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There but for the grace of [fill in your preferred deity] go we. . . .

We’re speaking about Wexler v. Dorsey & Whitney LLP, ___ F. Appx. ___, 2020 WL 3864950 (2d Cir. July 9, 2020) (“Wexler III”).  Like us, the defendant law firm in Wexler operates a legal blog.  Like us, that legal blog reflects a defense perspective (its subject being Telephone Consumer Protection Act (“TCPA”) litigation).  Like us, one of the distribution methods for the legal blog in Wexler is through legal aggregation services.  See generally, 2020 WL 3864950, at *1.

Further, like us, one of the things that this other blog does is to comment on questionable activities by the other side of the “v.”  And like us, this other blog can get snarky in its description of such foibles.  Unlike us (at least so far), this other defense blog got sued over one of its posts.  “[Plaintiff], an attorney proceeding pro se, sued [defendant law firm] and its former associate . . . for defamation under New York state law for [the associate’s] authorship and [the firm’s] publication of a blog post.”  Id.

We’re quite pleased to report that, not only was dismissal of the Wexler suit summarily affirmed by the Second Circuit, but that this affirmance came with the following order:

It is further ORDERED that within 14 days of the issuance of this order, Wexler show cause why sanctions should not be imposed for filing a frivolous appeal.

Id. at *3.  Thus, the First Amendment rights of our compatriot legal bloggers were vindicated.

What happened?  Well, we’ve never heard of a TCPA suit that wasn’t styled as a class action under Fed. R. Civ. P. 23.  To protect the interests of the absent class members, Rule 23 imposes a variety of restrictions, including a requirement of “adequacy of representation.”  Seems that our Wexler III plaintiff engaged in a practice that called such adequacy into question – that being the initiation of a TCPA class action with his wife as the lead plaintiff.

In 2015, plaintiff . . . brought a . . . TCPA[] class action in the Eastern District of New York . . ., with his wife . . . as the proposed lead plaintiff.  [TCPA Defendant] filed a letter seeking a conference on a contemplated motion to strike, writing that “unless and until [plaintiff] both withdraws as counsel and renounces any interest in any future award of attorney’s fees in this case, [his wife] is an inadequate class representative as a matter of law.” . . .  [TCPA Defendant] moved to strike the class allegations on the ground that [plaintiff’s wife] was not an adequate representative of the class; the district court (Block, J.) granted the motion.

Wexler III, 2020 WL 3864950, at *1.  If you’re interested, the underlying decision is reported at Wexler v. AT & T Corp., 323 F.R.D. 128 (E.D.N.Y. 2018), reconsideration denied, 2019 WL 4874746 (E.D.N.Y. Sept. 30, 2019) (“Wexler I”).

The defense win in Wexler I caught the eye of the defense side bloggers, who wrote a post entitled “TCPA Class Certification Denial Exposes Major Spousal Scheme.”  The Court of Appeals’ affirmance quotes the entire blogpost (2020 WL 3864950, at *1-2) so we won’t, but it contained these snarky bits:

  • There are plenty of things I’d like to do with my wife one day . . ., [b]ut filing a class action with her as a class representative is definitely not one of them.
  • That’s exactly what one husband-and-wife duo tried to pull.
  • [T]hat conflict didn’t just vanish after [plaintiff] withdrew, especially because he was still planning to seek an award of fees for his work prior to withdrawal.
  • And enforced they were. The Court . . . granted [TCPA defendant’s] motion to strike.  Maybe [plaintiff and his wife] should try salsa dancing instead.

Wexler III, 2020 WL 3864950, at *2-3.  Yes, there’s a good reason we quote liberally from opinions when we write blogposts like this one.

And so the plaintiff attorney sued the legal bloggers for defamation.  Id. at *2.  That didn’t turn out any better – a Rule 12(b)(6) dismissal without leave to amend.  See Wexler v. Dorsey & Whitney, LLP, 2019 WL 5485265 (E.D.N.Y. Oct. 25, 2019) (“Wexler II”):

The words in the headline that Wexler objects to − “Major Spousal Scheme” − are not reasonably susceptible to convey a defamatory meaning.  The Court, therefore, concludes that as a matter of law the defamation claim must be dismissed. . . .  Taken together, the words “major spousal scheme” are a kind of rhetorical flourish − indicative of opinion − not fact.  Often, statements of “rhetorical hyperbole” or “imaginative expression” are held not actionable, because they “cannot reasonably be interpreted as stating actual facts” that could be proved false.

Wexler II, at *6-7 (citations and quotation marks omitted).  Indeed, Wexler II indicated that even stronger language would not have been defamatory.  “The word ‘scheme’ is like the word ‘scam,’” which is “incapable of being the basis of a defamation claim.”  Id. at *7 (discussing McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987)).  Further, just because law firms have blogs “to attract new clients, such motivation does not transform the article − describing a court’s decision in a case unrelated to [the firm] − into commercial speech.”  Id. at *10.

The Second Circuit agreed, and showed little patience for plaintiff’s attempt to chill the First Amendment expression of legal bloggers:

We agree with the magistrate judge that the headline in this case constitutes opinion and is therefore not actionable.  The tenor of the article reflects that it is meant to be not only informative but also amusing and entertaining, making hyperbole in the headline expected and reasonable.  The article’s placement on a law firm’s blog also suggests that it is informed, at least in part, by the firm’s and its author’s opinions.  The context of the statement therefore cuts against a determination that it is an assertion of fact meant to be taken literally.  The language “exposes major spousal scheme” . . . could just as easily mean exactly what happened here, that the TCPA decision brought to light an ethically questionable arrangement by a married couple (here, to represent both the attorney’s and the class’s fiscal interests in a class action).

Wexler III, 2020 WL 3864950, at *3.  Use of an adjective like “major” did not change anything.  “An average reader would not understand the headline to be an attempt to convey with technical precision literal facts about [plaintiff].”  Id. (citation and quotation marks omitted).  Because the blog-related defamation suit was based on “non-actionable opinion,” it “fails” as a matter of law.  Id.

Good riddance.  In twelve-plus years of blogging here at the DDL Blog, we have never been sued, although we were threatened, once, a number of years ago by somebody on the other side who did not take kindly to having us comment on a case – another class action – that he lost.  We don’t remember much about the details, but we were never sued.  Should that ever happen again, we’d be quite thankful to have Wexler to cite.

And it could even get better − this plaintiff could be sanctioned for pursuing a frivolous appeal.