April 1st, 2016

Judge Hits Trump for $500M Sanction for Frivolous Defamation Claim

Remember that case over the summer where Donald Trump sued Univision when it pulled out of the Miss Universe pageant due to his incendiary remarks about Mexicans? (SummonsAndComplaint)

Well, during that suit, he threw in an idiotic claim for defamation. It was based on the photo you see here of Trump’s mug next to that of mass murderer Dylan Roof, which was put on Instagram by Univision‘s president of programming and content, Alberto Ciurana.

At the time it happened, I ripped the defamation claim to shreds as frivolous. As did Popehat, albeit more colorfully than I (Donald Trump’s Lawyers Don’t Know Or Don’t Care What Defamation Is)

Now, it appears, a New York judge agrees. Even though the case was removed a couple weeks later to federal court, it was filed in New York’s Supreme Court (our main trial level court). And because it was filed there, the court apparently retains jurisdiction over anything that happened while still under its roof.

Most of the suit was about the contract between the parties (the contract was never made public, to my knowledge). But the state court decision here focuses only on the empty defamation claim.

Since statutory sanctions are limited to $10,000 per frivolous claim, or in this case $40,000 in the aggregate due to multiple plaintiffs and defendants, the court has seized on its inherent power to police its own courts. A $40,000 sanction after all, is meaningless to a man that claims to be worth “in excess of $10 billion.”

The court noted, interestingly, Trump’s recent interview with the Washington Post about bringing a lawsuit designed to harass, even though they are losers:

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.”

Since Trump sued for $500M, the judge figures that must be the right number that will make an impression on someone who claims to be as rich as Trump.

The 13-page decision and order by Acting Justice L.B. Sullivan is here –> Decision-Order-Trump-Defamation

Trump, it seems, is a walking, talking bar exam question. Every time he does something he opens more cans of legal issues.

Where will this one go? Obviously up on appeal.

Update, seen elsewhere:

Has This Judge Trumped the Donald? (Paul Alan Levy @ Public Citizen)

Does Donald Trump Suddenly Look A Half Billion Thinner? (Greenfield @ Simple Justice)

Update x2:

Deconstructing the Trump Sanction Hoax

March 10th, 2016

Thank You, Donald Trump!

Donald Trump speaks at the 2015 Conservative Political Action Conference (CPAC) at the Gaylord National Resort & Convention Center at National Harbor MD on February 27, 2015. (Photo by Jeff Malet)

Thank you Donald Trump!!! For you did the Constitution and the First Amendment a tremendous service.

You exposed for the entire nation that there are people out there that wish to shut down free speech, and that some are willing to abuse the courts in order to accomplish that goal. Specifically, you exposed that there are some that will bring utterly frivolous defamation suits for the purpose of curtailing criticism, otherwise known as chilling free speech.

As someone that has been twice sued for defamation, and argued in an op-ed that New York needs robust Anti-SLAPP legislation, we can fairly say the issue is dear to my heart.

You did this, Donald Trump. And I am not referring to your recent tirade where you promised to “open up” libel laws which you promised to change if you’re elected president, despite the fact that the president doesn’t hold such power.

No, your service came in comment you made over someone who had sued a reporter over an investigation of the net worth of a loud mouthed real estate developer who was claiming to be worth 5-6 billion when the reporter, Timothy L. O’Brien, said the guy was worth “only” 150M and 250M.

I know! Could you believe someone would bring such a moronic suit!

And to juice his net worth in defense of himself, you wouldn’t believe that the developer actually claimed his net worth varied based on his “feelings” (emphasis added):

Q. Let me just understand that a little bit. Let’s talk about net worth for a second. You said that the net worth goes up and down based upon your own feelings?

A. Yes, even my own feelings, as to where the world is, where the world is going, and that can change rapidly from day to day. Then you have a September 11th, and you don’t feel so good about yourself and you don’t feel so good about the world and you don’t feel so good about New York City. Then you have a year later, and the city is as hot as a pistol. Even months after that it was a different feeling. So yeah, even my own feelings affect my value to myself.

Q. When you publicly state what you’re worth, what do you base that number on?

A. I would say it’s my general attitude at the time that the question may be asked. And as I say, it varies.

Here is what the bellicose developer said about the suit that he brought despite knowing he would lose:

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.”

Yes, Trump, we are talking about you. As if anyone reading this couldn’t have already figured that out.

Your confession published yesterday that you abuse the courts in an attempt to silence critics will no doubt be a nice little weapon in the gun belt of First Amendment defense, and will hopefully go a long way to make sure that such things don’t happen — by raising awareness of the issue and the way you abuse the courts.

Perhaps our legislators will take notice, as it pertains to the pending anti-SLAPP legislation.

And if there are any judges that happen to be reading this, this is why you shouldn’t be gun-shy with the sanctions when idiotic defamation cases are brought. If you would lower the hammer on vexatious litigants, you would see fewer patently frivolous suits, and proper speech protections for the citizenry.

Here’s a suggestion for the next worthless defamation suit Trump brings: Take his demand for damages — which will be a ludicrous amount — and use that as the barometer for sanctions.

Trump Must Stand Trial on Fraud Claims Over Trump University

This post will be short (and periodically updated), but it is breaking news out of the Appellate Division, First Department, this morning:

Donald Trump must stand trial on fraud claims related to Trump University that were brought by Attorney General Eric Schneiderman, according to a unanimous holding by the court. The decision is here:People of the State of N.Y.v Trump Entrepreneur Initiative LLC

The decision gives a history of Trump operating his so-called University without proper authority (violating the New York Education Law by using the word “University” when it was not actually chartered as one), refusing to move it out of state after he said he would, claiming to have hand-picked professors when he did not, and other items of fraud.

There is a long discussion on what the statute of limitations is, and the short version is, Trump lost. Trump also can not appeal this ruling “as of right.” If he wants to go to New York’s high court, he needs permission to do so from either the court that dumped him today or the Court of Appeals itself.

Part of the allegations against Trump by the Attorney General, that seem to be at the heart to the suit, involve Executive Law § 63(12), which states:

“Whenever any person shall engage in repeated fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying on, conducting or transaction of business, the attorney general may apply, in the name of the people of the state of New York, to the supreme court of the state of New York, on notice of five days, for an order enjoining the continuance of such business activity or of any fraudulent or illegal acts [and] directing restitution and damages . . . and the court may award the relief applied for or so much thereof as it may deem proper.” (emphasis added)

From the decision on the extent of the fraud the AG alleges:

In its supporting affirmation, the Attorney General alleged that between 2005 and 2011, respondents operated an unlicensed, illegal educational institution. Further, the Attorney General stated, through various fraudulent practices, respondents intentionally misled more than 5,000 students nationwide, including over 600 New York residents, into paying as much as $35,000 each to participate in live seminars and mentor programs that the students thought were part of a licensed university.

The decision quotes Trump’s assertions and promises to the students of his failed “University”:

In just 90 minutes, my hand-picked instructors will share my techniques, which took my entire career to develop” and went on to state, “Then just copy exactly what I’ve done and get rich.” The Attorney General noted that at the free seminars, instructors played a video featuring Donald Trump telling prospective students, “We’re going to have professors that are absolutely terrific — terrific people, terrific brains, successful, the best” and noted that they were “all people that are handpicked by me.”

The AG’s charges include a bait-and-switch scam operated by Trump, as per the decision:

the free seminars were merely an instrument through which instructors would induce students to enroll in increasingly expensive seminars, starting with a three-day $1,495 seminar. The Attorney General averred that although Trump University speakers represented that the three-day seminar would teach students all they needed to know to be successful real estate investors, the instructors at those three-day seminars then engaged in a “bait and switch,” telling students that they needed to attend yet another seminar for an additional $5,000 in order to learn more about particular lenders. Instructors at [*3]the three-day seminars are also alleged to have engaged in a bait-and-switch by urging students to sign up for “Trump mentorship packages, which ranged anywhere from $10,000 to $35,000” and supposedly provided “the only way to succeed in real estate investment.”

As to whether Trump himself had any personal knowledge of the goings on, the AG states (as quoted in the opinion):

Trump, the Attorney General maintains, conceded that he had “significant involvement with both the operation and overall business strategy of Trump University,” including “attending frequent meetings” with [Michael] Sexton to “discuss Trump University operations.” Further, Trump’s photographs and signature appeared on all of Trump University’s advertising; according to testimony from Sexton, Trump personally reviewed and approved all the ads that were in the newspapers. Sexton oversaw all operations, including but not limited to Trump University’s finances, curriculum development, scheduling and execution of the seminars and mentorship programs, and reporting to the employees of The Trump Organization and Donald Trump.

This ought to be all over the news in about an hour.

Update: AG Schneiderman has now put out a statement regarding Trump’s “sham” college:

“Today’s decision is a clear victory in our effort to hold Donald Trump and Trump University accountable for defrauding thousands of students. The state Supreme Court had already granted our request for summary judgment determining that Trump and his University are liable for operating illegally in New York as an unlicensed educational institution. Today’s decision means our entire fraud case can move forward, and confirms that the case is subject to a six year statute of limitations. As the state’s chief law enforcement officer, my job is to see that perpetrators of fraud are brought to justice. We look forward to demonstrating in a court of law that Donald Trump and his sham for-profit college defrauded more than 5,000 consumers out of millions of dollars.”

February 29th, 2016

Donald Trump and New York’s Labor Laws

Empire State Building under construction. Photo by Lewis W. Hine/George Eastman House/Getty Images

Dear New York Legislators:

It isn’t often that presidential contests play much role in New York politics, given our placement in the calendar of primaries. While this year may be an exception, for the most part the yelling is all done by the time our primary comes around.

But thanks to Donald Trump, this year those politics do play a role, albeit in a most unexpected way.

As you likely know, Trump hired undocumented (illegal) immigrants to help build Trump Tower on Fifth Avenue. The “Polish Brigade” was in charge of demolition to clear the way for Trump Tower.

And if you read the stories about it, you will see something of profound importance to legislators — that worker safety gives way when money is at stake. For instance, regarding the demolition of the building that had previously been at the site:

Mr. Kozak and other Polish immigrants who were hired for the demolition said in interviews that they often worked in choking clouds of asbestos dust without protective equipment.

This story pops up in the news due to Trump’s hypocrisy when crying about immigrants, but let’s leave those politics aside today. It isn’t just that he saved money for himself by hiring them, and took advantage of their desperate need to work, it’s about the ease with which laws can be broken and lives placed at risk.

While almost all the news stories are tinged with presidential politics — with perhaps a healthy dose of Trump-style snark — let’s try to focus on the underlying facts. This summary comes from the Daily Beast, including the judge’s determination that Trump was paying workers (when they were paid at all) “off the books”:

The 200 demolition workers—nicknamed the Polish Brigade because of their home country—worked 12-hour shifts, seven days a week with no overtime to knock down the old Bonwit Teller building and make room for Trump Tower on Fifth Avenue in Manhattan.

According to testimony in a protracted civil suit in federal court, the laborers were paid $5 an hour or less when they were paid at all. Some went unpaid after the contractor had financial troubles. A few never received even the paltry sum that was owed them for their dirty and hazardous efforts preceding the construction of Trump’s monument to his own wealth.

“They were undocumented and worked ‘off the books,’” Manhattan federal Judge Charles Stewart said of the workers after they became the subject of a 1983 lawsuit. “No records were kept, no Social Security or other taxes were withheld.”

Make no mistake, when it comes to worker safety, it’s all about builders trying to save money. And the safety problems can pop up anywhere — if it can pop up on a high profile Fifth Avenue construction project then every place has the potential for such conduct.

As you ponder changes to the Labor Law, a subject that seems to come up each session as builders try to eviscerate it so they can have a bit more, ahem, latitude on safety issues, ponder this: When an accident happens at a construction site, who has control of the evidence and witnesses? Can injured workers rely on their co-workers to give accurate testimony about conditions on the site, with their own jobs at stake if the testimony isn’t what the builder wants?

Do people immigrate to this country to make money to feed their families back home, or to give support to Juan and Manuel that they just met last week?

Usually the faux-reform — reform is a word that should be used for improvements, not destruction — comes up with the scaffold law. When employers don’t provide proper safety equipment and a worker is injured at a height-related incident, the employer is held liable unless the worker was solely responsible. Builders, of course, would love to have a comparative negligence standard, so that they can point the fingers back at the workers and say, “Hey wait! Maybe a jury will find the workers partly at fault!”

But, of course, workers are handicapped by lacking control and access to the work site after injuries. And it’s the builders who are in the best positions to make sure the safety equipment is available.

So, dear Legislators, while many of you have no doubt cracked your fair share of Trump jokes, let’s put that aside today and look at what he’s given us– an inside look at the construction site to see what actually happens, as opposed to what should happen.

Respectfully yours, Eric Turkewitz

February 23rd, 2016

Mark Bennett – Standing in the Well

Mark Bennett, before the Georgia Supreme Court. Yes, that is an actual quote. (Graphic by Marc Randazza.)

Do you ever wonder, when reading a law blog, just how well that writer actually actually practices law? Standing in the courtroom well in front of a jury or appellate panel, after all, ain’t the same as pounding a keyboard.

Yesterday I got to watch one in action, that being Texas criminal defense lawyer Mark Bennett. He writes at Defending People, and is the author of, quite possibly, the most important blog post ever written about potential clients, which is important because it also deals in more general terms with crazy people on the internet. And let’s face, this web has lots of crazy. He gives 10 short Rules.

Anyway, Bennett has a side interest in First Amendment defense, as legislatures often try to criminalize certain speech. He’s successfully argued that several laws are unconstitutional and and has a wish list for more. One of them is in Georgia.

So yesterday found him standing in the Georgia Supreme Court arguing about dirty talk to juveniles (Scott v. The State). I watched from my desk via video feed (found here, last one at bottom).

Bennet was there to say the law was unconstitutional because it was over broad — and the means it may sweep up and affect not only those engaging in unprotected speech, but also those that are engaging in protected speech.

To illustrate his point, Bennet said, in words I never thought I would hear in a high court:

I was a 15-year-old boy, and I don’t believe I was harmed by being sexually aroused. I spent most of my teenage years trying to be sexually aroused.

But I’m not actually here to write today on the legal issue that Bennett covers often at his blog (see Scott Greenfield on the merits), but rather, to answer a simple question: Does this writer have the chops as a lawyer? The problem is that all I ever get to see — all the vast majority of people get to see — is his writing and opinions.

And the answer is a huge, unqualified yes. Bennett was poised, well-spoken, fluid and in absolute command of his material, He quickly (and voluntarily) gave up points that were not important to him instead of stupidly arguing them. The facts of this case? Not important, he said, because his argument had to do with the scope of the law, not the particular facts of the case.

He used language and examples (himself as a teenager) to make his critical point, one that is easily understandable because he wasn’t the only one in that courtroom that was once 15. And he delivered that key argument so smoothly you would think it had just popped into his brain.

I’ve watched many people argue in trial and appellate courts over the years. Compared to others I have seen, Bennett was top notch.

Many years ago I started a category for this blog called Inside the Well, because standing there and talking on your feet and taking questions is a whole different beast than writing. I wrote once, for instance, about one lawyer that fainted in the well.

One of the other links you will find there goes to a piece on Professor Mary Anne Franks, who blocked me on Twitter when I inquired about a cite she had given. This was wonderful stuff because it stood as the absolute, 100% opposite of what a lawyer actually does. If she were actually admitted to practice law, nobody in their right mind would want Franks to represent them.

On one prior occasion I got to watch a law blogger in action, that being Marc Randazza when he came to New York to argue the motion to dismiss in Rakofsky v. Internet, for which I was local counsel and for which Bennett happened to be one of our many law blogger clients that had been sued. He too was terrific standing in the well to argue, with an absolute command of his material.

And so this little post answers a question some of you may have, at least about the particular high profile law blogger. Yes, he has the chops.