Alabama Jury delivers $7 million slander verdict against dealership

By Sylvia Hsieh The Daily Record Newswire BOSTON -- An Alabama jury has awarded $7 million to an Iranian owner of a Toyota dealership whose competitor told customers the plaintiff funded terrorism and that buying a car from him amounted to killing American soldiers. The verdict is reportedly the highest defamation verdict in state history. Car shoppers testified that they were warned by sales people at Bob Tyler Toyota not to shop at another local dealership, Eastern Shore Toyota, because its owner was sending money to terrorist groups. It wasn't until the last witness of the trial that the defendant's case unraveled, when one of the defendants, sales manager Fred Keener, admitted he referred to the plaintiff as "Taliban Toyota" and apologized to him in court. "It was the damnedest trial I've ever seen," said winning attorney Vincent F. Kilborn III, who spoke via cell phone from a yacht off the Great Barrier Reef in Australia. Jeffrey L. Luther, the attorney for Keener, said his client only admitted to using the slurs jokingly during "shop talk," but not to customers. Luther added that "there was not a single customer who made a decision to buy a car elsewhere because they heard these things." He plans to appeal the verdict. Kilborn agreed that he faced steep challenges in proving damages. "How do you prove who doesn't come to your dealership? You have to prove a negative. The problem in defamation cases is always the damages," said Kilborn, of the five-attorney firm Kilborn, Roebuck & McDonald in Mobile, Ala. In addition to hard-to-pin-down damages, several unique factors threatened to further limit the lost profits that could have been caused by the slander, including competition from other dealerships, Toyota recalls over sudden acceleration and sticky pedals, the BP oil spill and the all-around lousy economy. Jeffrey L. Ingram, who represented defendant Bob Tyler Toyota, did not return a call in time for this article. 'Perry Mason moment' At the onset of the Iranian Revolution, after seeing family members persecuted, Shawn Esfahani left his birth country at 16 years old with $300 in his pocket. He didn't speak a word of English. "His father and mother told him if he stayed he was going to be killed by the Iranian secret police, so he fled, came to the U.S., put himself through school, learned English and became a Toyota salesman," said Kilborn. When Esfahani purchased the Eastern Shore Toyota dealership in 2002, Toyota was reducing the number of dealers in the area, putting him in direct competition with Bob Tyler Toyota, 30 miles away, Kilborn said. "Since Shawn was from Iran, [Bob Tyler] thought since they couldn't beat him in the marketplace, they would start cheating," Kilborn contended. Two couples, including a pastor and his wife, testified that when they told a salesman at Bob Tyler Toyota they were going to check out Eastern Shore Toyota, he told them it was owned by a Middle Eastern guy who was funneling money to kill U.S. soldiers, according to Kilborn. Even as they were signing papers at Eastern Shore, the couple got a call on their cell phone from the salesman saying he couldn't believe they were supporting terrorists by buying a car from Eastern Shore Toyota, said Kilborn. According to Kilborn, even though co-defendants Bob Tyler and sales manager Fred Keener denied the allegation all through discovery, the trial ended with two stunners when the defendants turned on each other. When owner Bob Tyler got on the stand, instead of denying the claims, for the first time he admitted it was apparent from the trial that some of his sales people had said these things and therefore he wanted to apologize to Mr. Esfahani and his family. "But he said 'I didn't do it myself. I would never say anything like that.' So [there was] this half-hearted apology in the middle of trial," said Kilborn. The defense called Fred Keener, the sales manager, as its last witness. Keener, who was a co-defendant with the dealership, admitted that he had referred to the plaintiff as "Taliban Toyota" and "Middle Eastern Shore Toyota," then turned to the plaintiff in court and apologized. According to Kilborn, the trial ended after a "Perry Mason moment" when Bob Tyler's attorney questioned Keener, asking him, "Isn't it true that my client, Bob Tyler, knew nothing about all these bad things?" But, according to Kilborn, Keener stunned the courtroom with his answer that Bob Tyler knew all about it. "These two guys were in lock step with each other through the whole trial. I never expected one to finger the other," said Kilborn. Luther said he did not recall his client testifying that his co-defendant knew about the smear campaign. 'Living the dream' In his closing argument, Kilborn told the jury the buck had to stop with them. He explained that his client tried everything short of suing, including sending a letter to the dealership asking them to retract their false statements, and accepting their promise that it would stop. It was only after Esfahani found out the slander continued that he sued, Kilborn said. Another customer testified that as late as 2010, four months after the lawsuit, the slander continued, Kilborn said. "Shawn tried to take the high road and avoid the lawsuit by doing everything he could, but a letter didn't stop it, a lawsuit didn't stop it, and my argument to the jury was 'You're going to have to stop it,'" said Kilborn. Luther argued that not only did the plaintiff fail to prove damages, but that the customers who testified about the slander eventually purchased their cars from the plaintiff. "We fail to see any evidence that correlates any lost sales with statements allegedly made," Luther said. But under state law, there is a presumption of damages for slander per se where there is an accusation of treason, Kilborn said. "In this case, the slander was funding terrorism, a federal crime for which you can get death," he added. On the subject of crime and punishment, Esfahani testified that his brother and younger sister were imprisoned by secret police back home and his sister was given 70 lashes in a public square for listening to music at a private house party. "Here he is living the American Dream, [and] this was particularly offensive because he's being accused of funding the same people torturing his own family still. It was totally outrageous," said Kilborn. An economic expert testified for the plaintiff that given projected sales over the past three years and two years into the future, and taking into account several negative factors like the recession, the oil spill and the Toyota recall, the plaintiff's lost sales ranged from a low of $3 million to a high of $7 million. On punitive damages, Kilborn asked the jury for $28 million, arguing that "no matter how much money you give, Shawn can't get his good name back." In contrast, Luther asked the jury to award $1 in damages. The jury -- all female except for the foreman -- returned with a verdict of $2.5 million in compensatory damages and $5 million in punitives. Published: Mon, Nov 21, 2011