August 3rd, 2020

New York Legislature Finally Passes Anti-SLAPP Legislation

It was five years ago that I wrote an op-ed for the New York Law Journal, begging the Legislature to pass anti-SLAPP legislation. And now, both the New York Assembly and Senate did just that.

To quickly review what a SLAPP suit (strategic lawsuit against public participation) is, it’s a meritless lawsuit designed to shut someone up by foisting litigation upon them. This is generally done with frivolous defamation claims.

When such suits are newsworthy, it’s usually because someone high profile like Donald Trump is involved, even when he doesn’t have a leg to stand on. One example (and there are many) is the $500M suit he brought against Univision’s President for comparing him to homicidal racist Dylan Roof, which had been presented as a clear opinion.

Or losing a suit he brought against Tim O’Brien for questioning his wealth and calling him a mere millionaire. After losing, Trump actually confessed that it was frivolous, saying in an interview:

“I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”

But that’s the high-profile stuff. Most you won’t hear about, either because the people are not Page Sixers or because the threat was successful. You don’t really read about the butcher, baker or candlestick maker being threatened for bad Yelp or Trip Advisor reviews. But it happens.

I’ve been down that road twice with this blog, once being sued by Joseph Rakofsky when he sued the internet. And a second time by orthopedist Michael Katz after I reported that a judge repeatedly calling him a liar from the bench when he appeared as an expert.

Both times the suits were shot down by judges in the pleadings stages, but New York’s lower courts seem to have a great reluctance to sanction such stupidity, which would have gone a long way toward helping cut down these kinds of actions.

With that history out of the way…

Now the Legislature has, at long last, acted. Previously it was only the Democratically controlled Assembly passing bills, with the Senate (in Republican hands or very closely divided for many years) failing to follow. I never figured out why that reluctance was there since free speech is a bipartisan issue.

With the leadership now of Senate Majority Leader Andrea Stewart-Cousins and Assembly Leader Carl Heastie a bill has been passed. This came with the efforts of Assembly sponsor Helene Weinstein and Senate sponsor Brad Hoylman.

So what does it do?

First, it requires legal fees to be paid if the suit is frivolous. And frivolous is defined the same way it is in New York’s court rules, except now it will be statutory: It will be deemed frivolous if “the action involving public petition and participation was commenced or continued without substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law.”

What is public petition and participation? The definition is quite broad. It fills that requirement if it’s regarding “(1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) any other lawful conduct in furtherance of  the  exercise of the constitutional right  of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition.”

This should cover not only the high-profile crap from celebrities threatening to rain a shitstorm of lawyers down on your head if you don’t take down that post calling them weenies, but also the humble restaurant review that was less than generous.

What is a claim? Not a threat, apparently, but it “includes any lawsuit, cause of action, cross-claim, counterclaim, or other judicial pleading or filing requesting relief.”

And what is “public interest? Glad you asked: “Public interest shall be construed broadly, and shall mean any subject other than a purely private matter,” by showing that “the cause of action has a substantial basis in law or is  supported by  a substantial argument for an extension, modification or reversal of existing law.”

And it gets heard quickly (by New York standards), as, “The court shall grant preference in the  hearing of such motion.”

Finally on the bill, the matter is stayed pending the resolution of the motion. The court can, if it so chooses, order “specified” and “limited” discovery if the plaintiff asserts certain specific discovery is needed to show the motion isn’t frivolous.

Governor Cuomo should sign this bill. There is no colorable reason to protect frivolous suits that are designed to quash the First Amendment rights of the citizenry.

Is there a bug lurking somewhere that might throw a wrench into all this? Yeah.

There’s an open question as to whether federal courts will apply state anti-SLAPP laws. Many other states already have them.

The federal Courts of Appeals are split on this issue and one day it may come before the Supremes. Just recently, in a matter involving television personality Joy Reid, the Second Circuit said state laws did not apply. But the Ninth Circuit says they do.

Congress, of course, can resolve this problem with a federal anti-SLAPP statute. The only ones who would oppose it would be vexatious litigants.

In the meantime, you should expect New York litigants stretching for any kind of federal angle to get into federal court and avoid New York’s new anti-SLAPP legislation. Assuming, of course, that Gov. Cuomo signs it.

Elsewhere:

 

January 31st, 2018

#EricsLaw Introduced In NY Assembly – Updated!

OK, the bill isn’t actually called #EricsLaw, that’s just the name I wish to call it since it stems from a post I made last August concerning one of my pet peeves: The ad damnum clause. That’s the pretentious Latin way we lawyer-types refer to the damages demand in a lawsuit.

Since this blog is actually cited in the bill’s memo [pat self on back], I figured I ought to tell you about it.

The underlying story had Fox newsman Eric Bolling getting shit-canned by Fox News over sexual harassment allegations. He thereafter started a $50M defamation suit.

I dug in to write, not about the aforementioned shit-canning, but about the fact that you can’t put that ad damnum clause in a personal injury suit, and defamation qualifies as personal injury.

Yeah, I was writing about boring procedural things again. But you know what? Putting demands in complaints encourages lawyers to claim large dollar amounts out of fear that, if we make a demand too low, it may limit our clients’ recovery later. Oh, Mr. Plaintiff client needed five surgeries? Who knew way back then!?

And those big numbers lead to the very predictable consequence of lawyers (and our clients) looking fabulously stupid as the demands are always in the headlines. And the news always wants the money shot. Which thereby poisons the jury pool for every case.

It’s also despised by defendants, as they see it as an unfair trashing of Dr. Defendant, now being the subject of the headline grabbing numbers. The law was amended to abolish the practice in 2003.

Hallelujah!! No more stupid, telephone number demands made by lawyers to cover worst case scenarios or to, [spit, spit] get their names in the Daily News. Doctors were thrilled also. Win-win!!!

But I found in writing the Bolling piece that, lo and behold, because the case was not started in the traditional manner with a summons and complaint but, rather, with the rarely used and widely disfavored summons with notice that he was actually required to put in a demand.

Oops. It seems that when the Legislature amended CPLR 3017(c) in 2003 to prohibit the money demand, it forgot to list the relatively obscure summons with notice as one of the pleadings. This is how it now reads:

(c) Personal injury or wrongful death actions.  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 the section that deals with a summons with notice (CPLR 305) requires it for all actions except medical malpractice:

(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.

Are you still with me? Please say you’re still with me. This is going to be exciting I tell you!

So it seems that my little blog posting on this inadvertent loophole was noticed up in Albany, because lo and behold — can I use that phrase twice in one posting? — there’s now a bill from Assemblyman Daniel J. O’Donnell to fix CPLR 3017 by adding the summons with notice (A. 8852) to the list of other pleadings where you can’t put in a specific demand for damages.

How do I know it was my little blog that did it? Well, it’s cited in the bill’s memo:

Where does that leave us? It leaves us with the need to also add a small fix to the CPLR 305 provision currently requiring the demand in a summons with notice, so that there isn’t any conflict of law with an amended 3017.

And, since we’re on the subject,  it also leaves us with getting rid of the need to put a demand in a Notice of Claim for New York City (GML 50-e), which must be filed within 90 days of an incident.  As if anyone actually knows how extensive the damages will be at the stage (Judge Sues City for One Million Dollars!), which is why it’s so stupid to have. It is already prohibited in every place in New York State except the City of New York (any “city with a population of one million or more”).

[Updated:  This post appeared on January 31st. On February 9th, the proposed legislation was updated to include the two changes I suggested above to CPLR 305 and GML 50-e.]

I think that these are the last existing vestiges of the demand for damages in this state. The Legislature dumped them from the Court of Claims (cases against the state) back in 2007, which I celebrated at the time.

And I’m going to call this #EricsLaw (Underline! Italics! Bold! #Hashtag!) — and it ain’t for Eric Bolling — since it seems to have come from my little blog posting and there doesn’t seem to be anyone else around to name it after.  And, by gosh, every law needs to be named for someone.

I would name it the far more interesting Turk’s Demand, but hey, I’m sticking with convention here.

One day someone can chisel on my tombstone — with or without the hashtag, I’ll be in no condition to complain — that I helped tweak the CPLR for everyone’s benefit, if it actually winds its way through both houses of the Legislature and gets signed.

Such an accomplishment. I’m all verklempt.

And here’s the kicker: The Bolling suit went, to absolutely no one’s surprise, absolutely nowhere. There are no other documents in the court file after the summons with notice was filed last August, not even an affidavit of service. No complaint or demand for one. No appearance by any defense counsel. Nothing. Zero. Nada. Zippo.

Bolling apparently filed for no other reason than to grab headlines and intimidate others who might come forward. This kind of legal filing, designed to intimidate by imposing the fear of litigation, even if wholly unfounded in law, is the reason that New York should pass anti-SLAPP legislation.

The anti-SLAPP bill previously passed the Assembly but remains oddly stalled in the Senate.  Who is it that’s in favor of frivolous threats that shut down speech, and has stalled the bill in the Senate?  Inquiring minds want to know.

Now that would be a terrific piece of reform. I’ve been frivolously sued twice over this blog, so feel free to stick my name on that one also. With or without the hashtag.

 

February 4th, 2015

New York Needs More Robust Anti-SLAPP Legislation (Op-Ed)

SLAPPThis piece I wrote appears in today’s New York Law Journal. [Brackets] refer to endnotes in the original, and I’ve added some links:

—————————-

I’ve now been sued twice for defamation over postings I’ve made on my law blog. And you know what? It sucks.

On both occasions, I was reporting on what happened in a courtroom, on cases I was not involved with either as counsel or litigant. And on both occasions judges tossed the lawsuits in the pleadings stage as the suits assaulted my right to fairly report and comment on judicial proceedings.[1] You can’t (successfully) sue people for reporting on what transpired in court, or for their opinions on what happened.

But, you know what else also happened twice? Despite both cases being utterly without merit, and both cases aggressively acting to discourage free and robust newsgathering and discussion, both plaintiffs were able to walk away while I was forced to spend enormous time on my defense including preparing documents, hiring counsel and wrestling with my insurer.

When empty lawsuits are used to retard free speech, all writers suffer.

This problem affects institutions above me in the pecking order of journalistic influence (traditional media) as well as those below (anonymous or pseudonymous commenters in countless Internet forums).

For example, in Rakofsky v. Washington Post, et al., I was part of the massive “et al.” [2] that included about 80 other lawyers, law firms, media companies, and John Doe/pseudonymous defendants. It seems that one Joseph Rakofsky, a neophyte New Jersey lawyer, went down to Washington D.C. to lead a murder defense. Except that he had never tried a case before. Of any kind.

The trial didn’t work out so well for Rakofsky or the client. The judge declared a mistrial partway through, and said (among other things), that it was “readily apparent” that Rakofsky’s performance was “not up to par under any reasonable standard of competence under the Sixth Amendment,” and “below what any reasonable person could expect in a murder trial.”

After The Washington Post wrote the story up, so too did many law bloggers, of which I was one, as well as the ABA Journal, Reuters and others, giving a variety of perspectives and adding depth to the already-reported story. Rakofsky sued so many people and companies that discussed what happened that the suit was instantly dubbed Rakofsky v. Internet. [3] Ultimately it was dismissed, since writers were relying on what transpired in court, or how Rakofsky presented his skills and qualifications on his websites. But there were no sanctions for his efforts to try to quash free speech.

The second suit, reported on the front page of this newspaper on Jan. 2, 2015, involved orthopedist Michael Katz. Dr. Katz had conducted a defense medical exam in a personal injury case (not one of mine). I found out that Queens Supreme Court Justice Duane Hart had repeatedly called Dr. Katz a liar in open court regarding his testimony. I then had the audacity to use my blog for original reporting on the subject, as well as offering my opinions on its significance.

Dr. Katz sued me. Once again the case was tossed at its initial stage, and once again there was no sanction for a litigant trying to suppress free speech by means of a lawsuit. [4]

But make no mistake about this, bringing hollow lawsuits that can’t even state a claim, and that clearly violate the robust freedoms ensconced in the First Amendment and fair reporting laws, have a chilling effect on others. While I continue to write about issues that I find important, there is no doubt that others hold back, fearful that they will be sued in order to intimidate them from writing, if that writing is critical.

Did I say that this affects writers? Well it also affects readers, who are deprived of the news and opinions that have been fearfully withheld.

Lawsuits to silence critics, such as these two against me, are called Strategic Lawsuits Against Public Participation, or “SLAPP suits.” They have become so common, with clearly significant free speech repercussions, that many states now have powerful anti-SLAPP legislation that stop the suits cold and award costs and attorneys fees to the victims.

According to Harvard University’s Berkman Center for Internet & Society, 28 states have anti-SLAPP statutes. [5] Unfortunately, the one for New York is exceptionally limited, and applies only to permits and applications in the real estate context. [6] It does not protect free speech in the abstract.

But legislation is pending in both the Assembly and Senate that would ameliorate that unnecessary limitation, and hold litigants and lawyers accountable for attempting to restrict the rights of others to speak and write freely. [7]

While some suits would nevertheless continue with pro se litigants, lawyers would be on notice that attempting to use litigation as a cudgel upon which to exert free speech concessions would backfire. Both litigants against me, it’s important to note, were represented by counsel. And both lawyers must have known that the suits were doomed from the outset.

This is, thankfully, one of those issues about which there is no partisan divide. Vexatious litigants trying to silence others are not part of any political party. The chilling effect such suits have on free speech effects us all equally, from the most prominent newspapers to the most casual individual looking to discuss the issues of the day.

In 2008, both the New York Senate and Assembly took a big step forward when they unanimously passed the Libel Terrorism Protection Act, which protects us from lawsuits in foreign jurisdictions that don’t have the same free speech protections as the First Amendment. [8]

The Legislature should be able to rally around this anti-SLAPP bill in the same manner, and protect the First Amendment rights of all New Yorkers.

Endnotes:

1. New York Civil Rights Law §74.

2. 2013 NY Slip Op 50739 (2013).

3. Scott Greenfield, Simple Justice, http://blog.simplejustice.us/2011/05/13/rakofsky-v-internet/, May 11, 2011.

4. Katz v. Lester Schwab, Dwyer & Katz, et al., 153581/2014.

5. http://www.dmlp.org/legal-guide/state-law-slapps.

6. Civil Rights Law §70-a and §76-a.

7. S1638-2015 and A258-2015; also, S1539-2015.

8. Matthew Pollack, New York Strikes Back Against Libel Tourism, http://www.rcfp.org/browse-media-law-resources/news/new-york-strikes-back-against-libel-tourism, Reporters Committee for Freedom of the Press, April 1, 2008, last viewed January 25, 2015.