Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Saturday, September 24, 2005

HW red herring on anti-SLAPP threat

It appears the decision to withdraw the complaint against Neumeyer has more to do with an analysis that the potential litigation against Neumeyer was arguably a distraction, and less to do with a credible threat of litigation against the Caplins.

Note, the following information is purely a discussion on a theoretical level. It should not be taken as legal advice.

Reader Tip: Harvard Westlake litigation articles are here in the archive.

* * *

The Student Press Law Center stated the Caplin's invasion of privacy claim against Kathleen Neumeyer has been settled/dismissed.

Note: Neumeyer is conveniently a benefactor of the Student Press Law Center ["SPLC"], and has provided funds to SPLC in the past.

As an aside, would it not be helpful to the general public if this type of disclaimer was provided in the original press release? But why ask for prudence before the court imposes such a requirement.

It remains unclear whether defendant counsel plans to rely on the relationship Neumeyer has with SPLC in order to provide information to the public that the court will not admit as evidence.

We believe that counsel is doing just that. We offer you a number of points and authorities suggesting that counsel's statements in the SPLC are at best favorable to the client; at worst they are shockingly unhelpful.

* * *

An Anti-SLAPP action must be brought within 30 days of the initial claim. Here we are, more than 30 days after the April 2005 filing. What happened, did the court say, "Hay, you can file this late?"

Silly me, "local rules".

* * *

Counsel fails to address what may have been a real reason for settling the matter with the Caplins: If the court decided that the Anti-SLAPP motion had no merit, then it would be Neumeyer who would be hit with attorney fees. SPLC neglected to mention this.

* * *

Yet, there is a strategic reason for both parties to settle this matter, rather than litigate.

Imagine being a defense counsel for two different efforts: One against your client for a major litigation effort; and a second set of litigation issues over what the court could rule as a frivolous Anti-SLAPP effort. That's a distraction. Who needs distractions when the initial claims are just that: Distractions from imposing more consequences on those who dare speak of the toxicity.

* * *

Neumeyer under the law would have the right to appeal the case and engage in discovery. However, rather than file an Anti-SLAPP motion as asserted Neumeyer was "fully prepared" to do, we see no complaint.

The purpose of the anti-SLAPP statute will not be achieved if an offending plaintiff can avoid sanctions simply by dismissing his complaint before the defendant files his motion.[ S.B. Beach Properties , 120 Cal. App. 4th 1001 ]

Neumeyer had the option to file an Anti-Slapp complaint against the Caplins even if the Caplins withdrew their complaint.

The complaint has been withdrawn; we see no complaint against the Caplins; we only have a statement by counsel of what they were "considering".

Curiously, why would counsel "talk about" doing something that the law allows, and not exercise that option? Talking is one thing when you can speak outside the court; action is something else.

We defer to the court docket: Neumeyer's attorney didn't file a complaint against Caplins as he was allowed to do. Thus, we conclude that Neumeyer's Counsel's statements to the SPLC are simply conjecture, speculative, and not credible as a legal threat.

* * *

S.B. Beach Properties reminds us that there are both timing and bluffing issues. If defendant counsel is to be believed that they "could have" brought the suit, then why did they not exercise that option? The answer is that defense counsel is most likely not confident that that Anti-SLAPP effort would prevail. Curious, a plain reading of the SPLC release suggests counsel is confident of the opposite.

What shall we believe: What counsel doesn't do; or what the our lying eyes reveal the law stipulates as an option, but counsel has not exercised?

Again, where the law permits action and recognizes rights, but those rights are not asserted, we defer to the action of the defendant, not the words of the counsel: There is a reason nothing was done, and it is irrelevant what Neumeyer was "prepared to do" as she would, theoretically still have that right to bring suit against the Caplins despite the Caplin's withdrawal of the complaint.

There was never a barrier to Neumeyer filing against Caplin even after Caplin withdrew the complaint against Neumeyer.

It is a separate matter whether the court would recognize an Anti-Slapp motion in Sept 2005, five [5] months after the initial complaint. The CA statute recognizes 30 days, and in some case 60 days. That takes us back to May-Jun timeframe, or 90 days ago.

Thus, there are at least two major flaws with the believability Neumeyer's counsel's statements to the SPLC: The failure to file the complaint as they were allowed; and the failure to explain what would permit filing the complaint despite exceeding the 60 day rule.

Bluntly, because of this major defect in counsel's implicit argument in the SPLC press release, we are not persuaded that counsel should be relied upon as an independent source of information on what the plaintiff may or may not have been contemplating with reference to what the court would most likely support; rather, their public statements should be carefully dovetailed with the statutes and caselaw.

In short, by simply taking a broad sweep of the statutes and comparing them with counsel's statements, we find counsel's statements in the SPLC to lack credibility as a source of a reliable insight into what they would most likely be doing. Again, other than the time limit of 30/60 days, there is nothing barring Neumeyer from filing a complaint after the Caplins withdrew their motion.

We doubt counsel was serious about actually filing a credible complaint; and failing to file that complaint when they do have that option, we believe counsel's statement to SPLC should be rejected as a serious reflection of what they actually planned to do.

We believe counsel's statements to SPLC were designed more for public consumption in terms of asserting the "right to defend the right to free speech," rather than share what we believe is the real issue: Someone on the HW editorial staff went too far in continuing to report on an issue that was more of a personal nature, not within the bounds of reasonable public discussion, and didn't warrant further disclosures or commentary by a private institution

In theory, after the Caplins son removed himself from the public debate and started a new life as a new student at a new school, the editors "should have" recognized that the issue wasn't free speech, but related to a "safety of life" issue.

* * *

Normally, at this point in a discussion when the major point fails, we need not consider any other point.

But why stop now?

* * *

If counsel believed that Neumeyer's Anti-SLAPP action would prevail as one might conclude from the SPLC release, then there would be no reason to do anything: Neumeyer counsel would simply file a complaint regardless whether Caplins did or did not withdraw the claims against Neumeyer.

Indeed, if we are to believe the SPLC release, counsel would have already filed the Anti-SLAPP motion, and we'd be off to the races.

However, we see no race; we see no complaint.

Rather, we conclude as a matter of purely personal speculative opinion that may be only held narrowly by a thin portion of the population, that counsel's comments to the SPLC are unsupportable as a matter of law, fact, and legal argument. But that's just our personal opinion and should not be construed to reflect any commentary on counsel's judgment or legal abilities.

Was it Shakespeare who said, "Blame the editors!"?

* * *

Even if the Caplins were to prevail in the first round at this court, Neumeyer could have appealed. However, the last thing both Caplins and Neumeyer want is a distraction of an appeal from the underlying litigation.

Then again, perhaps a distraction for some is their best hope, Obi-wan.

Speaking of Ralphs, affirming for plaintiffs [in this case, the Caplins] the right to recover attorney costs from the defendant [in this case, Neumeyer] for a frivolous Anti-SLAPP motion,
Imagine trying to get to the toaster that is on fire while your cooking grease is spilling all over the burning eggs.

Decision time: Save your toast, and lose your house; or ignore your toast, and have burnt eggs?

It appears the parties collectively agreed that it would be better to agree to unplug the toaster, do without toast, and focus on the stove.
The fire continues.

Thus, we conclude that the dismissal was by mutual agreement; and if the Caplin motion against Neumeyer warranted a remedy with an Anti-SLAPP motion, defense counsel would not have advised Neumeyer to have settled with the Caplins.

The smoke is thickening.

* * *

Given the vacuum of facts, and the apparent non-sense in the SPLC commentary, we conclude that the SPLC and defendant counsel are simply dancing as a diversion from the real reason for the settlement: Caplins probably thought it would be more effective use of discovery resources to focus on the prize: Harvard Westlake, and let the subsequent earthquake nudge Neumeyer.

If the fissures are deep and wide enough, some of the faculty could get swallowed whole, like a big fish between Flipper's teeth.

Indeed, why set rat traps when they're already racing toward the flaming pit above Hades?

We conclude the statement by Neumeyer's attorney to SPLC is at best window dressing, and at worst simply a distraction from the real issue: Harvard Westlake is about to face a rather nasty wakeup call, that nobody can silence.

The litigation likely will not stop with the Trustees, but also go into the LAPD and DA's office. There's no telling what those FBI agents have uncovered.

Possibly more than they understand or can comprehend. Follow their example: Yell louder when things get confusing, that's worked well to date.

* * *

I suspect the real reason for this SPLC statement is that Neumeyer is simply using what little advantage she has: She's a benefactor and provides/has provided money to SPLC.

Caplins are at a disadvantage as they don't have an immediate press outlet that will file a friendly press release.

Full theatrical releases for worldwide release take more than a few moments to patch together. It's only been three weeks since the settlement, so the Caplins shouldn't worry the world press is leaning in favor of either party.

* * *

It will be interesting to see how the Harvard Westlake litigation developments play out in the form of a screen play. I would suspect the number of hits to the SPLC website would pale in comparison relative to the potential theatrical release, motion picture rights, DVD sales, and other outlets.

Last time I checked, Caplins are well connected, albeit quiet producers. Perhaps a snooping Variety freelancer suspects one party to the complaint is using the public media, albeit a single press release, to affect the jury pool.

If only the world were attentive to whispers of confusion. They swim in the pool of chaos, screaming for more nonsense.

But I digress . . .

We suspect far more ominous prospects of mythic proportions: The Caplin Goliath trudges into the Greek village, stepping on the confused, troubled ants scurrying from the Harvard Westlake colony.

I suspect there's a sound track for that in the works: Loud symbols, echoing thunder, and clashes to invoke the spirit of Rita and Katrina combined.

Scrolling across the screen: "One family . . . against . . . a flawed institution."

I get goose bumps thinking which theatrical or stage awards my rain from the heavens in the wake of this battle.

Enough of religion, the script still has yet to be finalized. Script writers tend to want to know how the final scene will unfold before they commit to throwing more gasoline on the allegedly corrupt, unresponsive, and arrogant institution ignited by the proverbial flames of public scrutiny. But why wait?

To ignite this pig roast, I share with you more matches. The smoking lamp is on. Please, hide your children. They are too old to be exposed to common sense.

* * *

Let's focus narrowly on the press release and what the public should reasonably expect when a private institution uses it's communication channels to publicly discuss matters that should be left in the Administrators office.

There was a curious twist to the SPLC commentary.:
Schoenberg [ Neumeyer's attorney ] said his client was prepared to launch an anti-SLAPP (Strategic Lawsuits Against Public Participation) counter claim, leading to the Caplins dropping the complaint against Neumeyer.

Under state anti-SLAPP statutes, a person defending against a lawsuit that threatens free expression may file a special motion to get the claims dismissed. If the judge finds the motion has merit, the individual who filed the original lawsuit can also be required to pay the defendant's court costs and attorney fees.
This is all very interesting, however, there is one small problem. In order to prevail in an Anti-SLAPP claim, Neumeyer would have the burden of proof to show the issue was a legitimate public interest.

* * *

We've heard plenty of commentary that the lawsuit against the Chronicle advisor was a threat to free speech. However, the court has found that this is irrelevant and a red herring.

In Equillon [ 29 Cal.4th 53 ], the court founds that there is no requirement to prove the lawsuit was intended to squash free speech.

54 Cal.App.4th 1237 reminds us that, should Neumeyer have counter-sued with an Anti-SLAPP, she would have the burden of proof that the matter was a "public matter."

Although the information may be public, the court in Biggs reminded us of the Zhao finding:
The existence of a public issue depends rather on whether the statements possessed the sort of relevance to self-government that places them in a specially protected category of First Amendment values

Thus, to assert that the advisor is a protected individual would mean that she would have to show that she was entitled to speak on this matter.

The facts show otherwise: Neumeyer didn't speak, she was simply the advisor, in a position to exercise oversight.

Score 1 for Harvard Westlake in diverting attention from what is arguably both a failed oversight system; and a flawed mechanism to ensure your faculty are accountable for ensuring administrative matters are handled with discretion, not fanfare.

* * *

The real burden on Neumeyer was whether this issue was a legitimate public interest. This is a difficult burden for her to have met.

The Briggs case states the test, when appropriately applied, follows Supreme Court precedent and reviews:
"whether the speaker was advancing a purely private interest or speaking out as a concerned public citizen to inform the general public about possible wrongdoing."
It's not clear that the issue of "where a student has been assigned after an administrative issue over threats of death" is a matter of public concern.

A private dispute between a trustee [such as a student or tenant] and an agent [such as a landlord or an academic institution] does not in itself create a "public interest".
The particular statements challenged in plaintiffs' lawsuit were neither addressed to the general public nor related to an issue of interest to anyone other than the participants in the private landlord-tenant dispute. [See Biggs]
We fail to see how anyone could credibly convince the court that the Chronicle's Advisor was pursuing all of the following:

A. The matter was a public interest;

B. The action was against as a concerned citizen; and

C. The information was about wrong doing.

Rather, the facts appear to be the opposite:

1. The issue of where the student was located, or how the issue was resolved was not of a public interest, but merely curiosity;

2. The issue of where the student was reassigned was not raised as a "concerned citizen," but a disclosure of something that is best handled behind the closed doors of administrative personnel;

3. Nor was the information about wrong doing; but it was about a personal matter related to the target of that wrongdoing.

The court would only have to find a defect in one of these prongs. We find defects in all three, making it more likely than not that potential Neumeyer counter claim would not have prevailed.

Score 2 for Harvard Westlake in successfully changing the debate from whether a student under your supervision should be exposed to this abuse; and asserting the institutions "private right of speech" to arguably retaliate against those who dare speak out about your arguably defective management.

* * *

Clearly, the Caplins and the defendant have settled, making the above discussion moot.

However, we question whether the public statements about the "reasons for the settlement" are to be taken as an endorsement of the conduct.

In our view, despite the settlement, we fail to see that "the publication of the Caplins son new place of study" is of a matter of public importance.

Rather, the higher objective appears to have simply published something unrelated to a matter of public concern, and fails to meet the test outlined in the Supreme Court, as supported by Briggs.

The issue becomes whether the reason for the publication was related to a public interest; or rather to the private interest of further retaliating against the private individual.

The issue does not become a "public issue" simply because the academic institution decides, on its own, to muddy the waters in the wake of an outrageously cursory review of threats of death.

It would have been more appropriate that, once the administrative issues were resolved, that the school exercise some discretion and simply make no mention of the subsequent location of the Caplins' son.

It appears defense counsel have successfully painted themselves as an "advocate of free speech," but fail to credibly show that publication of a resolution to an administrative issues is a public issue. This is the same thing as arguing the wrong point; then getting the plaintiff counsel to agree with something that is true, but irrelevant.

Although the courts have ruled that the prevailing party is entitled to damages and attorney feeds, it is not sufficient to allege that "free speech" on a matter is necessarily a public matter.

The issue is not whether the Caplins could nor could not file a claim against Neumeyer; rather, whether Neumeyer could convince the court that it is reasonable to assert an Anti-SLAPP motion and throw out the Caplins claim. The test is whether counsel could convince the court that the matter was of legitimate public interest.

To adequately assert an Anti-SLAPP motion, it is not sufficient assert the facts were already known. There are other factors above and beyond what is in the Student Press Law Center Release which the court considers.

We are not persuaded that the Caplins were facing a credible threat of litigation that would prevail; nor are we convinced that Neumeyer would have prevailed in an Anti-SLAPP motion against the Caplins.

However, the court in many cases has not awarded attorney fees to the defendant after they file an Anti-SLAPP motion.

If the court finds that the matter is not an issue of legitimate public interest, the defendant [in this case, Neumeyer] would not be entitled to attorney fees.

There may have been some discussion about the potential financial costs should the Caplins claims not prevail. The threat of financial losses does dissuade some from asserting their rights.

We believe, based on a cursory review of the record, that Neumeyer would not have prevailed in her effort to assert an Anti-SLAPP motion before the court. In turn, it is not likely that the Caplins would have been forced to pay Neumeyer's legal fees.

We are not persuaded that the potential threat of an Anti-SLAPP motion was a credible threat of litigation; nor did the potential attorney costs pose a credible factor in the nexus of whether the Caplins should have or should not have asserted their right to continue a cause of action against Neumeyer.

It is a separate matter whether the court may have dismissed the suit against Neumeyer for other reasons.

Score 3 for Harvard Westlake in successfully changing the discussion from institutional accountability to the Bill of Rights.

* * *

Putting aside the self-evident settlement, we are not persuaded that the court would have found that Neumeyer would have satisfied one essential prong of the Anti-SLAPP.

It is irrelevant whether the information was already public. The issue is whether one enjoys the right to assert a claim under the Anti-SLAPP statute on a matter than arguably is not of public concern.

It may have been of interest to the student body who had an interest in knowing how an administrative issue was handled. However, this does not mean that a student's interest in a private dispute between the Caplins and the institution would satisfy the "public interest" test.

The student's interest in how a private issue is resolved is not the same as creating a right to have access to that information; nor does it then translate into a public issue warranting protection. Fellow students do not have unfettered access to their fellow students academic or counseling records.

If we are to believe that once someone becomes a "legitimate public issue" simply because they are the target of harassment, then this means that anyone so abused loses all reasonable right to privately resolve their issue.

The only reason this matter is a public issue is not because there is a lawsuit. That happened after the public disclosure.

Rather, the real reason for this issue now becoming a public issue is that the target of abuse was subsequently thrust into the public debate simply because they chose to resolve an issue by leaving.

Clearly, by continuing to comment on the matter related to alleged threats of death, the issue was not resolved by leaving. Hence, the Caplins' lawsuit.

An inappropriate threat of death does not make the target that threat forever to be the object of public intrusion. The door to abuse should be closed, not left forever to swing in the wind of abuse.

Although the information may have been true, we find little to support the assertion that Neumeyer would have prevailed in showing that the issue was a legitimate public interest. This is a difficult burden that would have rested with Neumeyer to prove, not simply assert.

It is our belief, notwithstanding the dismissal, that Neumeyer would not have been able to meet the burden in showing this was a legitimate public issue.

Neumeyer may have ultimately prevailed in having the original claims dismissed. However, the public should not walk away fearing the threat of an Anti-SLAPP counter-suit.

Score 4 for Harvard Westlake in using the potential threat of litigation and speculative financial consequences to get the target of the abuse to back down; all the while never asserting or proving the legal prongs could be satisfied.

* * *

It remains to be seen whether defense counsel plans to allude to similarly weak arguments going forward.

It's one thing to convince the public an institution is asserting a private right to free speech. It's a separate matter when asserting that legal argument before the court that does not find that argument credible.

We expect to see more credible threats of red herrings.

Score 5 for Harvard Westlake for keeping the red herrings out of the court.

* * *

Harvard Westlake officials are painting themselves as advancing the right to free speech. However, the institution's priority should be in justifying confidence in their ability to swiftly resolve administrative issues within the four corners of their own institution.

It is arguable that the public discussion in the Chronicle is related more to efforts to retaliate against the former student, rather than letting citizens publicly discuss issues of legitimate public concern.

It is self-evident the scope of the alleged abuse, inaction, and misconduct is wide and entrenched. We remain unclear why the Trustees should enjoy their continued oversight positions.

Score 6 to Harvard Westlake for diverting attention from an unresponsive system, and getting the target of the harassment to withdraw their cause of action.

* * *

Please continue with your normal distractions. I sense another storm on the horizon.

It's called the Caplin litigation. Yes, it's hasn't hit land.

Is your insurance paid up? Storms like this tend to unfurl the most deeply laid sewer pipes.

Too bad you didn't use better disinfectant when you had the chance.

Alas, what is that whiff of an odor? 'Tis the sweet smell of litigation, bad movie proposals, and award speeches.

Who needs a $20,000-per-year education plus legal expenses, when you have this kind of entertainment.

Defense awaits answers. Too late.

The court will hear none of this. Charge!