Case 2:12-cv-08443-GW-MRW Document 35 Filed 01/11/13 Page 1 of 11 Page ID #:468

1 GOETZ FITZPATRICK LLP RONALD D. COLEMAN 2 [email protected] One Penn Plaza, Suite 4401 3 New York, NY 10119 Telephone: 212.695.8100 4 Facsimile: 212.629.4013

5 Counsel for Defendant JOHN PATRICK FREY 6

7 BROWN WHITE & NEWHOUSE LLP KENNETH P. WHITE (Bar No. 238052) 8 [email protected] 333 South Hope Street, 40th Floor 9 Los Angeles, CA 90071-1406 Telephone: 213. 613.0500 10 Facsimile: 213.613.0550

11 Local Counsel for Defendant JOHN PATRICK FREY 12 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA 15 NADIA NAFFE, an individual, Case No.: CV12-08443-GW (MRWx)

16 Plaintiff, Judge: Hon. George H. Wu

17 v.

18 JOHN PATRICK FREY, an individual, DEFENDANT JOHN PATRICK and the COUNTY OF LOS ANGELES, FREY’S NOTICE OF MOTION 19 a municipal entity, AND MOTION TO DISMISS SECOND THROUGH SEVENTH 20 Defendants. CAUSES OF ACTION OF THE FIRST AMEND COMPLAINT 21 PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1) 22

23 Hearing Date: February 14, 2013 Time: 8:30 a.m. 24 Courtroom: 10

25 Complaint Filed: October 2, 2012 26

27

28

DEFENDANT’S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(1) 773086.1

RLG 077 Case 2:12-cv-08443-GW-MRW Document 35 Filed 01/11/13 Page 2 of 11 Page ID #:469

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on February 14, 2013, at 8:30 a.m. in Courtroom 3 10 in the United States Courthouse located at 312 N. Spring Street, Los Angeles, 4 California 90012, the Honorable George H. Wu presiding, Defendant John Patrick 5 Frey (“Defendant” or “Mr. Frey”) will move for an order pursuant to Federal Rule of 6 Civil Procedure 12(b)(1) to dismiss the Second Through Seventh Causes of Action of 7 the First Amended Complaint on the following grounds: 8 1. For the reasons set forth in Mr. Frey’s concurrently filed Motion To 9 Dismiss First Cause of Action of First Amended Complaint Pursuant to FRCP 10 12(b)(6), the First Cause of Action must be dismissed, leaving the Court without 11 subject matter jurisdiction, and 12 2. The Court has stated that it will not exercise supplemental jurisdiction 13 over the state causes of action regardless of federal question jurisdiction, and 14 3. There is no diversity jurisdiction, because Plaintiff cannot establish the 15 existence of damages in excess of $75,000. 16 This Motion is based on this Notice of Motion and attached Memorandum of 17 Points and Authorities, the concurrently filed motions by Mr. Frey, all matters of 18 which the Court may take judicial notice, all pleadings and papers on file in this action 19 and other such matters and arguments as may be presented to this Court in connection 20 with this Motion. 21 This Motion is made following the telephonic conference of counsel which took 22 place on December 31, 2012. 23 DATED: January 11, 2013 Respectfully submitted, 24 GOETZ FITZPATRICK LLP LLP

25 By s/Ronald D. Coleman 26 RONALD D. COLEMAN Counsel for Defendants 27 JOHN PATRICK FREY AND 28 CHRISTI FREY

ii DEFENDANT’S MOTION TO DISMISS PURSUANTTO FRCP 12(b)(1) 773086.1 RLG 078 Case 2:12-cv-08443-GW-MRW Document 35 Filed 01/11/13 Page 3 of 11 Page ID #:470

1 2 DATED: January 11, 2013 Respectfully submitted,

3 BROWN WHITE & NEWHOUSE LLP

4 By s/Kenneth P. White 5 KENNETH P. WHITE Local Counsel for Defendants 6 JOHN PATRICK FREY AND CHRISTI FREY 7

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

24 25

26 27

28

iii DEFENDANT’S MOTION TO DISMISS PURSUANTTO FRCP 12(b)(1) 773086.1 RLG 079 Case 2:12-cv-08443-GW-MRW Document 35 Filed 01/11/13 Page 4 of 11 Page ID #:471

1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Article I. In its tentative ruling on Mr. Frey’s Motion to Dismiss Plaintiff’s original 4 complaint, this Court sua sponte questioned whether it had subject matter jurisdiction 5 over Plaintiff Nadia Naffe’s (“Plaintiff”) claims. (Tentative Ruling at 3 – 5, 11.) The 6 Court indicated that (1) Plaintiff’s state law causes of action predominate over her 7 single federal cause of action, such that the Court will decline to exercise jurisdiction 8 over them under 28 U.S.C. § 1367(c)(2) even if Plaintiff’s sole federal claim survives; 9 (2) if Plaintiff’s federal claim does not survive, the Court will decline to exercise 10 jurisdiction over the state claims under 28 U.S.C. § 1367(c)(3); and (3) there appeared 11 to be a question of whether Plaintiff’s allegations suffice to establish the $75,000 in 12 damages necessary to sustain diversity jurisdiction under 28 USC § 1332(a). 13 Nothing that Plaintiff has added in the First Amended Complaint (“FAC”) 14 should change the Court’s analysis. The state law claims still predominate over 15 Plaintiff’s sole frivolous federal claim. Moreover, though Plaintiff has 16 “supplemented” her allegations with conclusory and cumulative assertions that she has 17 suffered more than $75,000 in damages, both the allegations in the FAC and evidence 18 supplied in this motion demonstrate that Plaintiff cannot demonstrate the existence of 19 damages to meet the jurisdictional threshold. The Court should therefore dismiss the 20 state causes of action – the Second through Seventh Causes of Action – for lack of 21 subject matter jurisdiction, to the extent they survive Mr. Frey’s Renewed Motion to 22 Strike. 23 II. RELEVANT FACTS 24 Mr. Frey has extensively summarized the relevant facts in his original Motion 25 to Dismiss and Motion to Strike and in his concurrently filed Motion to Dismiss and 26 Renewed Motion to Strike, and will not consume the Court’s time or space with 27 another repetition here. Relevant facts are cited in the argument below. 28

1 DEFENDANT’S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(1)

773086.1 RLG 080 Case 2:12-cv-08443-GW-MRW Document 35 Filed 01/11/13 Page 5 of 11 Page ID #:472

1 III. THE COURT MAY DISMISS STATE CLAIMS FOR LACK OF 2 DIVERSITY JURISDICTION WHEN A PLAINTIFF CANNOT 3 ESTABLISH DAMAGES EXCEEDING THE JURISDICTIONAL 4 THRESHOLD 5 There are three jurisdictional doctrines relevant to this motion. First, the Court 6 may decline to extend supplemental jurisdiction over a state claim accompanying a 7 federal claim when the “claim substantially predominates over the claim or claims 8 over which the district court has original jurisdiction.” 28 U.S.C. 1367(a)(2). This 9 Court has already determined that Plaintiff’s state claims predominate over her sole 10 federal claim, and that it would decline to exercise supplemental jurisdiction over 11 them even if the federal claim survives. (Tentative Ruling at 4-5, n3., 11.) 12 Second, if the Court “has dismissed all claims over which it has original 13 jurisdiction,” it may decline to exercise supplemental jurisdiction over the remaining 14 state claims. 28 U.S.C. 1367(a)(2). This Court has already determined that it would 15 decline to exercise supplemental jurisdiction over Plaintiff’s state claims if it 16 dismisses her sole federal claim. (Tentative Ruling at 11.) 17 Third, a Court need not accept a Plaintiff’s bare allegation of damages 18 exceeding the jurisdictional threshold for diversity jurisdiction, and may inquire into 19 the adequacy of evidence. Upon challenge by a defendant or the Court, the Plaintiff 20 has the burden to prove, by preponderance of the evidence, facts in support of a 21 quantum of damages that would satisfy the jurisdictional threshold. Gaus v. Miles, 22 Inc. 980 F.2d 564, 567 (9th Cir. 1992), citing McNutt v. General Motors Acceptance 23 Corp., 298 U.S. 178, 189 (1936). If Plaintiff fails to carry that burden, the Court may 24 dismiss for lack of diversity jurisdiction. PhotoThera, Inc. v. Oron, 2007 WL 25 4259181, *8-9 (S.D. Cal. 2007) (finding damages allegations insufficient to establish 26 amount in controversy for diversity jurisdiction); Unimax Exp., Inc. v. Evergreen 27 Shipping Agency, 2012 WL 1884558, (C.D. Cal. 2012) (granting motion to dismiss 28

2 DEFENDANT’S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(1)

773086.1 RLG 081 Case 2:12-cv-08443-GW-MRW Document 35 Filed 01/11/13 Page 6 of 11 Page ID #:473

1 under Rule 12(b)(1) where defendant’s extrinsic evidence showed that damages were 2 less than $75,000). 3 A defendant may rely on extrinsic evidence in support of a Rule 12(b)(1) 4 motion challenging subject matter jurisdiction. Warren v. Fox Family Worldwide, 5 Inc. 328 F.3d 1136, 1141 n.5 (9th Cir. 2003); accord, Unimax Exp., supra, 2012 WL 6 1884558 (considering extrinsic evidence in finding that plaintiff failed to establish 7 damages over jurisdictional threshold). 8 IV. PLAINTIFF CANNOT ESTABLISH FACTS EXCEEDING THE 9 JURISDICTIONAL THRESHOLD 10 Plaintiff alleges “harm to PLAINTIFF’s reputation, emotional distress, expense 11 related to medical treatment concerning health issues, including but not limited to 12 bleeding ulcers suffered as a result of stress and trauma caused by defendants, expense 13 incurred in defense and repair of her credit, lost earnings, and other pecuniary loss.” 14 FAC at ¶ 79, 83, 87, 90, 94, 102. She claims these damages amount to more than 15 $75,000. Even if she could establish liability – and for the reasons stated in Mr. 16 Frey’s concurrently filed motions, she cannot – she will not be able to prove damages 17 exceeding the jurisdictional threshold by a preponderance of the evidence, as 18 demonstrated below. Therefore, to the extent the Second through Seventh Causes of 19 Action survive Mr. Frey’s Renewed Motion to Strike, the Court should dismiss them 20 for lack of diversity jurisdiction. 21 A. Plaintiff Cannot Establish Emotional Distress Damages Exceeding 22 $75,000 23 In its tentative ruling, the Court sua sponte questioned whether the damages 24 Plaintiff cited in her original complaint were sufficient to meet the jurisdictional 25 threshold for diversity jurisdiction. (Tentative Order at 3-4.) In raising the issue, the 26 Court cited federal cases that stand for the proposition that trivial injuries arising from 27 personal, i.e., emotional, offense are not sufficient to meet the jurisdictional threshold. 28 Christensen v. Nw. Airlines, Inc., 633 F.2d 529, 530-31 (9th Cir. 1980) (discourteous

3 DEFENDANT’S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(1)

773086.1 RLG 082 Case 2:12-cv-08443-GW-MRW Document 35 Filed 01/11/13 Page 7 of 11 Page ID #:474

1 and rude conduct of airline staff could not create damages satisfying jurisdictional 2 threshold); Diefenthal v. C. A. B., 681 F.2d 1039, 1052 (5th Cir. 1982) (stewardess 3 allegedly causing “humiliation” was insufficient to meet jurisdictional threshold); 4 PhotoThera, Inc. v. Oron, 07CV490, 2007 WL 4259181 (S.D. Cal. Dec. 4, 2007). 5 Many other federal courts have reached the same conclusion. See, e.g., Popescu v. 6 Jack Lalanne Fitness Centers, 983 F.2d 1077 (9th Cir. 1992) (alleged emotional 7 distress from encounter with health club employees and agents insufficient to exceed 8 jurisdictional threshold); Peter SZANTO, Plaintiff, v. British AIRWAYS, et al., 9 Defendant., 99-CV-1508-J, 2000 Szanto v. British Airways, WL 34017115 (S.D. Cal. 10 Mar. 2000) (detention that damaged plaintiff “in body, mind and spirit” insufficient to 11 satisfy jurisdictional threshold); Thornton v. Vonage Tel. Services, Inc., 2011 WL 12 768062 (N.D. Ohio 2011) (claims based on anger, upset, and hurt feelings not enough 13 to satisfy jurisdictional requirement). 14 The Court’s query is entirely germane to the facts here, especially considering 15 how a jury would evaluate Plaintiff’s subjective damages claim here. It is Plaintiff 16 herself who decided to take on so-called “media mogul” Andrew Breitbart and by 17 blogging about her claims against James O’Keefe to “correct misperceptions.” FAC 18 at ¶36. Indeed, Mr. Frey’s first few posts about Plaintiff’s claims didn’t even 19 question, much less “harass,” Plaintiff – rather, they were about media coverage of her 20 claims, which Mr. Frey argued diverged from facts ascertainable from sworn 21 testimony she gave in the probable cause hearing on her harassment complaint against 22 James O’Keefe. Frey Decl. at ¶¶ 11-15 , Exhibits Y, Z, AA to Frey Decl. Only later 23 did Mr. Frey directly question Plaintiff’s veracity directly. Frey Decl. at ¶ 16-26, 24 Exhibits Q, BB, CC to Frey Decl. 25 Plaintiff’s emotional damages claim must be considered in the context of the 26 premise of this lawsuit, which is that Plaintiff is free to deliberately make public and 27 notorious allegations against a public figure, but is (she claims) immune from having 28 those allegations discussed critically, questioned or tested. Evidently she also deems

4 DEFENDANT’S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(1)

773086.1 RLG 083 Case 2:12-cv-08443-GW-MRW Document 35 Filed 01/11/13 Page 8 of 11 Page ID #:475

1 herself immune from criticism for her own public utterances and behavior. And how 2 “sensitive” is the Plaintiff to such offense? One revealing example is the fact that on 3 the day Andrew Breitbart died of an apparent heart attack, Plaintiff saw fit to publicly 4 utter a heart attack joke about him to all her Twitter followers. Yet she pretends great 5 offense that Mr. Frey referred to that conduct as “callous and self-absorbed” -- and 6 even claims to believe she is entitled to compensation for it. FAC at ¶¶ 42, 81; Frey 7 Decl. at ¶ 16. The cases cited above teach that even allegations of plausible offense 8 cannot justify, on a motion under Rule 12(b)(1), a finding that a plaintiff has pleaded 9 damages exceeding the jurisdictional threshold. It hardly needs to be said that 10 patently cynical claims of hurt feelings, such as those of the Plaintiff here, are worth 11 even less. 12 Indeed, Plaintiff’s own words are the best measure of the fact that her purported 13 emotional injuries are insufficient to justify damages exceeding the threshold. 14 Plaintiff sneered “Perhaps, it’s best to ignore Patterico & move on. There is no 15 common ground. I have much larger fish to fry.” Frey Decl. at ¶ 39(g). Far from 16 shrinking like the victim of Mr. Frey’s criticism she now claims to be, Plaintiff then 17 engaged in a series of vituperative threats against him and encouraged others to 18 “report him” to his employer for the offense of commenting about a public issue that 19 put her in a bad light, all in an effort to silence him. Frey Decl. at ¶ 39 (a)-(g), Exhibit 20 NN to Frey Decl. 21 Moreover, while her claim is that she was cowed by Mr. Frey’s criticism or that 22 she had to discontinue her blog because of it, Plaintiff in fact continued to blog openly 23 and defiantly: 24 Patrick Frey may have believed that posting my Social Security 25 Number and medical records online to his blog, in retaliation, 26 would intimidate and stop me from telling the truth about O'keefe 27 [sic], chill my First Amendment right and dissuade me from 28

5 DEFENDANT’S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(1)

773086.1 RLG 084 Case 2:12-cv-08443-GW-MRW Document 35 Filed 01/11/13 Page 9 of 11 Page ID #:476

1 coming forward to report a crime committed in his jurisdiction. 2 Though, what he has accomplished is precisely the opposite. 3 These two civil servants, both deputy district attorney's [sic] in Los 4 Angles [sic] County, in the past were able to bully and harass 5 private individuals, with impunity. But their patent on intimidation 6 and retribution expired when they came to me. The Frey's [sic] are 7 the poster children for the type of rampant corruption Carmen 8 Trutanich, Alan Jackson and Danette Myers [sic] have each spoken 9 out against. (Exhibit LL at 268-269.) 10 In the same post, and in Twitter messages sent during the same time period, 11 Plaintiff gleefully bragged of her intention to use – i.e., to abuse – the discovery 12 process in this case to probe, not matters related to her alleged damages, but (1) how 13 Mr. Frey and his wife afforded their house; (2) an unrelated incident in which Mr. 14 Frey was the victim of a false police report; and (3) the identity of an unrelated 15 anonymous blogger. Frey Decl. at ¶¶ 37 - 38; Exhibits LL, MM to Frey Decl. 16 Plaintiff’s game-like approach to federal litigation is shamelessly evident in the FAC 17 itself, bristling as it does with vituperation about people whose political views differ 18 from hers. See, e.g., FAC at ¶ 58 (“Moreover, FREY published his blog to the delight 19 of a bunch of sycophantic follows who [sic] he calls ‘The Jury.’ The Jury consists of 20 hardcore conservatives who spend a good deal of their life reading far right 21 conservative blogs, like ‘Patterico’s Pontifications’ and frequently comment about 22 topics that FREY blogs about.”) 23 These tweets, this post and the very words of her FAC all demonstrate nothing 24 but a sham attempt to elevate embarrassment over being bested in public debate into a 25 spurious claim of emotional damages exceeding the jurisdictional threshold. The 26 Court should not accept that Plaintiff’s pique is a valid ground to waste the time of a 27 federal court. Mr. Frey submits that, based on all the foregoing, Plaintiff will not be 28

6 DEFENDANT’S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(1)

773086.1 RLG 085 Case 2:12-cv-08443-GW-MRW Document 35 Filed 01/11/13 Page 10 of 11 Page ID #:477

1 able to present evidence supporting emotional distress damages exceeding $75,000 by 2 a preponderance of the evidence. 3 B. Plaintiff Cannot Establish Identity Theft Damages Exceeding The 4 Jurisdictional Threshhold 5 Plaintiff asserts that her identity has been stolen as a result of Mr. Frey 6 publishing a deposition transcript containing her Social Security number. Plaintiff 7 makes that allegation even though the transcript was in the public record on PACER 8 for nearly seven years before Mr. Frey re-published it for a very brief time on his blog. 9 Frey Decl. at ¶ 2-25, Exhibits DD, EE, FF, GG to Frey Decl. Regardless of its legal 10 merits – which Mr. Frey has demonstrated in his other motions are non-existent – 11 Plaintiff will not be able to spin that supposed injury into more than $75,000 in 12 damages either. 13 It is not plausible to that Plaintiff could demonstrate that the cost of “defense 14 and repair” of her credit was anything close to $75,000. Nor does is there any legal 15 basis on which she could be held responsible if her Social Security number is abused. 16 The Fair Credit Billing Act, 16 U.S.C. § 1601 et seq., limits liability for fraudulent use 17 of credit cards to $50. The Electronic Fund Transfer Act, 15 U.S.C. § 1693, provides 18 similar protections for electronic transfers from her accounts. Plaintiff does not, and 19 cannot, explain what costs other than the trivial expense of credit monitoring she has 20 incurred as a result of identity theft that has already occurred, only speculating about 21 what such future costs might be. But speculation about possible future harm resulting 22 from possible identity theft is not cognizable harm. Ruiz v. GAP, Inc., 622 F.Supp.2d 23 908, 913-914 (N.D. Cal. 2009) (finding that risk of loss from future identity theft is 24 not sufficient to state damages for negligence cause of action for disclosure of Social 25 Security Number). 26 For these reasons, even if, contrary to the arguments in Mr. Frey’s Renewed 27 Motion to Strike, Plaintiff could demonstrate that Mr. Frey were liable for a third 28 person’s identity theft resulting from Mr. Frey’s brief re-publication of an already

7 DEFENDANT’S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(1)

773086.1 RLG 086 Case 2:12-cv-08443-GW-MRW Document 35 Filed 01/11/13 Page 11 of 11 Page ID #:478

1 public document, she cannot show damages exceeding the jurisdictional threshold by 2 a preponderance of the evidence. And Plaintiff’s other claimed items of damages, 3 such as lost earnings and damage to reputation, are presented in solely conclusory 4 form, absent any allegation of facts from which the Court could credit them. She will 5 not be able to prove those harms by a preponderance of the evidence, either. 6 V. CONCLUSION 7 Based on the foregoing, in the event Plaintiff’s Second through Seventh causes 8 of action survive Mr. Frey’s Renewed Motion to Strike, this Court should dismiss 9 them for lack of diversity jurisdiction, in light of the Court’s previously expressed 10 decision to decline to exercise jurisdiction over them under 28 U.S.C. § 1367(c)(2). 11 DATED: January 11, 2013 Respectfully submitted, 12 GOETZ FITZPATRICK LLP LLP

13 By s/Ronald D. Coleman 14 RONALD D. COLEMAN Attorneys for Defendant 15 JOHN PATRICK FREY 16

17 DATED: January 11, 2013 Respectfully submitted, 18 BROWN WHITE & NEWHOUSE LLP

19 By 20 s/Kenneth P. White KENNETH P. WHITE 21 Attorneys for Defendant JOHN PATRICK FREY 22

23 24 25

26 27

28

8 DEFENDANT’S MOTION TO DISMISS PURSUANT TO FRCP 12(b)(1)

773086.1 RLG 087 Victory For Blogger Patterico In Free Speech Case

Apr 19, 2013 By Ken White. Law

Patrick Frey, also known as Patterico, has been living under the cloud of a frivolous, censorious, and thoroughly contemptible SLAPP suit seeking to chill his First Amendment rights.

Today he won.

Background

Since last year it's been my privilege to work alongside the formidable Ron Coleman to defend Patrick pro bono against the federal lawsuit Nadia Naffe filed.

Ron and I filed motions seeking to dismiss Nafe's original federal complaint. In December United States District Court Judge George Wu granted our motion to dismiss, but without prejudice — that is, he gave Naffe once chance to amend to see if she could state a valid claim.

We moved to dismiss her amended complaint on a variety of theories. Today we won. Judge Wu's tentative ruling with the meat of his decision is here, and his order of today confirming his tentative is here.

The Issues and The Ruling

I'm not going to explain the legal issues at length. I attached all the pleadings from the first round of briefing before, and the pleadings this time are below. If you want to get a sense of the case, I recommend reading our anti-SLAPP motion, our Motion to Dismiss under Rule 12(b)(6), and Judge Wu's order.

In brief: Naffe sued Frey for a violation of civil rights by the state under 28 U.S.C. Section 1983 (on the frankly ridiculous and disingenuous theory that he blogs as a Deputy District Attorney rather than as a private citizen), invasion of privacy through public disclosure (because Frey published on his blog deposition transcripts that were available in public court records online), false light invasion of privacy, defamation, intentional infliction of emotional distress, and negligence. In her amended complaint she sued the County of Los Angeles on a theory of negligent supervision. She originally sued Patrick's wife for no discernible reason, and sued the former District Attorney of the County; this time it was just Patrick and the County. She had two theories of why she could be in federal court: because there was a federal question (her Section 1983 claim) and because there was diversity of citizenship (she's in Massachusetts, Frey's in California; diversity requires different states and at least $75,000 in damages).

We filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) (which argues, essentially, that even if everything in the complaint were true, she hasn't described a legal wrong), an anti-SLAPP motion under California law (arguing that her state law claims were attempts to censor speech, and that she could not succeed on them), a motion to dismiss her state law claims under Rule 12(b)(1) (arguing that she can't show $75,000 in damages, as is required for federal diversity jurisdiction, so there's no jurisdiction over the state law claims if her Section 1983 claim fails), and a motion to force her to post a bond under California law (in California, you can make a plaintiff from another state post a bond to cover costs if you win).

Federal judges tend to be conservative with jurisdiction: that is, they take only cases they must, and address only issues they must. Judge Wu ruled that (1) Naffe can't succeed on her Section 1983 claim — her only federal claim — because she didn't state facts showing that Patrick was a state actor when he was blogging as "Patterico", and (2) he wouldn't exercise jurisdiction over the state law claims, because Naffe failed to show that she suffered at least $75,000 in damages, as required for diversity jurisdiction. Based on those rulings, the judge didn't need to reach the anti-SLAPP motion or the bond motion.

The Result

The result: the Section 1983 civil rights claim is dismissed with prejudice, meaning Naffe can't re-file it. The state law claims are dismissed, but Naffe could re-file them in state court if she wanted. If she does we will file an anti-SLAPP motion there as well — and a motion for sanctions against both her and her attorneys. Naffe has already filed a notice of appeal, suggesting she may pursue an appeal in the Ninth Circuit rather than re-filing in state court. Bring it.

RLG 088 The Conduct of the Case

One of the most frustrating things about the case was that Naffe and her attorneys misrepresented the content of relevant blog and Twitter posts to the Court to suggest that Patrick was purporting to blog in his official capacity as a Deputy District Attorney, when in fact the documents showed the exact opposite. The best summary of what I mean is at pages 9-11 of this brief and page 2-3 of this brief. Even though we made that point very strongly, Naffe — tellingly — did not respond at all in her opposition briefs. It's rather unusual not to answer an accusation that you've attempted to mislead a federal judge Judge Wu noticed it as well. We didn't raise the issue of sanctions, but he did on his own. In footnote 5 he noted:

In paragraph 39 of the FAC [First Amended Complaint] Plaintiff quotes Frey as saying the following: "You owe [O'Keefe] @gamesokeefeiii a retraction. A big one. You'd better issue it promptly. [A threat made as a Deputy District Attorney]." FAC 39. The Court may consider the text of Frey's actual statement in connection with a Rule 12(b)(6) challenge. See Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006), Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001.). Notwithstanding Plaintiff's use of quotation marks, the language "[A threat made as a Deputy District Attorney]" does not appear in Frey's actual comment. See Frey Decl. (Docket No. 40), Exh. KK, at 266. The Court would consider issuing sanctions against Plaintiff and/or her attorneys for the contents of paragraph 39. [emphasis added]

And there's footnote 7. Noting that Frey wrote a tweet saying "My first task is learning what criminal statutes, if any, you have admitted violating," Judge Wu wrote:

In her Opposition brief, Plaintiff characterizes this as "Frey issu[ing] a direct threat against Ms. Naffe with Frey stating that he intended to investigate Ms. Naffe for possible criminal misconduct." Docket No. 53, at 11:18-21. Again, sanctions may very well be in play for Plaintiff's (and/or her counsel's) willingness to play fast-and-loose with the language that is actually at issue here. [Emphasis added]

Though Judge Wu did not ultimately award sanctions, I look forward to quoting those words on appeal or in a state court motion for sanctions if Naffe re-files there.

Closing Thoughts

It's been an honor to represent Patrick pro bono. It's been a privilege to work with and learn from Ron Coleman. I appreciate the opportunity.

Observing commentary on the case has been . . . interesting. I'd divide the coverage into three camps. There are people who are supportive of Patrick, but whose coverage really doesn't delve into the legal issues. There are the vapid and dishonest partisan hacks who attack Patrick for political reasons, and who don't address the legal issues at all. There's the greasy, demi- literate, demented Hutt who wrote an extended quasi-sexual fantasy about a mob murdering Patrick and me. Fun!

There are many people out there who support free speech, so long as it's free speech they agree with. That's not really supporting free speech. It's nice that people on the right supported Patrick's free speech — I wish they all supported vigorous political speech from the left as well. I would also have been happier if more people on the left supported Patrick — or, at least, treated the stark free speech issues presented in the case seriously. I didn't defend Patrick because I always, or usually, or even often agree with him. He's to the right of me politically, and a prosecutor (and therefore reliably wrong on criminal justice issues), and I often disagree with him. I defended him because the First Amendment that lets him speak freely lets me speak as well. I defended him because malicious, frivolous, and politically motivated lawsuits aimed at censorship make it a little more dangerous for each of us to speak. I defended him pro bono because frivolous lawsuits can effectively censor people even when they eventually fail, because the expenses of lawsuits can be ruinous.

If you are happy with this result, and if you are happy that lawyers will represent people pro bono in free speech cases, I ask this favor: next time you have the chance, stand up for the free speech of someone whose views you despise. Speak up and fight back when someone advocates censorship. Respond to the Popehat Signal, or to any of the opportunities out there to support free speech — even speech that angers you. Even if you don't like this result, or you don't like Patrick's politics, or mine, I respectfully challenge you to review the free speech issues in the case. Think about them carefully and ask yourself:

RLG 089 could I be accused of defamation and intentional infliction of emotional distress for vigorously challenging someone with whom I disagree?

Thank you.

Appendix: Documents From This Phase Of The Case

Operative Complaint

Nadia Naffe's First Amended Complaint

Patrick's Motions

Anti-SLAPP Motion

Motion To Dismiss Under FRCP 12(b)(6)

Motion to Dismiss For Lack of Jurisdiction Under FRCP 12(b)(1)

Motion For Bond

Declarations and Exhibits

Supplemental Declarations and Exhibits

Request for Judicial Notice

Naffe's Opposition Briefs

Opposition to Motion to Dismiss Under Rule 12(b)(6)

Opposition to Anti-SLAPP Motion

Opposition to Motion to Dismiss for Lack of Jurisdiction Under FRCP 12(b)(1)

Opposition to Request for Bond

Declaration of Nadia Naffe in Support of Opposition Briefs

Patrick's Reply Briefs

Reply In Support of Motion to Dismiss Under Rule 12(b)(6)

Reply in Support of Anti-SLAPP Motion

Reply in Support of Motion to Dismiss for Lack of Jurisdiction Under FRCP 12(b)(1)

Reply In Support of Motion for Bond

Judge Wu's Ruling

Tentative Ruling

Minute Order Confirming Tentative Ruling

Last 5 posts by Ken White

On American Exceptionalism - July 4th, 2013 Me Write Pony One Day - July 3rd, 2013 Why Does Talking About Creepers And Harassment Make People So Angry? - July 1st, 2013 NOW I'm Going To Hit The Big Time! - July 1st, 2013 COME AT US, TROLL. [And Government of Ecuador] - June 28th, 2013

Add to Reddit Post to StumbleUpon Like 90 Post to Twitter 51 51

RLG 090 THE ILLINI MEDIA NETWORK The Daily Illini the217.com Calendar Restaurants Buzz WPGU 107.1 Illio Technograph Alumni Club Advertise

The Daily Illini is online everywhere you are.

76° Search dailyillini.com Clear

HomeNews Sports Opinion Features Technograph Elections 2012 Salary Guide On-Air Multimedia Blogs Special Classifieds

Home News Campus

Suburban Express lawsuits lead to controversy on social media

Story Comments (6) Print Font Size:

Recommend 261 Tweet 19 3 67

Posted: Friday, April 19, 2013 12:00 am | Updated: 11:42 pm, Thu Apr 25, 2013.

By Corinne Ruff | Staff writer | 6 comments

A viral Facebook post has sparked discussion regarding fines and lawsuits from bus company Suburban Express. Submit Your News!

The original post, which has been shared 789 times and We're always interested in hearing “liked” 646 times in the last two weeks, as of 10:52 p.m. about news in our community. Let us Thursday, traces back to the personal Facebook wall of know what's going on! Jeremy Leval, a graduate student at the University. Submit news

In his post, Leval describes an incident that occurred during a trip back to Champaign on March 31, on a bus driven by an individual who, according to the company, Popular Commented Facebook Activity was not an employee of Suburban Express. Four days Stories later, Leval said he received an email stating that he was permanently banned from Suburban Express and Quinn changes Illinois concealed carry was issued a fine of $500 for liquidated damages and legislation the cost of the ticket.

Brandon Paul lands in Minnesota for Editor's Note: A previous version of this graphic incorrectly stated As passengers boarded the bus at the O’Hare summer league that since January, Suburban Express filed 46 lawsuits toward International Airport stop, Leval said he overheard the passengers who have violated its terms and conditions. It also bus driver shouting at an unidentified international incorrectly state Suburban Express lawsuit fees exceeded Studies show Adderall aids focus, but student who he said did not understand that the driver attorneys' fees. Suburban Express filed 44 lawsuits and attorney's has hidden costs fees exceeded Suburban Express lawsuit fees. The Daily Illini was asking her to fold her ticket in half before she could regrets this error. board the bus. More

“If you don’t understand English, you don’t belong at the Photos University of Illinois or any ‘American’ University.” Leval Videos Suburban Express Terms of Service said in his Facebook post, quoting the bus driver.

Below is an extract from Suburban Express’ terms and conditions that every passenger must agree to Leval said he confronted the driver and told him his before boarding the bus. Suburban Express has language was offensive and unnecessary. filed lawsuits against passengers who have violated these terms so far this year.

RLG 091 You MUST print out your ticket and present it In a statement provided to The Daily Illini, Suburban to bus driver to board. You will not be permitted to board without a printed ticket. Express said after contacting the passengers on the March 31 trip, the company had not yet received “any In the event that your ticket is altered, multiple copies of your ticket are collected by driver(s), first-hand knowledge of the incident.” your ticket is used for transportation on the wrong date or trip or between the wrong stops, you agree to pay the applicable full fare plus The statement also reads: “An offhand verbal exchange $100 for each invalid, altered or duplicate between a driver who is not an employee of Suburban ticket collected, and authorize us to charge your credit card for same. Express and a passenger has been blown totally out of proportion by a meddling, self-aggrandizing student If passenger or passenger parent / friend / companion / ride interferes with or delays who has chosen to use this incident to promote his own departure of bus in any way, engages in agenda, which seems to be to call as much attention to disruptive behavior, or uses offensive or aggressive language in dealing with company, himself as possible and to promote his own competing company employees, subcontractors, or business.” subcontractor employees, you agree to pay Suburban Express the amount of $500 for liquidated damages sustained by Suburban Suburban Express owner Dennis Toeppen said in an Express resulting from the aforementioned actions, and authorize us to charge your credit email later, “We take our obligation to serve all card for same. passengers with respect and professionalism very If an attorney is retained to contact you in seriously.” relation to any violation of the terms and conditions contained herein, you agree to pay said attorney a minimum of 3/4 hour at the Meanwhile, several posts on the Facebook thread had prevailing rate. addressed that Leval had attempted to launch a You agree to direct all questions and concerns carpooling website called College Rides in May 2012. pertaining to credit card charges or credits to Suburban Express / Illini Shuttle IN WRITING at PO Box 4048, Lisle, IL 60532. “College Rides has not been launched, and it will never You agree to pay any and all collection costs, be launched,” Leval said in reply to a question about his including attorney’s fees, should collection or former business plans. other legal action become necessary, and that the agreed venue for any legal action arising out of this transaction shall be Ford County, On April 4, the same day Leval wrote his post, Illinois. Suburban Express sent an email to passengers who were on Trip 705, asking if they had noticed an incident on the bus, said Hanyu Gu, senior in Business and one Statement from Suburban Express of the recipients of the message.

Suburban Express and its attorneys have been investigating an alleged incident which purportedly Gu said he was sitting two seats behind Leval when he occurred on March 31, 2013 on a trip from witnessed the scene. He replied to the email: “The the Chicago area to Champaign. attitude of the driver was very rude and arrogant, which An offhand verbal exchange between a driver who is made me feel unpleasant. I didn’t ask the details about not an employee of Suburban Express and a the quarrel but I don’t think in any situation the driver passenger has been blown totally out of proportion should talk to a passenger like that.” by a meddling, self-aggrandizing student who has chosen to use this incident to promote his own agenda, which seems to be to call as much attention Gu's response was mainly directed toward the to himself as possible and to promote his interaction between Leval and the bus driver. He added own competing business. that it was also in reference to the incident he heard

Suburban Express has contacted all passengers on between the international student and the bus driver. the March 31 trip, and none of the passengers who replied had any firsthand knowledge of the incident. But in the statement provided to The Daily Illini, Rather, their knowledge of the incident was based Suburban Express maintained it was not directly upon the self-serving statements of this same informed of the incident. student/passenger. We have not been able to determine the name of the passenger to whom the comment, if any, was made, and nobody has While a lawsuit hasn’t been filed against Leval, other contacted us. students, who say they initially disputed the fine, have The attorneys for Suburban Express are reviewing been the target of lawsuits. These have been a point of this incident with a view towards filing the discussion on Reddit and Renren, a Chinese social appropriate legal action against this networking service. meddlesome MBA student.

Suburban Express was formed by a University of According to Judici, an Illinois database that holds Illinois student 29 years ago to provide convenient public records for cases in 64 circuit courts, Suburban and economical transportation to and from Express filed 44lawsuits this year in Ford County the Chicago area. The company now provides safe transportation for over 100,000 students annually. against passengers for tort or contract damages,

RLG 092 To maintain safe, uninterrupted service for its many meaning defendants violated the company’s written student customers, Suburban does not tolerate terms and conditions, defendants say. Passengers passengers who threaten to interfere with must agree to these terms when purchasing a ticket. the operation of its services or create disturbances on the bus. Thomas Betz, student legal directing attorney at the University, said he has noticed a significant increase in the number of students coming in to talk about fines from the bus company in the last month. For privacy regulations, Betz said he could not specify the exact number of students.

“We’ve had problems over the years but not to the sheer volume as we have now,” he said.

According to the Student Legal Services Operational Plan, which Dean of Students Kenneth Ballom adopted in June 2012, University attorneys can only represent students who have cases in or originating in Champaign County.

Although Betz cannot represent students in this situation, he said he is advising them to submit complaints to Illinois Attorney General Lisa Madigan.

International student Yu Zhang, senior in Business, said she sought help from Student Legal Services and filed a complaint after she was notified Jan. 30 of the $198.03 fine she would have to pay for violating the Suburban Express’ terms and services. She said she used her ticket on the wrong bus on Dec. 17, 2011.

Zhang said she was summoned to court March 19 — over the University’s spring break — but did not attend the court date.

“I already booked a trip (to Houston) and there was no way I could come back on time,” said Zhang, who paid $320.03, including court fees after the case was settled.

Betz said defendants who do not show up to the case will automatically lose.

Ford County circuit clerk Kim Evans said she has received around 30 phone calls from students and parents showing concern over the pending lawsuits since March 4.

“It is very time consuming,” she said. “This has been a big deal, dealing with parents and students that are upset and saying they would like a way out of here that is not this scary.”

Evans said many of the students and parents she talked with said they were scared because they were suddenly paying much more than their original ticket fee.

She also said it is taking every one of the five employees who works in her office to handle the bulk of the lawsuits, which she says have been coming in at the same time.

“I heard he was coming with a whole bunch more,” Evans said, referring to a conversation she had with Toeppen.

To spread awareness to international students who use Suburban Express frequently, graduate student Donghai Gai, the vice president of the University’s chapter of the Chinese Student and Scholar Association, said his organization is continuing the conversation that was sparked by Leval’s post in a forum on its website.

“It’s something people should be aware of when buying their ticket,” Gai said.

Leval said he will also continue to use the Facebook thread as a means for communicating with students. He is also seeking legal advice for how to move forward with the situation.

He added: “It’s a shame that for standing up for someone who was publicly humiliated, I was banned. If that is acceptable to this company, then there is a serous issue, and it needs to be immediately addressed.”

RLG 093 Corinne can be reached at [email protected].

Clarification: In a previous version of this article, Hanyu Gu described two incidents: one between a bus driver and an international student and one between a bus driver and fellow rider Jeremy Level. In the quotation, Gu was mainly referring to the interaction between Jeremy Leval and the bus driver, he said Thursday. Gu added his response to Suburban Express was also referring to the interaction he heard between the international student and the bus driver.

More about Facebook

ARTICLE: Civil rights should extend to Internet and cell phones in technological world ARTICLE: Eastern Illinois Foodbank competes for Wal-Mart grant on Facebook ARTICLE: Suburban Express causes its own problems ARTICLE: ‘Kruue’ application gives students rewards for visiting popular campus businesses

More about Suburban Express

ARTICLE: Suburban Express lawsuits not gone for good ARTICLE: University administrators absent in Suburban Express incidences ARTICLE: UIUC Subreddit hits front page, Streisand effect leads to increased attention for Suburban Express lawsuits ARTICLE: Suburban Express lawsuits reach 125 this year; conversation continues on Reddit ARTICLE: UI should defend international students, disallow Suburban Express services

More about Jeremy Leval

ARTICLE: Suburban Express lawsuits not gone for good ARTICLE: University administrators absent in Suburban Express incidences ARTICLE: Suburban Express lawsuits reach 125 this year; conversation continues on Reddit ARTICLE: Suburban Express causes its own problems ARTICLE: Public addresses Illinois Student Senate regarding influx of student-aimed Suburban Express lawsuits

Recommend 261 Tweet 19 3 67

Discuss Print

Posted in Campus on Friday, April 19, 2013 12:00 am. Updated: 11:42 pm. | Tags: Facebook, Suburban Express, Jeremy Leval, Green River Lines, O'hare International Airport, Peter Gu, Dennis Toeppen, College Rides, Reddit, Renren, Judici.com, Ford County, Thomas Betz, Student Legal Services Operational Plan, Dean Of Students, Kenneth Ballom, Illinois Attorney General Lisa Madigan, Yu Zhang, Lawsuit, Lawsuits, Kim Evans, Ford County Circuit Clerk, Donghai Gai, Chinese Student And Scholar Association

More From This Site From Around The Web Suburban Express lawsuits reach 125 this year; Princess Diana's 'Revenge Dress' Was the Best conversation continues on Reddit Way to Get Even With Prince Charles (CafeMom)

Suburban Express causes its own problems High School Senior Kaitlyn Hunt Is Being Charged With A Felony For Her Relationship Illini Union's Chick-fil-A to close Friday With Her 15-Year-Old Girlfriend (TheGloss) UI should defend international students, disallow Did Google maps capture a corpse being thrown Suburban Express services off a pier? (Daily Dot) University administrators absent in Suburban Julianne Hough Wore An Unfortunate Peplum Express incidences Jumpsuit To The Lone Ranger premiere (TheGloss)

Mom tries to get rid of 3-year-old son on Craigslist (Daily Dot)

Recommended by

RLG 094 Ford County, IL

NOTICE: By clicking the 'Search' button below, or otherwise using the Judici.com website, you are agreeing to abide by its terms of use. Why isn't my case eligible for Judici E-Pay? My: Cases | Schedule | Filings | Account Login Page: 1 2 3 4 Case Number Name Date of Birth Role Judici E-Pay 2012SC95 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2012SC96 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2012SC97 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2012SC98 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2012SC99 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2012SC100 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC1 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC2 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC3 SUBURBAN EXPRESS ,INC Plaintiff/Petitioner 2013SC4 SUBURBAN EXPRESS ,INC Plaintiff/Petitioner 2013SC5 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC6 SUBURBAN EXPRESS,INC Plaintiff/Petitioner 2013SC7 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC8 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC9 SUBURBAN EXPRESS, INC Plaintiff/Petitioner 2013SC10 SUBURBAN EXPRESS, INC Plaintiff/Petitioner 2013SC11 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC12 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC13 SUBURBAN EXPRESS, INC Plaintiff/Petitioner 2013SC14 SUBURBAN EXPRESS, INC Plaintiff/Petitioner 2013SC17 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC31 SUBURBAN EXPRESS, INC Plaintiff/Petitioner 2013SC32 SUBURBAN EXPRESS, INC Plaintiff/Petitioner 2013SC33 SUBURBAN EXPRESS, INC Plaintiff/Petitioner 2013SC34 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC35 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC37 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC38 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC39 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC40 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC41 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC42 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC43 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC44 SUBURBAN EXPRESS INC Plaintiff/Petitioner

2013SC45 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC46 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC47 SUBURBAN EXPRESS Plaintiff/Petitioner 2013SC48 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC49 SUBURBAN EXPRESS INC Plaintiff/Petitioner 2013SC50 SUBURBAN EXPRESS INC Plaintiff/Petitioner Page: 1 2 3 4 Why isn't my case eligible for Judici E-Pay?

For questions or comments about this web site, please see our Contacts Page. Terms of use | Privacy policy Advertise on Judici. Copyright © 2002-2013 Judici Last modified: 2013/06/21 14:20 Version: 3.8.0.424

RLG 095 Suburban Express Took The First Bus To The Streisand Effect. Have They Disembarked In Time?

Apr 28, 2013 By Ken White. Law

There are many rules governing sensible protection of your company's online reputation. The first is simple, if vague: to quote Wil Wheaton, don't be a dick.

If you've been a dick, there's no need to despair. Everybody has a bad day now and then, and the internet is basically a big old bag of dicks, so your dickery may quickly be forgotten. Redemption is within your reach.

Unless, that is, you double down, and triple down, and quadruple down.

"Doubling down" means that, when called out for being a dick, you retaliate by being even more of a dick. The infamous Charles Carreon doubled, tripled, and quadrupled down in his dispute with The Oatmeal and with a satirical blogger. Paul Christoforo doubled down. Craig Brittain of "Is Anybody Down?" doubled down. Ranaan Katz doubled down.

When you double, triple, and quadruple down on online dickery, you place yourself beyond easy reputational redemption, and instead face the full force of the Streisand Effect.

Illinois bus company Suburban Express learned this lesson over the past week. But even though they engaged in online dickery, and even though they doubled down, having caught a glimpse of the Streisand Effect, they are now retreating furiously from the precipice and avoiding the fatal triple- and quadruple-down. But has their change of strategy come soon enough?

Pick A Fight With Reddit! What Could Go Wrong?

Suburban Express provides shuttle-bus services to Illinois universities. I learned about them when, through their attorney, they wrote to a moderator of the University of Illinois Urbana-Champaign, threatening a libel suit based on Reddit postings.1

Folks on the UIUC subReddit became actively interested in Suburban Express when University of Illinois student Jeremy Leval wrote a Facebook post claiming that he witnessed a Suburban Express driver berating a passenger for not speaking English well. When Suburban Express sued Leval, havoc ensued, and reporters discovered that Suburban Express was filing quite a large number of small claims lawsuits against local students.

Suburban Express' litigation strategy depends upon its terms and conditions — you know, those things that you click to accept without reading.

RLG 096 In the event that your ticket is altered, multiple copies of your ticket are collected by driver(s), your ticket is used for transportation on the wrong date or trip or between the wrong stops, you agree to pay the applicable full fare plus $100 for each invalid, altered or duplicate ticket collected, and authorize us to charge your credit card for same.

If passenger or passenger parent / friend / companion / ride interferes with or delays departure of bus in any way, engages in disruptive behavior, or uses offensive or aggressive language in dealing with company, company employees, subcontractors, or subcontractor employees, you agree to pay Suburban Express the amount of $500 for liquidated damages sustained by Suburban Express resulting from the aforementioned actions, and authorize us to charge your credit card for same.

If an attorney is retained to contact you in relation to any violation of the terms and conditions contained herein, you agree to pay said attorney a minimum of 3/4 hour at the prevailing rate.

You agree to direct all questions and concerns pertaining to credit card charges or credits to Suburban Express / Illini Shuttle IN WRITING at PO Box 4048, Lisle, IL 60532.

You agree to pay any and all collection costs, including attorney’s fees, should collection or other legal action become necessary, and that the agreed venue for any legal action arising out of this transaction shall be Ford County, Illinois.

In other words, if you accept Suburban Express' terms and conditions, even though you go to school in Champaign County, they will say you're agreeing you can be sued in a different county, that you'll pay their attorney to demand money from you, that you'll pay their attorney fees if they sue you, and that you'll pay a flat $500 if they think you or your friends have been rude to Suburban Express.2 Asked why they seek to litigate in Ford County, Suburban Express responded breezily:

“Wide-open court calendar, easy parking, and service with a smile,” the bus company said in the email, adding that distance is also a factor. The Ford County courthouse is located in Paxton, Ill., the county seat; the courthouse is 26.3 miles from Champaign and 111 miles from Chicago, according to Google Maps road directions.

I believe the "service with a smile" part. When I called the clerks of the court in Ford County, seeking copies of some of Suburban Express' filings, I found them to be the most pleasant, helpful, and kind people I had spoken to all month.3 They swiftly faxed me a copy of Suburban Express's small claims complaint against Jeremy Leval, which I have uploaded (redacted to remove his address) here. As you can see, Suburban Express attaches its terms and conditions and asserts that Mr. Leval's own online accounts of his ride show that he violated the "disruption" clause above — in other words, that he was the aggressor in the incident in which he says he observed driver rudeness. Suburban Express is demanding $500 in liquidated damages4 plus fees and costs.

Thanks to the helpful people in Ford County, I reviewed other complaints as well, which I picked at random from the docket showing the many cases they have filed this year. Suburban Express' pattern is consistent: they send a demand letter alleging some breach of their terms, demand damages, and if they don't get them sue in small claims court in Ford County. The complaints I've seen are bare-bones and formulaic and rather vague. Notably they are coy about when and exactly how the alleged violations of Suburban Express' terms occurred. This is significant: I've reviewed, for example, a letter from January 2013 dunning a student for a violation that allegedly occurred in 2011. How many students can remember exactly which bus they took in 2011 and exactly what they did with the paperwork?

There's only way that filing lots of small claims cases like this is economically feasible: if the vast majority of defendants don't fight them. Students living in a different county represent the perfect targets for such litigation. They don't have income that will let them hire lawyers, they are busy with school, they may have trouble getting transportation to court, they're easily intimidated, and after graduation they will be concerned about their credit and easy to bully into paying judgments.

Students learning about this litigation campaign were, understandably, quite angry, leading stories of Suburban Express to

RLG 097 spread more quickly over social media. But it was not the lawsuits alone that fueled outrage — it was Suburban Express' threats. In addition to the Reddit threat above, I have reviewed threats from both Suburban Express and their attorney to multiple people based on expression on multiple review and social media sites. I am not naming the other threat recipients because I am concerned that doing so could expose them to harassment by Suburban Express; if Suburban Express intuits who has forwarded threats to me and retaliates, I will not hesitate to put up the Popehat Signal and secure pro bono representation for the people threatened based on their speech.

Suburban Express' threats, as the Reddit threat suggests, are highly problematical. Suburban Express plays fast and loose with the difference between allegedly false statements of fact — which can be the basis for a defamation claim — and statements of opinion, which are protected by the First Amendment when they do not imply false statements of fact. Courts are much more likely to view statements on the internet as opinion rather than fact. For instance, Suburban Express takes issue with a statement of Reddit that they are "likely to sue you," saying that given their number of riders it is actually statistically unlikely they will sue you. But given Suburban Express has sued at least 125 people in 2013, this is the sort of statement that will almost certainly be taken as an opinion or rhetorical flourish rather than a false statement of fact. Second, Suburban Express doesn't seem familiar with Section 230 of the Communications Decency Act, which protects hosts (like, say, Reddit or a Reddit moderator) from the words of guests (like people who comment on Reddit or a blog.). All of Suburban Express' defamation threats I have reviewed are either very vague (which, as I often say here, are a reliable hallmark of meritless thuggery) or target protected communication. Suburban Express may not be familiar with Illinois' anti-SLAPP statute, which would provide a mechanism to dismiss the defamation lawsuits early and secure fees for the defendants. In short, Suburban Express' defamation threats are highly dubious.

Consequences Will Never Be The Same!

What's remarkable about this case is how rapidly the Streisand Effect unfolded: it went from zero to "catastrophic reputation damage" in less than a week. That's the consequence of widespread social media and internet use amongst college students. In addition to multiple Reddit threads and articles in the Daily Illini, Suburban Express was soon looking down the barrel of posts at Ars Technica and BoingBoing.

To their credit, Suburban Express and one of their attorneys are now trying to fix things. I corresponded with Suburban Express' attorney, and found him to be polite, professional, and very clearly trying to repair the situation as swiftly as possible. I've also now corresponded with Dennis Toeppen, owner of Suburban Express, who wrote me on Sunday and answered some questions I put to him.5

In short, Suburban Express and their attorney have withdrawn the defamation threat against the Reddit moderator, and say they will dismiss the small claims case against Mr. Leval. Mr. Toeppen followed up by telling me this:

Based on a email which I received after I pressed send on the email to you, I have decided we are going to take the following action:

1) Dismiss all the Ford County suits so that we can take a step back from this.

2) Engage individuals in settlement discussions, so that they have yet another opportunity to make good on their deal with us.

3) Re-file cases where we are not able to come to an agreement, giving people an opportunity to change venue to Champaign county by mutual agreement.

You can read my full correspondence with Mr. Toeppen here. On the one hand, Suburban Express is taking a certain amount of responsibility and responding to complaints. On the other, Mr. Toeppen is indulging in something he's previously done in statements to the press: pointing fingers and taking shots at others.

We're going to have to take a close look at our ticketing/admission/accounting workflow. We started web ticketing back in 2008, and had very few fraud problems initially. But those are the good old days, it seems. Nowadays, we have frequent fraud. The problem has gotten much worse since our archrival, LEX Express, went belly up in December. I get a sense that LEX riders were accustomed to cheating LEX, and now we're dealing with them.

RLG 098 We would have preferred that Mr Leval gather information and report the incident to us, rather than creating a scene on the bus.

. . . and so on.

Lessons . . . If You Want To Learn Them

Right now, as a result of its conduct, Suburban Express' pool of potential customers is limited to people who have never heard of them. I didn't go to business school but I think that's not how marketing is supposed to work.

But has Suburban Express irretrievably beshat itself? I don't know, but it seems very likely. Mr Toeppen's emails to me — sent when he knew I was investigating the story from a First Amendment attorney's perspective, sent in an effort to get their side of the story out — don't bode well. It seems unlikely that Suburban Express can resist its pattern of lashing out. If they abandoned their current raft of litigation and started afresh, they might come back.

If they want to come back, they might think about a few lessons.

First, never miss a good opportunity to shut up. That may sound like a strange thing for a blogger to say, but I'm not running a public relations campaign. Most of the statements Suburban Express has made have served to inflame customers, not soothe them. An angry and defiant to a customer complaint — particularly on the internet — may be worse than no response at all.

Second, take some time to get a grip. You will not encounter a situation where waiting 48 hours to open your mouth will destroy your brand. But you will often encounter a situation where making a statement in the heat of the moment, without getting good advice, and without people convincing you not to talk like an ass, will ruin your reputation.

Third, know thy enemy. As I said in a recent article about the Streisand Effect in the Daily Journal:

Before sending a takedown demand to a web site, spend some time getting to know its culture to assess the probable effect of your letter. Some websites pride themselves in making rude public responses to legal threats. Other sites are frequented by free speech advocates likely to call attention to your demand letter. In 2012, an Arizona attorney sent a defamation threat to the popular webcomic “The Oatmeal,” only to find himself the subject of a brutally satirical comic that drew millions of views online, mainstream media coverage, and widespread denunciation. Don’t be in the position of telling your client [after the fact] “I didn’t realize this web site had a hundred thousand daily readers and a habit of printing and denouncing threat letters.”

Fourth, know what you are talking about before you talk big. Again from my recent article:

RLG 099 A legally unsupportable demand is far more likely to trigger the Streisand Effect. Bloggers love to call out lawyers who don’t know the law. To reduce your risk, don’t send a takedown letter until you have educated yourself about the law governing online content. For instance, too many lawyers threaten web sites based not only on content written by the site owners, but on comments left by visitors. But Section 230 of the Communications Decency Act dramatically limits a web site’s liability for comments left by third parties. See, e.g., [Barrett v. Rosenthal], (2006) 40 Cal. 3d 44 (2006). Similarly, too many lawyers don’t grasp the distinction between statements of fact – which are susceptible to defamation analysis – and statements of opinion – which often are not. California courts recognize that the internet Internet disputes produce exaggeration and fiery rhetoric, and are more likely to interpret online statements as mere insults or opinions rather than actionably false statements of fact. See, e.g., [Chaker v. Mateo], (2012) 209 Cal. App. 4thth 1138 (2012). Finally, too few lawyers are familiar with California’s anti-SLAPP statute, which allows a defamation defendant to secure a swift dismissal and attorney fees when a case lacks merit. Cal. Code Civ. Proc. § Section 425.16.

If you are new to this area of law, the Electronic Frontier Foundation (www.eff.org) and the Digital Media Law Project (www.dmlp.org) have excellent guides.

F. Scott Fitzgerald was wrong, or at least didn't anticipate modern America: there are second acts in American life. Just ask Mayoral aspirant Anthony Weiner. But if you're trying to sell something with an internet presence, it's much safer to the get first act right.

Edited on April 29, 2013 to add: Overnight, it appears that Suburban Express dramatically altered their terms and conditions.6

1. The threatening letter is here. ▲ 2. That's called a contract of adhesion; whether it is enforceable is a subject too complex for this post. ▲ 3. Bear in mind I am a lawyer in Los Angeles. ▲ 4. Liquidated damages are damages that are specified at a particular amount in a contract in the case of a particular contingency. Their enforceability, again, is beyond the scope of this post. ▲ 5. Because Suburban Express' attorney was professional with me, I immediately wrote him and told him his client was corresponding with me. Usually you wouldn't want your client doing that and you'd be enraged if they did. Fucking clients. Here, apparently, it was deliberate. ▲ 6. The new terms remove the Ford County venue selection clause and the vague "pay $500 if you are rude" clause, but retains this: "You agree to pay any and all collection costs, including attorney's fees, should collection or other legal action become necessary." ▲

Last 5 posts by Ken White

On American Exceptionalism - July 4th, 2013 Me Write Pony One Day - July 3rd, 2013 Why Does Talking About Creepers And Harassment Make People So Angry? - July 1st, 2013 NOW I'm Going To Hit The Big Time! - July 1st, 2013 COME AT US, TROLL. [And Government of Ecuador] - June 28th, 2013

Add to Reddit Post to StumbleUpon Like 169 Post to Twitter 35 35 35 35 35 35 Marian Call the DJ Ray Harryhausen, 1920- Reason Huggies 35

RLG 100 Home Legislation & Laws Senate House My Legislation Site Map

Bills & Resolutions Illinois Compiled Statutes

Compiled Statutes Back to Act Listing Public Acts Search Guide Disclaimer Printer-Friendly Version Public Acts Information maintained by the Legislative Reference Bureau Legislative Reports Updating the database of the Illinois Compiled Statutes (ILCS) is an ongoing process. Recent laws may not yet be included in the ILCS database, but they are found on this site as Public Acts soon after they IL Constitution become law. For information concerning the relationship between statutes and Public Acts, refer to the Guide. Legislative Guide

Legislative Glossary Because the statute database is maintained primarily for legislative drafting purposes, statutory changes are sometimes included in the statute database before they take effect. If the source note at the end of a Section of the statutes includes a Public Act that has not yet taken effect, the version of Search By Number the law that is currently in effect may have already been removed from the database and you should (example: HB0001) refer to that Public Act to see the changes made to the current law. Go Search Tips CIVIL PROCEDURE (735 ILCS 110/) Citizen Participation Act.

(735 ILCS 110/1) Search By Keyword Sec. 1. Short title. This Act may be cited as the Citizen Participation Go Act. Alternate Search (Source: P.A. 95-506, eff. 8-28-07.)

Search Tips (735 ILCS 110/5) Sec. 5. Public policy. Pursuant to the fundamental philosophy of the Advanced Search American constitutional form of government, it is declared to be the public policy of the State of Illinois that the constitutional rights of citizens and organizations to be involved and participate freely in the process of government must be encouraged and safeguarded with great diligence. The information, reports, opinions, claims, arguments, and other expressions provided by citizens are vital to effective law enforcement, the operation of government, the making of public policy and decisions, and the continuation of representative democracy. The laws, courts, and other agencies of this State must provide the utmost protection for the free exercise of these rights of petition, speech, association, and government participation. Civil actions for money damages have been filed against citizens and organizations of this State as a result of their valid exercise of their constitutional rights to petition, speak freely, associate freely, and otherwise participate in and communicate with government. There has been a disturbing increase in lawsuits termed "Strategic Lawsuits Against Public Participation" in government or "SLAPPs" as they are popularly called. The threat of SLAPPs significantly chills and diminishes citizen participation in government, voluntary public service, and the exercise of these important constitutional rights. This abuse of the judicial process can and has been used as a means of intimidating, harassing, or punishing citizens and organizations for involving themselves in public affairs. It is in the public interest and it is the purpose of this Act to strike a balance between the rights of persons to file lawsuits for injury and the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government; to protect and encourage

public participation in government to the maximum extent permitted by law;

RLG 101 public participation in government to the maximum extent permitted by law; to establish an efficient process for identification and adjudication of SLAPPs; and to provide for attorney's fees and costs to prevailing movants. (Source: P.A. 95-506, eff. 8-28-07.)

(735 ILCS 110/10) Sec. 10. Definitions. In this Act: "Government" includes a branch, department, agency, instrumentality, official, employee, agent, or other person acting under color of law of the United States, a state, a subdivision of a state, or another public authority including the electorate. "Person" includes any individual, corporation, association, organization, partnership, 2 or more persons having a joint or common interest, or other legal entity. "Judicial claim" or "claim" include any lawsuit, cause of action, claim, cross-claim, counterclaim, or other judicial pleading or filing alleging injury. "Motion" includes any motion to dismiss, for summary judgment, or to strike, or any other judicial pleading filed to dispose of a judicial claim. "Moving party" means any person on whose behalf a motion described in subsection (a) of Section 20 is filed seeking dismissal of a judicial claim. "Responding party" means any person against whom a motion described in subsection (a) of Section 20 is filed. (Source: P.A. 95-506, eff. 8-28-07.)

(735 ILCS 110/15) Sec. 15. Applicability. This Act applies to any motion to dispose of a claim in a judicial proceeding on the grounds that the claim is based on, relates to, or is in response to any act or acts of the moving party in furtherance of the moving party's rights of petition, speech, association, or to otherwise participate in government. Acts in furtherance of the constitutional rights to petition, speech, association, and participation in government are immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome. (Source: P.A. 95-506, eff. 8-28-07.)

(735 ILCS 110/20) Sec. 20. Motion procedure and standards. (a) On the filing of any motion as described in Section 15, a hearing and decision on the motion must occur within 90 days after notice of the motion is given to the respondent. An appellate court shall expedite any appeal or other writ, whether interlocutory or not, from a trial court order denying that motion or from a trial court's failure to rule on that motion within 90 days after that trial court order or failure to rule. (b) Discovery shall be suspended pending a decision on the motion. However, discovery may be taken, upon leave of court for good cause shown, on the issue of whether the movants acts are not immunized from, or are not in furtherance of acts immunized from, liability by this Act. (c) The court shall grant the motion and dismiss the judicial claim unless the court finds that the responding party has produced clear and convincing evidence that the acts of the moving party are not immunized from, or are not in furtherance of acts immunized from, liability by this Act. (Source: P.A. 95-506, eff. 8-28-07.)

(735 ILCS 110/25) Sec. 25. Attorney's fees and costs. The court shall award a moving party

RLG 102 Sec. 25. Attorney's fees and costs. The court shall award a moving party who prevails in a motion under this Act reasonable attorney's fees and costs incurred in connection with the motion. (Source: P.A. 95-506, eff. 8-28-07.)

(735 ILCS 110/30) Sec. 30. Construction of Act. (a) Nothing in this Act shall limit or preclude any rights the moving party may have under any other constitutional, statutory, case or common law, or rule provisions. (b) This Act shall be construed liberally to effectuate its purposes and intent fully. (Source: P.A. 95-506, eff. 8-28-07.)

(735 ILCS 110/35) Sec. 35. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes. (Source: P.A. 95-506, eff. 8-28-07.)

(735 ILCS 110/99) Sec. 99. Effective date. This Act takes effect upon becoming law. (Source: P.A. 95-506, eff. 8-28-07.)

Top

Home | Legislation & Laws | House | Senate | My Legislation | Disclaimers | Email

This site is maintained for the Illinois General Assembly by the Legislative Information System, 705 Stratton Building, Springfield, Illinois 62706 217-782-3944 217-782-2050 (TTY)

RLG 103 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 17 ------c------)( JOSEPH RAKOFSKY, and RAKOFSKY LAW FIRM, P.C., INDE)( NO.: 105573/11 Plaintiffs, Motion Sequences: -against- 002,004-010 & 014-018

THE WASHINGTON POST, et aI., DECISION/ORDER Defendants. ------)(

HON. SHLOMO S. HAGLER, J.S.c.:

Motion Practice

In this round of voluminous motion practice comprising fifteen (15) separate motions and literally thousands of pages served and filed with the court,' fifty-nine (59) defendants move2 for an order pursuant to CPLR S 321 I(a)(7) and (8), dismissing the amended complaint on the grounds that the amended complaint fails to state a cause of action and/or the court lacks personal jurisdiction over the out-of-state defendants underCPLR S 302, New York's long-arm statute. Many defendants' also move' for an order pursuant to CPLR S 8303-a and/or 22 NYCRR S 130-1.1

I. This case should be the proverbial poster child for e-filing, or the electronic filing, of papers to avoid the needless waste of reams of paper to serve. about a dozen attorneys and the court. E-filing would have been more efficient, and preserved limited judicial resources.

2. Motion sequence numbers 002, 004, 005, 006, 007, 008, 009, 010, 014, 015, 016, 017 and 018.

3. Defendants Law Offices of Michael T. Doudna, Michael T. Doudna, The Law Office of Jeanne O'Halieran, LLC, Jeanne O'Halieran, American Bar Association, abajournal.com, Debra Cassens Weiss, Sarah Randag, and 35 other defendants represented by both Eric Turkewitz, Esq. and Marc J. Randazza, Esq.

4. Motion sequence numbers 007, 010, 019 and 020.

RLG 104 -2- \ sanctions on plaintiffs and plaintiffs' attorney for commencing this allegedly "frivolous" action and awarding defendants reasonable attorney's fees and costs. Plaintiffs Joseph Rakofsky and Rakofsky \ Law Firm, P.C., ("plaintiffs" or "Rakofsky") cross-move' for an order as follows:

(I) pursuant to CPLR S 1001 (a); addingWP Company LLC, as a necessary party; (2) pursuant to CPLR S 3025(b), granting plaintiffs leave to serve and file a Second Amended Verified Complaint; (3) pursuant to CPLR SS 3217 and 2101(c), permitting plaintiffs to discontinue this action against eight defendants6 who have settled with them, and to delete their names from the caption; (4) pursuant to CPLR S 3215, granting plaintiffs a default judgment against seven defendants' on the issue ofliabilityand setting this matter down for an inquest on the assessment of damages; and (5) pursuant to 22 NYCRR S 130-1.1, awarding sanctions against Marc J. Randazza, Esq., "for frivolous conduct undertaken to harass and/or maliciously injure the plaintiff." -

The parties oppose'the respective motions and cross-motions. The motions and cross-motions are consolidated herein for disposition.

5. Motion sequence numbers .008 and 020.

6. Plaintiffs did not explicitly state the names of said settling defendants for whom plaintiffs seek to voluntarily discontinue this action; it is insufficient to merely state that they were deleted from the caption of the amended complaint and have this Court surmise what should be expressly stated. In addition, it would be advisable and helpful to present executed stipulations of discontinuance for each defendant.

7. Again, plaintiffs failed to explicitly list the names of the defaulting defendants, but just " attached the affidavits of service for this Court to surmise their intent. Moreover, this lack of clarity would not provide the requisite notice to the alleged defaulting defendants that plaintiffs were seeking default judgments against them. '

RLG 105 -3-

Procedural History

Plaintiffs commenced this action in Supreme Court, New York County, on or about

May 11,2011 by filing of a summons and complaint. Approximately six (6) days later on May 17,

20 II, plaintiffs fiied an amended complaint as of right against 81 defendants consisting of 218 paragraphs and 82 pages ("Amended Complaint"). The Amended Complaint alleged four causes of action including one very long defamation claim against all defendants (First Cause of Action), a claim for intentional infliction of emotional distress (Second Cause of Action), intentional interference with a contract (Third Cause of Action) and violation of Civil Rights Law S 50 and 51 for improper use of plaintiff's name and picture for purposes of trade (Fourth Cause of Action) stemming from two articles published in the Washington Post on April I and 9, 2011 ("Washington

Post Articles"), and the subsequent re-publication of the Post Articles. by other defendants and substantial comments on internet "blogs" that discussed the content of said articles which questioned plaintiffs' competence and ethics to be discussed later in more detail. Instead of interposing answers,

59 defendants made the instant pre-answer motions to dismiss the Amended Complaint.

Factual Background

Rakofsky's Legal Education & Bar Admission

Rakofsky graduated and received his law degree from the Touro Law Center in 2009.

Since April 29, 2010, Rakofsky has been licensed to practice law in the State of New Jersey. He is not admitted to practice law in New York State. Rakofsky is engaged in the practice oflaw under the name of Rakofsky Law Firm, P.C.

,

RLG 106 , -4-

Rakofsky's Retention in U.S.A. v Dontrell Deaner

In or about May3, 2010, Henrietta Watson initially retained plaintiffs to defend her

grandson, Dontrell Deaner ("Deaner"), who was charged, among other crimes, with First Degree

Murder in Washington. D.C. Thereafter, Rakofsky met with Deaner who retained plaintiffs to'

represent him in the upcoming trial in the Superior Court of the District of Columbia. Since

Rakofsky was not licensed to practice law in the District of Columbia, he sought and obtained

admission pro hac vice. Rakofsky brought in local counsel, Sherlock Grigsby, Esq. ("Grigsby"),

who had substantial experience in criminal defense work, to assist him in Deaner's defense .

. However, Rakofsky alleges that he was primary and responsible attorney that developed and i executed the legal strategy in the case.

Bean's Retention and Termination as Defense Investigator

Rakofsky and/or Grigsb~ also retained Adriari K. Bean ("Bean"), a certified

investigator under the CriminaiJustice Act Defender Service of the Superior Court ("CJA") as the

defense investigator in the Deaner case. As part of his investigative duties, on October 6,.2010,

Rakofsky e-mailed Bean, in pertinent part, the following request:

I) Please trick8Leigh' (old lady) into admitting: a) she told the 2 lawyers that she did not see the shooting and b) she told 2 lawyers she did not provide the Government any information about [the] shooting.

8. The definition of trick, in part, is to "deceive" or "practice deception." (See Webster's New Twentieth Century Dictionary Unabridged, Second Edition, 1964).

9. Her name was blacked out in motion sequence number 008, but was revealed later in motion sequence 010.

RLG 107 -5-

(See Motion Sequence Number 008, Exhibit "E" to the Affidavit of Keith 1. Alexander, sworn to , .i . on July 15,2011.)

Later, Rakofsky and/or Grigsby terminated Bean's services and replaced. him with

another investigator. By letter dated March 5, 2011, Bean sent Grigsby an invoice for investigative

services he rendered in the Deaner case. (See Exhibit "E" to Motion Sequence Number 009.)

. Rakofsky alleges that Bean did not perform any investigative services and he refused to approve

Bean's voucher for payment from the CJA. A~ a result, Bean made a motion to the Superior Co,urt

of the District of Columbia requesting compensation for about 22 hours of investigative services and

payment through a CJA voucher. Belin concluded that he was terminated and uncompensated for

his work "based on his refusal to follow an e-mailrequest from Mr. Rakofsky ...instructing him to

try to 'trick' a witness into changing her testimony." (Id.) On page four of the attached

"Investigative Report," Bean stated in bold lettering several reasons for his refusal to perform

Rakofsky's e-mail request as follows: , (1) I do not know what the term, 'trick', means in this context; (2) I am in the investigative business, not the trickery business; (3) I will not risk exposing myself to obstruction of justice or conspiracy charges; and (4) the implications of such a request appear to [be] inherently unethical. .

(Id.)

The Trial

A day before jury selection, on March 28, 2011, the prosecution moved to suppress .,, a Toxicology Report that Rakofsky intended to use which he alleged evidenced that the victim was

"high on PCP at the time of his death." (See Amended Complaint at ~ 100.) The presiding judge,

William M: Jackson ("Judge Jackson") granted the prosecution's motion and prohibited Rakofsky

RLG 108 , , -6-

from mentioning and introducing any evidence that the victim was under the influence of PCP at the

time of his death. (Id.)

Thereafter, on March 30, 2011, the trial began. In his hour-long opening statement,

Rakofsky repeatedly sought to mention the Toxicology Report rationalizing that only references to \ PCP were prohibited and not the actual report. (Id. at -,]102.) Judge Jackson admonished Rakofsky ) for violating his prior ruling. (Id.) At the end of his ~pening statement, Rakofsky told the jury that

he never tried a case before. so that Deaner should not be prejudiced for his errors ..

Due to this revelation, after the conclusion of opening statements, Judge Jackson

conducted a side-bar discussion with Deaner to ascertain whether he was satisfied and comfortable

with Rakofsky continuing as his attorney even though it was his'first trial. (ld. at -,]1012.) Deaner

responded affirmatively. The trial then continued. The next morning, March 31, 2011, Judge . I ._ ,

Jackson again questioned Deaner ifhe was satisfied with Rakofsky's level of experience. Despite

his inexperience, Deaner wanted Rakofsky to represent him. (Id.)

During the testimony of a prosecution witness on March 31, 20 II,'Deaner passed

Rakofsky certain questions that he wanted Rakofsky to ask the witness. Rakofsky refused to ask

those questions because he believed it would not be in Deaner's best interests. (ld. at -,]108.) Later , , . . in the afternoon, Rakofsky and Grigsby approached Judge Jackson and explained there was a

"communication barrier" between'them and Deaner. (See Exhibit "B" to Motion Sequence 010 at

p. 2,) Judge Jackson suggested thatthey should take some time to explain to Deaner their reasoning

for not asking his questions. Rakofsky then replied to Judge Jackson that "it might be a good time

for you to excuse me from trying this case." (ld. at p. 3.) At that point, Judge Jackson inquired of

, Deaner who now requested ne:-vcounsel. Judge Jackson then explained to Deaner the ramifications

RLG 109 -7-

of a mistrial and adjourned th,etrial to the next morning, April 1,2011, to give Deaner an opportunity

to fully contemplate his request, as follows:

"This is what I'm going to do, Mr. Deaner, I'm inclined to grant your request, but r - want you to think about it overnight. We'll come back here tomorrow morning. You can get somebody to stand in for you, if you wish."

(Id. at p. 12.)

The parties returned the next morning. Judge Jackson asked Deaner if he had an

opportunity to think about his request and ifhe wanted new counsel. Deaner requested new counsel.

(See Exhibit "C" to Motion Sequence 010 at p. 3.) Judge Jackson then summarized the events that

precipitated Deaner's request as follows:

"Mr. Rakofsky actually asked to withdraw mid-trial ... and according to Mr. Deaner, there was conflict as well between local counsel, Mr. Grigsby's legal advice and Mr. Rakofsky's iegal advice."

. (Id.)

Judge Jackson then reiterated on the record his two previous side-bars with Deaner

wherein he asked the defendant if he was satisfied with Rakofsy's level of experience. Judge

Jackson then made his own candid observations concerning Rakofsky's trial performance and

competency to defend Deaner in the felony murder case as follows: . - "r was' astonished that someone would purport to represent someone in a felony murder case who had never tried a case before and that local counsel, Mr. Grigsby, was complicit in this.

"It appeared to the Court that there were. : . defense theories out there, but [Rakofsky had] the inability to execute those theories. It was apparent to the Court that there was ... not a good grasp of legal principles and legal procedure of what was admissible and what was not admissible that inured, r think, to the detriment ofMr. Deaner."

(Id. at p. 4.)

RLG 110 -8-

Based on the above observations, Judge Jackson revealed that he would have set aside_

Deaner's c~mviction based on grounds of ineffective assistance of counsel under D.C. Code S 23-11 0

(1996) as follows:

.. '~ "And had there been ... a conviction in this case, based on what I had seen so far I would have granted a motion for a ~ew trial under 23.110.'" -,'

(Id.) ,

Judge Jackson then granted Deaner's request for new counsel and stated an alternate reason for his ruling:

"So I am going to grant Mr. Deaner's request for new counsel. ... Alternatively,I would findthat they are based on my observation of the conduct of the trial manifest necessity. I believe that the performance was below what any reasonable person would expect in a murder trial."

(Id. at p. 4-5.)

In addition to the observations concerning Rakofsky'scompetency, Judge Jackson also commented on Bean's motion alleging that he was terminated and uncompensated based on -, Bean's refusal to comply with Rakofsky's e-mail request to "trick" a witness which Bean characterized as "inherently unethical":

"There's an e-mail from you to the investigator [Bean] that you may want to look at, Mr. Rakofsky. It raises ethical issues."

(/d. at p. 7.)

The Washington Post April 1, 2011 Article

That same day on April I, 2011, The Washington Post published on its website an article entitled D. C. Superior Court Judge Declares Mistrial Over Attorney's Competence in Murder

Case, which was authored by its reporter Keith L. Alexander ("Alexander"), witl}assistance from

RLG 111 -9- researcher Jennifer Jenkins ("Jenkins"), reporting the mistrial in the'Deaner case ("April 1st

Article"). (See Motion Sequence 008, Exhibit "B" to the Patil Affirmation dated July 20, 2011.)

The article was re-published i~ the Metro s~ctionofthe Washington Post newspaper on April 2,

2011, under a different headline, Mistrial Declared in '08 D.C. Case. The article reported Judge

Jackson's comments relating to Rakofsky's' competence and ethical issues that surfaced through.

Bean's motion for compensation.

The American Bar Association and Reuters April 4, 2011 Articles

Based on the previously reported April Ist Article, the American Bar Association '

("ABA") published on its website,abajoumal.com, an article entitled 'Astonished' Judge Declares

Murder Mistrial Due to Defense Lawyer Who Never Tried a Case, authored by Debra Cassens Weiss , ("Weiss") on April 4, 2011 (See Motion Sequence 018, Exhibit ".1" to the Weiss Affidavit, sworn to on March 29, 2012). The same day, Reuters America, LLC, through its subsidiary, Thomson

Reuters Corp. ,also published a short article on its website called Young and Unethicalwj-itten by its reporter, Daniel B. Slater ("Slater") (See Exhibit "0" to Motion Sequence 006).', Both articles reported that Judge Jackson declared a mistrial due to Rakofsky' s performance and Bean's allegation th~t Rakofsky requested the investigator to "trick a witness," citing to The Washington Post's April

Ist Article.

Reaction to the Mistrial Proliferates on the Internet

After the April I st Article, many "bloggers" posted online comments and articles on . their legal blogs depicting the Deaner mistrial as an "object lesson" for those unsuspecting clients that contemplate retention of inexperienced defense counsel in criminal cases based on low cost and

RLG 112 -10-

exaggerated marketing. Reaction to the Deaner mistrial was swift and furious. The legal bloggers

expressed their strongly-worded opinions as to Rakofsky's acknowledged inexperience in defending

Deaner and the "ethical issues" raised by his e-mail requesting that Bean "trick" a witness. Many

of these legal bloggers were named as defendants in this action.

The American Bar Association April 8,2011 ArtiCle

With the on,going proliferation of commentary on the internet, the ABA published

on its website, on April 8, 2011, an article calledAround the Blawgosphere: Joseph Rakofsky Sound

Off; Client Poachers; and the End of Blawg Review? authored by its web editor Sarah Randag

("Randag"), summarizing published web postings from "several well-known legal blogs" concerning

the.controversy that surrounded Rakofsky. (See Motion Sequence 008, Exhibit" I" through Exhibit

"IS" to the Randag Affidavit, sworn to on March 29, 2012, at'1[3.) Randag included an article . ". . I •

published on the ABA website on AprilS, 2011, written by Weiss, reporting that Rakofsky

"appeared to be pleased in a Facebook post after ... [Judge Jackson] declared a mistrial due to the

defense lawYer's t,rial performance," but Rakofsky was later "humiliated by a press account of the

proceeding." (ld. at Exhibit "3".)

The Washington Post April, 9, 2011 ArtiCle Alexander then wrote a follow-up article entitled Woman Pays $7, 700 to Grandson's

Attorney Who Was Later Removedfor Inexperience which was published on The Washington Post

website on April 9, 20 II. (See Motion Sequence 008, Exhibit "C" to the Patil Affirmation dated July

20,2011.) The article was re-published in the Metro section of The Washington Post newspaper on

April 10,2011, under the headline, Attor~ey 's1nexpetience Gives Grandmother $7, 700 Headache.

!

RLG 113 -11-

This arti'c1e described how Rakofsky allegedly solicited Deaner's grandmother to retain him to . , represent her grandson and reported that Judge Jackson "dismissed Rakofsky from the case and declared a mistrial, citing the lawyer's lack of competence." (Id.)

Plaintiffs'. Motion for Leave to Amend

Plaintiffs seek leave to file a Second Amended Complaint to add causes of action for intentional interference with prospective economic advantage, injurious falsehood, negligence, and . prima facie tort in the form of"cyber-bullying or mobbing" as well as to make stylistic changes'O such .' . . - ... , as to articulate separate causes against each named defendant instead of one cause of action for each theory of liability. In the Second Amended Complaint; plaintiffs reduce the number of defendants from 81 to 74, but they vastly increase the sheer bulk of the complaint to more than 1,200 paragraphs and almost 300 pages.

It is well settled lawthat "leave to amend pleadings is to be freely given, absent a showing of prejudice or surprise." (BriarpatchLtd, L.P. v BriarpatchFilm Corp., 60 AD3d 585, 585 . , [I st Dept 2009].) Nevertheless, an examination of the underlying merit of the proposed amendment is required, and "leave will be denied where the proposed pleading fails to state a claim or is palpably insufficient as a matter oflaw." (Thompson v Cooper, 24 AD3d 203, 205 [I st Dept 2005].)

Here, there is neither a showing by the defendants of prejudice nor surprise resulting

from plaintiffs' delay in asserting their new causes of action. However, granting plaintiffs' motion

to amend would be futile sinc~ the allegations set forth in the proposed Second Amended C;:omplaint

10. Except for the new causes of action, it appears that the substantive allegations in both pleadings are similar. '

RLG 114 -12- . . . are not sufficient to state a cause of action; as will be discussed below in defendants' motions to - . - ~ dismiss.

Motion to Dismiss

!n determining a motion to dismiss a pleading for failure to siate a cause of action, the

court must "accept the facts as alleged in the Complaint as true, accord plaintiffs the-benefit of every

possible favorable. Inference, and determine only whether the facts as alleged fit into any cognizable

. . . legal theory." (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Nonnon v City a/New York,

9 NY3d 825 [2007].) In a defamation action, the court must determine if the alleged defamatory .

statements are not actionable as a matter of law. (Steinhilber v Alphonse, 68 NY2d 283 [1986].)

Here, defendants seek dismissal of the amended complaint' as it fails to state a cause .

of action and/or the court lacks personal jprisdiction over the out-of-state defendants.

Loitg~ArmJurisdiction

Many defendants move to dismiss the amended complaint on the ground that the court

lacks personal jurisdiction over the out-of-state defendants under CPLR 9 302, New York's long-arm

statute.

Constitutional due process, requires that' a court have a basis on which to assert its . jurisdiction. Traditionally, this basis was supplied by the party's presence .within the court's

. . geographical jurisdiction. However, the advent of a more mobile soc'iety and the growth of national

markets has made it possible for a substantial volume of business to be transacted within a state

without a party ever entering into th'lt'state. Recognizing this, the U.S. Supreme Court has expanded

the permissible powers of states to obtain personal jurisdiction over non-residents. In International

RLG 115 -13~

Shoe v Washington (326 US 310 [1945]), the U.S. Supreme Court set forth the standard for

determining whether a non-resident may be subjected to the jurisdiction of a state's courts as follows:

"Due process requires o~ly that in order to subject a defendant to a judgment in .personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions offair play and substantial justice."

I (Id. at 316.) !

In a series of decisions, the U.S. Supreme Court has further detailed the essential

considerations to be weighed in determining whether a court had personal jurisdiction over an

out-of-state defendant\ The Court has held that as long as'a party has purposely availed itself of the

benefits of the forum, has sufficient minimum contacts with it and should reasonably expect to defend

its actions there, due process is not offended if that party is subjected to jurisdiction even if not

physically present in that state. (See McGee v International Life Ins. Co., 355 US 220 [1957]; World

Wide Volkswagen Corp. v Woodson, 444 US 286 [1980].)

New York's Long Arm Statute, CPLR S 302, governs personal jurisdiction over a non-

. domiciliary who either "transacts any business" or "commits a tortious act" within the slate. There

is an express exception carved out for defamation cases which cannot form the basis to obtain

jurisdiction through the commission of a tortious act under CPLR S 302(a)(2) and (3) .. However, a

plaintiff in a defamation case may proceed against a non-domiciliary defendant who "transacts any

business" under CPLR S 302(a)(l) .. Defamation cases are treated differently "to reflect the state's

policy of preventing disproportionate restrictions on freed<;,mof expression" (SPCA of Upstate New.

York, Inc. v American Working Collie Assn., 18 NY3d 400, 404 [2012] [citations omitted]). The

Court of Appeals further expounded on these policy concerns as follows:

RLG 116 -14-

"The Legislature has manifested its intention to treat the tort of defamation differently from other causes of action and we believe that, as a result, particular care must be , taken to make certain that non-domiciliaries are not haled into court in a manner that potentially chills free speech without an appropriate showing that they purposefully transacted business here and the proper nexus exists between the transaction and the defamatory statements at issue." , . ,

(Id. at 405-406).

Generally, so long as the defendant's activities in the State of New York we~e

"purposeful" and there is a "nexus" or "substantial relationship" between the transaction and the ) claim asserted, jurisdiction will be invoked for transacting business underCPLR S 302(a)(I). (Id. at

404.) Thus, this Court needs to examine what type of purposeful activities the defendants engaged.

in here that bears a substantial relationship to the alleged defamatory statements.' An added

consideration is how to construe the transaction of business on the internet as it relates to defamation

cases.

One particular federal court examined the issue oflong-arm jurisdiction as it rdates

to conducting business on the internet and concluded that personal jurisdiction is exercised in direct

. proportion to "the nature and quality of commercial activity that an entity conducts on the Internet."

(Zippo MIg. CO. v Zippo Dot Com, Inc., 952 F Supp 1119, 1124 [W.D. PA 1997].) It reviewed the

/ applicable cases and developed a "sliding scak" to measure the commercial activity, which has been

widely'quoted and accepted. (Id.) However, the Second Circuit lias limited its applicability in

defamation cases as "to whether the defendant, through the website, purposefully avail[ ed] himself

of the privilege of conducting activities within New York, thus invoking the benefits and protections

of its laws." (Best Van Lines, Inc. v Walker, 490 F3d 239, 252 [2d Cir. 2007] [citations omitted].)

In other words, it is insufficient to gauge the overall commercial activity of the d~fendant on its

RLG 117 f -15- website alone, without determining whether such purposeful activities in this state were substantially related to the alleged defamatory statements. (SPCA, 18 NY3d at 405-406.).

It is quite clear that defendants" herein who operated legal blogs or posted comments' on those blogs residing out of the country in Canada, or ev~n in the United States ranging from ,

Washington, D.C. and Florida in the east, to Texas and California in the west, had virtually no purposeful activitY or minimum contacts with this state. There was certainly no purposeful activities in this state which were substantially related to the alleged defamatory statements as defendants neither wrote the alleged defamatory statements in this state nor did they direct them to our state alone. The statements were posted on the internet with potential world-wide accessibility.

This Court rejects plaintiffs' primary argument in opposition that defendants received

"commercial benefits" from the hyper-links contained in their websites to invoke long-arm jurisdiction. This connection to New York, if any, is too attenuated to exercise personal jurisdiction over the out-of state defendants. Pl~inly stated, there are insufficient contacts with this state to "hale" into court multiple defendants living thousands of miles away in other states which would "chill" their right to free speech. (SPCA, 18 NY 3d at 405.)

Standard for Defamation Action

To establish a cause of action for defamation, plaintiffs must demonstrate the following elements:

I) a false statement on the 'part of the defendants concerning the plaintiffs; '> . 2) published without privilege or authorization to a third party;

II. This argument does not apply to defendants The Washington Post and Reuters who have not argued that they do not transact business in this state. .

RLG 118 -16-

3) with the requisite level of fault on the part ofthe defendants; and 4) causing damage to plaintiffs' reputation by specia1'harm or defamation per se ,: (See Restatement [Second] of Torts S 558;' Dillon v City a/New York, 261 AD2d 34, 38 [1st Dept

1999].)

CPLR S 30 16(a) requires that the alleged false and defamatory words be specified with ~ I particularity in the complaint. The complaint must also allege the "time, place and manner of the

false statement and to specifY to whom it was made." (Dillon, 251 AD2d at 38 [citations omitted].)

Plaintiffs set forth many statements published by the defendants in print and an on-line

.that they allege are false and defamatory which can be isolated into two discrete categories:

(I) Defendants' alleged mis-characterization of Rakofsky's e-mail request to "trick" a witness and Bean's subsequent motion which Judge Jackson stated raised "ethical issues" ("the trick e~mail, the Bean Motion and Judge Jackson's comments"); and (2) Defendants' incorrectly'reported that Judge Jackson declared a mistrial due to Rakofsky's competence or inexperience ("no mistrial due to incompetence").

(Amended Complaint at ~~ 129-194).

Defendants challenge the sufficiency of these pleadings based on the "fair report"

privilege, the "rep~blication" exception and/or that the' alleged defamatory statements are non-

actionable as expressions of pure opinion which will be discussed below.

, Fair Report Privilege

Defendants assert that the "fair report" privilege bars plaintiffs' defamation claims , ,

under the Civil Rights Law S 74. With the enactment of the.Civil Rights Law S 74 in 1962, the

Legislature created a statutory privilege that prohibits, in relevant part, the maintenance of a civil

action including defamation and other related claims based an the publication of a "fair and true

RLG 119 -17- report" of any judicial proceeding. The apparent purpose of the privilege is to promote the dual , public policy interest of ensuring the free flow of true informatio~ without fear of being sued, and . , ' public dissemination of judicial decisions and proceedings .for proper administration of justice.

(Beary v West Publishing Co., 763 F2d 66 [2nd Cir] cert denied 474 US 903 [1985].)

This privilege has been liberally interpreted to provide broad protection for news reports of judicial proceedi~gs. (ljoly Spirit Assn. for the Unification of World Christianity v New,

York Times Co., 49 NY2'd 63 [1979].) In view of the above purpose and the liberal interpretation, courts have established the meaning of a"fair and true" report as a substantially accurate report. (ld. , at 67, quoting Briarcliff Lodge Hotel, Inc. v Citizen-Sentinel Pubis., 260 NY 106, 118' [1932].)

In contrast, courts have rejected the notion that a news report be tested for literal accuracy because the language should not be "dissected and analyzed with a lexicographer's precision." (Holy Spirit at 68.) The standard must comport with substantial as opposed to literal accuracy because a

"newspaper article [or'oil-line report] is, by its very nature, a condensed of events y,rhichmust, of necessity, refle6t to soine degree the subjective viewpoint of its author." (ld.). Even the failure to report other facts that were favorable to the complainant in the published news report constitutes a fair report where "those omissions did not al~erthe substantially acc,urate character bfthe article."

(McDonald v East Hampton Star, lOAD 3d 639,640 [2d Dept 2004].) In summary, the courts must look for substantial and contextual accuracy of the news report as the standard for determining a 'fair report under the.Civil Rights Law S 74.

In this case, plaintiffs' Amended Complaint and proposed Second Amended

Complaint are replete with hyper-technicaJ allegations that defendants "misrepresented and misquoted" various statements of Rakofsky, Bean and Judge Jackson. (Amended Coinplaint at

RLG 120 -18- ~ 132.) Rather than wading.through the hundreds. of alleged defamatory statements, this Court will analyze the statements through two general categories: (I) the trick e-mail, the Bean motion and , .' .

Judge Jackson's comments, and (2) whether the mistrial was due to incoinpetence .

.A comparison of the initial Washington Post Articles and the subsequent news reports

and comments, and Rakofsky'.s e-mail' to Bean requesting that he "trick" a witness, Bean's later

motion filed' in ~court to obtain compensation for his investigative services and Judge Jackson's

comment that the same raises "ethical issues," reveals that they are a substantially and contextually

accurate report. While the precise words are not exactly identical, they are similar enough to convey

.a fair.report of the Rakofsky e-mail and the Bean moti9n that were inextricably intertwined with the judicial proceedings before Judge Jackson in the Deaner case. Even though the "trick" e-mail, the

Bean motion and Judge Jackson's comments do not portray Rakofskyin a positive light, and

Rakofsky may wish to disavow or interpret them if!.a different way, the defendants were permitted .

to publicly disseminate them as a report of a judicial proceeding.

The second category encompasses the many alleged defamatory statements that Judge

Jackson declared a mistrial due to Rako'fsky' s competence or inexperience. Rakofsky does not deny

Judge Jackson made several comments that he was not competent and too inexperienced to provide

a proper defense to Deaner in a: murder trial.' In fact, during the trial, Judge Jackson had two side-bar

discussions' with Deaner pointedly inquiring whether he was satisfied with Rakofsky's competence

and lack of trial experience. The gravamen of Rakofsky's argument is that there was no causal.

connection between the mistrial.and his competence and inexperience. Rather, Rakofsky contends

that Judge Jackson declared a mistrial based on Rakofsky's own application due to a conflict between.

him and Deaner.

RLG 121 -19-

I " .Rakofsky may be correct that on March 31, 2011 ,he made the initial application to . . Judge Jackson to withdraw as Deaner;s counsel. However, at that point, Judge Jackson inquired:of

Deaner, and Deaner then request~d new counsel. Judge Jackson adjourned,the trial to the next

morning, April'i, 2011, to follow-up onDeaner'srequest for new counsel. On Aprill, 20ll,Judge

Jackson granted Deaner's request for new counsel after making considerable comments concerning

Rakofsky's competence and lack oftiial experiepce. You can not look at Judge Jackson's comments

in isolation, but incontext considering'all of his comments and Rakofsky's, trial performance. The

clear import of Judge Jackson's rulings was to excuSe Rakofsky due to his lack of competence and

. . . -'!. inexperience to defend Deaner in a murder trial. It is acknowledged that the Deaner murder trial was

\ , - .' I Rakofsky's first trial in a foreign jurisdiCtion and with which he was totally unfamiliar, and Judge

.' , ", - , Jackson was vigilant in protecting Deaner's right to effective assistange of counsel.

~ignificantly, the report,ed fact that Judge Jackson declared a mistrial in the Deaner

case was (lot'defamatory because even Rakofsky initially celebrated the mistrial. a~ a positive

development in his career. In other words, defendants' report that a mistriitl occurred does not ; . .

constitute defamation. Instead, the reported statements that Rakofsky was allegedly not co~pete'nt,

inexperienced and unethical are the operative words which may give rise to defamation, 'e~ceptthat .. j, said content was privileged under the Civil Right Law S 74,

Republication Exception

Some defendants also assert that plaintiffs' defamation claimS are barred by' the

. "republication" exception or otherwise known as the "wire service defense.'.' It is well settled that a

republisher may rely on the research ofthe original publisher, "abs,ent a showing that the republisher . '.

RLG 122 -20-

'had, or should have had, substantial reasons to question the accuracy ofthe articles or the bo~afides

of [the] reporter.' " (Karaduman vNewsday, Inc., 51 NY2d 530, 550 [1980], quoting Rinaldi v Holt, , .. Rinehart & Winston, 42 NY2d 369, 383 [1971].) This exception applies where one news agency , republishes the content of a news story that was originally published by another reputable news

agency or source. (Zetes v Richman, 86 AD2d 746 (4th Dept 1982] [defendant was immune from

liability for republishing story originally published by United Press International]; Rust

Communications Group, Inc. v 70 State St. Travel Serv., 122 AD2d 584 [4th Dept 1986].)

In this case, many defendants'republished direct quotes or summarized the content of , . articles thaI were originally published by The Washington Post on April 1st and 9th, 201 J. These . .

defendants were entitled to rely upon the research and reporting of The Washington Post, a reputable

n'ews agency, which was clearly a substantially accurate report as stated above, in their republication.

To the extent that defendants republished content from The W'ashington Post Articles, plaintiffs,'

claims for defamation are barred by the "republication" exception,

Expressions of Pure Opinion

To the extent the defendants are not covered. by the fair report privilege or the i, republication exception, defendants assert that the statements complained of are non-actionable as I '

expressio~s of pure opinion.

About two years ago, the Appellate Division, First Department (Saxe, J.) wrote a

scholarly decision anaJyzing whether certain comments posted on the internet were actionable as

defamatory fay~ual statements or just pure opinion. (Sandals Resorts Inti., Ltd., v G,oogle, Inc.,

86 AD3d 32 [1st Dept 2011] [on-line e-mail posting that impliedly accused the owners ofa Jamaican

RLG 123 -21- resart .ofracism was nan-actianable apinian ].) The FirstDepartnient explained that defamatian must be premised an, p'ublished assertians .affact rather than an assertians .of apinian. (Id., at 38.) In the leading case .of Steinhilber v Alphonse ,(68 NY2d 283 [1986]);the Caurt .of Appeals articulated the standard far distinguishing between fact and apinian as fallaws:

,,"A 'pure apinian' is a statement .of apinian which is accampanied by a recitatian .of the facts upan which iUs based. An apinian nat accampanied by such a factual

recitatianmay, nevertheless, .be 'pure apinian'ifit daes nat imply that iUs based. upan .an undisclased fact. When, hawever, the statement .of apinian implies that it is based upan facts which justifY the apinian but are unknawn ta those reading .or hearing it, it is a 'mixed apinian' and is actianable. The actianable element afa 'mixed apinian' is nat the false apinian .itself - it is the implicatian that the speaker knaws certain facts, unknawn ta his audience, which support his apinian and are detrimental ta the persan abaut wham he is speaking."

(Id. at 289-290 [citatians and faatnate .omitted].)

Based an lang-standing precedent, the First Department emphasized that the caurt needs ta examine the entirety .of the wards, including its tane and purpase, as well as the "broader . . sacial cantext" ta determine whether the cantent .of the published statement canstitutes defamatian.

(Sandals, 86 AD3d at 41.) The "braader sacial c'antext" is .one .of ~our factars enunciated !:lythe federal caurts ta distinguish between protected apinians and unprotected factual assertians. (OUman v Evans, 750 F2d 970 (DC Cir 1984), cert denied 471 US.1127 [1985].).

This determinatian is quite a camplex balancing act as "even apparent statements .of fact may assume the character .of statements .of apinian, and thus privileged, when made in public

. . . debate, heated labar disputes, or ather circumstances in which the audience may anticipate [the use] . .ofepithets, fiery rhetaric .orhyperb.ole." (Steinhilber, 68 NY2d at 294 [citatians .omitted].) With this in mind, the proper inquiry is, "whether the reasanable reader wauld have believed that the challenged statements were canveying facts abatit the ... plaintifC' (Sandals, 86 AD3d at 42, quating Brian v , . ..

RLG 124 -22-

Richardson, 87 NY2d 46,51 [1995], which quoted Immuno AG v Moor~Jankowski, 77 NY2d 235,

254 [1986].)

The Appellate Division seemed to make a distinction between traditional print outlets I -i and on-line posts and e-mails when considering the "broader social context" of the communications.

It stated that "[t]he culture oflnternet communications, as distinct from that of print media such as

newspapers and magazines, has been characterized as encouraging a " 'freewheel;~g, anything goes

writing style.' " (Sandals, 86 AD3d at 43 [citations omitted].). The Appellate Division observed that

readers give less credence to allegedly defamatory comments published on the Internet, as well in e-

mail posts or blogs, than in other contexts. (ld at 44.) It concluded that "the anonymity of the e-mail

makes it mOre likely that a reasonable reader would view its assertions with some skepticism and tend

to treat its contents as opinion rather than as fact." (ld)

In this case, a review of the complained of statements show that they are non-

actionab!e opinions. This Court did not view the words in isolation, but considered the entirety of

the communications which contained references to the Washington Post Articles or contained hyp~r- .

links to them. These references and hyper-links provide sufficient basis for the reader to understand

the facts upon which they were based.

The hostile tone of the complained statements indicates that the writer was expressing

his or her strongly-held personal view as to whether Rakofsky: as a newly minted lawyer who may

have ma~keted himself as an experienced litigator, was justified in representing Deaner as lead'

. counsel in a murder trial without any trial experience, and .terminating the investigator without

compensation as a result of his refusal to comply with Rakofsky's alleged instruction to "trick" a

witness at trial which Judge Jackson stated raised "ethical concerns." The purpose of the on-line,

RLG 125 -23- posts was to engage readers in open and unfettered critical discussion of ideas and to express opinions on those topics.

When viewed from the broader social context, it is readily apparent that the on-line commentary and posts "on legal blogs discussing Rakofsky were exchanges of opinions between criminal defense lawyers and other individuals who were concerned that Deaner was denied the constitutional right to effective assistance of counsel for his defense that has been the hallmark of our criminal justice system for more than fifty years. (See Gideon v Wainright, 372 US 335 [1963].) It was essentially a public debate on the internet with on-line users posting their partially anonymous statements In response to the Washington Post Articles and later articles and commentary featured on the legal blogs. 12 The average reader would view its assertions with some reservations, as did a

" - , minority of commentators who defended Rakofsky's actions, and treat its contents as mere opinion rather than as a"statement of fact.

Plaintiffs allege that defendants' false statements subjected him to public ridicule.

In order to protect our prized First Amendment rights to free speech and press as well as debate on public issues, courts have insulated defendants from liability for stating o"pinions that an?ther person was "immoral" and "unethical" (Hollander v Cayton, 145 AD 2d 605, 606 [2d Dept 1988]), and for

"lying, deceiving, [and] making false promises" (Epstein v Board of Trustees of Dowling College,

152 AD 2d 534, 535 [2d Dept] 989]). Plaintiffs may not recover from defendants for expressing their opinions of Rakofsky' s performance on the Deaner case no matter how unreasonable or erroneous_

12. Defendants Banned Ventures LLC and Bannination, who are online service providers operating essentially a message or virtual bulletin board, are also immune 'from liability for the statements made by "tarrant84" on their website under the Communications Decency Act, codified at 47 USC S 230. (See Shiamili.v The Real Estate Group of New York, Inc., 17 NY3d 281 [2011].)

RLG 126 -24-

Rakofsky believes them to be. (See New York Times Co..v Sullivan, 376 US 254, 271-272 [1964];

Rinaldi v Holt, Rinehart & Winston, 42 NY 2d at 380-381.)

Intentional Infliction of Emotional Distress

Plaintiffs asserted a second cause of action for intentional infliction of emotional

.. distress premised on the same facts underpinning the defamation claims. In order to prove such a

cause of action, plaintiffs must demonstrate the following elements:

(I) extreme and outrageous conduct; . (ii) intent to cause, or disregard of a substantial probability of causing severe emotional distress; (iii) a causal connection between the conduct and injury; and .( (iv) severe emotional distress.

(Howell v New York Post Co., Inc., 81 NY2d 115, 121 [1993]; Restatement [Second] ofTorts S 46.)

In this case, the Amended Complaint and proposed Second Amended Complaint fail

to state a cause of action as to the elements stated above. Specifically, the pleadings falls short of the

extreme an

Corp., 65 NY2d 135 [1985].) In addition, plaintiffs can not recover for intentional infliction of

emotional distreSs caused by duplicative claims of defamation alleged in the pleadings. (Manno v

Hembrooke, 120 AD2d818, 820 [3d Dept 1986]; Levin v McPhee, 917 F Supp 230, 242 [SDNY

1996], affd 119 F3d 189 [2d Cir 1997].) This conclusion is based on the well settled law that '" a

cause of action fot intentional infliction of emotional distress .should not be entertained 'where the

conduct complained of falls well within the ambit of other traditional tort liability.' " Butler v

Delaware Otsego Corp., 203 AD2d 783,784 [3d Dept 1994] [citations omitted].)

,

RLG 127 -25-

Intentional Interference With Contract

Plaintiffs asserted a third cause of action for intentional interfere 'nee with contract. based again on the same facts underpinning the defamation claims. To establish such a cause of , action, plaintiffs must demonstrate the following elements:

(i) a valid contract exists; (ii) a third party had knowledge of the contract; (iii) that third party intentionally procured the breach of the contract; and (iv) caused damage to plaintiffs.

(Israel v Wood Dolson Co., 1NY2d116, 120 [1956]; Haag v Chancellor, Inc., 246 AD2d 224, 228

) [lstDept 1998].)

In this case, the Amended Complaint a~d proposed Second Amended Complaint fail to state a cause of action as to the elemerits stated above. Specifically, the plaintiffs failed to plead the existence of any specific valid contract between plaintiffs and their clients, that defendants had . ". . any knowledge of such undisclosed valid contract, that defendants intentionally procured the breach of such contract, and how plaintiffs were thereby damaged. Plaintiffs' proposed claim forintentional interference with,prospective economic advantage would also fail to state a cause of action as they failed to properly plead that defendants employed "wrongful means" which includes "physical violence, fraud or misrepresentation, civil suits and criminal prosecutions and some degree of economic pressure." (Guard Life Corp. v S Parker Hardware Mfg. Corp., 50 NY2d 183, 191 \. [1980].)

Civil Rights Law SS 50 and 51

Plaintiffs asserted a fourth cause of action for violation of Ciyil Rights Law ~~ 50 and

51 also wnolly premised on the same facts underpinning the defamation claims.

RLG 128 -26- .

New York does not recognize a:common-law right to privacy. (Roberson v Rochester . J

Folding Box Co., 171 NY 538 [1902].) In order to provide a limited right to privacy, the Legislature

enacted the Civil Rights Law SS 50 and 51 to protect the usage of a person's "name, portrait or

picture"for "advertising" or "trade" purposes without "written consent of such person." This statute

has been narrow construed to meetit~ limited objective to prohibit commercial appropriation of a

person's name and likeness. (Freihofer v Hearst Corp., 65 NY2d 135 [1985].) T~ese sections also , do not apply to reports of "newsworthy events or matters of public in~erest" otherwise known as the . . newsworthy exception. (Messenger v Gqmer + Jahr Print. & Pub!., 94 NY2d 436, 441 [2000].) • r To foster freedom of expression, the meaning of "newsworthiness" has been broadly construed to . , ,

permit a wide and liberal interpretation. (Id.) I In this case, it is abundantly clear that coverage of a murder trial in the Deaner case

comes within the broadly construed newsworthy exception as a report of a newsworthy event or a

matter of public concern. Thus, plaintiffs' fourth cause of action fails to state a claim for a violation

of Civil Rights Law SS 50 and 51..

New Claims: Injurious Falsehood. Prima Facie Tort & Negligence'

Plaintiffs also seek leave to assert several new causes of action for injurio~s falSehood,

pri~a facie tort and negligence. With respect to injurious falsehood, plaintiffs' claims are duplicative

of their claims of defamation'which ha~e been found to fail to state a cause of action: The same holds

true for the both injurious falsehood and need not be repeated .

.While plaintiffs withdrew their new claim of negligence in open court on April 8,

2013, which was primarily premised on the rejected defamation theory, they would nonetheless be

RLG 129 -27-

~nable to recover for negligence because the facts alleged are "inseparable from the tort of - , defamation, and as such, plaintiftI s] [are] relegated to any remedy that would have been availabl~ on

that basis." (Butler, 203 AD2d at 785; see also Amodei v New York State Chiropractic Assn.; 160

AD2d 279 [ist Dept 1990].) In other words, plaintiffs can not simply transpose the defamation claim

into a contriyed negligence claim. (Colon v c:..ityof Rochester, 307 AD2d 742 [4th Dept 2003],

lafallo vNationwide Mutual Fire Ins. Co., 299 AD2d 925, 925 [4th Dept 2002] ["a defamation cause

of action is not transformed into one for negligence merely by casting it as a negligence cause of

action"],)

In order to prove a cause of action for prima facie tort, plaintiffs must.demonstrate the

following elements:

(i) the intentional infliction of harm; " (ii) which results in special damages; (iii) without excuse or justification; -and (iv) by an act or series of acts which would otherwise be lawful.

(Freihofer, 65 NY2d at 142-143.) The failure to allege special damages would require dismissal of

the claim. (Id.) This cause of action would also fail as a "catch-all alternative" for other unsupported

tort claims because it cannot be "a basis to sustain a pleading which otherwise fails to state a cause

. of action in conventional t~rt." (ld. at 143.)

Here, plaintiffs' claim of prima facie tort must fail because they cannot demonstrate

the first element of intentional infliction of harm which was inextricably intertwined with the

dismissed second cause of action for intentional infliction of emotional distress. Plaintiffs also failed

to sufficiently plead special damages which is a critical elemeht of prima facie tort. Most importantly,

defendants have set forth a legally cognizable excuse and justification such as the content of the

RLG 130 -28- comments and reportSwere newsworthy and privileged pursuant to Civil Rights Law 9 74 as set forth above.

Sanctions

Many defendants seek to impose sanctions on plaintiffs and plaintiffs' attorney for commencing this allegedly "frivolous" action and awarding defendants reasonable attorney's fees and costs pursuant to CPLR 9 8303-a and/or 22 NYCRR 9 130-1.1. Plaintiffs also seek to impose sanctions against Marc J. Randazza, Esq. ("Randazza"), "for frivolous conduct undertaken to harass and/or maliciously injure ,the plaintiff." ,

C;PLR 9 8303-a provides for an award of mandatory costs and fees for making

"frivolous" claims. In order to meet this defiriition of frivolousness under this statute; a court must find either that (I) the "claim ... was commenced, used or continued in bad faith, solely to delay or prolong, the resolution of the litigation or to harass or maliciously injure another';; or (2) "the claim

.'.. was commenced or continued in bad faith without any reasonable basis in'law or fact and could not be supported by ,a good faith argument for an extension, modification or reversal of existing law."

CPLR 9 8303-a( c)(1),(ii).

Pursuantto 22 NYCRR 9130.1-1, a court, in its discretion, may also impose financial sanctions upon any party who engages in frivolous conduct. Conduct is frivolous if: (I) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification ,or reversal of existing law; (2) it is undertaken primarily to delay ?r prolong the resolution of the litigation, or to 'harass or maliciously injure another; or (3) it asserts material factual statements that arefalse. (22 NYCRR 9130.1-1 (c](1-3].) In determining whether theeonduct was frivolous, "the court shall consider, among other issues the circumstances under whicr th~ conduct

RLG 131 -29-

.took place, including the time available for investigating the legal or factual basis of the conduct, and

whether or not the conduct was continued when its lack of legal or factual basis was apparent or

should have been apparent, cir was brought to the attention of counselor the party." (22 NYCRR

~130.l-I[c][3].)

( Defendants assert that plaintiffs commenced this action and continued this action in , I .

bad faith. Moreover, defendants argue that plaintiffs knew or should have known that they did not

.have a good faith basis. in law or fact for any of the .original four causes of action and the proposed.

three new claims. Plaintiffs contend that Randazza screamed expletives at Rakofsky and illegally

threatened to commence a "wiretapping civil suit"against plaintiffs former counsel, Richard D. . . /

Borzouye, Esq. ifhe opposed Randazza's motion to be admitted pro hac vice to practice law in this'

state.

Plaintiffs have several redeeming arguments to avoid sanctions. First, there was some

basis in fact for plaintiffs to argue that defendants did not fairly report Judge Jackson's comments as

to the causeofihe mistrial. It Is uncontroverted that Rakofsky initially requested a mistrial due to a

. break-down of communications between him and his client. The record is unclear as to whether

Judge Jackson .considered Rakofsky's request in isolation, or in conjunction. with later comments

concerning Rakofsky's trial performance, wI1,enJudge Jackson ultimately declared a mistrial. Second,

. plaintiffs partially acted in good faith in withdrawing the new claim of negligence. Third, there is a

fine legal line for interpretation of alleg~d actionable defamatory statements offact as opposed to non-

actionable pure opinion statements. In this regard, plaintiffs made colorable legal arguments that

some of the alleged def~atory material included actionable statements of fact or "mixed opinion"

RLG 132 -30-

that may have been sufficient to survive the dismissal motions. Fourth, some.ofthe statements were

extremely offensive or unnecessarily derogatory.

There are also no grounds to impose sanctions on Randazza. Plaintiffs opposed

Randaiza's motionl3 for admission pro hac vice with essentially the same reasons as this instant I motion for sanctions. About two years ago by decision and order dated September 15, 20 11, the Hon.

Emily Jane Goodman, 1.S.C., granted 'Randazza's motion over plaintiffs' objection. While the

previous motion was different than the instant one, Justice Goodman necessarily found that

Randazza's conduct was acceptable to practice law in this state, and impliedly not sanctiqnable.

In any event, under these circumstances, no sanctions are warranted about two years later. .

Conclusion

, Bas~d on the foregoing, it is hereby

ORDERED, that defendants' pre-answer motionS to dismiss under sequence numbers

002,004,005,006,007,008,009,010,014,015; 016, 017 and 018 are granted; and it is further

ORDERED, that defendants' motions under sequence numbers 007, 010,019 and 020,

pursuant CPLR S 8303-a and/or 22 NYCRR S 136-1.1, imposing sanctions on plaintiffs and

plaintiffs' attorney for commencing this allegedly "frivolous" action and awarding defendants / reasonable attorney's fees and costs are denied; and it is further

ORDERED, that plaintiffs' cross-motion pursuant to 22 NYCRR S 130-1.1, awarding.

sanctions against Marc 1. Randazza, Esq., "for frivolous conduct undertaken to harass and/or

maliciously injure the plaintiff," is denied; and it is further

13. Motion Sequence Number 001.

RLG 133 -31-

ORDERED, that the branch of plaintiffs' cross-motion pursuant to CPLR S 100I(a), adding WP Company LLC as a necessary party, is denied; and it is further -' . ORDERED, that the branch of plaintiffs' cross-motion pursuant to CPLR S 3025(b), granting plaintiffs leave to serve and file a Second Amended Verified Complaint, is denied; and it is further

ORDERED, that the branch of plaintiffs' cross-motion pursuantto CPLR SS 3217 and

2101 (c), permitting plaintiffs to discontinue this action against eight defendants who have settled with them and to delete their names from the caption, is denied without prejudice with leave to renew upon plaintiffs either submitting stipulations of discontinuance or at least specifically stati~g the nam~s of the eight settling defendants; and it is further

ORDERED, that the branch of plaintiffs' cross-motion pursuant to CPLR ~ 3215, granting plaintiffs a default judgment against seven defendants on the issue ofliability and setting this matter down for an inquest on the assessment of damages, is denied without' prejudice (and due consideration if it is appropriate to seek this relief again based on the rulings herein) as plaintiffs failed to both list the names of the defaulting defendants and to provide the requisite specificity to the alleged defaulting defendants that plaintiffs were seeking default judgments against them.

Settle Order" within thirty (30) days of entry of this decision and order.

The foregoing constitutes the decision and order of this Court.

Dated: New York, New York ~ {(A April 29, 2013 ,Hon. Shlomo S. ~agler, J.S.C.

14. This Court respectfully requests that all moving defendants submit only one combined notice (or cross-notice) of settlement to avoid duplication and preserve limited'judicial resources. Plaintiffs may submit a separate notice (or cross-notice) of settlement.

RLG 134 ! "#$%&#!'())!*+,!-./0"#$%&+12!3+$#24!! "#5#16)+74!8(9:#$;!%$?@ABCD,,,,,,,,,,! ! @*! @>B! 1#)%&($5! &+! E(F()! %E&(+$2;! G1+F(<($5! (77:$(&H! I1+7! E(F()! %E&(+$!I+1!E#1&%($!E)%(72!6%2#9%G
!R.S4!"&%&:!+I!*#F%<%!TUUS4!G,!TR/R;!*D"!VT,/RWX VT,/SYQ! @! "M@AA! )%K2:(&! (2! E9%1%E
(Z#(1,!-YT-QQ* !B9#!*($&9!>(1E:(&!>+:1&!+I!@GG#%)2!1#E#$&)H!9#)(1E:(&!%)2+!9#)

RLG 135 ! !"!#!"! ! $%! $&'(%)! '*! (+! )'! ,-./...! $%0! $%1! 2(34! $005)5'%$6! 78658*! $2! )48! 3'(7)! 088&2! +7'+87!)'!+(%524!$%0!08)87!)48!*565%9!'*!*75:'6'(2!'7!:8;$)5'(2!&')5'%2?@ABACDEB!"!F$))87!5%!!"#$%$&'()#'*+!52!%8GH!&$))87!I8)G88%!I7$3J8)2!!'&5))80!&$)875$6"!52!&$)875$6!)'!I8!'&5))80

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

! -

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

! -

RLG 138 Code of Civil Procedure – Section 425.16 California’s Anti-SLAPP Law

Code of Civil Procedure – Section 425.16.

(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

(b) (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.

(c) (1) Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5. (2) A defendant who prevails on a special motion to strike in an action subject to paragraph (1) shall not be entitled to attorney’s fees and costs if that cause of action is brought pursuant to Section 6259, 11130, 11130.3, 54960, or 54960.1 of the Government Code. Nothing in this paragraph shall be construed to prevent a prevailing defendant from recovering attorney’s fees and costs pursuant to subdivision (d) of Section 6259, 11130.5, or 54690.5.

(d) This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.

(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(f) The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the

RLG 139 court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.

(g) All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.

(h) For purposes of this section, “complaint” includes “cross-complaint” and “petition,” “plaintiff” includes “cross-complainant” and “petitioner,” and “defendant” includes “cross-defendant” and “respondent.”

(i) An order granting or denying a special motion to strike shall be appealable under Section 904.1.

(j) (1) Any party who files a special motion to strike pursuant to this section, and any party who files an opposition to a special motion to strike, shall, promptly upon so filing, transmit to the Judicial Council, by e- mail or facsimile, a copy of the endorsed, filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, including any order granting or denying a special motion to strike, discovery, or fees. (2) The Judicial Council shall maintain a public record of information transmitted pursuant to this subdivision for at least three years, and may store the information on microfilm or other appropriate electronic media.

History of statute:

1992 — Senate Bill 264 (Lockyer). For a list of organizations and newspapers that supported enactment of the original statute, see Supporters of 1992 Anti-SLAPP Bill.

1993 — The statute was amended to require award of costs and attorney fees to the plaintiff if the court finds that a special motion to strike is frivolous or solely intended to cause unnecessary delay.

1997 — Senate Bill 1296 (Lockyer). The statute was amended in light of appellate court opinions that had narrowly construed application of the statute to disputes involving matters of “public interest”. In amending the statute, the Legislature clarified its intent that any conduct in furtherance of the rights of petition or free speech is protected under the anti-SLAPP law.

1999 — Assembly Bill 1675 (Assembly Judiciary Committee). Under the original statute, a defendant whose special motion to strike a complaint was denied could challenge the denial only through a petition for a writ in the Court of Appeal. Writs are discretionary, disfavored, and rarely successful. If, however, a plaintiff’s complaint were dismissed pursuant to a special motion to strike, the plaintiff was able to appeal the dismissal immediately. Thus, the statute was amended to give the SLAPP target — the person whom the anti-SLAPP law was designed to protect — the same ability as the filer of the SLAPP to challenge an adverse trial court decision. See also Supporters of AB 1675.

2005 — Assembly Bill 1158 (Lieber). The statute was amended to overrule the decision by the California Supreme Court in Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, which held that the trial court’s erroneous denial of an anti-SLAPP motion constitutes probable cause for filing and maintaining a SLAPP, as well as the decisions in Decker v. The U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, and Fair Political Practices Commission v. American Civil Rights Coalition, Inc. (2004) 121 Cal.App.4th 1171, which held that the 30-day period in which to schedule a hearing on an anti-SLAPP motion is jurisdictional.

2009 — The statute was amended to add section 425.16(c)(2), which provides that a defendant who prevails on an anti-SLAPP motion may not be awarded fees on claims of violation of the public records

RLG 140 act or open meetings law.

Site last updated May 8, 2013 @ 10:57 am; This content last updated June 6, 2012 @ 1:33 pm

RLG 141 Legislature Home | Senate | House of Representatives | Contact Us | Search | Help | Mobile

RCWs > Title 4 > Chapter 4.24 > Section 4.24.525 Inside the Legislature Find Your Legislator 4.24.520 << 4.24.525 >> 4.24.530 Visiting the Legislature Agendas, Schedules and Calendars RCW 4.24.525 Bill Information Public participation lawsuits — Special motion to Laws and Agency Rules Legislative Committees strike claim — Damages, costs, attorneys' fees, other Legislative Agencies relief — Definitions. Legislative Information Center E-mail Notifications (1) As used in this section: Civic Education (a) "Claim" includes any lawsuit, cause of action, claim, cross-claim, counterclaim, or other judicial History of the State pleading or filing requesting relief; Legislature (b) "Government" includes a branch, department, agency, instrumentality, official, employee, agent, Outside the Legislature or other person acting under color of law of the United States, a state, or subdivision of a state or Congress - the Other other public authority; Washington TVW (c) "Moving party" means a person on whose behalf the motion described in subsection (4) of this section is filed seeking dismissal of a claim; Washington Courts OFM Fiscal Note Website (d) "Other governmental proceeding authorized by law" means a proceeding conducted by any board, commission, agency, or other entity created by state, county, or local statute or rule, including any self-regulatory organization that regulates persons involved in the securities or futures business and that has been delegated authority by a federal, state, or local government agency and is subject to oversight by the delegating agency.

(e) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, or any other legal or commercial entity;

(f) "Responding party" means a person against whom the motion described in subsection (4) of this section is filed.

(2) This section applies to any claim, however characterized, that is based on an action involving public participation and petition. As used in this section, an "action involving public participation and petition" includes:

(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive, or judicial proceeding or other governmental proceeding authorized by law;

(b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding or other governmental proceeding authorized by law;

(c) Any oral statement made, or written statement or other document submitted, that is reasonably likely to encourage or to enlist public participation in an effort to effect consideration or review of an issue in a legislative, executive, or judicial proceeding or other governmental proceeding authorized by law;

(d) Any oral statement made, or written statement or other document submitted, in a place open to the public or a public forum in connection with an issue of public concern; or

(e) Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern, or in furtherance of the exercise of the constitutional right of petition.

RLG 142 (3) This section does not apply to any action brought by the attorney general, prosecuting attorney, or city attorney, acting as a public prosecutor, to enforce laws aimed at public protection.

(4)(a) A party may bring a special motion to strike any claim that is based on an action involving public participation and petition, as defined in subsection (2) of this section.

(b) A moving party bringing a special motion to strike a claim under this subsection has the initial burden of showing by a preponderance of the evidence that the claim is based on an action involving public participation and petition. If the moving party meets this burden, the burden shifts to the responding party to establish by clear and convincing evidence a probability of prevailing on the claim. If the responding party meets this burden, the court shall deny the motion.

(c) In making a determination under (b) of this subsection, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

(d) If the court determines that the responding party has established a probability of prevailing on the claim:

(i) The fact that the determination has been made and the substance of the determination may not be admitted into evidence at any later stage of the case; and

(ii) The determination does not affect the burden of proof or standard of proof that is applied in the underlying proceeding.

(e) The attorney general's office or any government body to which the moving party's acts were directed may intervene to defend or otherwise support the moving party.

(5)(a) The special motion to strike may be filed within sixty days of the service of the most recent complaint or, in the court's discretion, at any later time upon terms it deems proper. A hearing shall be held on the motion not later than thirty days after the service of the motion unless the docket conditions of the court require a later hearing. Notwithstanding this subsection, the court is directed to hold a hearing with all due speed and such hearings should receive priority.

(b) The court shall render its decision as soon as possible but no later than seven days after the hearing is held.

(c) All discovery and any pending hearings or motions in the action shall be stayed upon the filing of a special motion to strike under subsection (4) of this section. The stay of discovery shall remain in effect until the entry of the order ruling on the motion. Notwithstanding the stay imposed by this subsection, the court, on motion and for good cause shown, may order that specified discovery or other hearings or motions be conducted.

(d) Every party has a right of expedited appeal from a trial court order on the special motion or from a trial court's failure to rule on the motion in a timely fashion.

(6)(a) The court shall award to a moving party who prevails, in part or in whole, on a special motion to strike made under subsection (4) of this section, without regard to any limits under state law:

(i) Costs of litigation and any reasonable attorneys' fees incurred in connection with each motion on which the moving party prevailed;

(ii) An amount of ten thousand dollars, not including the costs of litigation and attorney fees; and

(iii) Such additional relief, including sanctions upon the responding party and its attorneys or law firms, as the court determines to be necessary to deter repetition of the conduct and comparable conduct by others similarly situated.

(b) If the court finds that the special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award to a responding party who prevails, in part or in whole, without regard to any limits under state law:

(i) Costs of litigation and any reasonable attorneys' fees incurred in connection with each motion on which the responding party prevailed;

(ii) An amount of ten thousand dollars, not including the costs of litigation and attorneys' fees; and

RLG 143 (iii) Such additional relief, including sanctions upon the moving party and its attorneys or law firms, as the court determines to be necessary to deter repetition of the conduct and comparable conduct by others similarly situated.

(7) Nothing in this section limits or precludes any rights the moving party may have under any other constitutional, statutory, case or common law, or rule provisions.

[2010 c 118 § 2.]

Notes: Findings -- Purpose -- 2010 c 118: "(1) The legislature finds and declares that:

(a) It is concerned about lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances;

(b) Such lawsuits, called "Strategic Lawsuits Against Public Participation" or "SLAPPs," are typically dismissed as groundless or unconstitutional, but often not before the defendants are put to great expense, harassment, and interruption of their productive activities;

(c) The costs associated with defending such suits can deter individuals and entities from fully exercising their constitutional rights to petition the government and to speak out on public issues;

(d) It is in the public interest for citizens to participate in matters of public concern and provide information to public entities and other citizens on public issues that affect them without fear of reprisal through abuse of the judicial process; and

(e) An expedited judicial review would avoid the potential for abuse in these cases.

(2) The purposes of this act are to:

(a) Strike a balance between the rights of persons to file lawsuits and to trial by jury and the rights of persons to participate in matters of public concern;

(b) Establish an efficient, uniform, and comprehensive method for speedy adjudication of strategic lawsuits against public participation; and

(c) Provide for attorneys' fees, costs, and additional relief where appropriate." [2010 c 118 § 1.]

Application -- Construction -- 2010 c 118: "This act shall be applied and construed liberally to effectuate its general purpose of protecting participants in public controversies from an abusive use of the courts." [2010 c 118 § 3.]

Short title -- 2010 c 118: "This act may be cited as the Washington Act Limiting Strategic Lawsuits Against Public Participation." [2010 c 118 § 4.]

RLG 144 2011 ORS § 31.150! Special motion to strike • when available • burden of proof

(1) A defendant may make a special motion to strike against a claim in a civil action described in subsection (2) of this section. The court shall grant the motion unless the plaintiff establishes in the manner provided by subsection (3) of this section that there is a probability that the plaintiff will prevail on the claim. The special motion to strike shall be treated as a motion to dismiss under ORCP 21 A but shall not be subject to ORCP 21 F. Upon granting the special motion to strike, the court shall enter a judgment of dismissal without prejudice. If the court denies a special motion to strike, the court shall enter a limited judgment denying the motion.

(2) A special motion to strike may be made under this section against any claim in a civil action that arises out of:

(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law;

(b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive or judicial body or other proceeding authorized by law;

(c) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or

(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(3) A defendant making a special motion to strike under the provisions of this section has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection (2) of this section. If the defendant meets this burden, the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case. If the plaintiff meets this burden, the court shall deny the motion.

(4) In making a determination under subsection (1) of this section, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

RLG 145 (5) If the court determines that the plaintiff has established a probability that the plaintiff will prevail on the claim:

(a) The fact that the determination has been made and the substance of the determination may not be admitted in evidence at any later stage of the case; and

(b) The determination does not affect the burden of proof or standard of proof that is applied in the proceeding. [Formerly 30.142; 2009 c.449 §1]

• • •

Notes of Decisions

Require!ment that special mo!tion to strike be treated as mo!tion to dismiss under ORCP 21A incorporates require!ment that mo!tion be filed before responsive pleading. Horton v. Western Protector Insurance Co., 217 Or App 443, 176 P3d 419 (2008)

Appellate review of denial of special mo!tion to strike is available only if mo!tion is limited to purely legal issues and disputed or undisputed facts are imma!te!ri!al. Staten v. Steel, 222 Or App 17, 191 P3d 778 (2008), Sup Ct review denied

Related Statutes!

31.152 Time for filing special mo!tion to strike

31.155 Exempt ac!tions

1 Legislative Counsel Committee, CHAPTER 31—Tort Actions, http://!www.!leg.!state.!or.!us/!ors/!031.!" html (2011) (last ac!cessed Mar. 25, 2012).

2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat!utes, Cumulative Supplement - 2011, Chapter 31, http://!www.!leg.!state.!or.!us/!ors/!annos/!031ano.!htm (2011) (last ac!cessed Mar. 25, 2012).

3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.

Currency Information by WebLaws.org www.oregonlaws.org

RLG 146 Following the progress of the Texas Citizen's Particiaption Act (Anti-SLAPP)

The Texas Citizens Participation Act

The Texas Citizens Participation Act was signed into law, effective immediately, on June 17, 2011.

If you have been threatened with a sued while exercising your First Amendment Rights, be sure to tell your attorney about this new law. For more information, contact First Amendment Attorney Laura Prather (http://www.haynesboone.com/Laura-Prather/), [email protected], or Alicia Calzada (mailto:[email protected]), [email protected].

We are keeping track of how this law helps Texans. Send us your story about an experience with a SLAPP suit. Send stories to Alicia Calzada (mailto:[email protected]).

Support the effort to get a Federal Anti-SLAPP (http://www.anti-slapp.org/) law passed.

Below is the final text of the Citizens Participation Act as passed by the 2011 legislature and signed into law effective June 17, 2011.

H.B. No. 2973

AN ACT relating to encouraging public participation by citizens by protecting a person’s right to petition, right of free speech, and right of association from meritless lawsuits arising from actions taken in furtherance of those rights.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. This Act may be cited as the Citizens Participation Act.

SECTION 2. Subtitle B, Title 2, Civil Practice and Remedies Code, is amended by adding Chapter 27 to read as follows:

CHAPTER 27. ACTIONS INVOLVING THE EXERCISE OF CERTAIN CONSTITUTIONAL RIGHTS

Sec. 27.001. DEFINITIONS. In this chapter:

RLG 147 (1) ”Communication” includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.

(2) ”Exercise of the right of association” means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.

(3) ”Exercise of the right of free speech” means a communication made in connection with a matter of public concern.

(4) ”Exercise of the right to petition” means any of the following:

(A) a communication in or pertaining to:

(i) a judicial proceeding;

(ii) an official proceeding, other than a judicial proceeding, to administer the law;

(iii) an executive or other proceeding before a department of the state or federal government or a subdivision of the state or federal government;

(iv) a legislative proceeding, including a proceeding of a legislative committee;

(v) a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity;

(vi) a proceeding in or before a managing board of an educational or eleemosynary institution supported directly or indirectly from public revenue;

(vii) a proceeding of the governing body of any political subdivision of this state;

(viii) a report of or debate and statements made in a proceeding described by Subparagraph (iii), (iv), (v), (vi), or (vii); or

(ix) a public meeting dealing with a public purpose, including statements and discussions at the meeting or other matters of public concern occurring at the meeting;

(B) a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;

(C) a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;

(D) a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; and

(E) any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state.

RLG 148 (5) ”Governmental proceeding” means a proceeding, other than a judicial proceeding, by an officer, official, or body of this state or a political subdivision of this state, including a board or commission, or by an officer, official, or body of the federal government.

(6) ”Legal action” means a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.

(7) ”Matter of public concern” includes an issue related to:

(A) health or safety;

(B) environmental, economic, or community well-being;

(C) the government;

(D) a public official or public figure; or

(E) a good, product, or service in the marketplace.

(8) ”Official proceeding” means any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant.

(9) ”Public servant” means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if the person has not yet qualified for office or assumed the person’s duties:

(A) an officer, employee, or agent of government;

(B) a juror;

(C) an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy;

(D) an attorney or notary public when participating in the performance of a governmental function; or

(E) a person who is performing a governmental function under a claim of right but is not legally qualified to do so.

Sec. 27.002. PURPOSE. The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.

Sec. 27.003. MOTION TO DISMISS. (a) If a legal action is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.

(b) A motion to dismiss a legal action under this section must be filed not later than the 60th day

RLG 149 after the date of service of the legal action. The court may extend the time to file a motion under this section on a showing of good cause.

(c) Except as provided by Section 27.006(b), on the filing of a motion under this section, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss.

Sec. 27.004. HEARING. A hearing on a motion under Section 27.003 must be set not later than the 30th day after the date of service of the motion unless the docket conditions of the court require a later hearing.

Sec. 27.005. RULING. (a) The court must rule on a motion under Section 27.003 not later than the 30th day following the date of the hearing on the motion.

(b) Except as provided by Subsection (c), on the motion of a party under Section 27.003, a court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of:

(1) the right of free speech;

(2) the right to petition; or

(3) the right of association.

(c) The court may not dismiss a legal action under this section if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.

Sec. 27.006. EVIDENCE. (a) In determining whether a legal action should be dismissed under this chapter, the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.

(b) On a motion by a party or on the court’s own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion.

Sec. 27.007. ADDITIONAL FINDINGS. (a) At the request of a party making a motion under Section 27.003, the court shall issue findings regarding whether the legal action was brought to deter or prevent the moving party from exercising constitutional rights and is brought for an improper purpose, including to harass or to cause unnecessary delay or to increase the cost of litigation.

(b) The court must issue findings under Subsection (a) not later than the 30th day after the date a request under that subsection is made.

Sec. 27.008. APPEAL. (a) If a court does not rule on a motion to dismiss under Section 27.003 in the time prescribed by Section 27.005, the motion is considered to have been denied by operation of law and the moving party may appeal.

(b) An appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003 or from a trial court’s

RLG 150 failure to rule on that motion in the time prescribed by Section 27.005.

(c) An appeal or other writ under this section must be filed on or before the 60th day after the date the trial court’s order is signed or the time prescribed by Section 27.005 expires, as applicable.

Sec. 27.009. DAMAGES AND COSTS. (a) If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party:

(1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and

(2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.

(b) If the court finds that a motion to dismiss filed under this chapter is frivolous or solely intended to delay, the court may award court costs and reasonable attorney’s fees to the responding party.

Sec. 27.010. EXEMPTIONS. (a) This chapter does not apply to an enforcement action that is brought in the name of this state or a political subdivision of this state by the attorney general, a district attorney, a criminal district attorney, or a county attorney.

(b) This chapter does not apply to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product or a commercial transaction in which the intended audience is an actual or potential buyer or customer.

(c) This chapter does not apply to a legal action seeking recovery for bodily injury, wrongful death, or survival or to statements made regarding that legal action.

Sec. 27.011. CONSTRUCTION. (a) This chapter does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case, or common law or rule provisions.

(b) This chapter shall be construed liberally to effectuate its purpose and intent fully.

SECTION 3. The change in law made by this Act applies only to a legal action filed on or after the effective date of this Act. A legal action filed before the effective date of this Act is governed by the law in effect immediately before that date, and that law is continued in effect for that purpose.

SECTION 4. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2011.

______

President of the Senate Speaker of the House

I certify that H.B. No. 2973 was passed by the House on May 4, 2011, by the following vote: Yeas 142,

RLG 151 Nays 0, 2 present, not voting; and that the House concurred in Senate amendments to H.B. No. 2973 on May 21, 2011, by the following vote: Yeas 141, Nays 0, 2 present, not voting.

______

Chief Clerk of the House

I certify that H.B. No. 2973 was passed by the Senate, with amendments, on May 18, 2011, by the following vote: Yeas 31, Nays 0.

4 Comments leave one !

Trackbacks

1. A SLAPP Suit –– The Bully’s Weapon Against Democracy: « Slapped In Texas 2. Anti-SLAPP is Now Law in Texas! « Slapped In Texas 3. Andrew Wakefield Sues BMJ and Brian Deer: Time To Test Out the New Texas Anti-SLAPP Statute | Popehat 4. Lance Armstrong v. USADA Lawsuit a SLAPP? | California Anti-SLAPP Project

Blog at WordPress.com.

Theme: Vigilance by The Theme Foundry.

Follow

Follow “Slapped In Texas”

Powered by WordPress.com

RLG 152

Select Year: 2012 Go

The 2012 Florida Statutes

Title XL Chapter 720 View Entire Chapter REAL AND PERSONAL PROPERTY HOMEOWNERS' ASSOCIATIONS 720.304 Right of owners to peaceably assemble; display of flag; SLAPP suits prohibited.— (1) All common areas and recreational facilities serving any homeowners’ association shall be available to parcel owners in the homeowners’ association served thereby and their invited guests for the use intended for such common areas and recreational facilities. The entity or entities responsible for the operation of the common areas and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common areas and recreational facilities. No entity or entities shall unreasonably restrict any parcel owner’s right to peaceably assemble or right to invite public officers or candidates for public office to appear and speak in common areas and recreational facilities. (2)(a) Any homeowner may display one portable, removable United States flag or official flag of the State of Florida in a respectful manner, and one portable, removable official flag, in a respectful manner, not larger than

41/2 feet by 6 feet, which represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a POW-MIA flag, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association. (b) Any homeowner may erect a freestanding flagpole no more than 20 feet high on any portion of the homeowner’s real property, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, if the flagpole does not obstruct sightlines at intersections and is not erected within or upon an easement. The homeowner may further display in a respectful manner from that flagpole, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, one official United States flag, not larger than 41/2 feet by 6 feet, and may additionally display one official flag of the State of Florida or the United States Army, Navy, Air Force, Marines, or Coast Guard, or a POW-MIA flag. Such additional flag must be equal in size to or smaller than the United States flag. The flagpole and display are subject to all building codes, zoning setbacks, and other applicable governmental regulations, including, but not limited to, noise and lighting ordinances in the county or municipality in which the flagpole is erected and all setback and locational criteria contained in the governing documents. (c) This subsection applies to all community development districts and homeowners’ associations, regardless of whether such homeowners’ associations are authorized to impose assessments that may become a lien on the parcel. (3) Any owner prevented from exercising rights guaranteed by subsection (1) or subsection (2) may bring an action in the appropriate court of the county in which the alleged infringement occurred, and, upon favorable adjudication, the court shall enjoin the enforcement of any provision contained in any homeowners’ association document or rule that operates to deprive the owner of such rights. (4) It is the intent of the Legislature to protect the right of parcel owners to exercise their rights to instruct their representatives and petition for redress of grievances before the various governmental entities of this state as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. The Legislature recognizes that “Strategic Lawsuits Against Public Participation” or “SLAPP” suits, as they are typically called, have occurred when members are sued by individuals, business entities, or governmental entities

RLG 153 arising out of a parcel owner’s appearance and presentation before a governmental entity on matters related to the homeowners’ association. However, it is the public policy of this state that government entities, business organizations, and individuals not engage in SLAPP suits because such actions are inconsistent with the right of parcel owners to participate in the state’s institutions of government. Therefore, the Legislature finds and declares that prohibiting such lawsuits by governmental entities, business entities, and individuals against parcel owners who address matters concerning their homeowners’ association will preserve this fundamental state policy, preserve the constitutional rights of parcel owners, and assure the continuation of representative government in this state. It is the intent of the Legislature that such lawsuits be expeditiously disposed of by the courts. (a) As used in this subsection, the term “governmental entity” means the state, including the executive, legislative, and judicial branches of government, the independent establishments of the state, counties, municipalities, districts, authorities, boards, or commissions, or any agencies of these branches which are subject to chapter 286. (b) A governmental entity, business organization, or individual in this state may not file or cause to be filed through its employees or agents any lawsuit, cause of action, claim, cross-claim, or counterclaim against a parcel owner without merit and solely because such parcel owner has exercised the right to instruct his or her representatives or the right to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. (c) A parcel owner sued by a governmental entity, business organization, or individual in violation of this section has a right to an expeditious resolution of a claim that the suit is in violation of this section. A parcel owner may petition the court for an order dismissing the action or granting final judgment in favor of that parcel owner. The petitioner may file a motion for summary judgment, together with supplemental affidavits, seeking a determination that the governmental entity’s, business organization’s, or individual’s lawsuit has been brought in violation of this section. The governmental entity, business organization, or individual shall thereafter file its response and any supplemental affidavits. As soon as practicable, the court shall set a hearing on the petitioner’s motion, which shall be held at the earliest possible time after the filing of the governmental entity’s, business organization’s or individual’s response. The court may award the parcel owner sued by the governmental entity, business organization, or individual actual damages arising from the governmental entity’s, individual’s, or business organization’s violation of this section. A court may treble the damages awarded to a prevailing parcel owner and shall state the basis for the treble damages award in its judgment. The court shall award the prevailing party reasonable attorney’s fees and costs incurred in connection with a claim that an action was filed in violation of this section. (d) Homeowners’ associations may not expend association funds in prosecuting a SLAPP suit against a parcel owner. (5)(a) Any parcel owner may construct an access ramp if a resident or occupant of the parcel has a medical necessity or disability that requires a ramp for egress and ingress under the following conditions: 1. The ramp must be as unobtrusive as possible, be designed to blend in aesthetically as practicable, and be reasonably sized to fit the intended use. 2. Plans for the ramp must be submitted in advance to the homeowners’ association. The association may make reasonable requests to modify the design to achieve architectural consistency with surrounding structures and surfaces. (b) The parcel owner must submit to the association an affidavit from a physician attesting to the medical necessity or disability of the resident or occupant of the parcel requiring the access ramp. Certification used for s. 320.0848 shall be sufficient to meet the affidavit requirement. (6) Any parcel owner may display a sign of reasonable size provided by a contractor for security services within

RLG 154 10 feet of any entrance to the home. History.—s. 36, ch. 92-49; s. 51, ch. 2000-258; s. 1, ch. 2002-50; s. 19, ch. 2004-345; s. 16, ch. 2004-353; s. 1, ch. 2008-45; s. 23, ch. 2010-174. Note.—Former s. 617.304.

Copyright © 1995-2013 The Florida Legislature • Privacy Statement • Contact Us

RLG 155