Yesterday oral argument was heard on the Rakofsky matter. As regular readers know, I am both a defendant and local counsel for 35 defendants. Marc Randazza is pro hac vice counsel. I will not reiterate the facts. The matter is now before the Hon. Shlomo Hagler, who has written on First Amendment cases in the past.
As a caveat, these are simply brief notes. Argument lasted an hour and 40 minutes and Rakofsky was represented by his counsel, Matthew Goldsmsith. Rakofsky was not present. The room was stuffed with lawyers, defendants, summer associates and others. Probably about 40 or so people packed into a small courtroom.
Since many claims overlapped, everyone did not speak. There was no need. The defendants presented arguments first for an hour, and Goldsmith used the last 40 minutes. By the end, the judge indicated that he was considering sanctions.
The Washington Post went first, as it was the primary source of the blogospheric maelstrom that followed. The Post argued that their two articles were fair reports of a judicial proceeding. Maybe there are syntax issues between the judge’s actual words and their reporting, but this is not actionable.
The American Bar Association went next to argue that there is a republishers privilege for almost all others reporting the WashPo stories, and you need gross irresponsibility to get around that.
The Washington City Paper argued that there was no long-arm jurisdiction for out of state defendants.
TBD.com (Allbritton) argued that there was lousy service.
Randazza waived jurisdiction arguments for many of us (not all), as many want a decision on the merits to preclude Rakofsky suing again in their home states. Those people who live in states with strong anti-SLAPP statutes, however, don’t need a merits decision because if Rakofsky sues them in their home state they have more serious sanctions than New York’s to work with. Our Bannination defendant gets special mention due to a 47 USC 230 immunity argument for an internet forum. Randazza also agued that Rakfosky is a public figure — he tried a murder case and apparently gave at least two interviews to the press — and there is therefore a heightened standard under NYT v. Sullivan.
Defendant Doudna argued no jurisdiction for him as he is an out-of-state defendant, and moved for sanctions (others are awaiting judicial merits decision before making sanctions motion).
Goldsmith gets the next 40 minutes. None of the arguments appeared to sit well with the judge, and it was near the end that sanctions were discussed:
Goldsmith seemed to claim that the statements on their face might not be defamatory, but that the way they are phrased is. For example, that the mistrial was not declared due to Rakfosky incompetence, but because Rakofsky asked to be relieved as counsel. The judge wanted the actual statements that were claimed to be false.
Goldsmith tried to claim that it was defamatory to claim Jackson was “astonished” by the incompetence. Justice Hagler, however, reads the Jackson transcript into the record for our case. He also quips that he is reading it “because I don’t want to get sued” if he messes any part up. Laughter in the courtroom.
There was much argument by Goldsmith trying to claim that the mistrial was because Rakofsky asked to be relieved, not because Deaner fired Rakofsky. But the judge has the transcript and the transcript is clear that Deaner wanted a new lawyer, even though it meant prolonged incarceration while he awaited a new trial.
Justice Hagler noted that Jackson was “verbose” in his condemnation of Rakofsky. If Rakofsky’s conduct is unrelated to mistrial, why did Jackson spend 2-3 pages on it? Goldsmith tried to claim that this was mere dicta. But what does it matter to the defamation claim, the judge wanted to know. Rakosky didn’t suffer an injury because of a mistrial, but because of comments about his competence and ethics.
There was much discussion of the “trick” email. After Goldsmith gave Rakofsky’s version of events — that “trick” only meant to hide the identity of the investigator — Justice Hagler asked, “Trick is the same as truth?” Goldsmith conceded that the email was sent by Rakofsky.
Goldsmith tried to argue that linking to WashPo made everyone liable in NY because WashPo does biz in NY and has commercial purposes. Justice Hagler: “That would change the very fabric of the law if it were true.”
After going through claims of prima facie tort and intentional infliction of emotional distress and civil rights violations, Justice Hagler pressed Goldsmith on the questions of whether all the causes of action were inextricably intertwined with the defamation cause of action. Goldsmith said he was simply pleading in the alternative. This concept came to a head with the negligence cause of action. What duty is there? What breech? What injury? Justice Hagler: “To say this is negligence is beyond the pale of professional practice.”
The judge strongly suggested he withdraw duplicative claims as there was a good case for sanctions. Goldsmith was unable to demonstrate a basis in law or fact to make that claim when asked.
The judge gave Goldsmith time to speak with Rakofsky to see what they would withdraw, cautioning the plaintiff: “I don’t think you’re going to like my decision.” He speculated aloud that he might find himself making decisions based on Rakofsky’s competence and ethics.
Final note for the non-lawyers who may be reading: The fact that judges ask certain questions and appear to develop a disposition as they learn the facts and parry with attorneys doesn’t mean that they will rule in the way you think. We saw that yesterday — when Chief Judge John Roberts voted to uphold President Obama’s health care law despite asking critical questions from the bench during oral argument. Judges, sometimes, surprise.
Decision and order granting the motions to dismiss (updated 5/12/13)