Bullying through litigation


It seems like the stuff of doomsday fiction. Something by Orwell or Kafka. The sort of thing that is never supposed to happen in an America founded on principles of free speech, free press and free will -- a land where justice and fairness prevail, a land in which hard work is rewarded, a land of opportunities and second chances, a land in which a man can rise from poverty to fame, fortune and acclaim.

On Wednesday John L. Smith -- longtime Review-Journal columnist, prolific biographer and my friend -- filed for bankruptcy, financially crushed, not by the mountain of medical bills from his daughter's three-year battle with brain cancer that has left her wheelchair-bound, but by the ever-growing legal bills resulting from a libel suit brought against him by casino owner Sheldon Adelson over a couple of passages in John's 2005 book "Sharks in the Desert."

John tried to settle the suit from the beginning after he discovered a couple of minor matters he had been told about were erroneous. In fact, nine months ago, against the advice of his attorney, John wrote an erratum for the book spelling out the inadvertent mistakes. Just to set the record straight and be honest with his readers. It was the right thing to do.

The Review-Journal was even willing to allow him to write a correction in his newspaper column so long as Adelson agreed not to sue the newspaper over it.

But Adelson's attorney has been unrelenting, demanding an over-the-top apologia that painted Adelson as a paragon of virtue and John as a hopelessly muddle-headed hack. The Draconian settlement terms being demanded would have left John facing crippling breach of contract claims if he or anyone he ever met ever, ever deigned to speak ill of the beatific Adelson.

All the while the legal bills mounted. Meanwhile, the publisher of John's book has died and the publishing company filed for bankruptcy.

The case was filed in California by Adelson, who maintains a residence in Malibu. Earlier this year, a California judge refused to throw out the case on summary judgment, saying there are sufficient facts in question to warrant a jury trial, though he cautioned that should not be construed as a harbinger of the outcome.

What makes this doubly offensive is all the legal principles that are supposed to govern libel cases seem to have been ignored while the protracted wrangling and billable hours pile up.

First, Adelson -- the third richest man in America, with ambitions to be No. 1, the builder of multibillion-dollar Venetian resorts in Las Vegas and Macau -- is inarguably a public figure. As such, he must show that any false statements concerning him were made with malice or reckless disregard for the truth. There is not a shred of evidence this is the case. Any mistakes were honest ones.

Second, the libeled party must be damaged. The best lawyer Marty Singer could come up with in the lawsuit was that Adelson "suffered shame, mortification and/or hurt feelings." His claim that Adelson "suffered harm to his property, business, trade, profession and/or occupation" is contradicted by the fact that he became the third richest man in America after the book was published. He offers not a single person or event as evidence of real damage.

But none of that makes any difference. Once you are dragged into court, you must defend yourself or face a potential default judgment. The lawsuit demands of John $15 million in actual damages, $15 million in special damages, $15 million in general damages, plus nominal, punitive and exemplary damages in unspecified amounts.

Frankly, the book was never a best-seller and all of John's royalties will hardly keep the lawyers in paper clips for a week.

It was never about the money. It was never about fairness or justice or defending one's reputation or business.

In 1998, former Adelson adviser and now Democratic U.S. Rep. Shelley Berkley, wrote an op-ed piece responding to one written the previous week by Adelson accusing her of advising him to do favors for county commissioners and their relatives.

In her reply, Berkley observed, "Over time, I observed Mr. Adelson plot vendettas against anyone whom he believed stood in his way. However minuscule the perceived affront, he was certain to go ballistic, using his money and position to bully any 'opponent' -- great or small -- into submission."

Or into bankruptcy.

That is the true state of the "free press" in America, where an honest man can be financially buried by obdurate and odious litigation. It is an object lesson for anyone who entertains the inkling of a thought of writing about a rich person.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the free press in America. He can be reached at 383-0261 or via e-mail at tmitchell@ reviewjournal.com.

 

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