Is There Recourse for Meritless Lawsuits?
One of America’s virtues is that the courts are open to both rich and poor people alike to help them settle disputes. While not all claims are successful, most people believe that everyone is entitled to their day in court if they believe they have a legitimate case. But what happens when our treasured right to seek justice is abused by those who only use the courts to bring baseless and meritless claims? Further, what happens when people bring lawsuits or threaten lawsuits as a means to intimidate others from speaking out?
The 2016 Presidential Election has put a spotlight on this issue. According to a recently published article by the New York Times entitled: “Fearing Trump, Bar Association Stifles Report Calling Him a ‘Libel Bully’” the American Bar Association (ABA) refused to publish a report calling Trump a “Libel Bully”. Some sources say it was out of fear of being sued by Mr. Trump; others say it was to avoid claims that they were partisan. One can argue that the ABA is right to be concerned. Mr. Trump is well-known for filing lawsuits. According to the Media Law Resource Center he has filed over 4,000 lawsuits in the past 30 years. He has many businesses and arguing how many of these court actions were justified is not the point of this post.
One can easily argue, however, that the ABA has a First Amendment right to voice its opinion. The ABA may very well be able to defend itself against any claim of libel successfully. However, the mere threat of a lawsuit by a wealthy individual can be enough to stifle anyone’s First Amendment rights. One may think that if they are legally exercising their First Amendment rights that they should not fear any baseless legal claims. The reality is that a lawsuit can be costly to defend. Even if you are right and win in court, you often lose because the cost to defend against a frivolous lawsuit can damage an individual or company defendant to their financial core. Will threats by Mr. Trump that he will be suing the women who have come forward with allegations of misconduct, prevent others with similar claims from coming forward?
There are remedies to this scenario. Many states, including Connecticut, have laws that will protect people and entities against vexatious litigation or frivolous lawsuits. These laws provide an option to recover compensation for the money spent defending a lawsuit. However, in most circumstances, this claim cannot be pursued until after the original suit has been terminated in favor the defendant. Only then can a lawsuit be brought against the person who filed the baseless claim. Double damages are permissible against an attorney or client bringing a meritless suit. If the meritless suit was brought with malice, treble damages could be awarded.
About half of the states have gone a step further to protect free speech adopting anti-SLAPP (strategic lawsuit against public participation) laws. These laws allow defendants in meritless lawsuits to quickly dismiss claims targeting their speech regarding matters of public concern.
The intent is to dissuade an individual from pursuing frivolous libel lawsuits by burdening them with the damages accumulated by the defendant in their efforts to defend against the suit. If a case is dismissed in accordance with an anti-SLAPP law, not only will the plaintiff be liable for these costs, including 2 to 3 times the actual damages, but the lawyer representing the plaintiff in the suit will also be liable. We sue lawyers all the time, and we wish we had a SLAPP statute in Connecticut. In Connecticut, we do sue lawyers and their clients for vexatious litigation.
At this time, Connecticut does not have an anti-SLAPP law; however, a federal anti-SLAPP bill has been introduced in the House of Representatives, although it remains in Committee. Enacting more anti-SLAPP laws would help to discourage continued harassment and bullying through the filing of frivolous libel lawsuits. The American legal system was not built on fear, but on the justice that it seeks to impose – our state and federal laws should reflect this.
If someone is threatening to sue you in Connecticut or is suing you, especially if you have recently successfully defended a lawsuit against you which you think was vexatious, call us, we will be happy to speak with you to see if this is a case we would investigate. We can explain your legal options and can explore whether you have the right to bring a vexatious litigation claim with an experienced and knowledgeable attorney. We can help.