Today we once again turn to Donald Trump, the One Man Bar Exam. Specifically, as to how he might be sanctioned in New York should he bring a frivolous defamation suit here.
Quick background: To absolutely no one’s surprise, Trump threatened to sue the New York Times two weeks ago for defamation because it reported the news. Specifically, it reported that women had stepped forward to assert that he’d sexually assaulted them.
He then went on to assert that he would likewise sue the bevy of women who have stepped forward to talk about the assaults they claimed.
Now comes Ted Boutrous of Gibson Dunn and Crutcher to say that he will defend anyone Trump sues. For free. And he likely has 100 lawyers around the country willing to pitch in their services. There is no shortage of lawyers who would gladly take Trump’s testimony and delight in obtaining liberal discovery about him and his manner with women.
In a discussion on how Trump would get destroyed if he were dumb enough to bring such a suit, Boutrous writes at Politico regarding sanctions:
If Trump does end up pursuing these cases, he could do worse than lose. He could get hit with monetary sanctions for bringing frivolous claims and be subjected to countersuits by these women, who can argue that he has defamed them by calling them “liars” and who are private figures and thus not governed by the Sullivan “actual malice” standard that restricts Trump’s claims against them. All they would have to prove would be that Trump negligently made a false statement that injured their reputations.
Now I don’t actually think Trump will sue. I think he did this solely to intimidate others from coming forward, so that they would think, “I don’t need this shit.” It’s a classic case of intimidation.
But if he is irrational enough to ignore the advice not to sue, and he brings the action in state court in New York where he lives, I’m here to tell you the legal mechanics of how such a sanction could come to be.
Since I’ve been sued twice for defamation over blog posts here, in addition to being a personal injury attorney who routinely brings lawsuits, I have a pretty good prospective from both sides of the -v-.
Since I think the case is an absolute slam dunk against Trump if he sues a media outlet I’m going to leap ahead and go straight to the issue of sanctions.
I’ve written about this stuff before. After Trump brought a dumb defamation claim against Univision, and sought $500M in damages, I laid out the case against him. Then I wrote an April Fool’s gag, complete with fake judicial opinion, laying out the case for sanctions.
In supporting the motion for sanctions, the court might consider Trump’s prior acknowledgment that he brings frivolous suits, as he stated to the Washington Post:
Trump said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”
While New York doesn’t have an anti-SLAPP statute, much to my dismay (my NYLJ op-ed is here), and has a judicial culture against sanctions, any lawyer dumb enough into letting his arm be twisted into bringing suit may well look to New York’s state court as the place to sue.
So these are the four places to look for sanctions in a New York action that I can conceive — two of which I have never seen happen — assuming the judge bucks the judicial culture against awarding them:
First: CPLR 8303-a: This provides for an award of mandatory costs and fees up to $10,000 for making a “frivolous” claim. In order to meet this definition of frivolousness under this statute, a court must find either that
(1) 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.”
Note that this is per claim, so that if Trump brings suit with multiple claims, it is 10K per claim, not per lawsuit. It’s a nice multiplication factor to use against the vexatious litigant.
Second: Then there are the court rules, specifically, 22 NYCRR § 130.1–1, wherein a court, in its discretion, may also impose financial sanctions upon any party who engages in frivolous conduct. Conduct is frivolous if:
(1) 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 or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false. (22 NYCRR § 130.1–1[c][1–3].)
So essentially we have a statute for commencing a frivolous suit and a court rule for conduct. The one for conduct has no limitation.
Third: This is for an angry judge, who wants to buck the judicial culture against sanctions, and try to use the logic used by the federal courts, wherein courts retain an inherent power to sanction, “to manage their own proceedings and to control the conduct of those who appear before them.” Chambers v. Nasco. A judge might consider whether New York also has an inherent power to sanction when there is clear evidence that the challenged actions were entirely without color and made for reasons of harassment, delay or other improper purpose.
If an angry judge goes this route, you would expect an appeal as there is little, if any, case law in the state to do this.
And I would argue that a sanction should be commensurate with Trump’s wealth, to insure that it has the necessary impact. Let’s fact it, a $10,000 sanction for someone that claims to be worth “in excess of $10 billion” is not even a rounding error for the accountants.
Fourth: If Trump brings suit, there is a 110% chance of him placing a ginormous, stupid number claim for damages in the complaint (even though he may well be libel-proof). You are, quite simply, not permitted to do that, as it would explicitly violate CPLR § 3017(c), which prohibits ad damnum clauses (the monetary damage clause) in personal injury cases. It reads, quite simply:
In an action to recover damages for personal injuries or wrongful death, the complaint, … shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.
Now there are only two possible reasons for a plaintiff to put such a thing in a pleading, given that this law was passed in 2003. First, that the party deliberately violated the law in the quest for press, in the hopes of embarrassing someone with headlines. Second, that the lawyer is ignorant.
While it has never been done before, to my knowledge, the sanction was urged by New York’s late guru of civil practice, Professor David Siegel as a way of enforcing the law against those that willfully violate it.
Finally, if I were writing the brief, I would make damn sure to point out that Trump is a vexatious litigant, and that if the court refuses to sanction then it should expect more of the same. Again. And again. And again.