Kazal et al v. Price
Filing
4
ORDER denying 3 --motion for temporary restraining order and preliminary injunction; directing Michael Whitt and Minyao Wang to explain by 5:00 p.m. on 12/15/2017 in a single paper of ten or fewer pages why an order should not require Whitt and Wang to remit $1000 each as a sanction for filing an unwarranted "emergency" motion. Signed by Judge Steven D. Merryday on 12/8/2017. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHARIF KAZAL, et al.,
Plaintiffs,
v.
CASE NO. 8:17-cv-2945-T-23AAS
MATTHEW PRICE,
Defendant.
____________________________________/
ORDER
The latest spat in a protracted dispute between several Australian businessmen,
this action involves (at least) six actions on two continents. Four of the Kazal
brothers sue (Doc. 1) Matthew Price, a former employee of a company owned by
Australian businessman Rodric David, for tortious interference with a business
relation and for intentional infliction of emotional distress. The complaint alleges
that Price runs five websites that host “defamatory” and “untrue” content about the
Kazal brothers.1
BACKGROUND
The websites, which mostly re-publish news articles from the Australian
media, detail a tumultuous history between the Kazal brothers and David. The story
begins several decades ago, when the eight Kazal brothers emigrated from Lebanon
to Australia. While two brothers opened a restaurant in Sydney, another brother
1
Charifkazal.com, kazalfamilytruth.com, karlkazal.com, adamkazal.com, and
tonykazal.com. Two of the websites (kazalfamilytruth.com and karlkazal.com) appear defunct.
(Tony) worked for several years for the royal family in the United Arab Emirates.
According to one story from the Sydney Morning Herald, Tony and Karl “leveraged
their status” with “Gulf diplomats” to arrange meetings between the Gulf royalty and
Australian businessmen.2
Meanwhile, other Kazal brothers opened restaurants and bars in historic
buildings owned by the Australian government and leased to private investors. In
one instance, the Kazals reportedly convinced the Australian government to spend
more than six million dollars renovating one of the buildings. According to the
Sydney Morning Herald, linked on Price’s websites, an unlawful bribe from the Kazals
to a government official secured the government’s agreement to pay for the
renovation. Several newspapers report that Australia’s Independent Commission
against Corruption later charged Charif Kazal with bribery.
While several Kazal brothers grew the restaurant and bar business, another
brother partnered with David, the Australian businessman. David and Kazal
purportedly agreed to buy an unprofitable waste-recycling operation in Sydney and to
invest in the operation’s turn-around. One exposé from a Sydney paper reported that
David spent several million dollars on the waste operation, but the Kazal family
allegedly failed to pay its share (according to the exposé, Libya’s sovereign
investment fund promised the Kazals $2.5 million; for reasons not explained in the
story, the “Gaddafi-controlled fund” reportedly never paid the money). After the
2
Linton Besser, “Bad Company,” Sydney Morning Herald (published Mar. 19, 2013), available
at http://www.smh.com.au/nsw/bad-company-20130310-2fuum.html.
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Kazals sued David in the Cayman Islands over the failed investment, a Cayman
judge reportedly found that David, whom the Kazal brothers accused of attempting
to “steal” the Kazals’ half of the company, breached a fiduciary duty and that the
Kazal brothers breached a promise to finance part of the waste operation.
In addition to the Cayman litigation, actions involving David (or David’s
company, Thunder Studios), Price, and the Kazals pend in the Central District of
California (Thunder Studios, Inc. v. Charif Kazal, et al., 2:17-cv-871-AB-SS (C.D. Cal.
Feb. 2, 2017), the Superior Court of Los Angeles (Charif Kazal et al. v. Price, case
no. SC126477), and the Federal Court of Australia (Thunder Studios v. Charif Kazal,
case no. 2014 NSD 850).
While David and a Kazal brother litigated in the Cayman Islands over the
waste operation and another failed co-investment in Dubai, an Australian newspaper
scrutinized another Kazal brother’s purported connection to Hezbollah. Tony Kazal
purportedly agreed to convert several million units of an unspecified African currency
into American dollars in exchange for a “lucrative commission.” A man in Beirut
allegedly gave Kazal a bag of cash. Citing an investigation by Lebanese police, the
Sydney Morning Herald reports that both the man and the money belong to
Hezbollah.3
3
Linton Besser, “Two bags of money and a lot of trouble in Beirut,” Sydney Morning Herald
(published Mar. 16, 2013), available at
http://www.smh.com.au/national/two-bags-of-money-and-a-lot-of-trouble-in-beirut-20130315-2g5v
5.html.
-3-
The Middle District of Florida recently closed an action in which Adam Kazal
sued Price and moved in an “emergency ex parte application” for leave to depose
Price on less than a week’s notice. Adam Kazal v. Matthew Price, case no.
8:17-cv-2620-VMC-JSS (M.D. Fla. Nov. 2, 2017). The application states that the
Australian court ordered Kazal not to “make certain statements regarding David”
(Doc. 1 at 2 in 8:17-cv-2620), but Kazal purportedly violated the order. The
Australian court held Kazal in criminal contempt and sentenced Kazal to eighteen
months of imprisonment, which sentence an Australian appellate court affirmed in
part and reversed in part.4 Appealing a second time, Kazal claimed that
“inflammatory statements” on the websites created by Price infuriated Kazal and
caused Kazal to violate the Australian court’s order.
The November 2, 2017 ex parte application to the Middle District of Florida
requested a subpoena compelling Price to appear for a deposition within six days.
On November 7, an order in case no. 8:17-cv-2620-VMC-JSS granted an “emergency
motion to compel” Price’s appearance at a deposition the next day. Appearing
through counsel the day of the deposition, Price submitted an “emergency motion to
quash the subpoena,” but the district judge denied the motion an hour later and
without discussing the merits of Price’s motion.
Appending the deposition to the complaint, the plaintiffs claim that Price
posted “defamatory” and “untrue” content on the websites in an intentional effort to
4
Kazal’s sentence ends in May 2018.
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inflict emotional distress and to interfere with an unspecified business relation.5
Also, the plaintiffs allege that schoolchildren tease or mock the children of Tony
Kazal about the purported connection to Hezbollah and about the purported
criminality. Moving (Doc. 3) for a temporary restraining order and for a preliminary
injunction, the Kazals request that an order direct Price to “immediately remove
access to and/or the content” from the websites and that an order prohibit Price from
“making further statements . . . that the Plaintiffs are members of a terrorist
organization or otherwise involved in criminal or fraudulent activities.” (Doc. 3
at 15)
DISCUSSION
An “extraordinary and drastic remedy,” a preliminary injunction issues only if
the moving party shows (1) a substantial likelihood of success on the merits and (2)
an imminent and irreparable injury that will result absent an injunction. Also, the
moving party must show (3) that the harm to the moving party from denying the
requested injunction outweighs the harm to the non-moving party from enjoining
specific conduct and (4) that creates no material injury to an important public
interest. Northeastern Fl. Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville,
Fl., 896 F.3d 1283, 1284–85 (11th Cir. 1990).
5
The deposition (Doc. 1 at 16–43) shows that Price controls the websites but says nothing
about the truth of the allegations reported by the Australian media and re-published on the websites.
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1. Likelihood of success on the merits
Although the plaintiffs nominally sue for intentional infliction of emotional
distress and for tortious interference with a business relation, the crux of the
plaintiffs’ claims is defamation. Excluding jurisdictional and prefatory paragraphs,
more than half of the complaint alludes to Price’s allegedly “false,” “untrue,” or
“defamatory” statements. (Doc. 1 at ¶¶ 1, 2, 6, 23, 31, 32, 34, 35, 36, 37, 38, 39, 40,
41, 42, 45, 46, 48, 50, 57, 58, 59, 61, 67, and 70) If true, the reporting from the
Australian press might vindicate the content of Price’s websites. “Truth, of course, is
a complete defense to a charge of libel.” Dun & Bradstreet, Inc. v. Miller, 398 F.2d 218,
223 (5th Cir. 1968); accord Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967); New York
Times Co. v. Sullivan, 376 U.S. 254 (1964). And nothing appears “extreme” or
“outrageous” about a defendant’s re-publishing an accurate6 news story (even though
the story publicizes unflattering information). The sparse record, which comprises an
unverified complaint, the Price deposition, and several conclusory affidavits that
deny the newspaper reports, precludes finding at this time that the plaintiffs likely
will succeed on the merits.7
6
reports.
Again, this order decides nothing about the accuracy of the website or the newspaper
7
Also, the plaintiffs’ motion (Doc. 3) cites Florida law but offers no explanation why Florida
law applies. The defendant, who moved to Florida in June 2017, designed and published the
websites while in California. (Doc. 1 at 18 and 26)
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2. Irreparable harm
Although Price published the websites between January and March 2016 and
the plaintiffs learned about the websites around June 2016 (if not earlier), the
plaintiffs waited nearly two years to sue.8 In Wreal, LLC v. Amazon.com, Inc., 840 F.3d
1244 (11th Cir. 2016), the plaintiff waited five months to request a preliminary
injunction, and the district court denied the request. Affirming the denial, Wreal
observes that “a delay of even [] a few months” in moving for a preliminary
injunction “militates against a finding of irreparable harm.” 840 F.3d at 1248
(explaining that “the very idea of a preliminary injunction is premised on the need for
speedy and urgent action to protect the plaintiff's rights”). If the five-month delay in
Wreal militates against irreparable harm, the year-and-a-half delay in this action
conclusively refutes the claim of an imminent and irreparable injury.
Also, the plaintiffs fail to explain the mechanism by which an injunction
against Price’s re-publishing news stories from the press remedies the plaintiffs’
alleged injuries. At least half a dozen newspaper stories9 published by several
newspapers report the information about which the plaintiffs sue (again, Price’s
websites mostly re-publish the newspaper stories, although the websites contains
8
In the other Middle District of Florida action, Price cites (Doc. 12 at 4) an October 17, 2017
affidavit from Adam Kazal in which Adam admitted that the Kazals learned about the websites
around June 2016. And the plaintiffs learned about Price’s involvement with the websites almost a
year ago.
9
See, e.g., Anthony Klan, “Kazal restaurant clan fights ex-partner over ICAC case,” The
Australian (published Aug. 1, 2016); Linton Besser, “Revealed: Kazal family’s links to Gaddafi,”
Newcastle Herald (published May 8, 2011).
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several so-called “memes” that appear nowhere in the newspapers). Even if an
injunction prohibits Price’s speaking about the Kazal family, the information about
the Kazal family remains easily accessible elsewhere on the Internet. Because the
plaintiffs fail to show clearly that an injunction against Price’s speech remedies an
imminent and irreparable injury, the request for a preliminary injunction warrants
denial.
3. Balance of harms
An injunction issues only if the prospective harm to the moving party from
denying the injunction outweighs the harm to the non-moving party from enjoining
specific conduct. According to the plaintiffs, schoolchildren tease or mock the
children of plaintiff Tony Kazal about the reported criminality and about the
reported connection to Hezbollah. Also, the plaintiffs attribute to Price’s websites a
“loss of business.” An affidavit from the Kazal family’s accountant claims that the
websites “stilted the growth trajectory” of the family business but declines to identfy a
business transaction that failed as a proximate result of the websites. (Doc. 1 at 82)
Based on these purported harms, the plaintiffs claim that the balance-of-equities
favors an injunction.
Insisting (without citation to anything other than the plaintiffs’ conclusory
affidavits) that the websites contain falsities, the plaintiffs state that Price will suffer
“absolutely no harm” if an injunction restrains Price’s speech. (Doc. 3 at 11) But a
long line of Supreme Court decisions explains that a “prior restraint[] on speech and
publication [is] the most serious and least tolerable infringement on [a person’s] First
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Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976)
(collecting decisions). Under the First Amendment, a person maintains a weighty
interest in free speech — an interest so great that the judiciary routinely refuses to
enjoin speech before the final adjudication of the defendant’s liability. See, e.g.,
Gunder’s Auto Center v. State Farm Ins., 617 F.Supp.2d 1222 (M.D. Fla. 2009) (denying
the plaintiff’s request for a preliminary injunction in a defamation and
tortious-interference action); Bollea v. Gawker Media, LLC, 2012 WL 5509624 (M.D.
Fla. Nov. 14, 2012) (Whittemore, J.) (denying the plaintiff’s request for a preliminary
injunction in a defamation and IIED action and explaining that “[i]n all but the most
exceptional circumstances, an injunction restricting speech pending final resolution
of constitutional concerns is impermissible”); Roca Labs, Inc. v. Consumer Opinion
Corp., 2014 WL 6389657 (M.D. Fla. Nov. 16, 2014) (denying the plaintiff’s request
for a preliminary injunction in a defamation and tortious-interference action). In
sum, Price’s First Amendment interest weighs heavily against a preliminary
injunction, and the plaintiffs fail to show clearly a balance-of-equities that favors
restraining Price’s speech.
4. Rule 65
The plaintiffs’ request for a temporary restraining order and preliminary
injunction violates at least three requirements in Rule 65, Federal Rules of Civil
Procedure. First, under Rule 65(b)(1)(B), the attorney for the party that requests a
temporary restraining order must “certif[y] in writing any efforts made to give notice
and the reasons why it should not be required.” The plaintiffs’ attorneys fail to
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submit an affidavit certifying an effort to notify Price about the motion and fail to
explain the necessity for an ex parte order.
Second, Rule 65(d)(1) requires that the preliminary injunction “state its terms
specifically” and “describe in reasonable detail — and not by referring to the
complaint or [an]other document — the act or acts restrained.” Not a “mere
technical requirement[],” the specificity requirement in Rule 65(d) ensures that the
enjoined party — who faces a punitive consequence for willfully violating an
injunction — knows exactly what he can and cannot do. Schmidt v. Lessard, 414 U.S.
473, 476 (1974). A recent decision explains:
[A]n injunction must describe the ‘restrained or required conduct’
in a manner that permits a judge asked to enforce the injunction
to speedily and confidently determine whether some oppugned
conduct offends the injunction and, if so, to design, impose, and
enforce a remedy with assurance that any violation is contrary to
the manifest and unmistakable terms of the injunction and is,
therefore, knowing and willful. As an injunction increases in
ambiguity and breadth and taxes increasingly a judge’s
interpretative ability, the inclination and legal authority of a
judge either to require compliance or to punish non-compliance
decreases at least proportionally.
Regions Bank v. Kaplan, 2017 WL 3446914 at *4 (M.D. Fla. Aug. 11, 2017).
The proposed injunction (Doc. 3 at 15) requires Price to remove from the
websites “false, malicious, or harmful information stating that Plaintiffs are
associated with terrorism, criminal misconduct, or fraud.” Also, the proposed
injunction orders Price to “refrain from making further statements” about those
topics. (Doc. 3 at 15) Replete with mischievously broad phrases susceptible to more
than one reasonable interpretation, the requested injunction fails to adequately
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apprise Price exactly what he can and cannot say. For example, the proposed
injunction offers no objective method to determine what constitutes “harmful
information” and risks the possibility that a trivial comment, if subjectively offensive
to a plaintiff, might violate the injunction (even if an impartial party familiar with the
litigants’ circumstances would find the comment innocuous). Because the requested
injunction fails to specify exactly what Price can and cannot say, the plaintiffs’
motion warrants denial.
CONCLUSION
For at least six reasons, the motion (Doc. 3) for a temporary restraining order
and preliminary injunction is DENIED. The plaintiffs fail to show a “substantial
likelihood” of success on the merits, fail to show an imminent and irreparable injury,
and fail to show a balance-of-equities that favors the injunction. Also, the requested
injunction violates the requirements in Rule 65 that the movant’s attorney certify an
effort to notify the non-moving party about the requested injunction, that the
movant’s attorney explain why notice is impracticable, and that the injunction
describe with specificity the enjoined conduct.
SHOW-CAUSE ORDER
By submitting an “emergency” motion for a temporary restraining order at
4:20 p.m. last night, the plaintiffs demanded the district court’s immediate attention.
A review of the record in this action and the other Middle District of Florida action
shows nothing approaching an imminent and irreparable harm that requires
enjoining the defendant’s speech without permitting the defendant an opportunity to
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respond. In fact, the due-process concerns attendant to an ex parte restraint on the
defendant’s speech far outweigh the incremental harm, if any, that would result from
the continued operation of the websites while the defendant responds to the motion
for a preliminary injunction. No later than 5 p.m. on DECEMBER 15, 2017,
attorneys Michael Whitt and Minyao Wang must explain in a single paper no longer
than ten pages why an order should not require Whitt and Wang to remit $1000 each
to the district court as a sanction for filing an unwarranted “emergency” motion.10
ORDERED in Tampa, Florida, on December 8, 2017.
10
Under Local Rule 3.01(e), “[t]he unwarranted designation of a motion as an emergency
motion may result in the imposition of sanctions.”
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