Meritless defamation lawsuit leads to award of fees to defendant, plus sanctions against plaintiff’s lawyers

The fee award was under an anti-SLAPP statute, and is normal for states that have such statutes. Anti-SLAPP statutes are meant to protect speakers against meritless lawsuits based on their speech (though the exact kinds of speech protected by the statutes vary from state to state); the protection comes chiefly in the ability to get meritless cases dismissed early, and to have defendant’s attorney fees and court costs paid by the losing plaintiffs.

But the award of sanctions, chiefly because the plaintiff’s lawsuit was so clearly weak, is unusual, and struck me as worth noting. The case is Bennett v. Towers (N.Y. trial ct. Mar. 13, 2014); here are the facts, as the court reports them (some paragraph breaks added):

This case was brought as an outgrowth of a relatively common and generally unremarkable application to a local zoning authority. As alleged in the complaint, plaintiff The Doris Moffitt Dailey 2001 Revocable Trust owns an unimproved parcel of land in the Village of Munsey Park, New York …, which lies in the unincorporated area of Manhasset, New York. The individual plaintiffs are the trustees…. [P]laintiffs entered into a contract of sale to sell the property for $1.215 million to a buyer identified elsewhere in these papers as DJD Holdings, LLC, or [DJD] Residential (“DJD”). However, the sale was contingent upon obtaining the Village’s permission to subdivide the lot into two parcels.

Again according to the complaint, prior to entering into this contract plaintiffs had secured the opinion of the Village’s Building Inspector that the lot was large enough to accommodate two houses, without the need for a variance; the clear implication was that there was no obvious impediment to approval of the subdivision into two lots. An application for that approval was thereafter brought before the Village by plaintiffs’ buyer, DJD….

The defendants, residents of the Village, learned of the pending application, and were opposed to the subdivision and ultimate construction of two houses. They communicated with their neighbors in the area, seeking support for their opposition. Defendant Brian J. Griffith acknowledges in his affidavit that he created an online internet petition, in which defendants sought electronic signatures from those who agreed with their position on the pending application…..

[The petition] recites that a hearing was to be held at the Village Hall on November 13, 2013, regarding the possibility of the subdivision, and invited the public to attend and express opposition. It further states, in pertinent part, that

“If this were to occur, it would forever change the look and feel of Manhasset Woods Road and the community. Lots in Munsey Park have been subdivided in the past and they never look right. Please join us in telling the village Planning Board that we are not in favor of the subdivision… The current plan before the Board of Directors requests the subdivision of the approximate half acre corner lot… into two approximate quarter acre parcels on which to build two spec houses… Two structures crammed onto this one lot will be an eyesore that can never be removed if approval is granted…”

The petition announced that 311 such signatures had been garnered and that more were being sought.

A public hearing was held at the Village Hall on November 13. Present were the Mayor, Deputy Mayor, three other Trustees, and DJD and its attorney, as well as some of the present defendants and plaintiffs. During the course of the meeting, a presentation was made by DJD, and a number of residents expressed their opinions, including defendants Brian Griffith, Kimberly Griffith and Kelly Ann Towers…. The meeting on this issue ended without a decision having been made. That determination, and the online petition, remained open as of the final submission date of this motion….

So far, sounds like normal political action by critics of the project; but plaintiffs sued, claiming that the defendants’ speech constituted tortious interference with contract and defamation. Not so, said the court:

Since it is undisputed that the contract between plaintiffs and DJD has not been abandoned or canceled by DJD, the critical element of a breach procured by defendants cannot be established, as needed to support the first cause of action, tortious interference with contract.

The broadly worded second cause of action sounds in defamation (as plaintiffs contend the defendants made false and malicious allegations attempting to “vilify” them), but the claim fails because defamatory words are not set forth, either in the pleadings or in evidentiary matter submitted on this motion. In addition, to the extent the alleged defamatory statements stem from the defendants’ petition or the hearing, the Court finds that they are not reasonably susceptible of a defamatory meaning. It is also worth noting that because the hearing was held as part of the Village’s role as decision-maker on the application, which is quasi-judicial in nature, statements made there enjoy an absolute privilege….

In addition, there is no evidence of any kind, let alone clear and convincing evidence, that the statements and other communications made by defendants regarding the deleterious effect on the appearance/character of the neighborhood surrounding the subject lot — which forms the sine qua non of the defendants’ opposition to the subdivision — were false. Indeed, given the inherently subjective nature of this opposition it would be difficult for any plaintiff to make that showing.

Rather, the arguments and evidence presented by plaintiffs in large measure have to do with the defendants’ allegedly selfish and venal motives, and the conflicts of interest of the decision makers. They are essentially irrelevant.

So this thus qualifies as a classic SLAPP lawsuit — a meritless Strategic Lawsuit Against Public Participation. Under the New York anti-SLAPP statute, defendants therefore could and did get the case thrown out early in the process, and were also entitled to recover their attorney’s fees and costs. But beyond that, the court held, the plaintiff’s lawyer also deserved to be sanctioned:

Sanctions may be awarded against an attorney for frivolous conduct, as that term is defined in the Uniform Rule cited in the preceding paragraph. Attorneys have a duty to analyze a case and to make a determination of merit independent of the client. In this case plaintiffs’ attorney should have known that the complaint he endorsed and presumably drafted constituted a SLAPP suit pleading, and thus required him to be able to satisfy the heavy burdens placed upon the plaintiffs by [the anti-SLAPP statute]. These statutes are not new, and there is a body of case law on the subject as well.

Under these circumstances, the Court finds that because these requirements are clear and that the papers opposing defendants’ motion are devoid of these necessary showings of merit, as discussed above, the attorney’s conduct was “frivolous” …, and that sanctions are appropriate. The Court has also considered the fact that defendants’ counsel had written to him after the defendants’ motion was made offering plaintiffs “safe harbor”, a withdrawal of the motion and the requests for fees, sanctions and punitive damages in exchange for withdrawal of the action and related protections for the defendants, but this obviously was declined. The refusal to recognize the inherent weakness of plaintiffs’ action and to continue to press forward notwithstanding this offer from defendants, after he was in possession of their motion papers, supports a sanction.

Although an evidentiary hearing sometimes is required to make a determination of whether a sanction should be imposed, that requirement is not necessary here because the request for sanctions against the attorney was a separate and distinct prayer for relief on this motion. The attorney therefore has been afforded the opportunity to respond, and has not requested a hearing on the subject….

As to an appropriate amount, the Court must consider counsel’s own statements above and beyond the initiation and continuation of this suit on behalf of this clients. First, in his opposing affirmation he discusses the February 2014 meeting of the Village Trustees at which he reports being told that more geographical data was requested and had to be submitted by the applicant, which he indicated was unnecessary given the nature of the application itself. He then added “Perhaps if Defendants withdrew their efforts, the locally elected officials will consider and approve the Sub-Division Application.” This is some evidence that he understood, or certainly believed, that suppressing the defendants’ opposition would aid his clients’ ultimate goal. The SLAPP suit he guided as counsel, which was otherwise meritless, must be viewed in light of this pronouncement.

Further, and most compelling here, counsel wrote a full-page letter to a local newspaper, which was published January 31, 2014, specifically naming and accusing the defendants to this action of propounding an “inaccurate petition”, attributing to them “self-serving” motives and describing a denial of plaintiffs’ application as being “comparable to theft” and “outrageous.” He further stated that defendants “might be attempting to leverage their close connections to the mayor and board members to accomplish this.” Near the end of the letter, he states as follows: “In an effort to dissuade the Towers and Griffith families from further conduct as well as to hold them accountable for what they were attempting to accomplish, the Trust has brought suit in Supreme Court, Nassau County… Eventually it will be determined if they went too far in their zeal to prevent the subdivision.”

This clear statement that the lawsuit was intended to silence defendants, amplified by the public nature of that statement, the public naming of the defendants, and the intemperate description of the defendants’ alleged motivations and actions, all by a member of the Bar who must be charged with knowledge of the law, calls for a strong response from this Court.

Accordingly, Edward J. Boyle, Esq., counsel to plaintiffs, is hereby sanctioned in the amount of $10,000.00 for his frivolous conduct, the maximum permitted under the Uniform Rules, which shall be payable to the Lawyers’ Fund for Client Protection.

I’m not sure that considering the lawyer’s “public naming of the defendants” and his “intemperate description of the defendants’ alleged motivations and actions” was quite right; I’m inclined to say that the lawyer has the First Amendment rights to publish such a letter. But the objective frivolousness of the lawsuit, coupled with the admitted motivation that the letter expresses, strikes me as sufficient to justify the sanctions.

Note also this passage from the opinion (paragraph break added):

The plaintiffs also point to the alleged deliberate misrepresentation by defendants of the application as being one for permission to build houses, instead of one that was for the subdivision only. This argument is at least relevant to the issue of false communications, but is also, to be charitable, disingenuous, and ultimately insubstantial.

The record on this motion, especially the transcript of the public hearing, reveals that the ultimate goal of plaintiffs’ vendee, and thus the reason for the application for the subdivision, was indeed to build a house on each of the newly created lots. Moreover, the petition specifically refers to the subdivision of the lot as being the issue before the Village. The plaintiffs have thus failed to show that the defendants were engaged in a deliberate attempt to mislead the public regarding the nature of the application.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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