Tuesday, February 17, 2015

Lane Bajardi’s Pyrrhic Loss

Last week, a long-running lawsuit targeting two Hoboken political bloggers, Nancy Pincus and Roman Brice, and ten anonymous commenters, was summarily dismissed in the Superior Court of New Jersey. The suit sought two million dollars in punitive damages, and additional monetary awards for emotional distress, reputational damage, reimbursement for attorneys fees and a “cyber investigative service.” It also sought to remove articles and comments posted to a myriad of local and state websites. The suit was filed in July 2012 by Hoboken political activists Lane Bajardi and Kim Cardinal who claimed their reputations had been damaged by the bloggers and commenters. The trial judge felt otherwise.

Let Me Introduce You To Some of My Friends

For the first week of the trial, Bajardi’s council presented the plaintiff's case to the judge and jury, calling on a rogues’ gallery of Hoboken’s political scene to testify on Bajardi’s behalf: Anthony Petrosino (who maintained a job and an apartment in Austin TX while simultaneously employed full-time as Assistant to the Hoboken Superintendent of Schools), Peter Cammarano (disgraced Hoboken mayor imprisoned for two years and disbarred after accepting a bribe from an undercover FBI informant), Patrick Ricciardi (former Hoboken City IT Manager, sentenced to five years probation for a conspiracy that involved “intercepting” Mayor Dawn Zimmer’s emails and forwarding them to as-yet unnamed recipients), Tim Occhipinti (Hoboken councilman, elected in 2010 with the largest number of vote-by-mail votes ever cast in Hudson County, prompting the County Prosecutor’s office to contact the state Attorney General’s office), and Beth Mason (Hoboken councilwoman, who, along with her husband, attorney Richard G. Mason, recently received a record fine from the NJ Election Law Enforcement Commission). These are the people Bajardi chose to bolster his case?

Wrongful Imprisonment

Unsurprisingly, at the end of the week, Judge Patrick Arre chose to dismiss the case and send the jury home rather than let the trial proceed any further. In his statement, Judge Arre indicated that Bajardi had not legally substantiated his claims against the bloggers and commenters. With that, Pincus, Brice and the commenters were released from a two and a half year ordeal, not unlike being released from two and a half years wrongful imprisonment. Like wrongful imprisonment, the defendants were deprived of their time, their privacy, their finances, and faced the threat of financial and reputational ruin. And that’s precisely what a SLAPP suit is intended to do. From Wikipedia:

"A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism.”

Squabble or SLAPP?

Sure looks like it was a SLAPP suit to me. Except for the “...does not normally expect to win the lawsuit” part. I really get the impression that Bajardi and Cardinal felt strongly they should win. After all, the lawsuit has to have disrupted their lives to some extent. And the mountains of personal email presented as evidence against them is likely to reveal a less than flattering portrait of the couple. Of course, the prospect of winning two million dollars and assorted awards could certainly make it all worthwhile. But they’d really have to believe they were going to win, otherwise why would they subject themselves to the process?

So one might come to the conclusion that this suit wasn’t a SLAPP suit at all. It was instead simply what some outlets have portrayed it as: a defamation suit arising from squabbling political factions - nothing more than a grown-up version of a school yard spat - with the SLAPP label affixed only as strategic move by the defense to undermine the plaintiffs' case.

Un-Winnable From the Start

What I believe is that this suit was different things to different people. To Bajardi and Cardinal, this suit was about extracting punitive financial compensation from bloggers and commenters. But to some political allies of Bajardi and Cardinal, this was intended to be a SLAPP suit. For example, I’m guessing that Councilwoman Mason and her husband, no fans of the defendants, were ambivalent about the suit’s outcome. For SLAPP suits it’s the journey’s duration that matters, not the destination.

The court dismissed the suit mid-trial on the grounds that the plaintiffs were unable to substantiate their claims. This is probably the strongest evidence that the suit was a SLAPP suit. To anyone familiar with the case it was clear that the evidence to support the plaintiffs’ claims simply didn’t exist. The First Amendment and New Jersey state law set high bars for proving defamation. Surely any lawyer worth their salt would have advised Bajardi and Cardinal of this from the outset.  The only reason a lawyer would agree to take on a case like this would be if it were guaranteed to drag on thereby guaranteeing an ongoing income. Obviously, there was no prospect of taking a percentage of “winnings” at the end.

Feeling Used?

But this raises a question I’m still struggling to answer: Why did Bajardi and Cardinal proceed with the suit? Were their lawyers incompetent? Did they ignore their lawyers’ advice? Or were Bajardi and Cardinal urged on by parties who needed an excuse to launch a SLAPP suit? These parties saw that Bajardi and Cardinal were eager to be the public face of the suit as long as they believed they could win. So these parties let them believe it, maybe even convinced them to believe it, perhaps even providing financial support, while withholding from them the knowledge that the suit was unwinnable.

I don’t believe this question is necessarily unanswerable. For example, if it were to come to light that the suit was financed by a politically affiliated third party then we’d have our answer. The true answer may lie in the mass of evidence accumulated during the long and extensive discovery and deposition phases of this case. We’ll see…

Bent on Self-Destruction

In the meantime, predictably, Bajardi’s lawyer has stated his intention to appeal the court’s decision. At this very moment, I imagine a couple of legal interns at a high-end law firm are poring over the trial transcripts looking for grounds for appeal, whether Bajardi wants this to happen or not. At this point you have to wonder if Bajardi and Cardinal aren’t asking themselves if they’d rather be getting on with their lives. Going back "once more unto the breach" of what is an undoubtedly unwinnable contest doesn’t make sense for them - it only makes sense in the context of a SLAPP suit.

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