November 12th, 2020

Cuomo Signs Anti-SLAPP Bill (And it’s Trouble for Trump)

On Tuesday, New York Gov. Andrew Cuomo finally signed anti-SLAPP legislation that had passed the Legislature over the summer; a bill I’ve been advocating for several years. Being hit with two frivolous defamation suits over my blog posts can have that effect.

The legislation commands an award of costs and legal fees (“shall”) for frivolous defamation suits that are brought in order to stifle the free speech rights of others.

I’ll get to Trump in a minute — yeah, I know you saw him in the subject heading — but first I want to tip my hat to Assemblywoman Helene Weinstein who has championed this legislation for a decade. While she’d been able to get it passed in the Democratically controlled Assembly, the Republican held Senate refused to act.

For reasons completely unclear to me Republicans didn’t see fit back then to stop frivolous suits that impaired free speech rights. And yet, the First Amendment right to free speech is as non-partisan as it gets: What’s good for the goose is good for the gander.

That political dynamic changed with the Blue Wave that came two years ago when the New York Senate flipped Democratic, and Senator Brad Hoylman joined the party as Senate sponsor and advocate. This year it passed, and with Cuomo’s signature it is now part of Civil Rights Law ¶70-a.

So what does this have to do with Trump?

The legislation “shall take effect immediately.” Not prospectively, as most new laws set forth. Now. The law can be used today to seek dismissal and attorney fees in pending suits.

And who has a pending defamation suit in New York? Yeah, New York’s most vexatious former resident: Donald J. Trump.

Currently pending is a defamation suit he brought against than the New York Times earlier this year where the paper published an opinion column about a quid pro quo between Russian officials and Trump’s 2016 campaign:

In the essay, Mr. Frankel wrote about communications between Mr. Trump’s inner circle and Russian emissaries in the lead-up to the 2016 election. He concluded that, rather than any “detailed electoral collusion,” the Trump campaign and Russian officials “had an overarching deal”: “the quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy.”

Since Trump was sworn in, he usually just blusters now about suing people for defamation — can you imagine him sitting today for a deposition? — but this time he actually brought one.

I ripped this suit when it was first brought. And reminded folks of his moronic defamation suit against Univision, and of the time he lost a defamation suit to biographer Timothy O’Brien.

The Times has already moved to dismiss the case, but devoted just a single page to a sanctions request. The Times acknowledged that such sanctions in New York courts are “sparingly awarded.” This is something I know all too well from my own failed attempts to have vexatious litigants held accountable in the two suits against me.

The motion to dismiss has not yet been decided. So the Times can now supplement its submission to the court due to a change in the law. The Times can ask that legal fees be given. And that is exactly what the Times should do.

(The briefs by the NYT and Trump campaign are at the bottom)

Trump, of course, is not the only one who starts vexatious defamation suits in order to quell negative opinions. He simply makes for a great example.

The suits have become more common with run-of-the-mill negative comments on sites such as Yelp, Google, TripAdivsor, etc. I’ve received my fair share of inquiries about them.

What I expect to see, if the lawyers defending the cases are paying attention, is motions brought now under the new law to not only dismiss but for the legal fees.

 

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:

 

February 26th, 2020

Trump Sues New York Times (He will Lose Quickly)

OK, this is going to be quick and dirty because I am a bit time-limited.

The Trump campaign (Trump for President) sued the New York Times today for defamation based upon this opinion piece written by Max Frankel in March 2019. It deals with his campaign’s conduct regarding the Russians.

Trump is going to lose. In order to prevail he’s going to have to show, for a start, false statements.

First off, the complaint doesn’t start well as it’s supposed to be written with actual facts. This one is chock full of political hyperbole. This is not the way New York lawyers write, which means this is not what the judges expect to see.

And most folks with functioning neurons — and I think most of our judges have them — know that when that kind of nonsense appears in a complaint it’s to mask the emptiness of the complaint.

So we see this nonsense about “not entirely surprising” and “blatant attack” and “extremely biased” that has nothing to do with whether a statement is true or false:

The actual statements claimed to be false are opinions based on the evidence as the writer sees them. They are, in fact, obviously opinions based on the very words that are used:

“Reveals itself” is opinion. So to is “obvious bargain,” “watered down” and “otherwise appeased.”

While this following allegation is a bit better, claiming an “overarching deal,” it too will fail as deals need not be explicit and may be implied:

Given Trump’s invitation to Russia to involve itself with our elections, and the numerous contacts his team had with Russia, this claim has nowhere to go. It’s a fair opinion to claim “they knew about the quid and held out prospect for the quo.”

It’s tempting to leap out and say, “discovery is gonna be a blast!” but it will never get there. This complaint is doomed to be dismissed for failing to state a claim upon which relief can be granted.

New York’s standards for defamation are very high, and are set forth in Steinhilber v. Alphonse. This is a good primer on the law for those who want to know how strongly the courts protect our rights to speak freely.

As I noted back in 2015 when Trump filed a frivolous defamation claim against Univision, expressions of opinion, as opposed to assertions of fact, are privileged. No matter how offensive, they 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.”

The story will make some headlines and then vanish into the ethers.

Addendum: I think both Trump and his lawyer Charles Harder know this suit is dead in the water. Because if it was viable, Trump would be subject to a deposition. Trump. Under oath. About Russia. And there is zero chance of Trump allowing that to happen.

 

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).

 

February 24th, 2017

Melania Trump’s Lawsuit and Tax Returns

The other day I ripped Melania Trump‘s lawyers for stupidly claiming — in a defamation lawsuit against those that called her an escort while she was a model — that she had lost her once-in-a-liftime opportunity to capitalize on being the most famous women in the world for the next few years.

Personally, I thought the lawyers had committed legal malpractice in having done so, as it exposed her to a (well-deserved) torrent of scorn and derision.

She has now amended the lawsuit to take out the offending material.

But you know what is left? She still claims economic loss, and that is the subject of today’s post. Because if you claim economic loss, then one thing you can bet your last dollar on is that the defendants will say, “prove it!”

And part of that proof will be her tax returns, so that competing expert economists can do an evaluation of what she was making before (and how she was doing it), and how (if at all) it was affected.

First, the nuts and bolts of the claim from the Amended Complaint:

33.  The defamatory statements in the Article have caused Plaintiff damages, including to her reputation and to her business interests and prospective economic opportunities, as well as causing significant humiliation in the community and emotional distress.

So she has not only claimed a per se injury for being called a prostitute, she alleges damage to her business interests and prospective economic opportunities.

Now tax returns, in New York, are jealously guarded by the courts.  A party seeking to compel their production must make a strong showing of overriding necessity.

Melania Trump’s case is in New York County, the First Department, but all four of New York’s appellate departments have a high bar to hurdle.

But at least some of her returns, it seems, will meet that burden. And how much of her interests are intermingled with her husband’s? Nobody knows, but any intermingling at all could subject his returns (or parts of them) to discovery.

In one of the most oft-cited cases on the subject in the First Department, the court reversed a trial court justice that had granted the disclosure of tax returns in a partnership dispute. In Gordon v. Grossman the court held that “It was an improvident exercise of discretion to compel disclosure of the defendant’s tax returns. Because of their confidential and private nature, disclosure of tax returns is disfavored.”

And in Matthews Indus. Piping Co., Inc. v. Mobil Oil Corp., the lower court denied the defendants request to peak into the plaintiff’s returns and the First Department affirmed that decision. The court wrote that “The disclosure of tax returns is disfavored due to their confidential and private nature. Consequently, a party seeking to compel their production must make a strong showing of overriding necessity.”

Similar language comes from the Second Department, where the rule is that “A party will not be required to produce income tax returns in a particular action unless the record presents a strong necessity for such disclosure in order for the party to prove its cause of action or defense.” In Active Fire Sprinkler v. American Home, that court held that there must be “some showing that the particular information in tax returns has some specific application to the case.

Now here’s the kicker: Few people will want to donate money for any kind of legal defense fund, if one is needed. Because who wants to get in bed with the kind of d-bag that would write crap like that without evidence? (I have no idea if there is insurance coverage for this.)

But remember Peter Thiel funding the Terry Bollea (Hulk Hogan) sex tape lawsuit against Gawker?

Might there be some people willing to pony up money to see this matter go through discovery just to get to those tax returns?

Even if the returns are subject to a confidentiality agreement, all bets are off in a trial that takes place in open court.

Conclusion: Melania Trump has exposed herself, and potentially her husband, to having her tax returns revealed in discovery.

The only way out of this for her to drop her claim of economic loss entirely.