August 11th, 2017

About Eric Bolling’s $50 Million Defamation Suit – And the Ad Damnum Clause Loophole

Eric Bolling

News junkies know that yet another Fox News anchor has been shit-canned over allegations of sexual harassment, this time it being anchor Eric Bolling. Fox has “suspended” him for allegedly sending lewd texts and photos to colleagues.

But I’m not here to deal in the actual details, but rather, the $50 million suit he has filed against his accusers in New York state court, and the procedural quirk that allows him to make that claim despite New York’s apparent prohibition on doing it.

You see, Bolling’s attorney didn’t file a Summons with a Complaint, but rather, a Summons with Notice. To us New York lawyers, this is a very significant procedural issue. The brief document is here: EricBollingSummonsWithNotice

A Complaint has details in a defamation case, setting forth actual words that were written or uttered that are claimed to be false and injurious. This Summons with Notice crap, does not. It’s substance merely states:

The nature of this action is for damages and injunctive relief based on defamation arising from the defendant’s efforts to injure the plaintiff’s reputation through the intentional and/or highly reckless publication of actionable false and misleading statements about the plaintiff’s conduct and character. As a result of the defendant’s actions, the plaintiff has been substantially harmed.

While it is legal to start a suit this way, it is most certainly not the way lawyers practice.  He now has just 20 days to file the Complaint or risk dismissal.

But time wasn’t a barrier for any of this — he could have waited to draft a Complaint if it had merit — so why start suit in such a crappy fashion?

My theory:

There will be no real lawsuit to follow. This was rushed out the door to intimidate others from stepping forward and grab press. Put a big whopper of a number in the filing — in this case $50M — and people who may claim to have been harassed may simply say I don’t need this crap.

There isn’t any other reason I can think of. If it is brought to the attention of a judge, s/he is likely to simply strike it. But the damage has already been done.

But wait!  What about that mammoth $50M number? Regular readers know that I have railed against those who put ad damnum clauses into their pleadings. New York (thankfully) outlawed this practice for personal injury cases back in 2003 (and defamation constitutes personal injury). It used to apply only to medical malpractice cases, but in 2003 was changed to all personal injury cases. CPLR 3017(c) states:

In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

New York’s Grand Poobah of Procedure, the late Prof. David Siegel, thought a monetary sanction should  be levied. In his authoritative treatise on New York practice he wrote:

“Some cases have held that a violation of the CPLR 3017(c) pleading restriction can be cured with a mere amendment striking the reference to the demand, but the imposition of a money sanction in an appropriate sum might better implement this aspect of CPLR 3017.”

But Bolling’s lawyer may have discovered a loophole to grab that press.  Because CPLR 3017(c) doesn’t list Summons with Notice as one of the documents that prohibits the ad damnum clause. Here it is again with emphasis added:

In an action to recover damages for personal injuries or wrongful death, the complaint, counterclaim, cross-claim, interpleader complaint, and third-party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

And yet, the Summons with Notice (CPLR 305) requires a prayer for relief (“shall contain”) except in medical malpractice cases:

(b) Summons and notice.  If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default.

So it appears that when CPLR 3017(c) was amended in 2003 to forbid the placing of a specific demand for relief in a Complaint, the Legislature forgot that CPLR 305 requires it in a Summons with Notice.

We lawyer types have a word for that discrepancy: Loophole. I don’t know if Bolling’s lawyers knew it existed when they drafted this document, but there it is anyway. But when I sat down to write about the odd way this suit started, I certainly didn’t realize it. While I came to critique the way this suit was started that’s what I found instead.

A loophole.

And one that the Legislature should fix in the next legislative session by amending both CPLR 305(b) to add all personal injury suits to the actions that prohibit the demands for relief, and adding Summons with Notice to the list of documents that prohibit it in 3017(c).

 

July 1st, 2015

Donald Trump Files Frivolous $500M Defamation Claim (Updated)

Donald Trump

Donald Trump

I’ll try to do this post without the usual comments about Donald Trump’s desperate need for attention over the years, or his combover, bluster, birther issues, and paying people to attend his presidential announcement.

Or the shear delight of late night comics. Or comments about every village having its idiot, and since NYC is the biggest village…..

Crap. Couldn’t do it.

Anyway, as many folks know, Trump made a number of exceptionally nasty and derogatory comments about Mexicans during that announcement, calling them as a group rapists and drug dealers:

When Mexico sends its people, they’re not sending their best. They’re sending people that have lots of problems. They’re bringing drugs. They’re bringing crime. They’re rapists.

If you don’t think that is bad, try substituting Jews, blacks, gays, etc.

Univision, a Spanish language station that carries Trump’s Miss USA and Miss Universe contests, dumped Trump over the comments. Then NBC fired him from a TV show called Celebrity Apprentice.

Trump sued Univision yesterday for breach of contact and defamation.  I haven’t see the contract, and have no opinion on it, but I do have an opinion on the defamation.

Having myself been the subject of two frivolous defamation suits for my comments on this blog, it probably doesn’t come as a surprise to regular readers that I have opinions on the subject. (See Rakofsky and Katz)

As best I can glean from this, the defamation claim surrounds the publication of a picture of Trump next to alleged mass murderer Dylann Roof. The publication took place on Instagram by Univision’s President, Alberto Ciurana, and has since been taken down. You’ll find the reference to it in paragraph 29 of the Complaint.Trump Defamation Case

Roof and TrumpIs the photo nasty? You betcha. I publish it here so that you know what this part of the suit is about. And so you also understand why it represents constitutionally protected free speech under the First Amendment.

Because, ugly as the picture is, it does not represent fact, but opinion. And the First Amendment clearly protects opinion. You can’t bring a lawsuit (successfully) for hurt feelings because people were mean to you on the Internet.

Since Trump brings this case in Manhattan, New York’s First Department, the court will likely quote this type of language, that was used in the dismissal of the Katz case against me:

“‘[s]ince falsity is a sine qua non of a libel claim and since only assertions of fact are capable of being proven false…a libel action cannot be maintained unless it is premised on published assertions of fact,’ rather than on assertions of opinion.” Sandals Resort Intl. Ltd. v. Google, Inc., 86 A.D.3d 32, 38 (1st Dept 2011) (quoting Brian v. Richardson, 87

In 1986 New York’s Court of Appeals said in Steinhilber v. Alphonse that expressions of opinion, as opposed to assertions of fact, are privileged and, no matter how offensive, cannot be the subject of an action for defamation. Non-actionable opinion includes “rhetorical hyperbole, vigorous epithets, and lusty and imaginative expression,” as well as “loose, figurative, hyperbolic language.

Trump doesn’t even come close to asserting a false fact. That cause of action is destined to be dismissed.

By filing a $500M defamation claim (paragraph 61), Trump knows he will get headlines. And he is. Despite the fact that the suit is empty.

Trump, of course, freely admits that he is outrageous on purpose to garner press. In his book The Art of the Deal, he writes:

One thing I’ve learned about the press is that they’re always hungry for a good story, and the more sensational the better. It’s in the nature of the job, and I understand that. The point is that if you are a little different, or a little outrageous, or if you do things that are bold or controversial, the press is going to write about you. I’ve always done things a little differently.

But that doesn’t mean a judge should tolerate the abuse of the courts for that purpose. The judicial culture of New York judges is to avoid sanctions for clearly frivolous claims, but that needs to change. We have provisions for sanctions for both a frivolous suit and for frivolous conduct. They should be used.

This is not the first time Trump will lose a defamation case. Trump was dumped back in 2011 when book author Timothy O’Brien questioned his claims of wealth, writing that Trump was worth $150M-$250M, and not the $7 billion he boasted about. Trump had testified, before he was dumped, that his net worth depends in part on his “own feelings.”

Two more quick points: New York prohibits making an ad damnum clause in a personal injury case, and defamation falls into that category. It was outlawed in 2003. Yet Trump does it anyway, for $500M.

I’ve written about this before. There are only two reasons to put the monetary claim in the complaint: The lawyer was ignorant or there was a deliberate attempt to garner headlines.

The usual response by judges is simply to strike the demand, but by then the damage has been done and the headlines written.

A far better avenue for the court is levy sanctions for having done it. And given Trump’s nature as a vexatious litigant, and his admitted conduct of being outrageous to get press, sanctions would be wholly appropriate.

This isn’t just my opinion, but that of the late guru on New York Practice, David Siegel. In his treatise on New York practice he wrote:

“Some cases have held that a violation of the CPLR 3017(c) pleading restriction can be cured with a mere amendment striking the reference to the demand, but the imposition of a money sanction in an appropriate sum might better implement this aspect of CPLR 301(c).”

Finally, the Legislature should finish its work with regard to the anti-SLAPP legislation that has passed the Assembly but stalled in the Senate. Trump is clearly trying to stifle the public discussion of his outrageous conduct, and this should not be permitted.

Update: At a presidential debate on Feb. 25th Trump said the matter had been “settled.” A motion to dismiss had been pending and I assume he didn’t want the wrath of a judge that might give him a YUGE sanction. I’d be stunned if Trump received even one nickel.

The actual statement by Trump:

TRUMP: I’m just telling you, I’m doing very well with Hispanics. And by the way, I settled my suit, as you know, with Univision. It was settled. We’re good friends now. It was all settled up.

 

 

January 15th, 2014

False and Misleading Headlines (Youth Baseball Edition) – Updated

An unhappy Brett Lawrie of the Toronto Blue Jays throws his helmet in 2013.

An unhappy Brett Lawrie of the Toronto Blue Jays throws his helmet in 2013.

Headlines make a difference, as headlines can skew the viewpoint of the reader before the facts are even read in the article. That is, if the article is even read. Many folks, of course, just skim.

And so it is with KCRA in Sacramento, CA.

The headline reads:

14-year-old Little Leaguer sued by coach for celebrating win

The problem? That isn’t really why anyone was sued. An actual reading of the article reveals that the defendant, a 14-year-old, threw off his helmet as he raced home with a winning run. But the helmet hit the coach and caused a torn Achilles tendon.

The kid, in other words, wasn’t sued because for celebrating, but for causing an injury to his coach.

As per the article’s actual text:

In legal papers filed in court, the teen’s former coach, Alan Beck, contends the boy “carelessly threw a helmet, striking Plaintiff’s Achilles tendon and tearing it.”

Whether the underlying facts support the suit or not, I have no way of knowing. All we have now is a legal pleading and a short news story.

Will it be tossed out on assumption of risk grounds? Perhaps. Throwing helmets isn’t exactly part of the game, but as you can see from the graphic above of Brett Lawrie throwing his helmet in 2013, it does happen on occasion.

But one thing is clear. The headline writer didn’t accurately tell you what the story was about.

Does this matter? You bet. Because headlines like this help to shape public opinion, and that public opinion affects how potential jurors will feel about cases before a trial even starts.

(hat tip, Conrad Saam)

Update (1/16/14):  CNN now has the story, with interviews with the parents of the kid being sued, bemoaning the suit, and the coach who brought the suit discussing his Achilles injury from a 6-foot tall, 180 pound kid, and the lack of apology. CNN harps on the amount sued for: $500,000. And that makes this a good time to remember that ad damnum clauses such as this are a very bad idea. They have, thankfully, been outlawed in New York.

The coach that sued says “it’s not about the money,” but the fact that there is a number in the complaint for the media to focus on takes that issue out of his hands.

While I don’t know if this suit will survive due to assumption of risk issues — and if California law is the same as New York law I think it will get tossed — it’s clear that the CNN focus is on money instead of safety. I wrote about that recently when Red Bull was sued for $85M — where I noted that it was a very poor move to put a number in the complaint, not only because it isn’t allowed but because it shifted the focus away from product safety.

 

 

October 29th, 2013

Death by Red Bull, An $85M Lawsuit, And The Money Shot

RedBullLogoThe story comes over the transom like so many others do — with a big fat headline screaming about a lawsuit with a multi-million dollar claim. This one claims that the energy drink Red Bull caused death. And the gist of the claim seems to be — based on this newspaper article as well as the Complaint that I obtained from plaintiff’s counsel — a failure to warn that Red Bull is actually more dangerous than what Red Bull lets on.

The result is that 33-year-old Cory Terry — who was a regular consumer of the product — is dead after downing one of the drinks during a basketball game.

The Complaint itself cites a litany of medical problems allegedly caused by Red Bull that spans many years and many countries, and cites to a number of studies of over-caffinated drinks that have appeared in the medical literature. It then goes on to state causes of action based on strict liability for a failure to design the product properly, a failure to warn of the dangers, breach of warranty and fraud.

For the purposes of my posting, let’s assume that it’s accurate that Red Bull failed to properly warn about the drink’s contents and committed fraud. If true, it could be an interesting lawsuit. Whether it caused this particular death is another issue.

I’ll assume it’s all true because I have an altogether different bone to pick with Ilya Novofastovsky — he being the lawyer that brought this suit.

And that bone is with the claim for $85M for this unmarried construction worker who left behind a 13-year-old son.  Now it’s not $85M in compensatory damages as the NY Daily News story would have you believe. It is $5M each for seven different causes of action plus $50M in punitive damages.

But here’s the problem: In New York, you aren’t allowed to put an ad damnum clause in a lawsuit. That’s the fancy pants Latin phrase for the monetary demand. New York outlawed this practice — a practice I’ve always despised — for medical malpractice cases in the 80s and for all personal injury cases in 2003. Ten. Years. Ago.

At that time Walter Olson, the founder and editor of Overlawyered, celebrated the demise of the ad damnum clause, as did his oft-times foils the lawyers themselves. As Olson noted back then:

New York thus becomes the latest state to adopt a measure that is relatively rare among litigation reforms in eliciting widespread support from among both defense interests (example: American Medical Association model legislation, PDF) and the plaintiffs’ bar…The state bar association urged Pataki to sign the bill, saying it “will reduce pretrial publicity about how much money is sought from particular defendants, and deals with the common misunderstanding by the general public that the amount sued for is the amount actually obtained by plaintiffs.”

And yet, some lawyers still put that clause in. Why? There are only two possible reasons, as I explained last year when a lawyer sued for $30M over a dog bite: Either the lawyer is ignorant of the law or the lawyer is deliberately violating it in the hunt for headlines. It’s your call as to which is worse, ignorance or a potential ethics issue.

And so Ilya Novofastovsky becomes the latest lawyer to embarrass the rest of us, as we face down potential jurors who appear in the courthouse. It’s headlines like this that poison the well of potential jurors. He may not have caused embarrasement deliberately, but that’s the effect.

Every time I pick a jury I am forced to deal with unusual claims that appear in press headlines, distracting me from the job I was hired to do. The biases are there, planted firmly in their brains by lawyers that make monster claims that bury the reason they actually took on the suit. The fact that these claims are outliers is of no significance, because these are the ones that jurors see in the paper. These are the cases, and the lawyers, that help to poison public opinion.

And lest you think I am overstating the case,  you are free to read the acerbic comments that accompanied that Daily News article. This is a sampling, and think for a moment how the comments would be different if the story headline dealt not with money, but with the product being mislabeled and focusing on the fraud, which is the actual crux of the complaint:

Wow. This has “looking for an easy buck” written all over it.

Ka-ching!

He chose to drink it. Now shut the hell up about suing the company for 85 million. You just want some easy money.

The family is simply looking for some cash.

Welcome to America. There are no consequences for filing frevious law suit. $85million? That’s what he would have made in his lifetime of robbing and stealing perhaps.

Opportunists looking for a quick payout.

And so the headlines — those things that affect jurors — aren’t about fraud and product problems. They are about the money; the money is always in the headline.

A quick story on the subject: A bunch of years ago a TV reporter was doing a story on New York’s broken sidewalks and wanted to interview me regarding one of my cases, that being an elderly woman who’d tripped and busted her arm. It was a plain vanilla case, so to speak, but a good example of what happens when you don’t fix busted sidewalks. They are dangerous, and that’s what the story should be about (and what the reporter told me it would be about).

With the camera rolling, the reporter then asked how much we were suing for. This was the money shot, so to speak. Being prepared for that inevitable question I responded in three to four very unquotable sentences about how difficult it was to predict the future, and the potential surgeries, but that I didn’t think the case would exceed x.

That’s great, she said, now can you give me the answer again, but shorter, with just the money? And with the camera rolling again I slowly gave her the same three to four unquotable sentences.

I wasn’t giving her the money shot. While money may be what we are forced to sue for, since I can’t get my client’s health back, this was a story about safety.

Lesson: Don’t give the press the money shot. If you do, the story is no longer about safety, injury prevention and personal responsibility for those that are negligent (or worse). Now it’s all about the money.

Eventually, a lawyer will need to turn to the money when in front of a jury. But then it can be presented on its own terms, unfiltered by the distortions of the press.

Update (11/1/13): Max Kennerly discusses the substance of the case.

 

June 7th, 2012

The $30M Dog Bite (and Rosemarie Arnold)

Rosemarie ArnoldI was pissed when I saw the article in the paper: A doctor walked her dog in a school playground where it wasn’t supposed to be and attacked a child, biting off part of his earlobe. The kid (through his parents) sued the doc. For $30,000,000.

Yeah, I was mad. But not at the doctor and not at the dog. I was mad at the lawyer, Rosemarie Arnold, who belches on one of her websites that she is the “Queen of Torts.”

Really? The Queen? Well, let’s see about that, shall we?

Wouldn’t the “Queen of Torts” have the fundamental knowledge that, when starting a personal injury lawsuit in New York, you are not allowed to put in an ad damnum clause? That’s the part where you state an actual amount of money. The Legislature killed that idiotic provision back in 2003. As Walter Olson noted at the time on Overlawyered, the measure enjoyed “widespread support from among both defense interests … and the plaintiffs’ bar, which is perennially embarrassed by news items…”

That law was amended because it is, most often, impossible to know the extent of an actual injury soon after it occurs, because the injury has not stabilized and it is too difficult to predict the future at that early point in time. Will the person need one surgery or five? Will the pain resolve itself in six months or not?

As a result of this problem, some lawyers would put crazy numbers in the complaint “just in case,” so that they would not be precluded later if the client’s health went downhill. At the same time, it was grossly unfair to the defendant, as newspapers loved to put this stupidity in headlines. This was particularly true in medical malpractice cases.

So the old law was, thankfully, changed by the Legislature.

Which brings us back to Rosemarie Arnold and her claim on behalf of the child that he suffered a $30M injury to his ear. There are only two reasons for Ms. Arnold to do this:

1.  The Queen of Torts is actually ignorant of the law; or

2.  Rosmarie Arnold willfully elected to ignore the law, in the hunt for headlines, thereby raising ethical issues about her willfully ignoring the law.

Neither of these scenarios is good for her, as one goes to the issue of ignorance and the other to the issue of ethics. Pick your poison.

Back in 2007, during my virgin year as a blogger, I first wrote about this issue. It’s time to expand on it, thanks to Rosmarie Arnold.

When I go in to pick juries, I am constantly faced with the deep cynicism that is fed by insurance companies and newspapers that thrive on outlier suits for spurious claims or that claim enormous damages. To the jurors, fed by such media attention, every lawsuit represents greed and lottery-like jackpots, while to the litigants, the suit is simply at attempt to  measure what is fair and reasonable under the circumstances and receive just compensation.

Rosemarie Arnold, in bleating a $30M claim to the press, just made my job more difficult, as well as the jobs of all the other personal injury attorneys in the state. And she  has added one more straw to the camel’s back in damaging the rights of litigants trying to pursue justice in the courts.

Perhaps the publicity she got from the suit was good for Ms. Arnold, but it was detrimental to the cause of civil justice. As is often the case, the bad conduct of a few people in a group taints the rest in the eyes of the public. There isn’t any group that wants to see its own misbehaving and damaging the reputation of the rest.

And on the cause of civil justice, since I’m on the topic, it’s worth noting that the self-proclaimed Queen of Torts isn’t even a member of the New York State Trial Lawyers Association, the premier bar association in the state that fights in Albany to protect the civil justice system from those who seek to damage it. Some Queen.

Frankly, I wouldn’t mind seeing this taken up by a judge or ethics committee.

I emailed Ms. Arnold using the form on her website two days ago, seeking comment, and no one got back to me.