Friday, February 18, 2005
Blitzering the wrong Wolf
Prof. Volokh points us to this post by Overlawyered's Ted Frank about a plaintiff upset over entries on an electric bulletin board by "one anonymous poster, who has the especially credible username of Wolfblitzzer0 [sic]. So, [the plaintiff] has sued ... CNN and the real-life Wolf Blitzer!"
I rarely find myself disagreeing with Prof. Volokh, but I certainly disagree in part with this reaction:
Sounds like a sure loser of a case to me, perhaps even sanctionable (though that's a tougher call).
"Tougher call"? Nuh-uh. Not tough at all.
A lawyer who sues someone whom the lawyer knew, or clearly should have known (with an exercise of even minimal common sense, much less reasonable investigation), was the absolutely wrong defendant is begging for sanctions under Rule 11 of the Federal Rules of Civil Procedure. Even if a lawyer is in a huge rush to get his lawsuit on file — e.g., to beat a short statute of limitations (and indeed defamation actions generally are subject to short limitations periods, typically one year) — one can use a "John Doe" placeholder and then diligently crank up the discovery processes to try to find the correct warm body to add in an amended pleading.
Were I a federal judge considering this particular filing, I'd set a Rule 11 hearing sua sponte, whereupon the exchange would go something like:
JUDGE BELDAR: Counsel, look me in the eye and tell me on the record every reasonable basis that you had to believe, after diligent investigation, that CNN's Wolf Blitzer and "Wolfblitzzer0" on this bulletin board were one and the same. And your answer better not contain the words "might," "guessed," "similar," or "publicity."
COUNSEL: Uh, well, Judge, I, uh, well, you see — say, how about those Dolphins? Do you think they'll get a decent RB to replace Rickie Williams?
Seriously, unless the lawyer had some incredibly sound explanation (I can't even imagine what it would be, but that's why one holds a hearing), he'd be paying Mr. Real-Wolf Blitzer's legal fees and expenses, plus a nice-sized fine, plus watching me refer him to his state bar association and my own federal district's admission-to-practice gurus with a blistering recommendation that they consider further sanctions (like a license suspension).
Other weblog posts, if any, whose authors have linked to Blitzering the wrong Wolf and sent a trackback ping are listed here:
Not that they deserve much credit, but Zwebner and his lawyer aren't claiming that Wolf Blitzer himself is making the posts. They're claiming that Wolf Blitzer's failure to protect his trademark has permitted an anonymous poster to commit libel. Courts, for better or worse, are slightly more lenient to wild-and-crazy legal theories than to facially wrong factual allegations.
Thanks for the clarification, Mr. Frank!
Then he sued the "right" guy (i.e., the guy he intended to sue) on a legal theory that is unsupported under current law or any reasonably likely extension thereof. Maybe the difference between a 90- and 30-day suspension of his license, but still sanctionable IMHO, and still not a close call. And the attorneys' fees and expenses award is likely to be higher than in a pure mistaken-identity case, because the real Wolf's lawyer is going to have to crack at least a couple of books and file a brief to demonstrate why it's a bogus legal theory.
Wouldn't the safe harbor provisions apply?
Fortunately, I haven't had the 'opportunity' to deal with many Rule 11 cases in real life.
Fed. R. Civ. P. 11(b) provides in pertinent part:
By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; [and]
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery ....
If (as I originally, if unwarrantedly, assumed) the plaintiff knowingly/recklessly sued the wrong Blitzer, his lawyer has violated Rule 11(b)(3) and probably also Rule 11(b)(1). On the "right guy/bogus theory" as clarified by Mr. Frank, the plaintiff's lawyer has violated Rule 11(b)(2).
In my hypothetical, Judge Beldar has initiated the Rule 11 proceedings sua sponte under Rule 11(c)(1)(B). If instead the real Mr. Blitzer's lawyers want to crank them up, under Rule 11(c)(1)(A) they have to serve the motion on the plaintiff's counsel before filing it with the court, and the plaintiff's counsel has 21 days to withdraw and otherwise fix it. Is this the "safe harbor" you were referring to, Geek? Fixing it may include having to reimburse the real Mr. Blitzer's lawyers for their time and expenses in preparing the motion, even if the pleading was withdrawn before the motion was filed.
In other words, the safe harbor isn't safe; the Emily Litella "Never mind" defense doesn't immunize the plaintiff's lawyer from all consequences, although if he backs off and pays the real Mr. Blitzer's lawyers he might avoid harsher sanctions. You can't, and shouldn't be able to, pull this kind of crap and get off scot free.
(5) Al made the following comment | Feb 19, 2005 11:11:04 AM | Permalink
Speaking of 'getting off scot free' and the prevention thereof, have you paid any attention to SCO v IBM? groklaw.net This seems to me like a case where the nominal defendant is busy trying to make sure the plaintiff doesn't escape.
Much obliged, Mr. Beldar.
(7) Narniaman made the following comment | Feb 19, 2005 1:26:29 PM | Permalink
Just a small question, counselor.
While you say that attorneys should be sanctioned for nonsense such as this. . .
Are any of them ever actually sanctioned?
Note I am specifically asking about frivolous law suits -- not the type of sanctions earned for lying under oath before a grand jury or bedding down a client and taking off with her money.
Thanks in advance!!
Narniaman, yes, the slow but general trend over the last 25 years has been to apply Rule 11 more aggressively, especially in the federal courts. Most state-court systems have some analog to Rule 11 in Texas, it's the forbiddingly named but more rarely applied Rule 13:
The signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of their knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment. Attorneys or parties who shall bring a fictitious suit as an experiment to get an opinion of the court, or who shall file any fictitious pleading in a cause for such a purpose, or shall make statements in pleading which they know to be groundless and false, for the purpose of securing a delay of the trial of the cause, shall be held guilty of a contempt. If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate sanctions available under Rule 215-2b, upon the person who signed it, a represented party, or both.
Courts shall presume that pleadings, motions, and other papers are filed in good faith. No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order. "Groundless" for purposes of this rule means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law. A general denial does not constitute a violation of this rule. The amount requested for damages does not constitute a violation of this rule.
What keeps these rules from being applied more aggressively is the desire to "keep the courthouse door open" to claimants who are genuinely trying, in good faith, to accomplish an "extension, modification, or reversal of existing law." Thus, for example, Floyd Abrams' attempt to get Branzburg overruled on behalf of his journalist clients isn't sanctionable, even though his argument that there's a First Amendment privilege protecting them is squarely foreclosed by that Supreme Court precedent. Obviously some subjective judgment is involved, and by definition these sanctions are almost always being sought, and the court is required to rule on them, very early on before there's been any factual discovery that might support what looks like a tenuous claim on its surface.
But suing Wolf Blitzer on the theory that he should have prevented everyone else in the world from posting to a BBS with a name similar to his own is, in my own subjective judgment, far, far outside the bounds of seeking an "extension, modification, or reversal of existing law." It's a publicity stunt, and ought to be punished.
Besides the question of "keeping the courthouse doors open" that Beldar mentions, there are in many states tensions between legislatures that want to see fewer "frivolous" suits and court systems with judges that are not sympathetic to such goals.
Is a public figure's name, given or assumed, generally recognized as a trademark under law such that it needs to be defended?
I'm not an expert in trademark/tradename or intellectual property law, but my general understanding is that no one need trademark his own name as a condition to keeping others from misappropriating it. Context and "likelihood of confusion" are key, as may also be whether the alleged misuse is commercial or not; parody use may provide a very broad exception.
(By the way, I suspect that the reason the complained-of BBS poster used "WolfBlitzer0" rather than "Wolfblitzer" is that the latter had been blocked from use by the BBS' operators; or maybe some other imitator had already snagged "Wolfblitzer" as his username.)
Even with trademarks and tradenames that have been duly registered, the consequence of failing to "defend" it is that its owner loses his right to protect it (i.e., prevent others from misusing it). That's a far cry from saying that you have a duty to defend it in order to prevent confusion among third parties, such that some other third party (like the plaintiff here) can sue you for your failure to defend your name/tradename/trademark. I seriously doubt that the plaintiff's lawyer in this case can find a single case, or even a serious commentary like a law review article, proposing this as an appropriate expansion of existing law. It's a ridiculous theory, not close to passing the Rule 11 test.
With great respect to Beldar, misappropriation of one's name is actually a tort. One could trademark one's name, but it would require establishing distinctiveness ( usually through "secondary meaning" which means I'm going to have to show an association in the public mind between my name and goods or services marked with it). As an example, I'll be unlikely to get a trademark for "Robin Roberts" but "Eddie Bauer" or "Yves St. Laurent" are obviously strong trademarks and are registered with the USPTO.
But that nitpicking done, the bottom line remains as Beldar wrote above.
Robin's right, and we don't disagree, I think. I simply want to stress again that whether you're Yves St. Laurent or Wolf Blitzer, you have no duty running to unrelated third parties (like the plaintiff in this case) to prevent your name from being misappropriated. The consequence of your failure to sue whether on a tort theory or under a trademark theory (if you've so established and/or registered your name is that you won't get damages, you won't stop the misuse/misappropriate, and you'll arguably be estopped from ever bringing those claims yourself against the faker. One of the consequences is not that you've opened yourself up to civil liability from a plaintiff in a case like this one.
I really enjoy this kind of post. I'm a non-lawyer who nonetheless has some knowledge of law and is happy to learn more. Perhaps it's a good thing that distracting election business is over. ;)
(15) John made the following comment | Feb 23, 2005 12:57:06 PM | Permalink
Can't use John Doe pleading in federal court to circumvent a statute of limitations. See, e.g., Topia-Ortez v John Doe, 171 F.3d 150 (2d Cir. 1999).
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