Case: 25CI1:23-cv-00095-DHG Document #: 113 Filed: 04/12/2024 Page 1 of 21

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

BRETT LORENZO FAVRE PLAINTIFF

VS. CIVIL ACTION NO. 23-CV-00095-DHG

SHADRACK TUCKER WHITE DEFENDANT

SHADRACK TUCKER WHITE COUNTER-PLAINTIFF

VS. CIVIL ACTION NO. 23-CV-00095-DHG

BRETT LORENZO FAVRE,

ROBERT L. CULUMBER
AND FAVRE ENTERPRISES, INC. COUNTER-DEFENDANTS

PLAINTIFF FAVRE’S MEMORANDUM OF LAW IN OPPOSITION TO

DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

COMES NOW Plaintiff, Brett Lorenzo Favre, and respectfully submits this

memorandum of law in opposition to Defendant Shadrack Tucker White’s motion for partial

summary judgment (Doc. 104).

PRELIMINARY STATEMENT

White’s motion for partial summary judgment—his latest in a series of frivolous filings

cluttering this Court’s docket at taxpayer expense—flouts the basic proposition that even he is not

above the law, including the orders of this Court. In his motion, White omits to mention that this

Court, three months ago, denied a previous summary judgment motion he filed before the parties

had taken discovery or any depositions. In that January Order, the Court held, among other things,

that, under Rule 56(f) of the Mississippi Rules of Civil Procedure, granting summary judgment for

White at such an early phase of the case—before discovery and depositions—would be

impermissible and unjust.

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This second summary judgment motion is just as premature as White’s first motion—the

parties are still in the initial stages of discovery and have taken no depositions. White, however,

does not attempt to reconcile his new motion with the January Order, which irrefutably remains

binding on the parties. Remarkably, he does not even mention that order. Because White’s motion

squarely contravenes this Court’s January Order, the motion should be denied. In fact, because

White has said he intends to file additional summary judgment motions,1 he should be directed not

to do so before the parties have completed discovery— a direction that would avoid further wasting

the Court’s and the parties’ time and resources (not to mention the resources of the taxpayers, who

are footing White’s legal bill, even though he is being sued exclusively in his personal capacity).

In any event, substantively, each of White’s grounds for partial summary judgment is

meritless. Although White’s motion is, like his other recent filings, difficult to decipher, he appears

to argue that he is entitled to partial summary judgment based on his conclusory assertions that:

(i) the three defamatory statements identified in Favre’s complaint—White’s statements that Favre

knowingly received welfare funds from a nonprofit, that Favre knew the nonprofit’s funding was

a sham, and that Favre stole taxpayer funds and committed white-collar fraud—are not false;

(ii) the statements did not cause Favre financial harm; (iii) the third statement at issue, which White

made during an interview with the media outlet WORLD, is not actionable because it did not refer

to Favre; (iv) the statements do not carry a defamatory meaning; (v) the statements are rhetorical

hyperbole; and (vi) Favre is a public figure.

None of this justifies summary judgment. First, White does no more than merely assert that

the defamatory statements are not actionable as a matter of law and that Favre cannot adduce

1
See Doc. 112 (Statement of Undisputed Facts) at 7 n.2 (“Additional motions for partial
summary judgment are expected to be filed.”).

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evidence that the statements were false or caused financial harm, but White does not bother to

explain why his conclusory assertions are correct or cite relevant precedent in any way supporting

those assertions—which is not surprising because they are all unsupported and insupportable.

Moreover, with respect to each purported ground in his motion, White has utterly failed to

meet his initial burden, under Rule 56(c), to make a prima facie showing that there is no genuine

issue of material fact and that he is entitled to judgment as a matter of law. Because White has

failed to meet his initial burden, the burden has not shifted to Favre to present evidence that there

is a genuine issue of material fact on any ground White has raised.

To reach that conclusion, this Court need only follow its own reasoning. This Court denied

White’s first motion for summary judgment not just, as noted, under Rule 56(f), but also under

Rule 56(c) because he failed to show that there was no genuine factual issue or that he was entitled

to judgment as a matter of law. This motion is even more deficient than White’s first—the first

(filed by the Mississippi Attorney General), unlike this one (filed by the State Auditor Office’s in-

house counsel), was at least not wholly conclusory. Accordingly, this Court’s conclusion that

White had failed his Rule 56(c) burden on his first motion is even more warranted here.

Even assuming that the burden has transferred to Favre, White is not entitled to partial

summary judgment on any ground. The grounds that implicate factual matters fail because Favre

has properly invoked Rule 56(f), as this Court has already held. Until the parties have taken

depositions and completed discovery, White is not entitled to partial summary judgment that the

three statements are not false; that the statements did not cause Favre financial harm; or that the

WORLD remark is not actionable. In addition, the grounds that implicate legal matters contravene

binding precedent. Under settled law, White’s statements carry a defamatory meaning because a

reasonable listener would understand them to impugn Favre’s reputation, and they are not

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rhetorical hyperbole because a reasonable listener would interpret them as factual assertions about

Favre’s conduct. Finally, as for whether Favre is a public figure, that issue is inextricably

intertwined with whether White made his statements with actual malice. Because this Court’s

January Order held that judgment on actual malice could not be entered against Favre until the

parties had taken depositions and other discovery, the public-figure issue is not ripe for resolution

at this time and partial summary judgment on that ground should be denied.

BACKGROUND

Favre’s defamation action against White, brought in early February 2023 (Doc. 2), alleges

three defamatory statements. On September 15, 2022, during an interview with CNN, White

falsely stated: “[W]e know that Mr. Favre not only knew that he was receiving money from this

non-profit which was funded by taxpayer dollars. We know that the funding for that was a sham,

and we know that he knows that too.” (Doc. 2 (Complaint) ¶ 19.) Two weeks later, during an

interview with the ESPN Daily Podcast on September 29, White repeated those false statements:

“[Favre] knew that the money was flowing through a nonprofit which was designed to serve poor

folks, designed to serve a public interest.” (Doc. 2 ¶ 21.) Then, on December 8, 2022, the Christian

media outlet WORLD published an interview online in which White falsely accused Favre of

“steal[ing] taxpayer funds and commit[ting] white-collar fraud.” (Doc. 2 ¶ 22.)

In March 2023, White moved to dismiss, on the ground that as State Auditor he had an

absolute privilege to defame Favre, and alternatively for summary judgment (Doc. 18). White

moved for summary judgment on the ground that “Plaintiff cannot produce competent summary

judgment evidence to establish the falsity of the alleged defamatory statements identified in the

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complaint” (Doc. 18 at 1)2 and the ground—not raised in this motion—that Favre could not

produce competent evidence that White made the statements with actual malice. (Doc. 18 at 1.)

In response, Favre argued that White’s position as State Auditor did not grant him an

absolute privilege to defame (Doc. 22 at 10) and that, because White had failed to satisfy his initial

burden under Rule 56(c) to make a prima facie showing that there was no genuine dispute of

material fact and that he was entitled to judgment as a matter of law, the burden had not shifted to

Favre to present evidence that there was a genuine dispute of material fact. (Doc. 22 at 16.) Favre

further argued that, under Rule 56(f), White’s motion for summary judgment was premature and

that it would be unjust to grant summary judgment before discovery on falsity, actual malice, and

other matters. (Doc. 22 at 20.)

While White’s motions were pending, White refused to provide discovery, taking the

position that no discovery should be had until the motion to dismiss was decided. (Doc. 30 (Favre

Proposed Findings and Conclusions) at 2 (citing Hr’g Tr. 30:1 (June 30, 2023)).)

On January 25, 2024, this Court denied White’s motion to dismiss and White’s motion for

summary judgment. First, the Court held that “Defendant has not satisfied his initial burden under

Rule 56(c).” (Doc. 39 at 3.) Second, the Court held that “Plaintiff has properly invoked Rule 56(f)”

(Doc. 39 at 4), noting that “Rule 56(f) authorizes the trial court to ‘postpone ruling on the motion

to permit depositions to be taken and other discovery to be had.’” (Doc. 39 at 4) (quoting Roberts

v. Boots Smith Oilfield Servs. LLC, 200 So. 3d 1022, 1026 (Miss. 2016)). The Court further noted

2
See also Doc. 19 (White Mem. in Support of Mot. for Sum. J.) at 13 (“Because Plaintiff
cannot produce competent evidence sufficient to prove the falsity of the Auditor’s alleged
statements, the Auditor is entitled to summary judgment and dismissal with prejudice of Plaintiff’s
complaint.”); Doc. 29 (White Proposed Factual Findings and Legal Conclusions) at 20 (“Favre
fails to produce competent summary-judgment evidence that the Auditor’s alleged defamatory
statements were false.”).

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that entering judgment “would unjustly prevent Plaintiff from taking discovery on falsity, malice

and other factual matters relevant to Plaintiff’s state of mind and conduct.” (Doc. 39 at 4.) The

Court thus “decline[d] to prematurely deny Plaintiff the opportunity to gather evidence on these

matters before entering summary judgment against him.” (Doc. 39 at 4.)

From the entry of this Court’s January 25 Order through White’s filing of this new motion

(April 2, 2024), the parties have exchanged written discovery requests and responses, but they

have taken no depositions. And White—on whom Favre served a first request for production over

one year ago—has yet to produce a single document.

ARGUMENT

I. This Court’s January Order Bars White’s Motion for Partial Summary Judgment.

In the January Order, this Court held that it would not grant summary judgment against

Favre, who had properly invoked Rule 56(f) protection, without affording adequate time to take

discovery, including depositions. White’s decision to bring this partial summary judgment motion

now—when the parties have only started taking discovery, when he has yet to produce a single

document, when the parties have taken no depositions, and without even mentioning the January

Order, let alone offering any explanation whatsoever how his motion could comport with the

January Order, which irrefutably remains in effect—is a brazen affront to this Court’s authority.

Moreover, Rule 56(f) protects litigants from a premature entry of judgment not only before

discovery has commenced, but also before discovery has been completed, as here. Under Rule

56(f), “[i]f a summary-judgment motion is filed before discovery is complete, the trial court may

postpone ruling on the motion to permit depositions to be taken and other discovery to be had.”

Roberts, 200 So. 3d at 1026 (Miss. 2016) (reversing summary judgment where, although the

plaintiff “had been deposed,” “the depositions of the defendants, as well as a key factual witness,

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were still pending”) (emphasis added). The rule’s purpose is to afford the nonmovant “reasonably

sufficient time to develop [its] theory of liability.” Malone v. Aetna Cas. & Sur. Co., 583 So. 2d

186, 187 (Miss. 1991) (reversing summary judgment as premature because “discovery had not

been completed” (emphasis added); see also Stanley v. Scott Petroleum Corp., 184 So. 3d 940,

943 (Miss. 2016) (holding that the trial court had improperly “ruled that [the defendant] owed no

duty without first allowing the plaintiffs to conduct sufficient discovery to determine if a duty had

arisen”) (emphasis added). As the Mississippi Supreme Court has observed: “Justice is served

when a fair opportunity to oppose a motion is provided—because consideration of a motion for

summary judgment requires a careful review by the trial court of all pertinent evidence in a light

most favorable to the nonmovant.” Brown v. Credit Ctr., Inc., 444 So. 2d 358 (Miss. 1983)

(emphasis added). See also Burkhalter & Co. v. Wissner, 602 So. 2d 835, 838 (Miss. 1992) (“There

seems little doubt that the Court provided [nonmovant] an inadequate opportunity to complete

discovery and was otherwise inappropriately premature in entering summary judgment.”); Crain

v. Cleveland Lodge 1532, Ord. of Moose, Inc., 560 So. 2d 142, 145 (Miss. 1990) (reversing

summary judgment to “allow [nonmovant] a full and fair opportunity to oppose the [movant’s]

motion”).

Here, because this Court’s January Order held that Favre properly invoked Rule 56(f)’s

protection, a protection which extends to the conclusion of discovery, and because the parties have

only just started taking discovery and have taken no depositions, White’s motion is barred.

II. White Is Not Entitled to Partial Summary Judgment on Any Ground.

Because White’s motion is foreclosed under this Court’s January Order, the Court need not

reach the grounds that White’s motion appears to raise, but in any event each ground fails.

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A. White Is Not Entitled to Summary Judgment on Falsity.

Falsity is a core element of a defamation claim, and here, the falsity of the three statements

at issue—i.e., that Favre knowingly received welfare funds from a nonprofit, that Favre knew that

the nonprofit’s funding was a sham, and that Favre stole taxpayer funds and committed fraud—is

a fact issue warranting discovery. See McCullough v. Cook, 679 So. 2d 627, 633–34 (Miss. 1996)

(reversing summary-judgment grant to defamation defendant because evidence gathered through

discovery had created a fact issue on actual malice and falsity); Eselin-Bullock & Assocs. Ins.

Agency, Inc. v. Nat’l Gen. Ins. Co., 604 So. 2d 236, 241 (Miss. 1992) (reversing directed verdict

to defamation defendant because, given the evidence, a reasonable jury could find that the

statement was false: “[T]he defendant claims that the representation is true and the plaintiff

adamantly denies that the representation is substantially true. The question as to what was or was

not implied in the [representation] is a question of fact for a jury to determine.”).

Here, White merely asserts, without explanation or supporting authority, that Favre “cannot

submit any admissible evidence to establish that these words are false.” (See Doc. 106 at 11.)

Conclusory argument does not merit a court’s attention and is insufficient to secure requested

judicial relief. See Hall v. State, 295 So. 3d 544, 558 (Miss. Ct. App. 2019) (“Although enumerated

in his brief, Antonio effectively abandons the other contentions by failing to discuss them beyond

mere mention.”); Norwood v. United Med. Recovery, LLC, 2023 WL 113727, at *2 (N.D. Miss.

Jan. 5, 2023) (“Norwood’s failure to provide any legal authority to support the relief requested

renders the brief insufficient.”); Vidrine v. Guillot, 2022 WL 3544396, at *2 (5th Cir. Aug. 18,

2022) (“A party inadequately briefs an argument when it fails to ‘offer any supporting argument

or citation to authority’ or to ‘identify relevant legal standards and any relevant … cases.’” (quoting

JTB Tools & Oilfield Servs., L.L.C. v. United States, 831 F.3d 597, 601 (5th Cir. 2016)).

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Moreover, White’s conclusory ipse dixit assertions can in no way meet his “initial burden”

under Rule 56(c) to make a prima facie showing that there is no genuine dispute on falsity and that

he is entitled to judgment as a matter of law on this element. See Karpinsky v. Am. Nat’l Ins. Co.,

109 So. 3d 84, 88–89 (Miss. 2013) (holding that summary-judgment movant bears the “initial

burden”); accord McGinty v. Grand Casinos of Mississippi, Inc.-Biloxi, 245 So. 3d 444, 447 (Miss.

2018) (“With a summary-judgment motion, the mover bears the initial burden of supporting the

motion.”). As the Fifth Circuit has held, “a mere conclusory statement that the other side has no

evidence is not enough to satisfy a movant’s burden.” Ashe v. Corley, 992 F.2d 540, 544 (5th Cir.

1993). White has done nothing to show that there is not, and that there never could be, a genuine

dispute on falsity. Because White has failed his initial burden, White’s motion fails, and the burden

does not shift to Favre to show that there is a genuine dispute on falsity.3

This Court’s prior reasoning compels this conclusion. In White’s first summary-judgment

motion, he raised the ground of falsity (in addition to actual malice), and this Court held that White

had failed his initial Rule 56(c) burden. (Doc. 39 at 3.) Although that motion contained at least

some argument, authority, and evidence (see Doc. 19 at 12–13), this motion is entirely conclusory:

it is unsupported by any coherent argument, on-point authority, or relevant evidence. The Court’s

prior conclusion that White had failed his initial burden is even more warranted here.

3
Nor is this the sort of case where the summary-judgment movant may prevail without
proffering relevant evidence under Lyon v. McGee, 249 So. 3d 436, 442 (Miss. Ct. App. 2018),
which White cited on his first motion, but that decision does not help him. There, the Court of
Appeals affirmed summary judgment for a paramour on an ex-husband’s alienation claim that the
paramour had caused his ex-wife to separate from him. The paramour’s answer stated that he had
met the ex-wife months after the separation, which the ex-husband did not contest. Id. So, the
movant had properly shown—without sworn evidence—that there was no fact dispute on an
essential element of plaintiff’s claim (causation), and no evidence could put that issue back into
play. Id. But here, White has made no such showing—to the contrary, evidence gathered through
discovery will show that White’s defamatory statements were false.

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Finally, even assuming White has met his initial Rule 56(c) burden (and he has not),

White’s argument fails because this Court’s January Order has already and specifically held that,

under Rule 56(f), Favre must be afforded time to develop evidence on “falsity.” (Doc. 39 at 4.)

This Court based its January Order on Favre’s and his counsel’s supporting Rule 56(f) affidavits.

Favre affirmed that when he received funds from the nonprofit, he did not believe, and he was

never made aware, that those funds were welfare funds or constituted a sham; and that he has never

stolen taxpayer funds or committed white-collar fraud. (Doc. 22-5 ¶¶ 7–9.) And counsel affirmed

that without the opportunity to take discovery—including depositions, documents, and

communications from third parties—Favre would be unjustly prevented from developing

corroborating evidence, beyond Favre’s affidavit, that White’s statements were false: that is,

corroborating evidence that Favre did not knowingly receive welfare funds, did not know the

nonprofit’s funding was a sham, and did not steal taxpayer funds or commit white-collar fraud.

(Doc. 22-4 ¶ 15.) White offers nothing to support his rehashed conclusory argument that he is now

entitled to summary judgment on falsity.

B. White Is Not Entitled to Judgment on Causation and Damages.

White contends that he is entitled to partial summary judgment on causation and damages

because Favre “cannot submit any admissible evidence to establish” that the defamatory words

“caused him to suffer special damage” (Doc. 106 at 6, 7, 9, 10, 12)—but, again, that refrain is the

very definition of conclusory. White never explains why Favre cannot—now or ever—link

White’s defamation to Favre’s financial harm. White has failed to brief his contention “beyond

mere mention,” and it cannot prevail and should be rejected. See Hall, 295 So. 3d at 558.

Again, White’s conclusory contentions do not come close to satisfying his initial Rule 56(c)

burden to persuade this Court that there is no genuine dispute on causation and damages, or that

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he is entitled to judgment as a matter of law on those elements. See Karpinsky, 109 So. 3d at 88–

89; Ashe, 992 F.2d at 544. Therefore, the burden has not shifted to Favre to show that there is a

genuine dispute on causation and damages.

Even assuming that White has satisfied his initial Rule 56(c) burden (and he has not), the

Court’s January Order defeats his argument. Under Rule 56(f), this Court granted the parties time

not only to develop evidence on “falsity,” but also to develop evidence on “other factual matters.”

(Doc. 39 at 4.) And Favre’s supporting Rule 56(f) affidavit stated: “White’s statements about me

have deprived me of the ability to earn income through, for example, endorsement deals, paid

appearances, and autograph signings.” (Doc. 22-5 ¶ 11.) Entering judgment now would

prematurely and unjustly cut off Favre’s ability to develop corroborating evidence on causation

and damages, core elements of his claim, contrary to the January Order.

White’s causation and damages contention fails for a separate reason: Favre need not show

“special damage” because White’s statements are defamation per se. See Blake v. Gannett Co.,

529 So. 2d 595, 602 (Miss. 1988) (noting that, if a statement is defamatory per se, the plaintiff

need not establish special damage because harm is presumed). A statement is defamation per se if

it falls into one of “four areas,” one of which is: “words imputing criminal activity to the plaintiff.”

McFadden v. U.S. Fid. & Guar. Co., 766 So. 2d 20, 24 (Miss. Ct. App. 2000). The crime alleged

must be “sufficiently serious as to be punishable by imprisonment” or “regarded by the public as

involving moral turpitude,” which means a crime that “involves major social disgrace.” Speed v.

Scott, 787 So. 2d 626, 635 (Miss. 2001) (citation and punctuation omitted). White’s accusations

that Favre misused and stole welfare funds fit this description. Indeed, Favre has brought this very

action to vindicate his reputation in the face of those false and malicious accusations, and the

Mississippi Supreme Court has construed, as defamation per se, accusations that are far less

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serious than White’s. See id. (citing Boler v. Mosby, 352 So.2d 1320, 1323 (Miss. 1977) (customer,

who was falsely accused of shoplifting meat from defendants’ store, stated claim that was

actionable per se); Valley Dry Goods Co. v. Buford, 75 So. 252, 254 (1917) (employee, who was

accused of stealing $100 from cash register while conspiring with another, stated claim that was

actionable per se)).

C. White Is Not Entitled to Summary Judgment on the WORLD Defamatory

Statement.

In determining whether a statement is actionable defamation, the question is whether its

“substance or gist could reasonably be interpreted as declaring or implying an assertion of fact”

that is defamatory. Roussel v. Robbins, 688 So. 2d 714, 723 (Miss. 1996) (emphasis added). “The

said-to-be-offending words must be set in the context of the entire utterance. Their complexion

draws color from the whole.” Lawrence v. Evans, 573 So. 2d 695, 698 (Miss. 1990); see also J.

Pub. Co. v. McCullough, 743 So. 2d 352, 360 (Miss. 1999) (“[T]he headline or portions of the

story may not be isolated, but must be considered together and construed as a whole.”); Whitten v.

Com. Dispatch Pub. Co., 487 So. 2d 843, 845 (Miss. 1986) (“[I]n determining whether a

publication is libelous, it must be considered as a whole, and its meaning must be ascertained from

the language used, as commonly understood.”) (citation and punctuation omitted).

Although White argues that he is entitled to partial summary judgment that the remark in

the magazine WORLD did not refer to Favre (see Doc. 106 at 9–10), this argument fails. Again,

White’s argument should be summarily rejected as utterly conclusory, but in any event it is

inadequate to satisfy his initial Rule 56(c) burden, see Hall, 295 So. 3d at 558; Karpinsky, 109 So.

3d at 88–89; Ashe, 992 F.2d at 544, and again no summary-judgment burden has shifted to Favre.

But even if it has, the record shows that the WORLD remark did, in fact, refer to Favre—or, at the

very least, that there is a genuine dispute on whether the remark referred to Favre, thus precluding

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summary judgment for White.

To illustrate, the relevant sentences in WORLD appeared as follows:

“It’s not a popular thing to tell a Hall of Fame quarterback he owes taxpayers $1.1
million, plus interest,” White admits, sliding into a chair in a conference room in
the Woolfolk State Office Building in downtown Jackson. “People don’t make it to
a position where they can steal taxpayer funds and commit white-collar fraud by
being a nobody.”

(Doc. 18-9 at 3–4). Taken together, these sentences can reasonably be interpreted as stating that

White had described Favre as someone who steals taxpayer funds and commits white-collar fraud.

Perkins is instructive. There, a radio ad by a circuit-court judgeship candidate (Littleton)

claimed that the father (Willie Perkins) of an opponent (Takiyah Perkins) had “conspired” with

Littleton’s family to “go public with a family dispute to derail” Littleton’s campaign. Perkins v.

Littleton, 270 So. 3d 208, 210 (Miss. Ct. App. 2018). The ad stated:

I have known about a conspiracy and meeting between my family and the father of
one of my opponents for several months where they conspired to go public with
this family dispute to derail my campaign. Prior to being contacted by the
Commonwealth, my sister sent derogatory and false comments to one of my
campaign workers via facebook and stated she supported Takiyah Perkins for
Circuit Court Judge.

Id. at 210–11. Willie Perkins sued for defamation, and Littleton countered that the first sentence’s

conspiracy accusation was not actionable because that particular sentence did not expressly refer

to him or his daughter. Id. But the Mississippi Court of Appeals rejected that argument, reasoning

that Littleton’s statement must have been directed at Willie Perkins “because it could not have

been directed at anyone but [Willie] Perkins.” Id. at 210. So too here, White’s defamatory remark

must have been directed at Favre; it could not have been directed at anyone else.4

4
Perkins ultimately held that the accusation of a “conspiracy” was not actionable
defamation because it was rhetorical hyperbole. Id. at 217. As shown infra (at 17 n.5), White’s
statements do not fall into this exception for defamation liability.

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In Whitten, similarly, the allegedly defamatory article’s contents said that the plaintiffs had

pleaded guilty to charges of transferring cattle without testing the animals for a certain disease,

while the article’s headline said that the plaintiffs had pleaded guilty to “cattle thefts.” 487 So. 2d

at 844. The Mississippi Supreme Court rejected “the defendant’s argument that the headline and

article must be considered separately”: “[W]e think no ordinary reader would logically separate

the headline from the text.” Id. at 845. Likewise, here, given White’s explicit reference to Favre,

followed by White’s immediate reference to stealing funds and committing fraud, no ordinary

reader would logically separate the reference to Favre from the reference to misconduct.

In any event, White is not entitled to summary judgment on this ground because this

Court’s January Order has already and specifically held that, under Rule 56(f), summary judgment

cannot be entered against Favre until the parties have taken discovery and gathered evidence on

factual matters. (Doc. 39 at 4; see also Doc. 22-4 ¶¶ 13–14 (Favre’s counsel affirming that “Favre

requires an opportunity to take depositions of White and third parties,” as well as “an opportunity

to collect documents and communications from White and third parties”).)

D. White Is Not Entitled to Summary Judgment on Defamatory Meaning.

To be actionable as defamation, a statement must be capable of carrying a defamatory

meaning—that is, the remark’s commonly understood meaning must “tend[] to injure one’s

reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society,

lessen him in public esteem or lower him in the confidence of the community.” Lawrence, 573 So.

2d at 697; see also McFadden v. U.S. Fid. & Guar. Co., 766 So. 2d 20, 24 (Miss. Ct. App. 2000)

(noting that the threshold question is whether “a particular remark in its commonly understood

meaning is capable of being construed as slanderous”).

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Here, although White urges that he is entitled to partial summary judgment that his three

statements “are not defamatory” (Doc. 106 at 4, 6, 8, 9), again, that claim should be rejected as

conclusory and unsupported. See Hall, 295 So. 3d at 558.

In any event, White is not entitled to summary judgment on this legal issue because, as a

matter of law, his remarks easily meet the threshold for actionable defamation. A reasonable

listener could and would interpret White’s false statements—that Favre knowingly received

welfare funds from a sham nonprofit, stole taxpayer funds, and committed white-collar fraud—as

tending to denigrate Favre’s reputation. See Boone v. Wal-Mart Stores, Inc., 680 So. 2d 844, 845

(Miss. 1996) (showing that an accusation of shoplifting was defamatory); Whitten, 487 So. 2d at

845 (showing that an accusation of stealing cattle was defamatory); Scott v. Spencer Gifts, LLC,

2015 WL 4205242, at *4 (N.D. Miss. July 10, 2015) (collecting cases where accusations of

shoplifting were not only defamatory—but were defamatory per se); see also Ollman v. Evans,

750 F.2d 970, 980 (D.C. Cir. 1984) (observing that accusations of unlawful conduct are actionable

because they “are seen by the reasonable reader or hearer as implying highly damaging facts”);

Bassford v. Bassford, 2021 WL 5358976, at *4 (D.S.C. Nov. 17, 2021) (defendant’s statement that

plaintiff had “misappropriated funds” was actionable); Tirio v. Dalton, 144 N.E.3d 1261, 1278 (Ill.

App. Ct. 2019) (“statements that [political rival] had a secret slush fund and had taken taxpayer-

funded vacations” were actionable); Batson v. Shiflett, 602 A.2d 1191, 1211 (Md. 1992) (national

union president’s accusations—that local union president had “misused and embezzled union

funds”—was actionable because “the impact of [defendant’s] statements is that [plaintiff], in fact,

was guilty of these various crimes”); Hruby v. Kalina, 424 N.W.2d 130, 132 (Neb. 1988) (“The

statement ‘you stole the money’ clearly imputes to the plaintiff the crime of theft”—and therefore

was not only defamatory, but defamatory per se).

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E. White Is Not Entitled to Summary Judgment on Rhetorical Hyperbole.

Under the doctrine of rhetorical hyperbole, a “loose, figurative, or hyperbolic” remark

enjoys constitutional protection from defamation liability only if no reasonable person could

interpret the remark “as stating actual facts about an individual.” Milkovich v. Lorain J. Co., 497

U.S. 1, 20–21 (1990) (citation and punctuation omitted); accord Roussel, 688 So. 2d at 723

(following Milkovich and holding that a statement is not protected as rhetorical hyperbole if its

“substance or gist could reasonably be interpreted” as “declaring or implying a provable assertion

of fact”) (citation and punctuation omitted).

White’s motion papers contain stray allusions to the doctrine of rhetorical hyperbole. (See

Doc. 104 at 4; Doc 106 at 8 n.9.) But nowhere does White make an actual argument, with

supporting authority, that White’s defamatory statements are rhetorical hyperbole and thus

constitutionality exempt from defamation liability. Once again, White’s argument should be

rejected as conclusory and unsupported. See Hall, 295 So. 3d at 558.

That deficiency aside, White is not entitled to summary judgment on this legal issue

because, as a matter of law, his remarks were not rhetorical hyperbole. Milkovich compels that

conclusion. There, the Supreme Court held that statements in a newspaper sports section article

implying that a high school wrestling coach had lied under oath did not employ “the sort of loose,

figurative or hyperbolic language which would negate the impression that the writer was seriously

maintaining that petitioner committed the crime of perjury.” 497 U.S. at 21. Here, too, there is

nothing “loose, figurative, or hyperbolic” about White’s statements that would negate the

impression that his plain language imparted—that Favre knowingly received welfare funds from

a sham nonprofit, stole taxpayer funds, and committed white-collar fraud. Nor was there anything

about the “tenor,” see id., or context of White’s remarks to negate that impression; to the contrary,

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White’s serious tone and demeanor on CNN and ESPN confirmed that he was speaking literally.

At bottom, a reasonable person could interpret White’s statements as making factual, literal

assertions about Favre’s conduct. In fact, no reasonable person would interpret White’s statements

in any other way. As in Fiber Systems, where the Fifth Circuit rejected a company’s defense of

rhetorical hyperbole for its accusations that former directors stole intellectual property, the

“accusation” here did not “refer to activities readily identifiable to the listener as innocuous” but

instead referred to “alleged misappropriation.” See Fiber Sys. Int’l, Inc. v. Roehrs, 470 F.3d 1150,

1164 (5th Cir. 2006). And as in Keohane, where the Colorado Supreme Court rejected a council

member’s defense of rhetorical hyperbole for suggesting, through sharp questions, that a judge had

accepted a bribe (e.g., “do you think he was paid off in cash or cocaine?”), the remarks here were

“not phrased in such a manner to indicate that they [were] merely rhetorical hyperbole,” but rather

amounted to “accusations of criminal activity”—which “are not constitutionally protected.”

Keohane v. Stewart, 882 P.2d 1293, 1296, 1303–04 (Colo. 1994); see also Roussel, 688 So. 2d at

723 (observing that Keohane had “properly explained” applicable libel standards and adopting

Keohane as Mississippi law).5

White’s rhetorical-hyperbole defense is not only meritless, but it illustrates that White is

willing to say anything to this Court to serve his self-interest, however disingenuous, outlandish,

and malicious. White cannot credibly claim that his statements were rhetorical hyperbole, on one

hand, while also insisting, on the other, that they are factually true. And White cannot credibly

5
The Mississippi Court of Appeals’s decision in Perkins, discussed supra (at 13), clarifies
the purpose of the rhetorical-hyperbole exception and demonstrates that White’s statements do not
fall into that category. Perkins reasoned that “no reasonable listener would have understood the
radio ad’s brief reference to [Willie Perkins] as charging him with a crime.” Id. at 217–18. In other
words, because it would defy commonsense to interpret the accusation of “conspiracy” literally,
the accusation was rhetorical hyperbole. In sharp contrast, reasonable listeners could and would
have taken White’s statements about Favre literally.

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claim that he was exaggerating—in accusing Favre of knowingly receiving welfare funds from a

sham nonprofit, stealing taxpayer funds, and committing white-collar fraud—when, at the same

time, he has brought an ultra vires counterclaim in this action falsely alleging that Favre performed

those very same acts. For example, White explicitly alleges that Favre knew he was receiving

welfare funds (Doc. 46 (Counterclaim) ¶ 32), explicitly alleges that funding transactions were a

“sham” (Doc. 46 ¶ 21), explicitly alleges that Favre wrongfully “obtain[ed]” and “convert[ed]”

welfare funds (Doc. 46 ¶¶ 417–18), and purports to bring a claim for fraud—Count Nine of his

sixteen-count, 469-paragraph pleading (Doc. 46 ¶¶ 278–349).

F. White Is Not Entitled to Summary Judgment on the Public-Figure Issue.

Lastly, White’s motion seeks partial summary judgment that Favre is a “public figure.”

(Doc. 106 at 13.) That issue is relevant only insofar as that designation would require Favre to

prove that White made his remarks with “actual malice.” See Stegall v. WTWV, Inc., 609 So. 2d

348, 352 (Miss. 1992) (holding that, if a plaintiff is a “public figure,” the plaintiff must show that

the defendant spoke with actual malice, i.e., when the defendant “published the words,” the

defendant (i) “either knew they were false,” or (ii) “published them in reckless disregard of whether

true or not”). Put differently, the public-figure issue is inextricably intertwined with actual malice,

which is a fact issue. See id. (reversing summary-judgment grant to defendant television station

and holding that reporter’s earlier exposure to information that contradicted her report created a

fact issue on actual malice by “exhibit[ing] that the accuser was in a frame of mind indicating that

he or she did not care whether the words spoken were true or not.”); McCullough, 679 So. 2d at

633–34 (Miss. 1996) (reversing summary-judgment grant to defendant publisher because evidence

gathered through discovery had created a fact issue on actual malice and falsity). And under Rule

56(f), this Court’s January Order held that judgment on factual matters including “actual malice”

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could not be entered against Favre until the parties had taken depositions and other discovery.

(Doc. 39 at 4.) Therefore, the public-figure issue is not ripe for resolution at this time, and White’s

motion for partial summary judgment on this ground should be denied.

* * *

Recently, Mississippi Attorney General Fitch made the following observation about a

motion that White had made in her declaratory-judgment action against White (for bringing the

unlawful counterclaim against Favre in our action):

The people of Mississippi should be embarrassed to see such a filing, like the
motion to transfer or dismiss, made on their behalf. When a state official litigates
for the benefit of the people of Mississippi, the official should conduct himself with
respect and professionalism: after all, that official is claiming to represent the
decent people of Mississippi. The official should not casually, gratuitously, and
baselessly impugn the integrity of an opposing party—as Mr. White’s filing does
here.

See Fitch v. White, No. 1:24 Civ. 174 (Miss. Chancery Ct., Hinds Cnty.), Doc. 11 at 19. The first

two sentences apply with equal force to White’s motion for partial summary judgment: it is an

embarrassment. And the third and final sentence applies with equal force to White’s defamatory

remarks about Favre: he made them gratuitously, and baselessly.

CONCLUSION

White’s motion for partial summary judgment should be denied.6

6
Favre reserves the right to seek sanctions, including attorneys’ fees, for this motion and
other frivolous filings by White.

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Case: 25CI1:23-cv-00095-DHG Document #: 113 Filed: 04/12/2024 Page 20 of 21

RESPECTFULLY SUBMITTED on this, the 12th day of April 2024.

BRETT LORENZO FAVRE, Plaintiff

BY: /s/ Daniel J. Koevary

DANIEL J. KOEVARY

KASOWITZ BENSON TORRES LLP

Daniel R. Benson, Esq. (PHV# 995927)
DBenson@kasowitz.com
Jennifer M. McDougall, Esq. (PHV# 995926)
JMcDougall@kasowitz.com
Daniel J. Koevary, Esq. (PHV# 995925)
DKoevary@kasowitz.com
1633 Broadway
New York, NY 10019
Telephone: (212) 506-1700
Facsimile: (212) 506-1800

ERIC D. HERSCHMANN, Esq. (PHV# 995916)

210 Lavaca Street
Austin, Texas 78701
Telephone: (512)551-3344
Facsimile: (512) 798-4376
Email: EDHNotice@gmail.com

MICHAEL J. SHEMPER, PLLC

Michael J. Shemper, Esq. (MSB# 100531)
Attorney at Law
140 Mayfair Road, Suite 1200
Hattiesburg, MS 39402
Telephone: (601) 545-7787
Facsimile: (601) 545-1711
Email: michael@shemperlaw.com

SULLIVAN & SULLIVAN, PLLC

James Robert Bob Sullivan, Jr. (MSB# 8613)
424 Sawmill Road, P.O. Box 45
Laurel, MS 39441
Telephone: (601) 428-1505
Facsimile: (601) 428-1590
Email: bob@sst-lawoffice.com

Attorneys for Plaintiff Brett Lorenzo Favre

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Case: 25CI1:23-cv-00095-DHG Document #: 113 Filed: 04/12/2024 Page 21 of 21

CERTIFICATE OF SERVICE

I, Daniel J. Koevary, do hereby certify that I have on this 12th day of April 2024, served

a true and correct copy of the above on all counsel of record herein via the MEC filing system.

THIS, the 12th day of April 2024.

/s/ Daniel J. Koevary

DANIEL J. KOEVARY, Esq. (PHV# 995925)

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