In-House Counsel's Negligence is not Imputed to Company
Companies and their in-house attorneys were given an amazing gift by the California Court of Appeal this week.
The case in question arose from an innocent little wage claim. Maria Gutierrez was a cashier at a gas station owned by G&M Oil Company. She sued G&M, claiming that the company had failed to provide workers with meal breaks or to compensate them for the time they would spend counting out their registers at the end of a shift.
G&M was represented by Michael Gray, who was both the family-owned company's Vice President and General Counsel, as well as the son of the company's CFO. According to the court's opinion, the trial court entered a $4 million default judgment against G&M after Gray failed to defend the action. Not surprisingly, G&M removed Gray and brought in outside counsel to challenge the huge judgment with a motion to vacate.
The motion to vacate presented some interesting issues. Under Code of Civil Procedure § 473, a court "shall" grant a motion to vacate if the attorney screws up, and is willing to sign what is referred to as a "mea culpa" declaration, admitting his or her mistake, and begging that it not be imputed to the client. But here, since Gray was the Vice President of the company, he in essence was the client, so the mea culpa declaration was basically saying, "don't hold me responsible for what I chose to do." Unlike an innocent client who did not know that his attorney was dropping the ball, shouldn't a company be held to the decisions of its attorney when that attorney is part of the company? The trial court did not think so, and ruled that an attorney is an attorney, whether in-house or not. The trial court granted the motion to vacate, threw out the default judgment and put the matter back on the trial calendar.
Labor claims are typically handled on a contingency basis, often for one-third of any amount recovered, and the Labor Codes provide for recovery of all attorney fees, so you can imagine how crestfallen plaintiff's counsel was when the court threw out what may have been a more than $1.4 million pay day. The ruling on the motion to vacate was appealed.
The Court of Appeal sided with G&M, and upheld the trial court's decision to vacate the judgment. The court was willing to view Gray as wearing two hats. Yes, he was an officer of the company, but for purposes of the litigation he was acting as the company's general counsel, and not as an officer.
Was the ruling by the Court of Appeal correct? Often bad facts make bad law. The specter of a four million dollar default judgment, combined with the fact that, according to the decision, Gray had kept the action a secret from the rest of the company officers, meant that the trial court and then the court of appeal were both going to look for a way to provide relief. Further, there is a very strong public policy that matters should be decided on the merits, and not on technicalities. Therefore, the case was probably decided correctly, but there was a wrinkle that may have eluded the Court of Appeal.
I have defeated motions to vacate in the past by showing the court that the attorney in question is not providing a true mea culpa declaration. The attorney must ask for relief based on a mistake, not on a failed litigation strategy. In one case, I sued a company but the attorney for the company decided the matter was subject to an arbitration provision and simply refused to participate in the litigation. Just as in this case, after I obtained the substantial default judgment, the company brought in new counsel and filed a motion to vacate using the former attorney's mea culpa declaration. However, I defeated the motion by persuading the court that the attorney was not admitting to any mistake, but rather was continuing to argue that the matter had to be submitted to arbitration. The court agreed that an attorney cannot try one strategy, and if it fails, file a mea culpa declaration and go to plan B.
With this week's ruling by the Court of Appeal, companies with in-house counsel could try that approach. An individual defendant who knows about an action and simply decides to ignore it will not be granted relief on a motion to vacate, because there has been no mistake or inadvertence – the party just chose to ignore the action. Gray, the Vice President of G&M, attended two status conferences in the matter, and for whatever reason elected not to pursue a defense. Why is G&M getting a pass from that decision, when an individual defendant would not?
The mea culpa declaration approach of section 473 is self-policing in the sense that an attorney will not file a mea culpa declaration unless there has been a real mistake, because he or she is basically admitting to malpractice. With in-house counsel, especially where the counsel is an officer, the corporation could simply instruct the attorney to file the mea culpa declaration, whether or not the attorney agrees there was a mistake, since the attorney will know he is not exposing himself to a malpractice claim.
The Court of Appeal's ruling can be found here.
Don't Play Fast and Loose With Discovery Responses
A very interesting case out of federal court in Atlanta today provides some important lessons for businesses.
In the case, Lockheed Martin Corporation and L-3 Communications Integrated Systems are suing one another. Both companies make some nice money refurbishing military aircraft around the world. Problem is, according to Lockheed, L-3 got into the business working as a subcontractor for Lockheed, and then used Lockheed's trade secrets to go off on its own. For its part, L-3 claims that it is not using any trade secrets, and alleges that the entire action is but an attempt to stifle competition, and therefore amounts to antitrust.
After a three-week trial, the jury found in favor of Lockheed and awarded $37.3 million in damages, representing the amount of profit Lockheed claimed it would have made from a 427 million dollar contract L-3 obtained, plus some breach of contract damages. However, the jury did not award punitive damages. Lockheed also sought $16 million in legal fees.
Now the fun begins.
I've written here before that trade secrets must be actual secrets if a company is going to successfully claim that they were stolen. In one case, for example, a company sued our client claiming he had "stolen" their secret customer list and was using it to solicit business for his new company. I went onto the plaintiff company's website and found a list of all of their customers, proudly displayed. Case dismissed.
So, did Lockheed understand this basic principal of trade secrets? According to today's decision, during the discovery process L-3 had demanded production of any documents that would show that Lockheed allowed any other companies to use the alleged trade secrets without any sort of license. Obviously you can maintain a trade secret even though you tell others so long as you license the information to them, or make them sign non-disclosures and the like. But if you hire a subcontractor to provide services and show them all the trade secrets on how the work is performed, with no limitation on how that information can be used, then the sub is under no obligation to maintain the trades secrets and they really aren't secrets anymore.
In response to the discovery, according to the court, Lockheed did not produce certain documentation about a company called CASA, which had used the alleged trade secrets with no license. Unfortunately for Lockheed, that documentation was produced in another case, L-3 learned of it, and moved for a new trial, asserting that the verdict would have been different had the jury been made aware of these facts.
The judge agreed. Out goes the $37.3 million judgment, and out goes the request for $16 million in attorney fees. The parties are back to square one with a new trial, and unless the judge later reverses his position, Lockheed now has no way to recover the attorney fees incurred in the initial trial. A good discussion of the trial and the trade secret issues, before the judge decided to grant a new trial, can be found here.
Lessons for all businesses: If you are in the right, then the truth should be your servant. Too often, businesses want to hide the ball when responding to discovery. I love it when attorneys think they are being clever by making groundless objections and withholding documents based on tortured interpretations of what is being requested. Time after time, opposing counsel fails to realize that I already have the documents being requested, and it is the objection that is far more powerful. For example, in business litigation I will ask for all documents that the other side contends forms the contract between the parties. Inevitably, the other side will object, claiming that the request is just too ambiguous because they just can't figure out what I mean by "contract". Brilliant strategy. Now at trial, I get to exclude all of the documents the other side wants to put on to prove their interpretation of the contract, because they were not produced in discovery, and I get to make the witness look like a fool for claiming that he could not understand the meaning of the term "contract". Don't play fast and loose with discovery responses, because as Lockheed just learned, the consequences can be severe. (Which is not to say Lockheed acted inappropriately, only that it paid the price for failing to turn over documents the judge felt should have been turned over. These are attorneys that can run up a $16 million legal bill; you think I want them coming after me?)
And finally, before going to the mat over trade secrets, take a hard look at whether they are really secret.
Listen to Your Mother
Most clients want their attorneys to be jerks, at least to the other side. And, sadly, most attorneys are more than willing to oblige, because a good fight can really run up legal costs. But in many cases, perhaps even most cases, that is not the best strategy.
As your mother always told you, you can catch more flies with honey than with vinegar. What no one has ever been able to explain to me is why you would want to catch flies, but according to the American Heritage New Dictionary of Cultural Literacy, the idiom stands for the proposition that you can win people to your side more easily by gentle persuasion and flattery than by hostile confrontation. In the litigation context, this could not be more true.
Recently I was retained by a client that was being defamed. Years ago an article in a newspaper had made some false statements about him, and he had fought for a retraction, which was published. Now, years later, a service indexed the old articles in the newspaper, and the article reappeared when our client’s name was searched on the Internet.
Most attorneys would have sent a letter threatening fire and brimstone for this repeated wrong, but I used the conciliatory approach, acknowledging that his was probably just an oversight, and that I was certain they would want to take immediate action to correct the mistake. Because I didn’t threaten legal action, the paper turned the matter over to an editor instead of an attorney, and it was quickly resolved. The article was removed from the index.
Had my demand letter mentioned legal action, the newspaper would have "lawyered up" to respond. That lawyer would have felt compelled to give me some legal theory as to why the paper had no legal obligation to remove the article. We would have sent letters back and forth, advancing our various legal positions. The matter would then have moved to litigation, or at the very least we would have fought over the language of some release the lawyer would have demanded. Instead, by using honey instead of vinegar, the matter was resolved with a single letter and very little cost to the client.
Lesson to all businesses: There are times when a threatening letter is appropriate, but don’t immediately assume that is the best way to go. Don’t think your attorney is being weak if he or she is friendly in the initial contact to the opposition and, similarly, if your attorney is being a jerk for no apparent reason, ask why.
Just How Badly Do You Need to Fire that Employee? (Revisited)
Less than a month ago I wrote on the folly of terminating an employee at an inopportune time, even if your reasons are just and your motives are pure. Apparently the lawyers at Wal-Mart are not subscribers to the Business Law Alert because they did nothing to stop a very questionable termination.
Melissa Jackson is one of several plaintiffs suing Wal-Mart for sexual harassment. Jackson and the other women allege that Wal-Mart did nothing to stop reported sexual harassment by one of the employees. That suit was filed on January 22, and on February 16 Wal-Mart decided it was the perfect time to fire not only Jackson, but her husband as well. Both had been there for close to a decade, and during that time Wal-Mart had never seen a need to fire them, but less than a month after she files an action for sexual harassment, she and her husband had to go.
Do you see how bad that looks? Can you comprehend what the jury is going to think about that decision?
Let me switch perspectives for a moment and explain why Wal-Mart may have made that decision. As I wrote previously, unscrupulous employees will sometimes file employment lawsuits specifically because they know they are on their way out the door. If in defense of the sexual harassment claim by Jackson, Wal-Mart is going to claim that she was about to be terminated and only filed this suit in an effort to keep her job, then Wal-Mart should remain consistent and continue with the termination. Alternatively, it could be that Jackson and her husband have developed attitude problems about Wal-Mart, and are just too toxic to keep around. (I have no personal knowledge of the facts of this case, and offer this case only as a hypothetical fact pattern for discussion.)
But with all that said, was there no other way to handle this matter? I once spoke to the owner of a business that had come up with a very creative approach. He had an employee who was a perpetual problem, not doing his job and filing what the business owner perceived to be fraudulent worker's compensation and labor claims. He desperately wanted to fire the employee, but he knew any termination would be met with a wrongful termination action for retaliation. So, the business owner put the maintenance worker in charge of the flagpole. His duties were to raise and lower the flag, keep the pole and flag clean, and to make certain no one disturbed them. He was given an ergonomic chair to sit on near the flagpole so that he would not make any claims for back injuries, and there he sat, eight hours a day, five days a week, watching the flagpole. The employee could not stand the tedium, and within two weeks had quit.
Although the business owner's plan worked perfectly in that case, I don't suggest for a minute that this is a workable solution. Aside from the fact that many employees might be perfectly content to work as a flagpole watcher, from a legal standpoint the worker could still have made the claim that this newly created position was a form of retaliation. But I offer this tale as an example of an employer that thought outside the box. He looked at the bigger picture and successfully avoided a costly lawsuit.
Businesses tend to think in black and white terms. I often see cases where an employee loyally worked for a company for years, and after being rewarded with a promotion, the company terminates that employee because he is unable to perform the new job duties. Why is no thought given to returning the employee back to the position where he was a valued employee?
Lesson for all businesses: When you are considering terminating an employee and are asking yourself, "how is this going to look?", then take a moment to also ask yourself, "can I solve the problem with something other than a termination?"
Sometimes You Can Talk Your Way Out of Litigation
A call I received yesterday illustrated a common mistake made by business owners; one that I want to pass along so you can avoid making the same mistake.
First let me set the scene. When a client comes to an attorney to complain about something, it will always be the case that the attorney takes whatever first step he or she chooses to take based only on one side of the story. In this particular case, a client came to me complaining that someone had posted comments on a blog that defamed his company. I reviewed the blog and the comments certainly were defamatory, if they were false as my client assured me they were.
So, I sent a strongly worded cease and desist letter to the blogger, informing him that I had been instructed to bring an action for defamation, and suggesting that he take down the comments as a way to minimize his damages. But since I am aware that I have heard only one side of the story, I always end such letters with the following statement: "If I have in any way misstated the facts, or there are any other facts of which you think I should be aware, please call or write me immediately."
Within ten minutes of faxing the letter, the blogger called me. But instead of using the opportunity to explain why the statements did not amount to defamation or, if they did, to offer some way to undue the damage he had done, his first screamed statement was, "How could you send a letter like this when you have only heard one side of the story?"
Exactly, dear caller, and that is why the letter invited you to call me with your side. Instead, he immediately went to the usual posturing about how he was going to make sure I was disbarred, drawn and quartered for threatening such a frivolous action, but without ever telling me what made the action frivolous. I served him with the complaint the following day, and once again the action will ultimately end as I have explained here. (He did, however, take down the blog posting.)
Admittedly, a lot of attorneys won’t care what you have to say, and may not care if the action is without merit if they think they can make a buck off the representation. But don’t assume that going in, if you really do have facts to show that the attorney was misinformed.
In one case, for example, a client informed me that he was owed a large sum of money from a former employer for commissions on products sold prior to his termination. In response to my demand letter, the President of the company called to explain why the commissions were not owed, and then sent irrefutable documentation to support his claim. When I showed the documentation to the client, he acknowledged the facts and the terms of the agreement, but said he had hoped I would find someway around that reality as the action proceeded. I took the matter no further, and by spending a few minutes responding to me, the President saved his company a lot of unnecessary litigation.
You must proceed with caution when responding to a demand letter, because the attorney may later try to twist your words to claim you somehow admitted to the wrongdoing. For that reason, you might want to make your response through an attorney. We know the magic words that can keep the response from ever being used against you. But don’t immediately reject the thought of actually responding to an attorney’s letter, and if the facts are on your side, tell your attorney to provide a thoughtful, civil response so that the other attorney won’t feel compelled prove who is boss.
Just How Badly Do You Need to Fire that Employee?
Can you say, "appearance of impropriety"?
On a regular basis, I get calls from companies that apparently found it essential to terminate an employee that had just announced she was pregnant, or one who had just requested a leave under the Family Medical Leave Act, or another who just filed a Workers Compensation claim, etc. In all cases, the employers swore to me that the termination had nothing to do with the pregnancy, FMLA request or Workers Comp claim, and I'm convinced that they were sincere.
You see, unscrupulous employees who know how to work the system will take actions to create the appearance of a wrongful termination when they know the ax is about to fall. Sometimes it is blatant to the point of being laughable. I was recently involved in a case where the employee, when summoned to her supervisor's office to discuss a major infraction, took a detour to Human Resources to claim sexual harassment. She didn't have much time to think up a story, so she reported that the sexual harassment she had suffered was seeing her supervisor hug another female employee -- a year earlier -- when that employee's mother had died. Silly yes, but that didn't keep her from claiming that her subsequent termination was retaliation for reporting this unforgivable "sexual harassment."
As an employer, you need to know that the deck is stacked against you if an employment claim goes to the jury. Most jurors do not know about at-will employment, and go into the trial with the preconceived notion that an employer must have good cause to fire an employee. Of course the judge will instruct the jury on the law of at-will employment, but if the jurors hear that you fired an employee for anything less than murder and/or mayhem, right after the employee, say, filed a workers compensation claim, you will be fighting an uphill battle.
The recent court decision of Crawford v. Metropolitan Government of Nashville and Davidson County provides a perfect example of, "what was the employer thinking?" There, the plaintiff employee was questioned about whether she had witnessed sexual harassment by a certain supervisor. She had never volunteered any information, but when specifically asked, she related two instances she had witnessed. Two other employees gave similar accounts.
All three employees were terminated after reporting what they had seen. Crawford sued for wrongful termination on a theory of retaliation, but the case was thrown out by the District Court on the grounds that she had not instigated any sort of investigation, but had merely answered questions. The Court of Appeals agreed, but the Supreme Court reversed the decision and sent the case back for trial. The Supreme Court correctly held (in my opinion) that reporting what she had seen was sufficient to bring her under the anti-retaliation provisions of Title VII. Back in the trial court, Crawford won $1.5 million in damages.
Clearly something was rotten in Nashville, and it certainly appears that justice prevailed. But the case illustrates the hubris of some employers. Don't engage in this type of behavior, of course, but also be aware of any facts that make it look like you are engaging in this type of behavior. Do you really need to terminate that employee who is out on a disability claim? Do you really need to terminate that employee that just broke off her affair with the boss? If his or her work performance is that bad, then document it along with any future infractions. If the employee is beyond redemption, their performance will justify the termination on a later, not so inopportune day. If not, then maybe the employee was not as bad as you thought, and you will have avoided trying to explain your way around some very bad circumstances. Some may view this as caving, but I view it as a pragmatic recognition that when it comes to a trial for wrongful termination, sometimes perception is reality.
For more information about the Crawford decision, read the excellent summary provided by attorney Ellen Simon here.
Think Before You Hit "Send"
A (unintentionally) humorous cease and desist letter from a Portland law firm once again illustrates the importance of reviewing what you are sending.
The case involves the Internet site Black Friday, found at www.bfads.net. As you are no doubt aware, Black Friday refers to the day after Thanksgiving, when many retailers come out with ads touting amazing bargains to kick off the start of Christmas shopping. For a few years the Black Friday site has managed to get advanced copies of many of the ads, and has published them on the site so that visitors can pre-plan their shopping excursions.
I personally feel that the Black Friday site offers a real public service, and I can’t imagine why some of the retailers get so upset by this advance look at their ads. If the point is to draw people into your store and make sales, why be upset about some additional advertising? (Unless you are concerned that some other retailer might see the ad and respond with a lower price, but wouldn't that only help consumers -- a goal I'm sure all retailers support?) Indeed, it is my understanding that some retailers have gotten into the spirit of it all, and provide advance copies of their ads to bfads.net. Others, however, feel compelled to make intellectual property arguments and every year bfads.net is hit with a number of cease and desist letters, which the website sometimes posts as badges of honor.
The ad in question this time was the OfficeMax ad. Bfads.net got a hold of an early draft, and published it with a disclaimer that it might not be the final ad since it was riddled with typos and misspellings. OfficeMax responded by having its attorney fire off a cease and desist letter, demanding that the information be removed from the cite by 11:00 a.m. the following day. (Customarily in cease and desist letters the deadline is set at noon or by close of business, but I guess this attorney wanted to make the demand sound really urgent by moving it up to 11:00 a.m.)
Now comes the humorous part. In order to identify the specific ad to which she was referring, the attorney attached a screen shot to her email. No doubt she used some program that allows a screen capture, but what she failed to realize was that the program captured the entire screen, which showed the Windows task bar and all the other programs she was using. One of those programs was Spider Solitaire. So now all of the attorney’s partners know she plays Solitaire at her desk, and in addition to posting her cease and desist letter, bfads.net got the extra satisfaction of referring to the "Spider Solitaire playing law firm" that is trying to shut it down. In the grand scheme of things, not the worst thing that could happen to a law firm, but probably not the image it would prefer to transmit to clients.
Lesson for all businesses: Check your email attachments and watch the Word metadata. Whenever I drag and drop an attachment into an email, I open it again to make sure it is the correct document. It’s an additional step and 99% of the time proves to be unnecessary, but the couple of times I have caught a mistake has made the effort worthwhile. As to Word documents, unless you are anticipating that the recipient is going to make revisions to the document, send it as a PDF file, not as a Word file. I am amazed by all the resumés I receive in Word format. When I open the file, there are all the misspellings and unrecognized words underlined in red. And while the version sent to me professes the applicant's life long desire to work in the legal field, the prior versions of the document state his lifelong desires to work in advertising, work in retail and to work on a crab boat.
Update: Ironically, the day after I wrote the above comments, I received an email from a very large company that my law firm does not represent, consisting of a string of emails relating to the company’s internal investigation of a dispute with a customer. I skimmed the email, surmising that the company had sent it for my review in anticipation of a lawsuit, but gave up because it never posited any question or sought advice. A few minutes later the sender called and sheepishly asked if I would please delete his email. He had inadvertently sent this internal document to the wrong Aaron.
Again, think before you hit send.
Godaddy.com Named in Action by Attorney Still Unfamiliar with Section 230
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It seems like every few weeks I have to rail against a lawsuit I read about, wherein the attorney representing the plaintiff brings an action that is clearly barred by the Communications Decency Act. In this latest installment, we find a New York attorney who represents plaintiffs who appear to have a solid case against some individual defendants resulting from some truly horrific defamation on the Internet.
But the attorney could not leave it alone. I can almost see his mind working. He thinks to himself, “these individuals will never be able to pay the judgment, so I’d better look around for some deep pockets.” So, in addition to the individual defendants he names ning.com, wordpress.com, twitter.com, and my personal favorite, godaddy.com.
I sometimes use the analogy that naming a Internet Service Provider in an Internet defamation action is akin to naming Microsoft as a defendant because the defamer used Word to type the defamatory statements. I never thought any attorney would actually go that far, but the attorney in this case surpasses even that far flung analogy. I know it’s a foreign concept to some attorneys and their clients, but a defendant should only be held liable for damages if he, she or it has done something wrong. Here, twitter.com is named because the defendants sent out “tweets” sending their followers to the defamatory content. Godaddy.com is named because the defendants obtained the domain name there, and then set it to forward to their blog on wordpress.com. How could these companies possibly be liable? Well, according to plaintiffs and their attorney, they are liable because what the defendants did amounted to an “irresponsible use of technology.”
Apparently, in this attorney’s world, we have gone beyond even requiring that the website provider check the content of every web page posted on its server. Now it is also the obligation of twitter.com to review and authorize every tweet that is sent, and godaddy.com must view with suspicion every account that sets a domain name to forward elsewhere. Clearly there could be no Internet if such duty and liability could be imposed.
In (very slight) defense of the attorney, he does allege that these companies were informed of the nefarious use of their services, and did nothing to block the content. Among the public there is an urban legend that an Internet company becomes liable once it is informed that it is being used to distribute the defamatory content, but an attorney should know better.
A copy of the complaint can be found here, and a detailed article about the case can be found here.
Company Policies and Procedures are Not the Law
Admittedly I'm straying a bit from the business LAW theme of this blog, but when I came across this story in Business Week I knew I had to share it. You may already be aware of this story because it apparently has become quite a phenom, but somehow I missed it until now.
Musician Dave Carroll was traveling via United Airlines with his band mates from the band Sons of Maxwell. While sitting on the tarmac, they witnessed their instruments being tossed around by the ground crew. They reported the incident that second, but according to United Airlines the official report that one of the guitars had been officially damaged was not reported to the official official until after the company dictated 24-hour deadline. Carroll spent nine months trying to get United Airlines to do the right thing, and when he reached the final, official "no" from a company representative (identified in the song as "Ms. Irlweg"), he promised he would write, perform and post three videos about the incident on YouTube. The video link above is the very entertaining first installment of the planned trilogy.
After the video attracted more than 3 million viewers on YouTube, United Airlines agreed to donate money to a charity as an apology to Mr. Carroll. The complete story can be found on Dave Carroll's website.
Lesson for all businesses: I've not yet been involved with a case where the offending company was attacked by way of song, but I get calls every week from companies that let minor situations get out of hand and are now the subject of attack blogs. Your company's policies and procedures are not the law, so don't cite them as justification for rejecting a legitimate complaint. Indeed, even if the law is behind you, that's no basis to deny a valid claim. Do you really want your business practices to be no better than the minimum required by law? Look at what happen to Bank of America when it tried to quote the law to our client. When you receive a customer complaint, consider that you may be dealing with another Dave Carroll.
If Someone is Offering a Walk-Away, Listen
Perhaps because the adrenaline and endorphins flow during a courtroom battle, I become very thoughtful in the calm that follows. I won a small but satisfying court victory today in an Internet defamation case, and it made me realize how much the process mirrors a scene from a movie I just saw.
The movie was Taken, which I thought was very good. Even if you haven’t seen the movie, you probably saw the scene to which I refer since it was shown in the trailers. The main character, who we come to learn is some sort of retired Über-spy, is on the phone with his teenage daughter when she is kidnaped. He hears the bad guy pick up the phone, and he calmly gives the following speech:
I don’t know who you are, and I don’t know what you want.
If you are looking for ransom, I can tell you I don’t have money.
But what I do have are a very particular set of skills;
skills I have acquired over a very long career.
Skills that make me a nightmare for people like you.
If you let my daughter go now, that will be the end of it.
But if you don’t, I will look for you, I will find you and I will kill you.
Most every Internet defamation case I handle starts with such a moment. Not nearly so dramatic, of course, and there are no deaths involved if the defendant doesn’t listen to me, but the concept of a choice is the same.
Most of my defamation clients aren’t seeking money initially; they just want the bad guy to stop defaming them. My marching orders are usually just to get the person to take down the comments. So I write to the bad guy, explaining that this does not need to go any further. He strayed from the path and said and did some things he shouldn’t have, but if he just takes down the posts and walks away, “that will be the end of it.”
That is the moment in time. I am affording the prospective defendant the opportunity to avoid sending his life, or at the very least his finances, in a bad direction. I am less of an advocate and more of a care giver, just trying to convince the patient to stop engaging in self-destructive behavior. But he makes the ultimate decision whether to accept that help, or to continue on his path.
In Taken, the kidnapper could not help himself and responded by saying, “good luck.” He did not take the skill set seriously enough, thinking he would be impossible to find. Today’s defendant also did not take the skill set seriously enough, thinking that since he had hidden his identity and lived across the country we would never find or pursue him. He was one of a few on-line competitors with my client, and had engaged in some trash-talking that escalated into defamatory comments about my client’s business practices. All he had to do was take down the false statements and walk away and that would have been the end of it. He refused, and today a judge ordered him to take down the false statements, and to pay my client over $200,000. I suspect, if he had it to do over again, he'd take the walk-away.
Lesson for all businesses: Pick your battles. If you want to take on a plaintiff that you feel is trying to shake you down, then I’m with you one hundred percent. But don’t get into a court battle just to prove who has the bigger . . . lawyer. The defendant in today’s case had no moral high ground. He knew what he was saying about my client was untrue, so why on earth wouldn’t he take the opportunity to walk away? As a famous philosopher once sang, “You’ve got to know when to hold them, know when to fold them, know when to walk away and know when to run.”
