Moe’s [f]ranchisee clients.” Similarly, the www.zarcolawfacts.org website states “[i]n a scorching opinion in the case, United States District Judge Richard W. Story criticized Robert Zarco, Alejandro Brito and their firm for their poor professional standards.” The websites both contain a hyperlink to the order entered by Judge Richard Story that Defendants have selectively highlighted and misconstrued.
8. Importantly, a review of the docket indicates that Alejandro Brito had no involvement, and never appeared as counsel, in the Massey case as clearly implied by Defendants. This fact unequivocally establishes the falsity and defamatory nature of the statements on the www.robertzarcofacts.org, and www.zarcolawfacts.org websites regarding Mr. Brito and his conduct in the Massey case. Moreover, Mr. Zarco testified that he never played any active role in the trial or pretrial proceedings in that case.
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1 Plaintiffs filed a Request for Judicial Notice pursuant to Florida Statutes § 90.202(6), requesting that the Court take judicial notice of the docket in the Massey case when considering the Motion to Show Cause, which the Court has done.
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9. The www.robertzarcofacts.org, website continues on to state that “[i]t should be noted that [Judge Story’s] harsh criticism is entirely consistent with unflattering assessments of Attorney Robert Zarco’s and Attorney Alejandro Brito’s mistake-riddled court filings made by other Federal judges in entirely separate cases.” The previous sentence contains hyperlinks to an order in the case styled: Cold Stone Creamery, Inc. v. Nutty Buddies, Inc., District Court of Arizona, Case No. 12-0420-PHX DGC (“Nutty Buddies”), and an order in the case styled: Zarco Marine Group, LLC v. Westerbeke Corporation, Southern District of Florida, Case No. 13-20082- JLK (“Zarco Marine”). The orders cited by Defendants in the Nutty Buddies and Zarco Marine cases do not contain “unflattering assessments” of Plaintiffs and make no mention of “mistake- riddled court filings” as Defendants suggest on the www.robertzarcofacts.org, website. Defendants have mischaracterized and failed to adequately represent the orders entered in the Nutty Buddies and Zarco Marine cases.
10. The following statements are also currently published on www.robertzarcofacts.org, website:
11. The following is currently published on the www.zarcolawfacts.org website:
More recently, the United States Trustee’s Office’s filed official papers against Attorney Robert Zarco, his partner Attorney Alejandro Brito and [ZESB].
The United States Trustee’s Office’s documents filed against Attorney Robert Zarco, Attorney Alejandro Brito and [ZESB] include numerous charges and raise serious concerns as to the conduct of Attorney Robert Zarco, Attorney Alejandro Brito and [ZESB] on several legal and ethical topics. Among those charges is an allegation that Attorney Robert Zarco, Attorney Alejandro Brito and [ZESB] engaged in money transfers with the ‘intent to hinder, delay, or default’ numerous individuals. The United States Trustee’s Office is seeking financial recovery of nearly $300,000 from Attorney Robert Zarco, Attorney Alejandro Brito, and [ZESB] on behalf of perhaps dozens of alleged victims.
12. The “official papers” referenced on the www.zarcolawfacts.org and · websites were not filed by the United States Trustee Office.
Instead, the complaint was filed by a court-appointed trustee responsible for overseeing the consolidated estates of Claudio Osorio and several related entities formerly owned or controlled by Mr. Osorio. The court-appointed trustee was seeking to recover or “claw back” certain transfers made by Claudio Osorio and Innovida Services to ZESB for legal services. The description of the lawsuit on the · and www.zarcolawfacts.org websites is misleading and does not accurately represent the nature of the proceeding.
13. At present, the www.zarcolawfacts.org website also contains the following statements:
A. Motion to Dissolve Injunction
14. If a motion to dissolve an ex parte temporary injunction is filed and a hearing on the motion is held, “the party who obtained the injunction bears the burden of going forward with evidence to establish a prima facie case to support the injunctive relief.” Thomas v. Osler Medical, Inc., 963 So. 2d 896, 900 (Fla. 5th DCA 2007).
15. “The well-established requirements for the issuance of a temporary injunction are: (1) the likelihood of irreparable harm and the unavailability of an adequate remedy at law;
(2) a substantial likelihood of success on the merits; (3) that the threatened injury to the petitioner outweighs any possible harm to the respondent; and (4) the entry of the injunction will not disserve the public interest.” Biscayne Park, LLC v. Wal-Mart Stores East, LP, 34 So. 3d 24, 26 (Fla. 3d DCA 2010). The Court finds, based on the record at the time of the hearing on Defendants’ Motion to Dissolve the Preliminary Injunction and the evidence presented, that Plaintiffs have sufficiently established the requirements for the issuance of a preliminary injunction.
16. First, the Court finds that, based on the allegations in the Verified Amended Complaint and the testimony of Mr. Robert Zarco, Plaintiffs have demonstrated irreparable harm because the www.robertzarcofacts.org and www.zarcolawfacts.org websites have interfered with actual and potential customers of ZESB. Marine Turbo Engineering, Ltd. v. Turbocharger Services Worldwide, LLC, 2011 WL 6754058, at *10 (S.D. Fla. Dec. 22, 2011) (finding plaintiff demonstrated irreparable harm because loss of customers and goodwill is an irreparable injury); Southeastern Mechanical Services, Inc. v. Brody, 2008 WL 4613046, at *15 (M.D. Fla. Oct. 15, 2008) (loss of customer and goodwill is an irreparable injury and is difficult to measure); Tiffany Sands, Inc. v. Mezhibovsky, 463 So. 2d 349, 351 (Fla. 3d DCA 1985) (irreparable harm found from damage to goodwill and business reputation).
17. Second, the Court finds that, based on the record and the evidence presented, Plaintiffs have a substantial likelihood of prevailing on the claims for tortious interference with advantageous business relationships and defamation per se. To prevail on a tortious interference claim, a plaintiff must establish five elements: (1) the existence of a business relationship under which the claimant has rights; (2) the defendant’s knowledge of the relationship; (3) an intentional and unjustified interference with the relationship; (4) by a third party; and (5) damage to the claimant caused by the interference. Sloan v. Sax, 505 So. 2d 526, 527–28 (Fla. 3d DCA 1987). In this instance, Plaintiffs have sufficiently established the existence of a business relationship with existing and prospective clients of ZESB, and that Mr. Rolle is well-aware of this relationship. Plaintiffs, through the testimony of Mr. Robert Zarco, also established that Defendants have unjustifiably interfered with the business relationship between ZESB and its prospective and actual customers by operating the www.robertzarcofacts.org and www.zarcolawfacts.org websites, and that ZESB has sustained damage as a result of the interference because at least one group of franchisees elected to ultimately not retain ZESB after coming across the websites.
18. To prevail on a defamation per se claim, Plaintiffs must demonstrate that (1) Defendants published a false statement about Plaintiffs; (2) the false statement was communicated to a third party; and (3) the communication tended to subject Plaintiffs to hatred, distrust, ridicule, contempt, or disgrace, or tended to injure Plaintiffs in their trade or business. Perry v. Cosgrove, 464 So. 2d 664, 666 (Fla. 2d DCA 1985). To find defamation per se based on statements that are injurious to trade or business, “the court must first determine whether the statement is capable of a defamatory meaning.” Klayman v. Judicial Watch, Inc., 22 F. Supp. 3d 1240, 1249 (S.D. Fla. 2014). Here, Plaintiffs have identified numerous false statements displayed on the www.robertzarcofacts.org and www.zarcolawfacts.org websites that the Court finds are capable of a defamatory meaning. The vast majority of the statements are, at best, mixed opinions which are designed to impugn Plaintiffs’ reputation and injure or harm their business. LRX, Inc. v. Horizon Associates Joint Venture ex rel. Horizon-ANF, Inc., 842 So. 2d 881, 885 (Fla. 4th DCA 2003) (mixed opinions, which are actionable, are “based upon facts regarding a person or his conduct that are neither stated in the publication nor assumed to exist by a party exposed to the communication . . . the communicator implies that a concealed or undisclosed set of defamatory facts would confirm his opinion”). The Court further finds that Defendants failed to offer any competent evidence that would suggest the identified statements on the www.robertzarcofacts.org or www.zarcolawfacts.org websites are true. 2 As a result, the Court finds that Plaintiffs are likely to prevail on their claim for defamation per se.
19. Third, the Court finds, based on the record and evidence presented, that the threatened injury to Plaintiffs—continual loss of actual and potential customers—outweighs any possible harm the Defendants would face in being forced to remove the false statements of fact from the www.robertzarcofacts.org and www.zarcolawfacts.org websites. See Buc. Int’l Corp. v. Int’l Yacht Council Ltd., 2002 WL 31399604, at *4 (S.D. Fla. July 5, 2002) (finding threatened injury—the likely loss of business—outweighed the harm to defendants in removing improper content from their website); see also Int’l Hair & Beauty Systems, LLC v. Simply Organic, Inc., 2011 WL 5359264, at *9 (M.D. Fla. Sept. 26, 2011) (finding that threatened injury to plaintiff—the loss of customers and goodwill—outweighed potential harm to defendant).
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2 Miami Herald Publishing Co. v. Brautigam, 127 So. 2d 718, 723 (Fla. 3d DCA 1961) (holding that truth is an affirmative defense as to which the defendant has the burden of proof).
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20. Lastly, the Court finds that the public interest is served by enjoining Defendants from disseminating false statements of fact about Plaintiffs because there is “no constitutional value” in such statements. Gertz v. Robert Welch, Inc., 418 U.S. 323, 338 (1974). Put another way, “[f]alse statements of fact are particularly valueless; they interfere with the truth-seeking function of the marketplace of ideas, and they cause damage to an individual’s reputation that cannot easily be repaired by counterspeech, however persuasive or effective.” Hustler Magazine v. Falwell, 485 U.S. 46, 51 (1988).
21. In light of the foregoing, the Court finds that Plaintiffs have established a prima facie case to support the injunction.
22. On July 14, 2014, Plaintiffs filed a Motion for an Order to Show Cause Why Defendants Should Not be Held in Contempt for Their Failure to Comply with the Preliminary Injunction Order Dated September 16, 2013.
23. The Court finds that the assessment offered by Defendants on the www.robertzarcofacts.org and the www.zarcolawfacts.org websites pertaining to the order entered in the Massey case is false and misrepresents the contents and nature of the order. In particular, Judge Story never criticized or chastised any lawyers in the Massey case for anything, let alone Mr. Zarco who did not actively participate in the case, or Mr. Brito who never appeared as counsel in the case and had no involvement in the case whatsoever.
24. The Court also finds that the statements on the www.robertzarcofacts.org website that “other Federal judges” have made “unflattering assessments of Attorney Robert Zarco’s and Attorney Alejandro Brito’s mistake-riddled court filings” are false and not supported by the order Judge David G. Campbell entered in the Nutty Buddies case or the order by Judge King in Zarco Marine case, as suggested by Defendants.
25. The Court also finds the statement in Paragraph 13, supra, concerning the “official papers” filed against Plaintiffs to be a false statement of fact. As pointed out above, the “official papers” were not filed by the Office of the United States Trustee and the assessment offered by Defendants omits important facts and misrepresents the nature of the proceeding.
26. Further, the Court finds the statements in Paragraphs 11 and 14, supra, to be false statements of fact. The identified statements are, at best, mixed opinions that omit important facts or misconstrue the actual underlying facts.
27. In summation, Mr. Rolle and Sedna have failed to comply with the Preliminary Injunction by continuing to disseminate and/or failing to remove false statements of fact concerning Plaintiffs from the www.robertzarcofacts.org and www.zarcolawfacts.org websites. Therefore, Defendants shall have five (5) days from the date of this Order to fully comply with the Preliminary Injunction by removing the false statements of fact identified above, as well as any other false statement of fact concerning Robert Zarco, Alejandro Brito, and/or ZESB from the www.robertzarcofacts.org and www.zarcolawfacts.org websites.
28. The Court finds that Defendants have the ability to comply with the Preliminary Injunction and have failed to do so at their own peril. Thus, in the event Defendants fail to fully comply with the Preliminary Injunction and fail to remove the false statements of fact identified above and any other false statements of fact from the www.robertzarcofacts.org and www.zarcolawfacts.org websites, Defendants will each be subject to the imposition of contempt sanctions in the amount of $100 per day. Wilcoxon v. Moller, 132 So. 3d 281, 286 (Fla. 4th DCA 2014) (purpose of civil contempt to obtain compliance with court order); Parisi v. Broward County, 769 So. 2d 359, 363 (Fla. 2000) (courts have the authority to enforce an order or judgment through the exercise of their contempt powers). The contempt sanctions shall remain in effect until Defendants fully comply with the Preliminary Injunction and this Order.
29. Further, the Court finds that if contempt sanctions become necessary, Defendants can easily purge themselves of the $100 per diem fine by complying with the Preliminary Injunction and this Order. The Court also finds that the $100/day contempt sanction is reasonable in light of the damages Plaintiffs are sustaining from the loss of actual and potential clients as a result of the www.robertzarcofacts.org and www.zarcolawfacts.org websites.
Based on the foregoing, the Court finds (i) that Plaintiffs have sufficiently established a prima facie case for a preliminary injunction; and (ii) that the www.robertzarcofacts.org and www.zarcolawfacts.org websites contain false statements of fact concerning Plaintiffs in violation of the Preliminary Injunction entered by this Court on September 16, 2013.
1. Defendants’ Motion to Dissolve the Preliminary Injunction is DENIED.
2. Plaintiffs’ Motion for an Order to Show Cause Why Defendants Should Not Be Held in Contempt for Their Failure to Comply with the Court’s Order Dated September 16, 2013 is GRANTED.
3. Defendants shall take all acts necessary to comply with the Preliminary Injunction within five (5) days of this Order, including, without limitation, removing any and all false statements of fact concerning or pertaining to Plaintiffs from the www.robertzarcofacts.org and www.zarcolawfacts.org websites. Defendants shall then appear before the Court within fifteen (15) days of this Order and offer sufficient proof of compliance with the Preliminary Injunction and this Order.
4. In the event Defendants fail to comply with Preliminary Injunction by removing all false statements of fact from the www.robertzarcofacts.org and www.zarcolawfacts.org websites within five (5) days of this Order, Cecil Rolle and Sedna Consultancy, LLC shall each be subject to the imposition of civil contempt sanctions in the amount of $100 per day until Defendants comply with the Preliminary Injunction as directed by this Order.
DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 10/05/15.
MONICA GORDO CIRCUIT COURT JUDGE
The parties served with this Order are indicated in the accompanying 11th Circuit email confirmation which includes all emails provided by the submitter. The movant shall IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or hand-delivery, to all parties/counsel of record for whom service is not indicated by the accompanying 11th Circuit confirmation, and file proof of service with the Clerk of Court.
Signed original order sent electronically to the Clerk of Courts for filing in the Court file.
Copies Furnished To: Counsel of Record
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