Re: The Very Strange Case of Francis Worst and His Life as a Defamation Defendant
Mary,
The following story relates to Kernaghan and is now a classic. You might want to give Atty. Turkewitz a call.
- Jeff
P.S. Yes, the law firm representing "Goliath", Orrick, Herrington and Sutcliffe (whose actions in agreeing to pursue the ludicrous case against Mr. Worst made my skin crawl), is the same one that represents Varian. Small world.
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The Very Strange Case of Francis Worst and His Life as a Defamation Defendant
Case Background
In 1999, 60-year-old Francis Worst contacted Eric Turkewitz after being sued for $300,000, plus punitive damages, for defamation.
His sin? Reprinting something in one Internet stock market forum that he had found in another stock market forum, using a simple 10-second cut-and-paste with his mouse.
Mr. Worst had no connection with the original author of the message—which was signed with a real name and included a phone number and e-mail address for anyone to contact—or with the people or companies that were named in that message.
In other words, he acted exactly as millions of others do each day when using various internet forums: He saw something that was already in the public domain that was of interest to him and others, and sought to discuss it.
The complicated suit Mr. Worst inadvertently got swept into for his simple "cut-and-paste" action revolved around a blown corporate financing deal, which included allegations of misconduct that were put in print in a number of different, very public places.
Mr. Worst is a retired and disabled former airline mechanic living in Florida, who had the misfortune of having reprinted one of those messages while participating in an obscure financial forum with only 10 participants. The forum, which was for a completely unrelated stock, happened to be discussing the subject of the message he reprinted.
Mr. Worst’s only prior brush with the law was sitting jury duty. He’s never even had a speeding ticket.
Now he was afraid to exercise his free speech rights for fear of lawsuits.
We Ask, Very Nicely, To Be Dismissed
In one of the more bizarre aspects of the plaintiffs' suit against Mr. Worst, two large businesses (Sovereign Partners Limited Partnership (http://biz.yahoo.com/t/23/5746.html) and Dominion Capital Fund, Ltd. (http://biz.yahoo.com/t/69/6081.html) were claiming to have been defamed by Mr. Worst to the tune of $100,000 each (plus punitive damages) for the reprinting of the message to the 10 participants. The allegation is bizarre, not just due to the minimal activity of Mr. Worst, but also because these two defendants were not even mentioned in the message claimed to be defamatory.
Early on, we explained to their lawyers that the message was already public, that the reprinting was certainly not done with any kind of malice, that Mr. Worst was unaware of any defamatory content, that Mr. Worst had not added any original content, and that injury, if any, was inadvertent and not attributable to Mr. Worst. Their lawyers were even permitted a telephone conference call with Mr. Worst in order to verify that he had nothing at all to do with this matter.
Surely, under these circumstances, they would simply dismiss as to Mr. Worst, right?
Wrong. Instead, they proceeded to demand three things from Mr. Worst in exchange for dismissal: 1) that money damages be paid; 2) that Mr. Worst apologize, and; 3) that they reserved the right to publicize the apology.
We refused.
We Are Forced To Litigate, And We Aren't Happy
The case became a classic David v. Goliath mismatch, with David having begged and pleaded to leave the battlefield, and been, nonetheless, forced to fight.
After repeated efforts to gain a voluntary dismissal, and it being apparent to us that they had no intention of doing so without receiving something of value from Mr. Worst, we finally moved for dismissal based on:
1. Lack of due process in accordance with the Fourteenth Amendment (Mr. Worst is a Florida resident without the requisite minimum contacts with New York necessary to confer personal jurisdiction on a Federal Court sitting in New York);
2. First Amendment grounds;
3. Failure to state a claim, as two of the plaintiffs are not even mentioned in the reprinted message; and
4. Lack of subject matter jurisdiction as the matter did not exceed $75,000.
At this juncture, the main defendants had all settled the real financial dispute at issue. The settlement included a public apology from those who had authored the allegations of illegal conduct:
rteams.com
We Turn the Tables
We do not believe that the plaintiffs and their lawyers ever intended to actually try the case against Mr. Worst in a courtroom, and that the lawsuit was being used solely for its coercive purposes. It was clear to us that suit had been maintained against Mr. Worst with two objectives: First, to chill his First Amendment rights, and; second, to punish him with legal bills for having the audacity to engage in public discussion that involved these people.
Having accomplished these two goals, plaintiffs now modified their demands on Mr. Worst, asserting that they would dismiss the case without any payments or apology, so long as there was a gag order on the dismissal and no costs or legal fees paid.
We refused. We would not accept any conditions on dismissal at this late date.
The first reason for refusal was that these people had tried to embarrass Mr. Worst by coercing an apology from him that they were not entitled to. Second, if there were a gag order in place, these people would be free to act the same way again to other members of the public. We sought no settlement at this late juncture, but rather, an unconditional dismissal. Plaintiffs were also informed that we would ask the court for sanctions against them for having engaged in frivolous and bad faith conduct and using the federal court for an improper purpose.
Plaintiffs, having now seen their bluff called and now desperate to gain dismissal, offered to withdraw the offending pleading "without costs."
We again refused, asserting that the attachment of a "no costs" condition to any dismissal was unacceptable. If they wanted to dismiss, it must be unconditional.
We kept our word in moving for sanctions against the plaintiffs and their lawyers, asserting that the claim was frivolous, without a colorable basis and maintained in bad faith. The amount asked was "in excess of $300,000", as this was the amount demanded of Mr. Worst at the outset of the suit. We also asked for costs and attorney fees. cybersecuritieslaw.com
Why, Why, Why?
Why go through all this when dismissal is at hand? Most litigants, and their counsel, would beat a hasty retreat if offered a dismissal, especially if the only condition was it being "without costs."
This battle was fought, however, because no one should have their constitutional rights abused simply because one litigant has the money to hire expensive lawyers to make threats. When it appears that bringing and maintaining a suit was done in order to chill free speech and force legal fees on a defendant as punishment, then an appropriate sanction should be made. If Mr. Worst took the safe and easy route, and walked away, these people and their attorneys would be free to continue their conduct. In other words, they would see no down side to bringing such suits solely in order to intimidate someone from speaking.
Likewise, if they are permitted to walk away unscathed after having brought a frivolous suit and continued it in bad faith, there would be no deterrent affect for others.
Whether or not the Court decides to sanction plaintiffs and their counsel for their conduct, Mr. Worst has already won a clear and convincing victory, for himself and for other discussion group participants.
A sanction, of course, would make all litigants "stop and think" before proceeding in such a fashion.
Who’s Who
Goliath is represented by Orrick, Herrington and Sutcliffe, www.orrick.com, a 500+ attorney corporate firm with offices in 10 cities and four countries.
David is represented by Eric Turkewitz, www.ericturkewitz.com, a sole practitioner in New York with a specialty in medical malpractice law.
The case was assigned to Judge Robert J. Ward in the Southern District of New York, with docket number 99 Civ 0564 (RJW)(JCF).
The title of the action is:
SOVEREIGN PARTNERS LIMITED
PARTNERSHIP, DOMINION CAPITAL FUND,
LTD., and STEPHEN M. HICKS,
Plaintiffs,
v.
RESTAURANT TEAMS INTERNATIONAL,
INC., CURTIS A. SWANSON, STANLEY L.
SWANSON, HARRY McMILLAN, LEE WALSH,
MARC STAGER,CONSYGEN, INC., THOMAS
DREAPER, MARK WEISS,“TECH”,
“FALCON74”, ERIC DAVIDSON, and
FRANCIS G. WORST,
The "thread" under which the post appeared is on Silicon Investor:StockTalk:Under$5:FixC, and was made on November 24, 1998, under the screen name of FranW.
Two of the prior press releases on this suit give a brief summary (and names Mr. Worst at the end of the second release):
rteams.com
rteams.com
---UPDATE---
Judgment for Mr. Worst
This case against Mr. Worst was dismissed January 12, 2001, by Federal District Judge Robert Ward and Mr. Worst was declared to be a "prevailing party". The court granted the plaintiffs' own cross-motion to be dismissed from the suit, which they had been forced to make since we had refused attaching any conditions to the dismissal, as they had demanded. Our motion for summary judgment was then denied as moot.
The court, unfortunately, denied the application for sanctions and attorney fees. The court did not address the issue that two of the plaintiffs, Sovereign Partners and Dominion Capital, were never mentioned in the retransmitted message and had sued Mr. Worst without cause.
ericturkewitz.com |
