BRADLEY STEPHEN COHEN; COHEN ASSET MANAGEMENT, INC., a California Corporation v. Ross B. Hansen; Steven Earl Firebaugh

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRADLEY STEPHEN COHEN; COHEN
ASSET MANAGEMENT, INC., a
California Corporation,
Plaintiffs-Appellees,
v.
ROSS B. HANSEN; STEVEN EARL
FIREBAUGH,
Defendants-Appellants.
No. 16-15943
DC No. CV 12-1401 JCM
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted September 13, 2018
San Francisco, California
Before: TASHIMA, RAWLINSON, and WATFORD, Circuit Judges.
Defendant-Appellant Ross Hansen was found liable for defamation per se
and false light invasion of privacy after he created a website comparing Bradley
Cohen and Cohen Asset Management (“CAM”) to Bernie Madoff and his Ponzi
FILED
JAN 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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scheme. Cohen and CAM sought only presumed damages at trial, and a jury
awarded a multimillion-dollar judgment. Hansen appeals from the judgment and
the district court’s denial of his motion for a new trial. He argues that certain
evidence introduced at trial violated a magistrate judge’s order precluding evidence
of “quantifiable economic harm.”1 He also argues that Nevada law does not allow
“loss of business” to serve as a basis for presumed damages. We affirm.2
1. “[A]n award of presumed general damages must still be supported by
competent evidence but not necessarily of the kind that assigns an actual dollar
value to the injury.” Bongiovi v. Sullivan, 138 P.3d 433, 448 (Nev. 2006) (internal
quotation marks and citations omitted). Furthermore, the magistrate judge’s order
only prohibited the introduction of evidence of quantifiable economic harm; it did
not prohibit evidence of any economic harm whatsoever.
At the beginning of the trial, the district court instructed Hansen’s trial
counsel to object if evidence that violated the order was introduced so that the
court could rule on its admissibility at that time. Hansen’s counsel agreed to do so,
1 The order was issued as a discovery sanction and affirmed by the
district judge.
2 After this appeal was filed, Firebaugh filed a voluntary petition for
bankruptcy under Chapter 13, in the United States Bankruptcy Court for the
District of Nevada, No. 16-51352. Therefore, pursuant to the automatic stay, 11
U.S.C. § 362(a), this disposition does not address or decide the appeal as to
Defendant-Appellant Firebaugh.
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but never objected on the ground that the preclusion order had been violated.
Cohen testified that: (1) CAM lost “a $21 million dollar deal,” allegedly because
of the website; (2) his insurance provider did not want to renew his policy because
of the website, but Cohen did not mention a specific dollar figure and the provider
eventually did insure him; (3) one client was investing approximately $130 million
with CAM at the time the website was online; and (4) he was so intent on making
the website less prominent in internet search results that he spent $100,000 to
$200,000 on search engine optimization. Cohen and CAM’s evidence of economic
harm was the type of competent evidence that served as a basis for Cohen and
CAM’s presumed general damages. The district court did not err by allowing its
admission.
2. Under Nevada law, evidence of “loss of business” can serve as the
basis for presumed damages in defamation per se cases. “General damages are
presumed upon proof of the defamation alone . . . ‘because of the impossibility of
affixing an exact monetary amount for present and future injury to the plaintiff’s
reputation, wounded feelings and humiliation, loss of business, and any
consequential physical illness or pain.’ ” Bongiovi, 138 P.3d at 448 (emphasis
added) (quoting K-Mart Corp. v. Washington, 866 P.2d 274, 284 (Nev. 1993)). The
district court instructed the jury that loss of business could serve as the basis for
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presumed damages. Hansen did not object to the jury instructions or
accompanying special interrogatories; in fact, he stipulated to proposed jury
instructions that included “loss of business” as a basis for presumed damages. The
language of the jury instructions was correct under Nevada law, and thus did not
mislead or confuse the jury. The district court did not plainly err by including such
language in the unobjected-to jury instructions or the special interrogatories.
• ! •
The judgment of the district court is AFFIRMED.
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