January 4th, 2013

Rakofsky Case – The Sanctions Motions (Updated)

This is an update on the matter of Rakofsky v. Internet. Your familiarity with the facts will be assumed, but if you need a primer, you can read through the various posts tagged Rakofsky. There are 13 motions to dismiss that are pending. Or you can use the Google.

As previously noted, I am both a defendant and local counsel. Since I am counsel, I won’t add substantive commentary to the filings since I don’t like to use this blog to discuss pending matters.

In November, the American Bar Association moved for sanctions. That motion is currently returnable January 17, 2013. Returnable, in this case, simply means that is the day for final submissions. There won’t be oral argument on that, or any other matter, unless the judge specifically asks for it.

This is the ABA submission and Rakofsky opposition:



Rakofsky Opposition

ABA-ReplyAffirm-Jones (added 1/16/13)

ABA-ReplyAffirm-Dale (added 1/16/13)

ABA-ReplyMemoOfLaw (added 1/16/13)

Rakofsky letter to court dated 3/13/13 and Matthew Goldsmith transmittal letter to ABA dated 3/14/13  (added 3/21/13)

ABA letter to court responding to Rakofsky, dated 3/20/13  (added 3/21/13)

Our group of 35 defendants, represented by Marc Randazza, just made our own motion, also returnable January 17th. These are the filings so far:

Turkewitz Affidavit

MemoOfLaw (Randazza)

Exhibit A – Transcript of June 28, 2012 hearing on motions to dismiss

Exhibit B – Letter Judge Hagler July 1 – Rakofsky letter explaining why negligence claim was not duplicative of defamation claim

Exhibit C January 3, 2012 order, denying plaintiffs’ motion as “incomprehensible”

Exhibit D Marc Randazza’s June 17, 2011 reply affidavit in support of his motion for pro hac vice admission and extension of time

Exhibit E The April 1, 2011 transcript in United States v. Deaner, Criminal Action No. 2008-CF1-30325 (D.C. Superior Ct.)

Exhibit F The March 31, 2011 transcript in United States v. Deaner, Criminal Action No. 2008-CF1-30325 (D.C. Superior Ct.)

Exhibit G Joseph Rakofsky’s March 31, 2011 Facebook status update, which reads “1st-Degree Murder…MISTRIAL!”

Exhibit H Redacted copy of October 6, 2010 e-mail to an investigator in the Deaner case, wherein Rakofsky uses the word “trick” (commonly referenced as the “trick e-mail”)

Exhibit I Rakofsky’s June 9, 2011 e-mail to Michael Doudna, submitted as an exhibit to Doudna’s motion to dismiss and motion for sanctions

Exhibit J Rakofsky web ads from Connecticut, Washington DC and New Jersey

Exhibit K – Summons and complaint; amended summons and amended complaint

March 6, 2013 Update– new filings this week


Turkewitz Reply/Opposition Affidavit

Exhibit P – Turkewitz Sur-Reply Affidavit on motion to admit Randazza pro hac vice.

Randazza Reply/Opposition Memo of Law

Minutes of April 8th Oral Argument, (added 4/22/13)

Decision and Order (April 29, 2013) (Motions to dismiss granted; motion for sanctions denied)




June 29th, 2012

Rakofsky Oral Argument on Motions to Dismiss (updated)

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)


May 17th, 2012

Rakofsky Moves to Amend His Defamation Case (Updated x2)

Joseph Rakofsky, as seen on a copy of his website, which has since been taken down.

Joseph Rakofsky, who last year sued the Internet for defamation and then amended his suit to add more parties, is now asking the court for permission to amend his suit again.

The proposed Second Amended Complaint weighs in at a staggering 268 pages, with 1,223  separately numbered paragraphs. No, I haven’t read it, but I see that it does contain a brand new tort he calls Internet mobbing, which I understand is a claim that prohibits use of the Internet for criticism and revokes the First Amendment. Feel free to wander amidst the legalese and let me know what these papers actually claim.

I will get to it, of course, since I am one of the defendants and also local counsel to 35 defendants. Marc Randazza is lead counsel for our group.

The motion to amend is made because, in New York, you only get to amend a complaint once as of right, which right he already used up just days after starting the suit. After that judicial permission is needed, or else a plaintiff could be constantly moving the goal posts making the case impossible to defend to conclusion.

Mr. Rakofsky also asks for additional relief in the form of amending the caption to correct the name of the lead defendant, the Washington Post, which had originally reported the story of Mr. Rakofsky’s troubles defending a murder trial in Washington D.C. and the judge’s highly uncharitable comments about his representation. The same judge added more just weeks ago when Rakofsky’s former client was sentenced to 10 years after a plea, and called the defense “clueless” and “motivated by self-interest,” according to Jamison Koehler who practices in that neck of the woods.

Other requested relief is to delete eight defendants from the caption because they settled with Rakofsky, including St. Thomas School of Law. And he seeks a default judgment against seven defendants who didn’t bother to answer the complaint at all, presumably because they are out of state and not subject to jurisdiction in New York.

Previously he had moved to add Yahoo! Google and Tech Dirt, but that relief is not mentioned in the Notice of Motion. The current attempt to amend the amended complaint is actually shorter this time than last.

There are numerous motions pending to dismiss. These papers do not address any of those motions.


Cross-Motion and Affidavits (total, three pages)

2nd Amend Complaint pt 1 (part 1, 118 pages)

2nd Amend Complaint pt 2 (part 2, 151 pages)

Update (6/8/12):

My Affidavit in Opposition: ET-OppAffFinal

Our Memo of Law in Opposition: Rakofsky Opp to SAC -Final

Update (6/26/12):

Rakofsky’s Reply Memo of Law:ReplyOnMotionToAmend



March 30th, 2012

Rakofsky Motion #13 (ABA Moves to Dismiss)

I believe this is the final motion to dismiss being made by defendants in the Joseph Rakofsky defamation case. As regular readers know, I am both a defendant and local counsel for 35 defendants. Marc Randazza is our pro hac vice counsel.

The defendants for this motion are the American Bar Association, the ABAJournal and two of its writers. Defense counsel  is Mark Harris and  Jennifer Jones of Proskauer Rose. The first article by the ABAJournal claimed to be defamatory is here. The second is here.

Pertinent documents for the motion to dismiss:

Memo of Law

Debra Cassens Weiss Affidavit

Sarah Randag Affidavit



March 15th, 2012

Rakofsky Motion #12 – Allbritton and TBD.com move to dismiss

There is now another motion to dismiss in the Joseph Rakofsky defamation lawsuit. This one was filed Tuesday by defendants Allbritton and TBD.com. Allbritton owns seven broadcast television stations as well as TBD.com. TBD aggregates news stories. This was the post they were sued on, which linked to the original Washington Post article on the subject.

Defense counsel is Jake Goldstein from Levine Sullivan Koch & Schulz.

The motion does not address the content of the material posted, but simply attacks the failure to properly serve the papers properly, that TBD.com is not an entity that can be sued, and the fact that Allbritton is not subject to jurisdiction in New York. (The company is based in Arlington, VA.) While the company owns broadcast television stations, none of them are in New York.

If you want to read their papers, this is the relevant document:Memo in Support of Motion to Dismiss

Update 6/25/12: Reply Memo of Law: Reply Memo