Cynthia L. Counts

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Cynthia L. Counts has more than 25 years of trial and appellate experience. She is best known for an aggressive motions practice, and has had consistent success in winning cases in the early stages of litigation. Over the course of her career, she has established a practice focusing on libel, privacy, false advertising, newsgathering torts, copyright, media and First Amendment law. Ms. Counts defends individuals, newspapers, websites, television stations and small businesses in libel, copyright and trademark infringement claims, as well as breach of contract, invasion of privacy, fraud and promissory estoppel cases. She has represented well-established media companies, newspapers, broadcasters and publishing companies in prepublication review and emergency court hearings to contest motions for injunctions as unconstitutional prior restraints, to quash subpoenas on the basis of reporter’s privilege and to gain access to court proceedings or public documents. Ms. Counts has been at the forefront of the quest for a broad application of Georgia’s anti-SLAPP statute, enacted in 1996 to provide an early mechanism for the dismissal of harassing libel litigation.

Ms. Counts also litigated successfully for clients with free speech concerns:  from those speaking out about assisted suicide, to individuals facing anti-gay discrimination in requests for vanity license plates, to those wrongfully arrested for verbally criticizing law enforcement, or for uttering profanities in a public meeting.

Ms. Counts is a sought-after commentator and writer on libel, privacy, Internet, the First Amendment and open government law. She also has been selected as one of Georgia’s Super Lawyers and is AV® Preeminent Peer Review rated by Martindale-Hubbell.

Memberships include the governing board of the ABA Forum on Communications Law; the board of the Georgia First Amendment Foundation; and chair of the Media Law Resource Center’s Newsgathering Committee.

During spring semesters, she is an adjunct professor and teaches a media and communications law course at Emory University Law School.

Education: 1992 graduate of the University of Georgia School of Law and a 1989 graduate of the University of North Carolina at Chapel Hill, with honors.

 

Areas of Practice

  • Litigation
  • Appellate Law
  • Libel, Copyright and Privacy Law
  • Media and First Amendment Law

Representative Matters

  • Serving as lead counsel in a libel action involving defamation, false light, intrusion into seclusion, intentional and negligent infliction of emotional distress, and loss of consortium. Gaudette, et al. v. Mainely Media LLC, et al., (Superior Court of State of Maine, Case No. CV-15-123) - PENDING as of 01/08/19.
  • Assist a local media company with pre-publications review, resolving threats of litigation, using reporter's privilege to obtain withdrawals of subpoenas, advising on FOIA and open records issues, consulting on media law litigation, and providing state-by-state guidelines on various media law issues.
  • Represent a local media company in a case involving allegations of libel based on television reporting about an individual’s attendance at the Alt Right rally in Charlottesville, Virginia. Reilly v. WBRE-TV, et al., (In the Court of Common Pleas of the 26th Judicial District of Pennsylvania, Case No. 330-CV-2018) – PENDING as of 01/08/19.
  • Represent a local media company in a defamation suit involving an investigative television report about the ten local restaurants with the most egregious health code violations. Arnie's Inc. v. Wood Television, LLC, et al., (State of Michigan, In the Kent County Circuit Court, Case No. 18-04220) – PENDING as of 01/08/19.
  • Represent defendants, the insurer of a news outlet, in a defamation and intentional infliction of emotional distress based on reporting about lawsuits filed against a doctor. Filed a motion to dismiss based on the fair report privilege, and the fact that plaintiff was either a public official, or a limited purpose public figure. Franchini v. Portland Press Herald, et al., (United States District Court, District of Maine, Case No. 1:18-cv-00015) – PENDING as of 01/08/19.
  • Represent LabMD and its CEO, Mike Daugherty, in a libel and conspiracy case brought by Tiversa in response to the book “Devil Inside the Beltway”. Daugherty’s book led to a Congressional investigation and an FBI raid of Tiversa’s headquarters. Tiversa Holding Corp., et al. v. LabMD, Inc., et al., (In the Court of Common Pleas of Allegheny County, Pennsylvania, Case No. GD-14-016497) – PENDING as of 01/08/19.
  • Represent Anne King who is suing her ex-husband, a sheriff’s deputy, for malicious and retaliatory arrest. Mr. King had Ms. King arrested in response to a Facebook post of hers that he disliked and held to be defamatory based on a statute that was ruled unconstitutional in 1982. Anne King v. Corey King, et al., (In the United States District Court for the Middle District of Georgia-Macon Division, Case No. 5:17-cv-24); Ms. King prevailed on most of her counts over the defendants’ motion for summary judgment, which invoked a host of immunities. The court refused to dismiss the 1983 civil rights claim as to Defendant Burgamy, and the tort claims of malicious prosecution against either defendant. We prevailed over a particularly nuanced argument by Burgamy that he was simply following the Magistrate judge’s erroneous ‘direction’ to fill out a warrant for criminal defamation, as the magistrate himself wrongly believed that same was a constitutional offense. Burgamy has appealed on the denial of summary judgment as to the 1983 claims to the United States Court of Appeals for the Eleventh Circuit – PENDING as of 01/08/19.
  • Recent Outcomes

  • Obtained dismissal with prejudice involving allegations of legal malpractice, breach of contract, intentional and reckless misrepresentation, breach of the covenant of good faith and fair dealing, and the CT Unfair Trade Practices Act. Prevailed on an anti-SLAPP motion along with other co-counsel on grounds of Fair Report privilege, Jalli v. Nexstar, (Superior Court, State of Connecticut, FBT-CV-18-6070048-S, 2018).
  • Consulted and assisted with a successful anti-SLAPP motion involving allegations of libel based upon a news report involving allegations of criminal misconduct and won an award for attorney fees. Searles-Harris v. KBAK & KGET-TV (Superior Court of the State of California, For the County for Kern, Case No. BCV-18-101506-TSC, 2018).
  • Consulted and assisted in drafting a successful motion for the dismissal with prejudice of a complaint alleging defamation and Business and Professions Code violations for false and misleading advertising and unfair business practices These allegations stem from a blog post regarding the Plaintiff’s disbarment from the California bar. The client was a writer contracted to write articles that were then posted on a local law firm’s website. Filed two separate anti-SLAPP motions (the first to the defamation claim and the second to the BPC claims after Plaintiff was allowed to amend the claims to pertain to the client). The court granted both anti-SLAPP motions after finding that the writing was a fair and accurate report on an official proceeding and did not constitute commercial speech. The anti-SLAPP motions were filed after Duane Morris set aside a default that had been entered against the client before Duane Morris had been retained. Robertson v. Burns (Superior Court of California, County of San Mateo, Case No. CIV 530381, 2018).
  • Filed motions to quash and successfully argued that reporters should not have to testify at hearings in high-profile murder trial supported by the reporter's privilege on behalf of reporters from FOX 5 and the Fulton County Daily Report. The Judge ruled that the reporters would not be excluded by the rule of sequestration and ultimately refused to allow the prosecution to call the reporters to the stand. After counsel was told to come back to court for a second hearing, the Court encouraged the State to pay the media companies attorney fees for "having wasted" counsel's time. State v. McIver (Superior Court of Fulton County, State of Georgia, Criminal Case No. 17SC153902, 2018).
  • Obtained dismissal with prejudice involving allegations of defamation/libel against a media company and a radio talk show host after counsel filed a Motion to Strike Complaint based on Georgia's recently amended anti-SLAPP statute. Mullins v. Beasley Media Group, LLC, et al. (Superior Court of Gwinnett County, State of Georgia, Case No. 18-A-02659-8.
  • Obtained significant appellate decision affirming grant of summary judgment because plaintiff failed to create a jury question on actual malice. The court held that although the plaintiff did not comment on the public controversy at issue, his “conduct” in “rais[ing] his public profile” made him a limited purpose public figure required to prove actual malice by clear and convincing evidence. The court held that the plaintiff could not meet this “extremely high” burden as a matter of law due to the “extent of [the reporter’s] investigation and his reporting of [the plaintiff’s] explanations” and “opposing view[].” Ladner v. New World Communications of Atlanta, Inc., A17A0883, 2017 WL 4856321 (Ga. Ct. App. Oct. 27, 2017).
  • Prevailed on a motion to dismiss in the Nevada District Court arguing that Cox Communications was immune from liability under the Communications Decency Act (“CDA”) for passively hosting websites containing information regarding an expunged criminal conviction. CDA 230 holds that online intermediaries that host or republish speech are not legally responsible for what other publishers say or do. Wilson v. Web Express LLC (District Court of Nevada. Eighth Judicial District Court Clark County, 2017).
  • Prevailed on a motion to dismiss in the Michigan Circuit Court arguing that Cox Communications was immune from liability under the Communications Decency Act (“CDA”) for passively hosting websites containing information regarding an expunged criminal conviction. Court found that all of Plaintiff’s claims against Cox were barred by Section 230 of the CDA and dismissed them with prejudice. John Doe v. Perfect Privacy LLC (Michigan 7th Circuit Court, 2017) Case No. 17-108537-CZ.
  • Used amended Georgia anti-SLAPP statute to secure early stage dismissal of libel complaint in which plaintiff alleged that defendant’s notification to insurance company about possible arson in a house fire constituted defamation. Gauthier v. Vaughn (Ga. Superior Court, Forsyth County, 2017). Civil action 16CV-21633.
  • Obtained summary judgment for television news station and reporter following a veteran’s claim of defamation and libel after station reported veteran had lied about receiving a Purple Heart. Ladner v. New World Communications of Atlanta, Inc. (Ga. State Court, DeKalb County, 2016).
  • Obtained dismissal of a libel lawsuit by a local Assistant District Attorney upon threat of a motion to strike under Georgia’s newly amended anti-SLAPP statute. Ferguson v. New World Communications of Atlanta, Inc. (Ga. Superior, Fulton County, 2016)
  • Successfully moved for judgment on the pleadings in favor of the producers of the COPS television show in a defamation, invasion of privacy, and emotional distress claim. Butler v. Gwinnett County et al., (N.D. Ga. June 3, 2016) No. 1:15-CV-3289
  • Defended Telemundo Atlanta in a libel suit arising from the station’s investigative news reports about the plaintiff’s involvement in running an unaccredited school. The plaintiff voluntarily dismissed the case upon threat of a motion to strike under Georgia’s anti-SLAPP statute. Beltran, et al. v. Korean American Television Broadcasting Group, et al. (Ga. Superior, Gwinnett County, 2016).
  • Quashed multiple subpoenas by felony defendant seeking for in camera review raw footage and other newsgathering materials from Fox 5 concerning report about individuals using drones to sneak contraband into prisons. State v. Spurlock (Ga. Superior Court, Fulton County, 2016).
  • Successfully moved for reconsideration of trial court order requiring in camera review of television production company’s raw footage in high-profile serial killer case. Trial court ultimately ruled in favor of production company, declining to order even in camera review of the material. The ruling for our client followed a hearing in which we showed the defendant had not met his burdens under the Georgia and New York Reporter’s Privilege. State v. Presley (Ga. Superior Court, Fulton County, 2016)
  • Mounted anti-SLAPP defense to secure early dismissal of physician's libel claim that investigative television news coverage of the deaths of several of her cosmetic surgery patients was the reason her license was suspended. 2015 Nedra Dodds v. Adam Murphy, CBS46, Channel 2 Action News, et al.
  • Secured summary judgment in favor of singer/reality TV performer sued for defamation by a former manager for comments broadcast on the show. Uncovered "tweets" and other evidence supporting Client's account and established early on the plaintiff was a public figure and subject to "actual malice" standard. Mickey Wright, Jr. v. Kimberly Michelle Pate, et al.
  • Obtained summary judgment in favor of two radio station hosts in a defamation and false light claim concerning comments they made on their radio program, a satirical show that discussed issues particularly relevant to a Hispanic audience. Gabriela Gonzalez-Lamberson v. Davis Broadcasting Company.
  • Secured dismissal of disorderly conduct charges filed against client following a verbal confrontation with neighbors, who recorded the interaction. Judge agreed the statements did not rise to the level of "fighting words" and thus was protected speech. 2015 State of Georgia v. Kenneth Ray Chiavone.
  • Secured dismissal of criminal charges against client accused of yelling epithet at police for their treatment of a suspect. Pursued free speech claim in federal court and secured $100,000 settlement for client. 2014 Amy Barnes v. Cobb County et al.
  • Secured voluntary dismissal of libel case involving a whistleblower's emails. Client reported to federal officials that plaintiffs (also his former employer) made a practice of illegally cutting out joint venture partners after securing significant government contracts. Argued that the defendant's emails to federal officials regarding a $25 million Department of State contract in Uganda were protected under anti-SLAPP; court agreed. 2014 Torres Advanced Enterprise Solutions, LLC v. Christopher G. Herman.
  • Obtained a judgment on the pleadings for clients in a libel case filed by a contractor upset over their online review of his company's services. Judgment followed referencing of the voluminous record of cases protecting a consumer's right to voice an opinion of services received. 2014 Viking Fence Company, LLC v. Charles Denyer and Megan Denyer.
  • Secured removal of injunction restraining Atlanta television station from broadcasting an audio tape it obtained that was relevant to the criminal trial regarding a highly publicized cheating scandal involving the superintendent of city schools. What the judge characterized as a "well-written brief" led him to apologize for overstepping and he immediately lifted the injunction. 2014 State of Georgia v. Beverly Hall, et al.
  • Represented plaintiff in federal court suit who sought prestige license plate tags and was denied because Department of Driver Services had determined the requested tags (ex. 4GAYLIB) were obscene. Case led to changes (in favor of client) in the rules for vanity license plates. 2013 Gilbert v. Mikell.
  • Secured dismissal with prejudice prior to engaging in any discovery based on grounds that plaintiff's libel claims against television broadcaster were barred by state public interest privilege and wire service defense. 2012 Bodana v. Times-Journal.
  • Obtained $85,000 settlement in a First and Fourth Amendment lawsuit for woman who was arrested for saying an expletive at a Town Council meeting. 2012 Kirkendoll v. City of Smyrna.
  • Secured voluntary dismissal without prejudice in claim for conspiracy, intentional infliction of emotional distress and tortious interference against television broadcaster after filing motion for summary judgment before there was any formal discovery. 2011 Nathaniel Johnson v. FOX 5.
  • Obtained motion for summary judgment without any discovery being conducted in an employment case because of a lack of evidence establishing an employer-employee relationship. 2010 Zeigler v. FOX Broadcasting.
  • Secured dismissal of two federal RICO lawsuits against broadcast client and a reporter within two weeks following threats of attorney's fees and sanctions for frivolous litigation. 2010 Hindu Temple and Community Center of Georgia v. New World Communications, and Annamalai et al. v. Loganathan et al.
  • Secured voluntary dismissal with prejudice of libel case filed against television reporter following his investigative series about plaintiff with argument that attorney's fees and sanctions would be mandated by anti-SLAPP statute. 2010 Annamalai et al. v. Randy Travis.
  • Secured voluntary dismissal of libel action against an attorney for statements included in a press release following arguments that the statements were privileged and complaint was frivolous. 2010 Robinson v. Loewenthal.
  • Represented plaintiff with Huntington's Disease who sought comfort from a right-to-die group. Filed lawsuit challenging state statute outlawing people from speaking publicly about assisted suicide. Georgia Supreme Court ruled in 2012 the assisted suicide statute violated the First Amendment. 2010 Caldwell v. Georgia.
  • Secured voluntary dismissal of complaint by drug developer who sought $300 million in damages, a temporary restraining order and an injunction demanding removal of an article from an online news publisher's website. 2009 Evans v. Chicago Reader.
  • Secured voluntary dismissal of libel complaint in exchange for factual clarification and assurance that defendant publisher would not seek attorney's fees for frivolous litigation on grounds that truthful reports of information from police are protected. 2009 Askew v. Ingles & West Ga. Shopper.
  • Obtained summary judgment for television news station following public official's claim of defamation, false light invasion of privacy and public disclosure of private facts resulting from station's news reporting. 2009 Godfrey v. Cobb County and New World Communications of Atlanta.
  • Won judgment on the pleadings without use of any formal discovery in a $1 million federal libel lawsuit brought by former EO of a medical products company over criticism he received regarding his involvement in a Rolls-Royce club. Successfully represented a volunteer officer in that club. In addition, after federal district court denied imposition of sanctions, secured a reversal in Eleventh Circuit and a $545,000 consent order favoring client. 2008 Koly v. Enney.
  • Secured dismissal with prejudice of plaintiff's claim against television broadcaster for libel, invasion of privacy, fraudulent misrepresentation and infliction of emotional distress, due to plaintiff's failure to comply with anti-SLAPP verification requirements. 2008 Boxcar Development Corp. v. New World Communications of Atlanta.
  • Quashed plaintiff's motion to compel disclosure of documents and information a television reporter obtained from an anonymous source during newsgathering pursuant to Georgia Reporter's Privilege. 2008 Hendrix v. Highsmith.
  • Secured voluntary dismissal of defamation complaint regarding television broadcaster's investigation of health conditions at plaintiff's cosmetic services business. 2007 Stewart v. WAGA FOX 5.
  • Secured voluntary dismissal of defamation complaint regarding television news broadcaster's undercover investigation showing plaintiff's security company hired convicted felons. 2006 OSHA Security, Inc. v. FOX 5.
  • Upheld right of media to broadcast judicial proceedings of criminal defendant accused of murdering a judge. 2006 State v. Nichols.
  • Successfully opposed motion seeking restraining order filed by pool company seeking to prevent a television station from broadcasting an audio tape it obtained. 2006 Blue World Pools Inc. v. New World Communications of Atlanta Inc.
  • Represented lighting manufacturer and obtained partial summary judgment in trademark infringement case. 2005 Light Sources Inc. v. Cosmedico Light, Inc.
  • Obtained summary judgment from the trial court (affirmed on appeal) without use of formal discovery in case of a newspaper employee who sued for libel and invasion of privacy regarding her employer's use of her likeness in conjunction with a cover story on telemarketing practices. 2003 Collins v. Creative Loafing.
  • Obtained summary judgment, without formal discovery, for newspaper following physician's libel claim concerning news reporting of numerous medical malpractice claims against physician, who regularly treated HIV patients in Atlanta. 2001 Annisman v. Window Media.
  • Represented bank on appeals in affirming summary judgment approving creditor's sale of property in a default and recovery of deficiency remaining. 1996 & 1998 Alliance Trust v. Harris Trust & Savings Bank, Senske v. Harris Trust & Savings Bank.
  • Represented commercial real estate partnership on appeal in affirming summary judgment in a tortious interference case. 1997 Disaster Services Inc. v. ERC Partnership.
  • Won trial verdict in defamation case (affirmed on appeal) brought by a former public service commissioner against television station regarding news story concerning prosecution of corrupt public officials. 1996 Barber v. Gillett Communications of Atlanta.
  • Represented tire manufacturer in product liability case, appeal led to reversal of $43 million jury verdict. 1996 Ford v. Uniroyal Goodrich Tire Co.
  • Represented international food company on appeal in reversing a jury verdict growing out of a multi-million dollar breach of contract matter. 1995 W.R. Grace & Company v. Taco Tico Acquisition Corp.
  • Represented national appliance manufacturer on appeal in affirming summary judgment in a product liability case. 1993 Bunch v. Maytag Corp.

Admissions

  • Georgia
  • Supreme Court of Georgia
  • Court of Appeals of Georgia
  • U.S. District Court for the Northern District of Georgia
  • U.S. District Court for the Middle District of Georgia
  • U.S. District Court for the Southern District of Georgia
  • U.S. Court of Appeals for the Eleventh Circuit
  • U.S. Supreme Court
  • New York

Education

  • University of Georgia School of Law, J.D., 1992
    - Order of the Coif
  • University of North Carolina at Chapel Hill, B.A., cum laude, 1989

Experience

  • Duane Morris LLP
    - Partner, 2015-present
  • Counts Law Group
    - Owner/Managing Partner, 2000-2015
  • Dow, Lohnes and Albertson
    - Associate, 1998-2000
  • Alston & Bird
    - Associate, 1992-1998

Professional Activities

  • American Bar Association
    - Forum on Communications Law
    -- Member, 1998-2014
    -- Governing Committee, 2014-present
    - Women in Communications Law Subcommittee
    -- Member and Past Chair, 1999-2010
    - Tort, Trial and Insurance Practice Section
    -- Media, Privacy and Defamation Law Committee, 1999-present
  • Media Law Resource Center

    - Member, MLRC Planning Committee, 2017-present
    - Co-chair, Newsgathering Committee, 2005-present

  • Georgia First Amendment Foundation
    - Board Member and a Director, 2014-present

Honors and Awards

Civic and Charitable Activities

  • America to Anywhere for Arthritis (A2A4A)
    - Member/Marathon Runner Fundraising for Arthritis Foundation, 2007-present

Selected Publications

Selected Speaking Engagements

  • Speaker, “Current Events and Libel 101,” University of Georgia Terry College of Business, Atlanta, Georgia, December 6, 2017

  • Speaker, "Media Literacy 101," Atlanta Press Club, Atlanta Georgia, May 22, 2017
  • Speaker, "The Media Speaks," Adult Learning Program, May 17, 2017
  • Moderator, "If You Can't Say Anything Nice, Don't Say Anything: Analyzing Unpublishing Demands, Nondisparagement Clauses, and Whistleblower Retaliation and their Impact on the Fourth Estate," University of Kansas Media and the Law Seminar, Kansas City, Missouri, May 5, 2017
  • Panelist, "Georgia Reflections on Ferguson," Access, Fairness, Public Trust and Confidence Committee, December 15, 2016
  • Co-presenter, MLRC Conference, Virginia, September 2016
  • Speaker, "Hot Issues in Access and Newsgathering," 21st ABA Annual Conference, Naples, Florida, February 4-6, 2016
  • Panelist, "Anti-SLAPP Statute," Georgia First Amendment Foundation Breakfast, January 28, 2016
  • "Rights, Roles and Responsibilities of Press and Media," Government, Politics and Media Institute of Holy Innocents' Episcopal School, 2014
  • "The Basics of Georgia's Open Records Law: What You Need to Know About Public Records and Open Meetings," 2012
  • "Open Records Requests," Discussion with Attorney General Sam Olens on How Open Records Uncovered the APS Cheating Scandal, 2011
  • "Legal Issues Arising from the Use of Social Media," Digital News: Bluejeans Workshop, 2011
  • "Libel & Privacy 101 for Authors," BookLogix Seminar, 2011
  • "Alternative Billing Arrangements," ABA Forum on Communications Law, 2010
  • "Deposition 101 in Libel and Privacy Cases," Media Law Resource Center National Seminar, 2008
  • "Ways to Improve Relationships Between the Bar, Media and Judiciary," LDRC Breakfast, 2000
  • "Answering Discovery Requests," Curbing Discovery Abuse Seminar, 1998
  • "Curbing Discovery Abuses: Answering Discovery Requests," Georgia ICLE, 1996
  • "Motions for Summary Judgment and Other Pre-Trial Motions," Civil Litigation for Younger Lawyers Seminar, 1995