Janet Bright, a former coordinator at the Lee County Department of Social Services, sued the department and its director, Michele Brooks, alleging she was fired in retaliation for whistleblower reports and that Brooks defamed her as part of the retaliatory scheme. The defamation claim arose from an October 2023 incident. On the night of October 22, Bright entered the DSS offices after hours with her sister, Julie Johnson (herself a DSS employee but whose employment status at the time was in dispute) so that Johnson could retrieve a document and her belongings, which she carried out in a donated duffel bag. The next day, Brooks made a series of statements about the incident to the Lee County Sheriff’s Office and other county officials. Bright was placed on administrative leave on October 25 and terminated on November 20.

As pleaded, Brooks’s statements accused Bright of permitting “unauthorized access” to DSS facilities, consenting to the “theft” of DSS property, stealing property, being a “burglar,” engaging in “dishonest,” “improper,” or “criminal” conduct, and being “caught stealing ink cartridges.” Separately, the complaint alleges that Brooks said, “I bet Janet stole that [laptop] too.” Bright denied that she or Johnson stole anything or engaged in any criminal activity. The defendants argued that the alleged defamatory statements are not actionable because they are true, they are protected by qualified privilege, and amounted to statements of personal opinion. The court denied the motion to dismiss and permitted the defamation claim to go forward.

To be actionable, a statement must carry a “provably false factual connotation” and be capable of being proven true or false. (See Handberg v. Goldberg, 297 Va. 660 (2019)). Opinions, by contrast, are generally defined as statements that are “relative in nature and depend largely upon the speaker’s viewpoint.” (See Fuste v. Riverside Healthcare Ass’n, 265 Va. 127 (2003)). As a matter of law, courts decide whether statements can be reasonably understood as stating or implying actual facts about a person, whether those statements are verifiable, and whether they are reasonably capable of defamatory meaning. It does this by examining the words used in context.

Applying that framework, the court concluded that most of Brooks’s statements were factual rather than opinion. Whether Bright allowed “unauthorized access,” whether she or Johnson committed “theft,” whether she was a “burglar,” and whether she was “caught stealing ink cartridges” are all propositions that can be proven true or false. The court observed that the truth of several of them turns on a contested underlying fact: Johnson’s employment status. Whether the after-hours entry was “unauthorized” and whether taking certain items amounted to “theft” would depend largely on whether Johnson was entitled to be in the office and to remove her belongings. In other words, the accuracy of the statements can be measured against an objective state of affairs.

One of the statements at issue was treated differently. Brooks’ alleged remark that “I bet Janet stole that [laptop] too,” was deemed to be less of a factual assertion than the others. This particular statement “may be more a hyperbolic opinion than a statement of fact,” according to the court. The subject of the assertion (theft) is identical to the other accusations, but the phrasing of the statement is different. The conjectural “I bet” signals speculation rather than a firsthand factual assertion. Speculative comments are usually treated as viewpoint-specific opinions (and therefore non-actionable). The court left the question open, however, due to the lack of factual development, observing that it was “difficult to tell given the lack of context” at the pleading stage.

The defendants’ remaining theories fared no better. Truth is a complete defense to a defamation claim, but at the Rule 12(b)(6) stage a court must accept as false any statement the complaint alleges to be false. The truth of Brooks’s accusations would need to be resolved by the fact-finder at trial, not resolved on a motion to dismiss. Similarly, qualified privilege could not carry the motion because Bright alleged the statements were made with malice. The existence of malice is another question of fact.

The defendants were pathologists experienced in mesothelioma science who often testified for plaintiffs in asbestos litigation. In March 2020, they published “Malignant mesothelioma following repeated exposures to cosmetic talc: A case series of 75 patients” in the American Journal of Industrial Medicine, and later repeated its conclusions in a letter to the editor and a MedicalResearch.com article. Pecos River Talc LLC, a subsidiary of Johnson & Johnson, alleged that the study disparaged its product. The suit centered on three categories of statements. The “review claim” asserted that subject exposures were identified through sworn deposition testimony and interrogatory answers. The “no overlap claim” presented the 75 subjects as additional to the 33 subjects in an earlier study by Jacqueline Moline. And the “exposure claim” stated that all 75 subjects’ only known asbestos exposure was cosmetic talc. Discovery established that the no overlap claim was literally false in that eight of the 75 subjects in fact overlapped with Moline’s cohort. Summary judgment was nevertheless granted in the defendants’ favor because Pecos River failed to prove the authors published any of the statements with actual malice.

Applying New Jersey law, the court identified the elements of trade libel as publication, with malice, of a false statement of fact about the plaintiff’s product, causing special damages. The malice element applies the constitutional actual malice standard of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), which New Jersey courts apply under a heightened clear-and-convincing burden. Critically, the standard is subjective: the plaintiff must show that the defendant either knew the statement was false or published it with a high degree of awareness of its probable falsity, i.e., that the defendant “in fact entertained serious doubts as to the truth” of the statement. Evidence that a defendant should have known better, failed to investigate fully, made a mistake, misinterpreted facts, or was merely careless, clumsy, or irresponsible is insufficient to establish actual malice as a matter of law.

On the review claim, Pecos River’s sole evidence was a January 2020 email in which one author described the underlying sources somewhat differently than the published methods section did. The court held that no reasonable jury could find clear and convincing evidence of malice from a single email, which would require stacking inferences that the author deliberately altered the language while subjectively appreciating that the change rendered the statement false. The court characterized that chain of inferences as “a stretch” that failed the clear-and-convincing standard.

On the no overlap claim, the court confronted a statement that was concededly false, yet still found no malice. The record showed that Defendant Emory had affirmatively worked to identify duplicates, which is different from intentionally avoiding learning the truth. She had compared the two studies’ tables, contacted Moline directly, reached out to a plaintiffs’ firm, and ultimately removed four subjects she believed overlapped. That she missed others was, at most, a careless mistake. Careless mistakes do not establish malice. A failure to investigate rises to actual malice only when it reflects a “purposeful avoidance of the truth.” (See Blankenship v. NBCUniversal, LLC, 60 F.4th 744, 764 (4th Cir. 2023)). Even if the overlap was obvious, as the plaintiff argued, the record showed a researcher “investigating to uncover the truth,” not willfully avoiding learning the truth. This is what made this case different from cases like Eramo v. Rolling Stone, LLC, where the defendants deliberately declined to interview the single most important witness or to review materials they knew would confirm or refute the story.

On the exposure claim, the article had asserted that all 75 subjects’ only known asbestos exposure was cosmetic talc. Pecos River argued the authors knew that was false, and its theory turned on the screening method. The authors used the “Helsinki Criteria”—factors for judging whether an asbestos exposure was substantial enough to have caused disease—to decide which subjects to include. Because that filter excluded only exposures deemed causally significant, the plaintiff reasoned, subjects with lesser non-talc exposures necessarily remained in the study; and if any subject had a non-talc exposure at all, the flat statement that talc was the “only known exposure” was false, and the authors had to know it. Pecos River pointed to internal documents, including a spreadsheet describing the cohort as having “no other significant exposures” while the public-facing version said “without other known exposures,” as a deliberate alteration of meaning.

The court rejected the argument because the evidence showed the opposite of what the plaintiff needed. The authors genuinely understood “known exposure” to mean significant exposure, so a trivial or unconfirmed non-talc exposure was, to them, no known exposure at all, and the statement was true as they used the words. An extensive contemporaneous email record confirmed a sustained effort to build a “pure” talc-only cohort by excluding 65 subjects with other exposures. The variation between “significant” and “known” did not establish malice, because the authors credibly regarded the phrasings as synonymous. At most, the plaintiff showed the authors used a definition of “exposure” it disagreed with, not that they published a statement they believed was false.

The opinion presents the following facts. Zhan Wang, a licensed nurse practitioner, worked in a psychiatric practice at Carilion New River Valley Medical Center beginning in August 2019. Laura Taylor directed the relevant department. The two had a contentious relationship: Wang had refused to sign a noncompete agreement in September 2022, had reported various patient-care concerns to Taylor throughout 2022 and 2023, and had escalated concerns about allegedly unlawful practices to an authority at the Virginia Board of Nursing. Wang submitted a 90-day resignation notice by email on April 16, 2023. In August 2023, Taylor filed a report with the Virginia Department of Health Professions under Code § 54.1-2400.6, the statute governing mandatory reports concerning health professionals.

That report is the source of the defamation claim. In it, Taylor recounted that another nurse practitioner had raised concerns in April 2023 that Wang had examined a staff member off the record, prescribed a controlled substance to that staff member, and solicited patients for her private practice. The report stated that Wang had admitted, in meetings on April 13 and May 5, 2023, to prescribing medication to a staff member “via her private practice while on shift at Carilion” and to distributing business cards to gain patients for her private practice. The report further recounted that Carilion completed an investigation into Wang’s conduct on May 24, 2023, and sent her a disciplinary action in June 2023. Wang sued Taylor and Carilion for defamation per se, but she challenged only two narrow assertions: that Taylor met with her on April 13, 2023 (which Wang denied), and that she “submitted her resignation while under investigation” on May 5. (Wang claimed she was not under investigation when she resigned and that she resigned on April 16, not May 5.) Critically, Wang did not challenge the truth of the report’s account of her underlying conduct or of the investigation and discipline that followed. The circuit court sustained the defendants’ demurrer, and Wang appealed.

Reviewing the demurrer de novo, the Court of Appeals grounded its analysis in the familiar framework of Schaecher v. Bouffault, 290 Va. 83 (2015), and Handberg v. Goldberg, 297 Va. 660 (2019). A defamation plaintiff must allege publication of an actionable statement made with the requisite intent, and to be actionable a statement must be factual rather than opinion, defamatory, and false. Whether a statement is factual and whether it carries defamatory meaning are questions of law that courts decide in a “gatekeeping function,” while falsity is ordinarily a jury question under Hyland v. Raytheon Technical Services Co., 277 Va. 40 (2009). The defamatory element turns on whether the statement carries the requisite “sting,” i.e., whether it tends to injure reputation in the common estimation of the community or to render the plaintiff odious, infamous, or ridiculous. Because Wang pleaded defamation per se, she had to show that the statements prejudiced her in her profession or imputed to her an unfitness to perform its duties.

Wang’s theory was that falsely claiming she resigned while under investigation implied she had conceded culpability. But Wang did not dispute that she admitted the underlying conduct, that an investigation occurred, or that Carilion issued discipline. Against that unchallenged backdrop, the court concluded, the timing of her resignation “carries diminished significance.” Even accepting as true that Wang was not under investigation when she resigned, the isolated timing discrepancies could not injure her reputation in a way that the surrounding, conceded accusations did not already accomplish. The report as a whole was undeniably damaging to Wang’s professional reputation, but the specific statements she chose to challenge added no independent sting when measured against the greater weight of the allegations she left unchallenged. The statements therefore neither prejudiced Wang in her profession nor imputed unfitness to her, and the demurrer was properly sustained.

Note that although the defendants had asserted statutory immunity under Code § 54.1-2400.6(C), anti-SLAPP immunity under Code § 8.01-223.2(A)(i), and common law qualified privilege, the court reached none of those issues, invoking its “obligation to decide cases on the best and narrowest grounds available.” Because the claim failed at the actionability stage, there was no need to consider the privilege questions surrounding mandatory health-professional reporting.

Ian Auckland worked remotely from Southwest Virginia for Gilead Sciences, a California-based biopharmaceutical company, for more than nine years. In 2023, he applied for a preceptorship program associated with Gilead’s Key Accounts Team, a role viewed as a stepping-stone to a full-time position on the team. Hilary Zachry, a California employee who served as a mentor for the preceptorship program, allegedly favored other candidates. According to Auckland, Zachry falsely told a coworker that Auckland had said “I want to rip your panties off” during a brief conversation at a work conference in Nashville, and then directed that coworker to report the fabricated accusation to Gilead. Auckland was accepted into the program, but was soon investigated and terminated. He sued both Zachry and Gilead in the Western District of Virginia, asserting claims of defamation and defamation per se, and sought to hold Gilead vicariously liable for Zachry’s conduct.

The district court dismissed the claims against Zachry for lack of personal jurisdiction and dismissed the claims against Gilead for failure to state a claim, reasoning that Auckland had not adequately alleged that Zachry acted within the scope of her employment. The Fourth Circuit affirmed the jurisdictional dismissal, agreeing that a single text-message exchange between Zachry and a Virginia-based colleague could not supply the requisite minimum contacts. On the vicarious-liability question, the court applied the presumption articulated in Parker v. Carilion Clinic, 819 S.E.2d 809 (Va. 2018), and Our Lady of Peace, Inc. v. Morgan, 832 S.E.2d 15 (Va. 2019). Under those decisions, once a complaint alleges an employment relationship at the time of the employee’s tort, Virginia law recognizes a rebuttable presumption that facts exist placing the conduct within the scope of employment. The presumption shifts the burden of production to the employer and applies from the outset of the case. Because a court does not resolve factual disputes on a motion to dismiss, an employer ordinarily cannot rebut the presumption until summary judgment. The lone exception is self-refutation: the presumption may be defeated by the complaint that triggers it, but only where the plaintiff’s own allegations make the refutation “clear, not conjectural, and irrefutable rather than debatable.” (See Parker, 819 S.E.2d at 822.)

Measured against that framework, the court held that Auckland’s amended complaint triggered the presumption by alleging that Zachry was a Gilead employee when she made the accusation. The district court had acknowledged the presumption but failed to apply it, moving directly to whether reporting sexual harassment could fall within the scope of Zachry’s employment and faulting Auckland for not alleging the existence of a Gilead policy encouraging such reports. That approach inverted the presumption, which exists precisely to supply facts the plaintiff has not pleaded. The proper question was whether anything in the complaint categorically foreclosed the possibility that Zachry acted within the scope of her employment, and nothing did. Drawing on Morgan, the court found it “possible to hypothesize” that a preceptorship mentor played some role in selecting program participants, such that a false accusation made to oppose a disfavored candidate could fall within her responsibilities.

The court distinguished Garnett on the ground that it predated the Supreme Court of Virginia’s clarification of the presumption in Parker and Morgan, and that the presumption was neither raised nor considered there. Because the presumption now applied in Auckland’s favor at the pleading stage, Garnett did not compel dismissal. The court was careful to note the limits of its holding: it did not decide that Zachry acted within the scope of her employment, only that the complaint did not irrefutably negate that possibility. Gilead remains free on remand to marshal positive facts to rebut the presumption, which “disappears in the face of positive facts to the contrary.” (Parker at 822.)

Judge Wilkinson dissented from the vicarious-liability holding. He would have affirmed dismissal, emphasizing that Auckland’s complaint repeatedly alleged that Zachry acted from personal spite and favoritism (i.e., “wholly from some external, independent, and personal motive”) which, in his view, is exactly the self-refutation that rebuts the presumption. He also disputed the majority’s treatment of Garnett, observing that Garnett had cited authority recognizing a rebuttable presumption and that the Supreme Court of Virginia had long applied it. On his reading, the majority effectively converted a rebuttable presumption into an irrebuttable one and expanded respondeat superior toward a per se rule.

The facts alleged in the amended complaint paint a picture of workplace sabotage. David Hopkins worked as a commission-only sales representative for Consolidated Electrical Distributors, Inc. (“CED”), an electrical wholesale-distribution company. Dan Ryan was his direct supervisor at CED’s Roanoke office. Hopkins had spent years building customer relationships and earning commissions, and one of his largest accounts was a client identified in the complaint as “Company C.” Hopkins had earned more than $100,000 in commissions from Company C and had secured its commitment to a $1.8 million apartment-development project — a deal that would have generated substantial additional commissions for him.

According to the amended complaint, the relationship between Hopkins and Ryan deteriorated during the COVID-19 pandemic over disagreements about personal health decisions. Ryan allegedly developed a “malicious animus” toward Hopkins and devised a plan to ruin him economically and damage his professional reputation. Beginning in the fall of 2022, Ryan began transferring Hopkins’s high-paying accounts to himself. Then, in January 2023, Ryan allegedly executed the core of his scheme: he caused a shipment of new parts to Company C to be replaced with used, defective parts, and he created a false purchase document—an invoice bearing product codes and quantities for new inventory, not the defective goods actually shipped—that was linked to Hopkins by its invoice number. Ryan published this forged document to Company C, intending it to be perceived as Hopkins’s work product. The scheme worked. Believing Hopkins was responsible for the defective shipment, Company C cut ties with him entirely. Its management told employees they would be fired if they purchased anything from CED through Hopkins.

Hopkins sued Ryan for tortious interference with business expectancy and defamation. The trial court sustained Ryan’s demurrer on both counts, finding among other things that the false invoice was not a defamatory statement, did not satisfy the requirement that defamatory words be pleaded verbatim, did not refer to Hopkins, and carried no defamatory “sting.” The Court of Appeals reversed on all grounds.

On the threshold question of whether a fabricated document can even constitute defamation, the court engaged in a thorough historical analysis. Drawing on Blackstone’s Commentaries, Judge Raphael observed that libel was never limited to printed or written words but also encompassed “pictures, signs, and the like” that tend to diminish a person’s reputation. The court traced this principle through a line of early English cases. In Austin v. Culpeper (1683), a defamation judgment was upheld based on a drawing of a pillory with a notation identifying the plaintiff. In Bolton v. Deane, the actionable conduct was carrying a figure with horns and bowing at the plaintiff’s door (implying he was a cuckold). And in Jefferies v. Duncombe (1809), placing a lamp outside the plaintiff’s home to suggest it was a brothel was held to be defamatory, with Lord Chief Justice Ellenborough reasoning that the lamp served the same “purpose of defaming” as if the defendant had stood in front of the house and declared the same thing aloud.

Virginia inherited this broad understanding of defamation through its reception of the English common law, codified at Virginia Code § 1-200. The court cited Virginia’s own early authority: Judge Roane’s observation in Faulkner v. Alderson (1821) that a defamation action may be based on “speaking, writing, signs, or pictures,” and the Supreme Court of Virginia’s elaboration in Moss v. Harwood (1904) that defamation may proceed on “signs, pictures, or effigies, or the like.” The Restatement (Second) of Torts embraces the same tradition, defining a defamatory communication to include not just written or printed words but “any other form of communication that has the potentially harmful qualities characteristic of written or printed words.” The court noted that under the Restatement, a defamatory communication need not even be verbal; “it is enough that the communication is reasonably capable of being understood as charging something defamatory.”

The court also addressed the related principle that falsely attributing a communication to the plaintiff can itself be defamatory. Citing Tharpe v. Saunders and the New York Court of Appeals’ decision in Ben-Oliel v. Press Publishing Co., the court recognized that false attribution “may result in injury to reputation because the manner of expression or even the fact that the statement was made indicates a negative personal trait.” Here, Ryan allegedly designed the false invoice to be “passed off as the work product of Hopkins,” communicating the idea not only that Hopkins had prepared it but that he was incompetent.

Two additional aspects of the defamation holding merit attention. First, the court held that including a photograph of the false invoice in the amended complaint satisfied Virginia’s longstanding requirement that a defamation plaintiff plead the exact defamatory words. Second, the court rejected the trial court’s conclusion that the invoice carried no defamatory “sting,” observing that a communication imputing that a salesman promised new goods and delivered defective ones plainly prejudices him in his trade. The court noted the well-established principle that statements prejudicing a person in his profession or trade are actionable as defamation per se, though it left the per se determination for remand on a more developed record.

Hopkins v. Ryan establishes that the medium of a defamatory communication is essentially irrelevant. What matters is whether the communication, in whatever form it takes, conveys a false and reputation-damaging idea about the plaintiff to a third party.

The basic facts of the case are these. Ryan Sawyers was the Chairman of the Prince William County School Board. While serving in that role, he commented on a local librarian’s Facebook photo, referring to her as a “LILF.” The defendant, Bill Petrak, interpreted the remark as vulgar sexual innuendo and was disgusted by it, particularly considering Sawyers was a married man, serving on the school board, and running for Congress. (Sawyers denied the comment was sexual, claiming with a straight face that the acronym stood for “Librarian I’d Like to Fund”). Petrak, who had been leading a recall effort against Sawyers, responded with his own Facebook post in a group called “PWC Education Reform.” In that post, Petrak shared screenshots of Sawyers’s LILF comment, a tweet in which Sawyers had thanked then-Senator Al Franken, and a photograph of Franken groping (or pretending to grope) a sleeping woman on a military plane. Petrak added the following commentary:

Look closely and see the comment by Ryan Sawyers. It says “such a LILF”. I am told this person is a librarian. So basically Ryan Sawyers, a married man, is publicly saying on social media that he would like to have sex with this woman. If that isn’t the behavior of a SEXUAL PREDATOR or HARASSER I don’t know what is.

Was the characterization over the top? Perhaps. Several readers of Petrak’s post said as much in the comments, calling the sexual-predator label a “stretch.” But the question before the court was not whether the label was fair or proportionate—it was whether the label was actionable as defamation. The Court of Appeals held it was not, reasoning that Petrak’s statements were non-actionable expressions of opinion protected by both the First Amendment and the Virginia Constitution. The court applied the framework established in Schaecher v. Bouffault, 290 Va. 83 (2015), which holds that an expression of opinion based on fully disclosed, non-defamatory facts is not actionable, no matter how harsh or unreasonable the opinion might be.

Three factors drove the court’s analysis. First, Petrak’s Facebook post fully disclosed the factual predicates underlying his opinion: the LILF comment, the Franken tweet, and the Franken photograph. He laid all his cards on the table. There was no suggestion that he was privy to some undisclosed set of facts that would give his “sexual predator” label additional defamatory sting. Second, Sawyers did not allege that the underlying disclosed facts were false. He admitted making the LILF comment. He admitted thanking Franken on Twitter. His dispute was only with Petrak’s interpretation and characterization of those facts. Third, reasonable readers of Petrak’s comment could only interpret it as an expression of Petrak’s personal views regarding Sawyers’ known conduct, not as an implication that Sawyers had committed sexual assault or some other sex crime. The court pointed to Petrak’s rhetorical phrasing: “If that isn’t the behavior of a SEXUAL PREDATOR or HARASSER, I don’t know what is.” The language signaled a personal viewpoint rather than a factual assertion. Even the more declarative statement that Sawyers “is an open serving SEXUAL PREDATOR/HARASSER” was introduced by the word “So,” tying it back to the disclosed facts as a conclusion drawn from them.

The court was careful to note that its holding should not be read to mean that calling someone a “sexual predator” can never be defamatory. In a different context (e.g., where the speaker implies knowledge of undisclosed criminal conduct, or where the speaker includes untrue factual details), such a label could absolutely constitute defamation per se. But where, as here, the speaker makes clear that the sole basis for the characterization is a publicly known, undisputed comment, the label amounts to nothing more than the speaker’s subjective (if extreme) interpretation of admitted facts.

The opinion also addresses Virginia’s anti-SLAPP statute, Code § 8.01-223.2, and its interaction with the opinion doctrine. The parties had stipulated that Petrak’s Facebook post addressed a matter of public concern, as it pertained to the fitness of a school board chairman for public office. The trial court had nonetheless denied anti-SLAPP immunity on the ground that the jury found Petrak acted with “actual malice.”

The Court of Appeals rejected that reasoning. Because Petrak’s statements were constitutionally protected opinion, the court held, they could not be “false” within the meaning of the anti-SLAPP statute’s exception for statements made with knowledge of falsity or reckless disregard for the truth. Actual malice requires a provably false factual statement; it simply cannot be established when the statements at issue convey no provably false meaning. With the exception inapplicable, the anti-SLAPP statute’s immunity applied, and the court remanded the case for the trial court to consider an award of attorney fees under Code § 8.01-223.2(C).

Practitioners should note the practical implications of the anti-SLAPP holding. We already know that statements of opinion are not actionable. But Petrak v. Sawyers establishes that when statements of opinion relate to a matter of public concern, any defamation claim based on those statements may result in an award of attorney fees. When a defendant’s speech qualifies as protected opinion on a matter of public concern, the anti-SLAPP statute provides absolute immunity. The actual malice exception has no work to do, because opinions are not capable of being proven false in the first place.

The doctrine is codified in Virginia at Code § 8.01-6.1, which states that “an amendment of a pleading changing or adding a claim or defense against a party relates back to the date of the original pleadings for purposes of the statute of limitations if the court finds (i) the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, (ii) the amending party was reasonably diligent in asserting the amended claim or defense, and (iii) parties opposing the amendment will not be substantially prejudiced in litigating on the merits as a result of the timing of the amendment.” In federal court, see Fed. R. Civ. P. 15(c).

The doctrine has limits, however, and those limits matter enormously in defamation cases, where each publication to a new recipient is a legally distinct tort. Although there haven’t been many Virginia state-court cases applying the doctrine to defamation cases, there are several examples of federal courts grappling with the issue. In Cannon v. Peck, 36 F.4th 547 (4th Cir. 2022), for example, the United States Court of Appeals for the Fourth Circuit recently applied the “conduct, transaction or occurrence” test and concluded that “an amendment ‘relates back to the date of the original pleading when…the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.’” This happens, the court continued, when “(1) there is ‘a factual nexus between the amendment and the original complaint,’ and (2) the ‘defendants had notice of the claim and will not be prejudiced by the amendment.’” A factual nexus requires the new claim to possess the “same core facts [in time and type] as the timely filed claims.” (See Gray v. Branker, 529 F.3d 220, 241 (4th Cir. 2008)). Here’s where the publication element comes in: an amended complaint alleging new defamatory statements will not relate back to the original complaint if the new counts “named new parties to whom allegedly defamatory words were published [or] new dates of publication.” (See English Boiler & Tube, Inc. v. W.C. Rouse & Son, Inc. (4th Cir. Feb. 23, 1999)).

The Virginia Court of Appeals recently had occasion to apply these principles in Condlin v. Shaia, Record No. 1925-24-2 (Va. Ct. App. March 10, 2026), a family defamation dispute that initially produced a $1.35 million jury verdict before it was reversed. The facts, according to the opinion, go something like this. John Shaia sued his sister, Anne-Marie Shaia Condlin, and her husband, Andrew Condlin, for defamation per se, alleging that each had made statements accusing him of sexual misconduct. Anne-Marie had learned that one of John’s daughters had been sexually assaulted, and when John later discovered that Anne-Marie had known about the assault without informing him, the siblings’ relationship ruptured. John had admitted to sexually inappropriate conduct toward Anne-Marie when they were children. Against that backdrop, Anne-Marie and Andrew began making statements to family members and others expressing concern that John was (or may be) currently abusing his own children. John denied any misconduct as an adult or toward his own children.

John filed his original complaint on February 5, 2021, alleging that Andrew had called him a “child molester” at a family wedding reception in October 2019, and that Anne-Marie had called him a “rapist” in conversations with their father and brothers. He then amended his complaint three times over the next three years, each time adding newly identified statements made to newly identified recipients. After a five-day trial, the jury awarded John $750,000 in compensatory damages and $3,000,000 in punitive damages against Anne-Marie (reduced by statute to $350,000), plus $250,000 in compensatory damages against Andrew.

The Court of Appeals reversed, holding that the circuit court had erred by allowing the jury to consider the majority of the statements John had added through his amended complaints. Applying Code § 8.01-6.1 and drawing on the Fourth Circuit’s analysis in Cannon v. Peck, the court found that most of the added statements failed the threshold requirement that the amended claims arise out of the same “conduct, transaction, or occurrence” as the original pleading.

First, some of the added claims alleged that defamatory statements were made to a different audience. The original complaint focused on statements Anne-Marie and Andrew made to family members: John’s father and brothers. The amended complaints added statements made to members of their church community: a deacon, a parish worker, and others affiliated with St. Bridget Catholic Church. The court held that these statements were “published to a different audience” and therefore did not arise from the same transaction or occurrence as the original allegations. This holding tracks defamation law’s foundational principle that each publication is a separate tort. Because the operative “occurrence” in a defamation claim is not merely the speaker’s general intent to defame, but the specific act of publication to a specific recipient, a statement to a new recipient is a separate tort and therefore a new occurrence. The original complaint’s vague assertion that the Condlins “could be repeating these false accusations outside the context of the family” was insufficient to bring later-identified non-family recipients within the same transaction.

Second, the newly added statements accused the plaintiff of fundamentally different behavior. The original complaint attributed only one type of statement to Anne-Marie: that John was a “rapist.” The amended complaints added statements in which Anne-Marie allegedly accused John of molesting his own children. Invoking the Virginia Supreme Court’s century-old precedent in Irvine v. Barrett, 119 Va. 587 (1916), the court held that rape and child molestation, while both sexual offenses, are legally distinct accusations with different elements and characteristics. Because the original complaint did not allege that Anne-Marie ever called John a child molester, her later-added statements to that effect constituted a new cause of action rather than an amplification of the original one. They could therefore not “relate back” for statute-of-limitations purposes.

Together these holdings left only two of the fifteen submitted statements properly before the jury: Andrew’s “child molester” accusation at the wedding reception, and Anne-Marie’s “rapist” statement to family members. Because the court could not determine whether the jury’s damages award rested solely on those two statements or potentially also on the improperly admitted ones, the entire verdict (including the punitive damages award) had to be reversed and the case remanded for a new trial.

The plaintiffs, the American Conservative Union (ACU) and the American Conservative Union Foundation (ACUF), host the annual Conservative Political Action Conference (CPAC) and publish ratings of state and federal lawmakers based on voting records. In February 2024, the defendant Institute for Legislative Analysis published a series of articles titled the “Soros Files,” authored by a former ACU employee. The articles included statements such as:

• “Soros, Zuckerberg and Arnold have so heavily invested in CPAC to control its scorecard”
• “Meet CPAC Billionaire Funder George Soros”
• “CPAC has at least two Soros-funded prosecutors on its staff”

ACU and ACUF alleged these statements were defamatory, arguing they falsely accused the organizations of allowing donations to influence their scorecard results. Following publication, a major donor withdrew sponsorship of CPAC 2024, citing the Soros Files as the reason. The plaintiffs brought defamation per se claims against the defendants.

The court dismissed the defamation claims, holding that the allegedly defamatory statements lacked the requisite “sting” to be actionable under Virginia law and that they failed to qualify as defamation per se because the statements did not necessarily prejudice the plaintiffs in their profession or trade.

Insufficient Defamatory Sting

To be actionable as defamation, a statement must “injure one’s reputation in the common estimation of mankind, to throw contumely, shame or disgrace upon him, or which tends to hold him up to scorn, ridicule, or contempt.” The court found that the challenged statements—which merely alleged associations between the plaintiffs and certain wealthy donors—failed this test.

The court rejected the notion that controversial associations automatically satisfy the defamatory sting requirement. Drawing on Supreme Court of Virginia precedent in Fleming v. Moore, the court noted with approval decisions from other jurisdictions holding that accusations of political associations do not constitute defamation. As one court observed, “while a statement that a person is a Republican may very possibly arouse adverse feelings against him in the mind of many Democrats, and even diminish him in their esteem, it cannot be found in itself to be defamatory.” (See Guilford Trans. Indus., Inc. v. Wilner, 760 A.2d 580, 594 (D.C. Ct. App. 2000)).

The court acknowledged that six of the seven challenged statements merely alleged associations between the plaintiffs and Soros, Zuckerberg, or Arnold, without explaining how such associations were “necessarily hurtful” to the plaintiffs’ business. The plaintiffs offered no allegations that association with these figures would injure their reputation “in the common estimation of mankind”—only that such associations might upset their conservative donor base.

Defamation Per Se in the Business Context

The plaintiffs attempted to establish defamation per se under the fourth recognized category: statements that “prejudice such person in his or her profession or trade.” However, the court clarified that this category requires more than demonstrating adverse business impact. Rather, the defamation must be “necessarily hurtful” to the plaintiff’s business and must “touch upon the plaintiff in his special trade or occupation.”

The court found the plaintiffs had not articulated how the challenged statements met this standard. That a statement may cause a sponsor to withdraw support does not automatically render it defamatory per se. The statement must relate to the plaintiff’s fitness or integrity in conducting its specific business, not merely create political controversy.

The court did identify one statement that came closest to alleging defamation per se: the claim that “Soros, Zuckerberg and Arnold have so heavily invested in CPAC to control its scorecard.” Even this statement, however, did not directly accuse the plaintiffs of allowing donors to control results. Instead, it “ascribe[d] a motive as to why those individuals would want to contribute to CPAC” without stating that such control actually occurred.

This decision offers important guidance for political organizations, advocacy groups, and public figures navigating defamation claims in polarized environments. The ruling establishes that organizations cannot bootstrap political controversy into defamation liability. Statements linking an organization to controversial donors or political figures—even those reviled by the organization’s supporters—do not automatically meet the threshold for defamation.

The doctrine does not shield churches from judicial review of matters that are wholly secular in nature. The central concern is whether adjudication would require courts to interpret religious doctrine or to second-guess ecclesiastical judgments; the doctrine does not require courts to abstain simply because a dispute involves religious actors or has some incidental connection to religious principles. For example, a false accusation that a church member punched another church member in the face would not be protected because such a statement can be evaluated under neutral principles of law, without reference to issues of faith or religious doctrine. One might assume a false accusation of sexual abuse would also fall into this category, but as with any defamation claim, it depends on the context in which the statement was made. If it’s clear that the term “sexual abuse” was being used according to a church’s definition of sexual abuse, the ecclesiastical abstention doctrine will indeed apply and protect the speaker from defamation liability. So held the Virginia Court of Appeals in the case of Catholic Diocese of Richmond v. Oliver Smalls, decided November 5, 2025.

The material facts, according to the opinion, are as follows. The Catholic Diocese of Richmond published a list on its website identifying clergy who had “credible and substantiated allegation[s] of sexual abuse” involving a minor. The list, posted in February 2019, included the name of Oliver Joseph Smalls, Jr., an ordained Catholic priest. Although Smalls had spent decades ministering in Belize and was not then employed by the Richmond Diocese, the Diocese included him because the underlying allegation arose while he was a seminarian of the Diocese of Richmond. The same day the list appeared online, it was published in the Richmond Times-Dispatch. Smalls sued for defamation, alleging that the accusation was false and that its publication destroyed his reputation as a priest. He sought $2 million in compensatory damages and $350,000 in punitive damages.

In response, the Diocese filed a plea in bar invoking the ecclesiastical abstention doctrine, arguing that the court lacked subject matter jurisdiction. In support, it submitted the Catholic Church’s “Charter for the Protection of Children and Young People,” which sets forth churchwide norms governing the investigation, classification, and public disclosure of allegations of sexual abuse of minors by clergy. Significantly, the Charter defines “sexual abuse of a minor” in expressly religious terms (including a reference to violations of the “sixth commandment of the Decalogue”) and directs bishops to consult moral theologians where doubt exists.

After an evidentiary hearing, the circuit court denied the plea. It reasoned that ecclesiastical abstention might have applied had the Diocese confined its communication to internal church channels, but that by publishing the list to the general public without clarifying that it was using church-defined terminology, the Diocese had crossed into secular territory. On appeal, the Court of Appeals reversed and dismissed the case.

To be actionable, the court held, the statement must have included a false statement of fact. Evaluating falsity in this situation would require a court to ask whether there was in fact a “credible and substantiated allegation of sexual abuse involving a minor” under the standards used by the Catholic Church. The trial judge would have had to examine the methodology used by the church in placing Smalls’s name on the list of accused offenders. “Sexual abuse of minor” is defined by the church as a violation of “the sixth commandment of the Decalogue committed by a cleric with a minor below the age of eighteen years” or as “the acquisition, possession, or distribution by a cleric of pornographic images of minors under the age of fourteen, for purposes of sexual gratification, by whatever means or using whatever technology.” And “[i]f there is any doubt whether a specific act qualifies as an external, objectively grave violation, the writings of recognized moral theologians should be consulted, and the opinions of recognized experts should be appropriately obtained.”

That inquiry could not be disentangled from ecclesiastical doctrine. The Charter’s definition of sexual abuse explicitly invokes religious concepts, including violations of the Sixth Commandment, and directs bishops to consult moral theologians in close cases. A civil court could not evaluate whether the bishop who authored the list properly applied those standards without interpreting religious precepts and second-guessing internal church determinations. As the court put it, “[c]ivil courts cannot adjudicate defamation claims when the truth of the statements in question turns on ecclesiastical law” (citing Episcopal Diocese of Southern Virginia v. Marshall, 81 Va. App. 255, 275 (2024)).

The court rejected Smalls’s argument that the church’s definition of sexual abuse was functionally identical to secular criminal definitions. Even if the concepts overlapped, the court held, the operative question was which definition the Diocese actually applied in making and publishing its determination. Because that definition was ecclesiastical in nature, neutral principles could not be used.

The Court of Appeals also rejected the circuit court’s reasoning that public dissemination altered the analysis. The doctrine does not turn on audience or publicity, but on substance. Whether a religious determination is communicated internally or to the public, courts must ask whether adjudicating the resulting claim would require resolving ecclesiastical matters. Because Smalls’s defamation claim could not be resolved without entangling the court in religious doctrine and church governance, the Court of Appeals held that the circuit court lacked subject matter jurisdiction over the dispute.

Let’s look at last week’s decision in Patricia Thurston v. BankUnited, N.A., from the Western District of Virginia. Patricia Thurston owned residential real property in Roanoke County, which she sold in January 2024. Pike Title and Escrow, LLC, handled the closing and prepared a settlement statement showing that Thurston was to receive $66,484.74 in sale proceeds. Thurston provided wiring instructions for her Truist Bank account, and Pike Title transmitted those instructions to BankUnited, N.A., the bank that held Pike Title’s escrow account. On January 12, 2024, BankUnited wired the funds to Thurston’s account without incident, and the transaction initially appeared complete and proper. At the time of closing, a prior deed of trust on the property had been paid in full; Pike Title prepared a Certificate of Satisfaction reflecting that payoff and recorded it shortly thereafter, having charged Thurston a recording fee for that purpose.

Approximately ten days later, BankUnited contacted Truist Bank and demanded return of the wired funds, asserting that the wire transfer was the result of “confirmed fraud” and a “real estate scam.” BankUnited repeated those assertions in subsequent communications, including an email with the subject line “REAL ESTATE WIRE FRAUD,” and later claimed that Thurston had falsified an Owner’s Affidavit stating there were no outstanding liens on the property. These accusations were apparently based on the fact that Thurston signed the affidavit on January 11, 2024, while the Certificate of Satisfaction releasing the deed of trust was not recorded until January 12, 2024.

Thurston responded that the lien was actually paid earlier, on January 9, 2024, and that the later recordation date was the result of ministerial lag rather than deception. She sued for defamation per se, contending that BankUnited falsely accused her of criminal wire fraud. Accepting the allegations of the complaint as true at the motion to dismiss stage, the court agreed with her that even if her affidavit contained a false statement (and it wasn’t even clear that it did), the alleged falsity did not establish wire fraud or other intentional criminal conduct. In other words, the alleged truth of the bank’s statements did not correspond to the defamatory sting of those statements.

The court drew a distinction between an arguably incorrect statement in a closing affidavit, on the one hand, and an affirmative accusation of intentional criminal fraud, on the other. The court deemed it entirely plausible that Thurston’s affidavit was made in good faith given that the lien had, in fact, been paid prior to closing, even if the certificate had not yet been recorded. “Even assuming that the affidavit was false because it was signed a day before Pike Title recorded the Certificate of Satisfaction releasing the lien, it does not prove that Thurston committed real estate fraud,” the court wrote. “The affidavit does not make true that Thurston ‘falsified the documents’ and that Thurston was part of a “real estate scam” that amounted to ‘real estate wire fraud.’”

For these reasons, the court denied BankUnited’s motion to dismiss, finding that Thurston had alleged a valid claim of defamation per se.