I just wish counsel would run these cases past me before filing a defamation action. Here is a tale of a SLAPP that should have been spotted a mile away.
The tale starts with an article in OC Weekly. The article was about a guy named Shaheen Sadeghi. The article was extremely favorable to Sadeghi, referring to him as the “Curator of Cool” and discussing his amazing success in Orange County. OC Weekly even put his visage on the cover of the paper. Truly, it was a positive article that most would kill for.
But everyone has their detractors, and Sadeghi’s was a woman named Delilah Snell. After disclosing that Snell happens to be the girlfriend of a OC Weekly editor, the article reports on a dustup between Snell and Sadeghi, as told by Snell. Here is what the article said:
Still, some say Sadeghi will do whatever it takes to succeed. Delilah Snell, owner of Road Less Traveled, a shop in Santa Ana that sells environmentally friendly gifts and home goods, met with him in 2008 to discuss an opportunity to move to the Camp. (Full disclosure: Snell is the girlfriend of OC Weekly editor Gustavo Arellano.) She says the rent rate he gave was way too high, at least triple what she was paying, and she declined the offer. Then, she claims, he made a threat. “He basically said to me, ‘If you don’t move into my center, I will copy your business,’” she says.
Snell, co-founder of the Patchwork Indie Arts & Crafts Festival and a pioneer in Orange County’s eco-movement, believes her store is the model for the Camp’s SEED People’s Market, an airy, 12,000-square-foot gallery-type outlet that sells sustainable products and handmade crafts. Sadeghi owns the store with his wife, Linda. Snell claims that SEED has approached many of the vendors featured at Road Less Traveled and even used a photo of her shop in a promotional email sent out to customers. (The Weekly has a copy of the email.)
The article then goes on to tell Sadeghi’s side of the story:
Of Snell’s accusations, Sadeghi responds, “I think she’s full of it.” He says his business plan for SEED was dated “five years before she developed a business plan.”
“It’s a whole different store, whole different vibe,” he says, “and it has nothing to do with Road Less Traveled.”
The article then returns to singing the praises of Sadeghi, providing examples of how he is beloved by his tenants at his business centers like The Lab in Costa Mesa.
Sadeghi sued Snell in Orange County Superior Court, alleging in his complaint that Snell “orally accused Mr. Sadeghi of threatening to copy Ms. Snell’s business idea and plan if Ms. Snell did not move into Plaintiff’s retail center.” Sadeghi then alleged causes of action for slander, slander per se, libel, libel per se, invasion of privacy/false light, intentional interference with economic prospective advantage (sic), negligent interference with economic prospective advantage (sic), unfair competition, and injunctive relief. Whew! All arising from the statements Snell allegedly made to the OC Weekly, claiming that Sadeghi had said “If you don’t move into my center, I will copy your business.” Snell responded with an anti-SLAPP motion.
A quick aside to discuss the “Wall of Wrong”.
A potential client will call me, and during the call will tell me about 20 evil deeds committed by the defendant. In their mind, they have been horribly wronged, and they want to sue. Fair enough, but for a legal action each wrongful deed must be viewed independently to determine if it is actionable. I call the wrongful acts the “Wall of Wrong”, and each wrongful act is an item on that wall. (I considered calling it the Shelves of Wrong, but that didn’t seem as catchy.) I explain to the client that to determine if there is a case, we must walk up to the wall, take down each item and examine it independently to see if it will support an action. If not, it is tossed away never to be discussed again.
The reason this exercise is so important is because the client groups all the perceived wrongdoing together, and views it as a single act that certainly must support an action. But when all the conduct that does not support the action is stripped away, the client will often see that there is no action or that what is left remaining is pretty petty.
One more point to keep in mind in the defamation context is that just because something is false does not mean it is defamatory.
So let’s take Mr. Sadeghi to the Wall of Wrong to see if he has a case. Here, there are only two items to examine: (1) the claim that he was going to copy Snell’s business, and (2) that he pressured Snell to lease space in his center with the aforesaid threat. Let’s take those items off the shelf one at a time and decide if they will support a suit.
“I will copy your business.”
Sadeghi alleged that he never said he was going to copy Snell’s business. So, is it defamatory to falsely claim that someone said he was going to copy your business? Of course not. That statement, whether true or false, does not accuse Sadeghi of any wrongdoing. Imitation is the sincerest form of flattery. As the court put it in granting the anti-SLAPP motion, “Pepsi copies Coke. Gimbel’s Copies Macy’s. This is the nature of business.” Mr. Sadeghi, take that statement from the Wall of Wrong and never speak of it again.
Pressuring Snell to lease space.
Is it wrong to pressure someone to lease space in a mall? Of course not. But let’s refine that a little. Is it wrong to say you will copy someone’s business if they don’t lease space from you? Sometimes creating an analogous fact pattern makes it easier to analyze. Let’s say you have a chain of pizza restaurants, and a landlord comes to you and says, “we really want a pizza place like yours in our center, so we just want you to know that if you don’t lease the space, we’re going to create a pizza place just like yours for our center.”
Anything wrong with that? Sure, he’s pressuring you to rent the space with the threat of opening a competitor if you don’t, but that’s fair. When a landlord is looking for an anchor store in their mall, don’t you think they play Macy’s and Neiman Marcus off one another? Mr. Sadeghi, take that statement from the Wall of Wrong and never speak of it again.
So we are left with nothing on the Wall of Wrong, meaning that there is no case to pursue. This case should never have been filed, and the court properly granted the anti-SLAPP motion.
A SLAPP is not saved by numerous legal theories.
The other essential takeaway from this case is that nine causes of action do not a case make if the basis for the action is defective. In other words, if it was not defamatory for Snell to claim that Sadeghi said “If you don’t move into my center, I will copy your business,” then those words will not support any other legal theories like intentional infliction of emotional distress or unfair competition.
If the threat of getting in trouble with the State Bar is not enough, maybe the threat of both civil and criminals actions will get attorneys to toe the line.
It is an ethical violation for an attorney to threaten criminal action as a means to extract a civil settlement. For example, California’s Rules of Professional Conduct state that “a member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.” (Rule 5-100.)
Then there are the criminal extortion laws:
“Extortion is the obtaining of property from another, with his consent . . . induced by a wrongful use of force or fear. . . .‟ (Pen. Code, § 518.) Fear, for purposes of extortion ‘may be induced by a threat, either: [¶] . . . [¶] 2. To accuse the individual threatened . . . of any crime; or, [¶] 3. To expose, or impute to him . . . any deformity, disgrace or crime[.]’ (Pen. Code, § 519.) ‘Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.’” (Pen. Code, § 523.)
Despite these prohibitions, some attorneys can’t resist throwing a threat of criminal action into their demand letters. They apparently think (if they give it any thought at all) that an express or veiled threat of criminal action will be protected under the litigation privilege, but that is not the case. If you include a demand for money in a letter that threatens to pursue criminal action, you have committed extortion, and as Flatley v. Mauro held, that is not protected speech because criminal acts are not protected.
The most recent example of this was discussed in the just published decision of Miguel Mendoza v. Reed K. Hamzeh. According to the opinion, an attorney named Reed K. Hamzeh was representing a client named Guy Chow, seeking to recover money allegedly owed to Chow by Miguel Mendoza. The dispute concerned Mendoza’s employment as the manager of Chow’s print and copy business. Hamzeh sent a letter to Mendoza’s attorney, which according to the opinion stated:
As you are aware, I have been retained to represent Media Print & Copy (“Media”). We are in the process of uncovering the substantial fraud, conversion and breaches of contract that your client has committed on my client. . . . To date we have uncovered damages exceeding $75,000, not including interest applied thereto, punitive damages and attorneys‟ fees. If your client does not agree to cooperate with our investigation and provide us with a repayment of such damages caused, we will be forced to proceed with filing a legal action against him, as well as reporting him to the California Attorney General, the Los Angeles District Attorney, the Internal Revenue Service regarding tax fraud, the Better Business Bureau, as well as to customers and vendors with whom he may be perpetrating the same fraud upon [sic].”
The letter goes on to list Mendoza‟s alleged transgressions, including failure to pay Media‟s employees, sales taxes and bills.
What followed next was Flatley all over again, with some additional twists. In May 2011, Mendoza responded to the demand letter by filing an action against attorney Hamzeh, asserting causes of action for civil extortion, intentional infliction of emotional distress and unfair business practices. Just as in Flatley, Hamzeh thought his letter was protected under the litigation privilege, and brought an anti-SLAPP motion to strike Mendoza’s complaint. But here, the plaintiffs counsel had the benefit of the already decided Flatley, and wrote to Hamzeh to say that the anti-SLAPP motion would be frivolous since the facts fell squarely under that decision. Hamzeh decided to go ahead regardless, and after the court denied the motion it awarded attorney fees on the grounds that the motion had, indeed, been frivolous. Hamzeh then appealed from the denial of the anti-SLAPP motion, and lost. The action against Hamzeh for civil extortion and the other causes of action will now proceed.
The takeaway from Hamzeh’s experience is that the standard for civil extortion is very low. On appeal, Hamzeh argued that his demand letter was not nearly as egregious as the one utilized in Flatley, which was true, but as the court found, the issue is not how far the letter goes, it is whether it amounts to civil extortion as a matter of law. As you can see from the Penal Codes above, that requires only a demand for money in conjunction with a threat to “expose, or impute to him . . . any deformity, disgrace or crime . . . .” That standard is incredibly broad! It doesn’t even matter whether or not a crime occurred that can be properly reported. Further, as I just realized in preparing this article, the threat doesn’t even need to concern criminal conduct; it is enough to threaten “disgrace”. If an attorney wrote a letter suggesting that the defendant should settle to avoid having his family realize what he had done, it appears that would constitute civil extortion.
I came across this humorous article that combines local politics and what certainly appears to be a SLAPP suit, although the judge couldn’t see it.
I get about one call a week that begins with the statement, “We’ve got to do something about this SLAPP law.” In every instance so far, the caller thinks the SLAPP statute is a really bad idea because they filed a SLAPP, and got hit with an anti-SLAPP motion. ”We’ve got to do something about this SLAPP law” translates to “this SLAPP law really stinks because it is keeping me from suing someone who said something I don’t like.”
For a real-life example of the very purpose of the SLAPP suit, and the machinations that can pop up when someone tries to avail themselves of the SLAPP statute, go to Bullies: The Story of a SLAPP Suit Gone Wild.
By the way, this story presents a lesson that everyone should have figured out long ago. If your name is, say, Melissa Kingston, you should at the very least own the domain name melissakingston.com. The reasons are myriad. At the very, very least, Ms. Kingston may someday become a famous author, and would want to be able to promote her books on that website. Also, if another Melissa Kingston gets the name first and puts up a website about devil worship, some might mistakenly think she is the one promoting herself as the devil’s spawn.
Finally, and the relevant point to this article, owning your name on the Internet is very cheap insurance. If someone takes a dislike to you and [yourname].com is just sitting there ripe for the plucking, your detractor can buy that name and get into all kinds of mischief. It’s not bullet proof protection by any means — seeing that [yourname].com is taken, the detractor will just settle for [yourname]sucks.com — but the latter name is automatically recognizable as a protest site, whereas the former is not. Right now, if you have not done so already, go to Go Daddy and check on the availability of your name, and if it is there, buy it. The cost to own your name on the Internet is about 87 cents per month, and that includes a free landing page, where you could post your favorite picture or quote if you can’t think of anything else to do with it for now.
Always remember when reviewing a complaint to see if it is a potential SLAPP that the anti-SLAPP statute is not only about speech, it includes the right of redress. Then, whenever you see that the defendant has complained to someone — anyone — consider whether that is a natural step one would pursue in seeking redress.
We were the first firm (that we know of anyway) to successfully pursue an anti-SLAPP motion based on a report to a bank. Our client’s partner had opened a credit card in the name of the company, and when our client found out, he went to the bank and closed the account, informing the bank personnel that his partner had committed fraud. The partner sued for defamation, and we successfully brought an anti-SLAPP motion on the grounds that reporting the fraud to the bank was the first logical step dealing with the fraud. Stated another way, all would recognize that if our client had gone to the police and reported the fraud, that would be protected, but who would go directly to the police without first running to the bank to get the card cancelled in order to stop any false charges? The court agreed with my argument that the report to the bank is part of the same right of redress.
And so it was found in the just reported case of Aber v. Comstock. There, and employee brought a claim against her employer and two of its employees for sexual assault. Comstock, one of the employees who Aber was suing, filed a cross-complaint against Aber for defamation and intentional infliction of emotional distress.
Comstock’s case was likely doomed from the start, because as I have already explained here, suing someone for suing will almost always be a SLAPP, and he even alleged that part of the defamation was the report to the police, which is clearly protected. Specifically, Comstock alleged that Aber “orally published false statements about COMSTOCK to third parties, including but not limited to, friends, employees of Wolters Kluwer, health care practitioners, and the police.” The court reviewed the law that applied to each of these statements, and the most interesting was the analysis of the statement Aber made to her employer’s HR representative.
Were Ader’s statements to the HR department protected under the SLAPP statute?
An earlier case (Olaes v. National Mutual Ins. Co.) had found that statements to a company’s HR department were not part of “an official preceding authorized by law” and therefore did not fall under the SLAPP statute. Here, however, the court noted that a U.S. Supreme Court case (Faragher v. City of Boca Raton) had found that the failure of an employee to take advantage of corrective opportunities afforded by the employer could be used as an affirmative defense against a claim by the employee. So, put them together. Aber did not have to report the alleged assault to HR, but had she failed to do so, then her subsequent action for the assault could have been defeated. Bingo. That makes the report to HR a necessary part of the right of redress, and pulls it into the anti-SLAPP statute.
The case was properly decided, but is a little concerning given the course the court followed. The justices shoe-horned the report to HR into the SLAPP statute by finding it was necessary in order to preserve the ultimate legal action. As we demonstrated with our credit card case, the standard need not be so stringent, and instead the determining factor should be whether the conduct was a natural part of the process.
When a client wants me to get defamatory content removed from the Internet, they normally ask me to send a cease and desist letter. Normally, I refuse. Most attorneys will happily take the client’s money and send a cease and desist letter, but I have seen hundreds of such letters, brought to me by clients asking me to do something about the defamation after another attorney sent an unsuccessful cease and desist letter. Long ago I learned that cease and desist letters are very ineffective. Often, the defamer will even post the letter as a badge of honor, to show that he succeeded in getting the victim’s goat, to the point that he retained counsel.
I think the reason cease and desist letters are so ineffectual is because they are perceived as toothless threats. In most instances, the defamer will ignore the letter and sit back and wait to see if the victim is really willing to pursue the matter in court. But if you send that cease and desist letter along with the complaint, giving the defamer five days to comply, they become very effective. Now he knows that the victim has already taken the time and expense to have the attorney draft the complaint, and is ready to pull the trigger.
So I followed this draft complaint approach for a client who had terrible things published about him on multiple blogs, and I could not believe how the defamer’s attorney responded. When the defamer did not comply within the five day deadline, we filed and served the complaint, and the defamer’s attorney responded with an answer and cross-complaint. The attorney brought an action for the emotional distress his client was suffering as a result of my demand letter, the draft complaint and the subsequent legal action.
This was the quintessential SLAPP, but there was a problem. The cross-complaint was so poorly drafted, I worried that if I filed the anti-SLAPP motion it might fail just because we could not determine exactly what the defamer was suing for. I needed the defamer’s attorney to better state his SLAPP, so I demurred to the cross-complaint pointing to the lack of specificity in the allegations.
The defamer’s attorney fell into the trap. Not only did he amend the cross-complaint to make very clear that cross-complainant was suing for the emotional distress he suffered from the demand letter and draft complaint, he added a new cause of action for abuse of process. Follow this logic. He contended that since my demand letter and draft complaint were sent to the defamer with the intent to make him take down the defamatory posts, the complaint was only then filed because he refused to do so. Therefore, the defamer’s attorney reasoned, the complaint was filed for an improper purpose. Instead of seeking damages, the complaint was seeking to have the defamatory comments removed, and therefore was an abuse of process. (The complaint did, of course, seek damages, but counsel contended that since the cease and desist letter had not demanded damages, then the complaint was not really intended to recover damages.) You can’t make this stuff up.
Now the cross-complaint was ripe for an anti-SLAPP motion. In opposition to my motion, defense counsel argued that the facts were identical to Flatley v. Mauro, where an attorney’s demand letter was found not to be protected by the litigation privilege because it amounted to extortion. One problem though – the cease and desist letter did not ask for any money. Thus, defense counsel was arguing that my cease and desist letter was extortion even though it did not ask for money, and the subsequent complaint was an abuse of process because the cease and desist letter had not asked for money. Talk about damned if you do, damned if you don’t.
Of course the court granted the anti-SLAPP, and the attorney moved to be relieved, leaving the client to fight the motion for attorney fees in pro per. Wow. It was an interesting motion to draft, because I did not need to say one word about the falsity of the statements published by the defamer. The first prong of the SLAPP analysis was easily met because the cross-complaint dealt with my client’s seeking redress, and the second prong was equally automatically met since the cross-complainant could never show a likelihood of succeeding because his action was barred by the litigation privilege.
Yes, some SLAPPs can be harder to spot than others, but to all attorneys, if you find yourself preparing a cross-complaint based on the fact that someone sued your client, that’s probably a SLAPP. Malicious prosecution is still a viable cause of action, but only after having successfully defended the original action, and only then if all the elements can be met. Here is another attorney who learned that lesson the hard way.
The California Court of Appeal just ruled that I know what I’m talking about when it comes to SLAPP law, and that I have saved many doctors from filing actions that would have been met with successful anti-SLAPP motions and thereby cost them many thousands of dollars, paying the other side’s attorney fees.
OK, the Court didn’t actually mention me by name, but that’s the way I read it. You see, most doctors (depending on their practice) want and need medical privileges at one or more hospitals. Without those privileges, their practices are really crippled. So when a hospital decides to revoke those privileges, it is a big deal for the doctor.
Following the revocation, the doctors want to do something, anything, to pressure the hospital’s board to reinstate the privileges. That often brings them to my door, wanting to sue for defamation, claiming that someone said something that cost them their privileges, and that they suffered damages as a result.
I have always refused such cases, because I am of the opinion that under normal circumstances, the entire medical peer review process qualifies as an official proceeding. Therefore, it falls under both the anti-SLAPP statute and the absolute privileges of Civil Code section 47. No matter how you try to plead the action, it will come back to the fact that the decision to fire the doctor was a protected activity.
Leading us to the case of radiologist John Nesson versus Northern Inyo County Local Hospital District. Read the rest of this entry »
Governments, especially city councils, are learning the hard lessons about SLAPPs. I already told you about our victory over a city council member who thought she could sue when someone said something she didn’t like, and another city council member who tried to bring an offensive action to stop a legal action by the council.
Now comes the Monroe, Washington City Council with a major case of hubris. From what I can piece together, the city’s red light camera contract is set to expire. The city council took a vote or something and the citizens of that fair city voted resoundingly NOT to renew the contract. But that would mean all the red light camera would go away, and some were concerned that the city council was going to interpret the vote as only a repudiation of that particular contract with that particular vendor, not of the entire red light camera concept.
So along comes a citizen group called Seeds of Liberty. To make sure there was no confusion, it gathered sufficient signatures for a ballot measure that would permit the citizens to vote away the red light cameras. No harm there, certainly. If it was true that the city council intended to view the prior vote as a repudiation of the cameras, then what difference would this initiative make? The initiative would be a concern only if the city council did have some nefarious agenda to keep the cameras.
Sure enough, the City sued to stop the initiative, claiming it went beyond the function of an initiative.
Let’s run that through the SLAPP analysis. The city filed an action that is seeking to prevent a valid initiative from being placed on the ballot, and every indication is that the city does not want that initiative on the ballot because it doesn’t agree with the likely result. Sounds like a SLAPP to me.
The court agreed and granted the Seeds of Liberty’s anti-SLAPP motion. Sadly, this means the people spoke up, their government tried to silence them, and now the city council must pay the attorney fees incurred in bringing the anti-SLAPP motion, which is really just repaying the citizens with their own money.
Clients sometimes ask me to seek a letter of apology as part of a defamation settlement. I have managed to do so on a number of occasions, but I usually recommend a letter of retraction as opposed to a letter of apology, because the latter is often a deal breaker.
In our society, a true apology is a big deal (as opposed to an “I apologize if you were offended” type of apology). Many defendants would rather pay money than to apologize, which is somehow viewed as weak. After all, a real apology seeks forgiveness from the other side, so it sticks in the craw of most defamers that they are basically asking the victim to pass judgment on them.
With this mind set in mind, one can fully appreciate the frustration of Mark Byron. He and his wife were divorcing and fighting over the custody of their son. When the judge issued an order limiting his custody, he went to his Facebook page to vent, posting:
“… if you are an evil, vindictive woman who wants to ruin your husband’s life and take your son’s father away from him completely — all you need to do is say that you’re scared of your husband or domestic partner… , “
But there was a problem. The judge had also ordered Byron not to do “anything to cause his wife to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.” His wife was blocked from his Facebook page, but she got wind of the posting anyway and her attorney charged into court seeking a contempt order, asserting that the posting violated the protective order.
The judge agreed that it violated the order, and gave Byron a choice. The normal result for violation of a court order is a fine and/or some time in jail. The judge told Byron he could go to jail for 60 days for the violation of the order OR he could post an apology on Facebook. Byron decided he’d eat a little crow and post the apology rather than to sit in jail for two months. Here is what he posted:
I would like to apologize to my wife, Elizabeth Byron, for the comments regarding her and our son … which were posted on my Facebook wall on or about November 23, 2011. I hereby acknowledge that two judicial officials in the Hamilton County Domestic Relations Court have heard evidence and determined that I committed an act of domestic violence against Elizabeth on January 17, 2011. While that determination is currently being appealed, it has not been overturned by the appellate court. As a result of that determination, I was granted supervised parenting time with (my son) on a twice weekly basis. The reason I saw (my son) only one time during the four month period which ended about the time of my Facebook posting was because I chose to see him on only that single occasion during that period. I hereby apologize to Elizabeth for casting her in an unfavorable light by suggesting that she withheld (my son) from me or that she in any manner prevented me from seeing (my son) during that period. That decision was mine and mine alone. I further apologize to all my Facebook Friends for attempting to mislead them into thinking that Elizabeth was in any manner preventing me from spending time with (my son), which caused several of my Facebook Friends to respond with angry, venomous, and inflammatory comments of their own.
This case is being reported as a judge who trammeled on the free speech rights of a party, but I really don’t see it that way. Would it have been better for the judge to jail Byron with no offer of an alternative? There was another case where a judge told a shoplifter he could go to jail or stand in front of the store wearing an apology sign for a day. People also got up in arms about that verdict, but I think so long as it is offered as an alternative to normal jail time. For the record, to judges everywhere, if you are about to send me to jail, please offer me some crazy punishment as an alternative. On the other hand, if the judge had simply ordered the apology, I would have a problem with that result.
Where I think the judge got it wrong was his determination that Byron had violated the order. The judge had ordered him not to do anything to cause his wife “to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.” His Facebook posting was an absolutely true statement, and it only became “about” his wife if the reader was familiar enough with the circumstances to connect the dots. The comments were not even addressed to his wife, since she was blocked. To order someone not to say anything that might “annoy” someone else, and then hold them in contempt for doing so, is not appropriate in this country.
I recently reported on a Twitter defamation case in Australia, and how strange things can get without a law like the Communications Decency Act. Now comes a case out of India.
India has a police unit called the Cyber Crime Investigation Cell (CCIC). Although I don’t want to see defamation criminalized, because that then gives the government the power to silence unpopular speech, I do admit the thought of an agency you could turn these things over to is slightly appealing.
In the case in India, the CCIC is investigating a complaint filed by actor Pooja Bedi against an anonymous Twitterer (Tweeter?, One who Tweets?), for allegedly defaming her on Twitter. According to Bedi’s complaint to the cyber crime unit, someone has been trying to tarnish her image on Twitter. Bedi has also alleged someone was threatening violence and writing ill about her. “These things are serious in nature and need to be investigated,” said Bedi in her complaint.
However Bedi said after the police complaint was filed, the accused deleted her account and changed her Twitter ID to @missbollyB, even apologizing to Bedi through her posts. Cyber crime cell officers said they had registered a case of defamation based on Bedi’s complaint. The police have sent a request to US authorities to provide information necessary for the probe.
Joe Francis is infamous as the creator of the “Girls Gone Wild” video series. He is unprecedented in his ability to sabotage his life.Can you say, “self-destructive behavior”?
The most recent example came down today in the form of a $7.5 million damage award against Francis and in favor of Steve Wynn and Wynn Las Vegas. This part is speculation, but I’m guessing that he lost some money at Wynn’s casino (he did, in fact, run up a $2 million debt to the resort, but I don’t know if that was from gambling), and convinced himself that the casino was cheating him. Back to the facts, he began telling tales of how Wynn deceives his high-end customers.
Wynn didn’t like the implication that he was a cheater, and sued Francis for defamation way back in 2008. That litigation finally concluded yesterday, with the judge determining that Wynn had suffered five million in compensatory damages, and also awarded $2.5 million in punitive damages.
Defamation actions are not only about the money. You clear your name through a defamation action by putting the claims on trial. In other words, Francis claimed Wynn was a cheat, Wynn said he wasn’t, and the trial determines who is telling the truth. Therefore, Steve Wynn now has a judicial determination that the claims by Joe Francis were false. If Wynn’s attorneys did their jobs, they should have also obtained an injunction preventing Francis from ever again claiming Wynn cheated him. (That’s what I always do here in California, but Nevada could have different laws in that regard.) By creating that order, Francis can be held in contempt and put in jail if he continues to tell his tales.
This $7.5 million judgment is on top of the $2 million plus interest and fees Francis already owes to Wynn Las Vegas as determined by the Nevada District Court in 2009.
The typical response by a defamation defendant under these circumstances will be to appeal, probably claiming that he could not put on a proper defense because the court denied his outrageous discovery requests or something.