July 16, 2013 4:52pm PT by Eriq Gardner
Hollywood Lawyer's Menacing Letter Protected by First Amendment
In a victory to lawyers who fashion themselves to be sharp-elbowed versions of Shakespeare, a California appeals court has ruled that a well-known lawyer's threatening letter is protected from claims of "extortion."
On the other hand, Marty Singer and his client can't yet escape claims of wiretapping and hacking.
Singer is the Bard of the Cease and Desist, and in the letter in question, he told VH1 Famous Food host Mike Malin that he had drafted a lawsuit that would be filed if Malin didn't return missing funds to business restaurant partner Shereene Arazm, a judge on Top Chef Canada. Singer also menacingly wrote, "I have deliberately left blank spaces in portions of the complaint dealing with your using company resources to arrange sexual liaisons with older men such as 'Uncle Jerry,' Judge ------, a/k/a 'Dad' (see enclosed photo), and many others. When the complaint is filed with the Los Angeles Superior Court, there will be no blanks in the pleading.”
In November, 2011, after Malin sued Singer and Arazm for trying to extort him, a judge ruled that Singer’s communications weren't protected speech. The decision rallied some in legal community including the ACLU to warn about the consequences of reading legal letters so finely as to be "extortion as a matter of law."
In a decision on Tuesday, California appeals court judge Steven Suzukawa analyzes whether Malin's complaint should have been stricken as a SLAPP suit arising from the exercise of Arazm's constitutionally protected rights of speech or petition.
In Flatley v. Mauro, the California Supreme Court articulated a "narrow exception" to the state's anti-SLAPP statute in instances where "either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law."
The question is whether Singer's activity constitutes criminal extortion as a matter of law.
Judge Suzukawa says no, it doesn't. (Read the full ruling.)
"In contrast with the demand letters in Flatley and Mendoza," says the judge, referring to the case law on point, "Singer’s demand letter did not expressly threaten to disclose Malin’s alleged wrongdoings to a prosecuting agency or the public at large."
Still, Malin argued that the threats to expose secrets and embarrass him to third parties who had no connection whatsoever to the dispute arose to something special that went beyond the usual lawyer posturing.
"There are two problems with Malin’s argument," responds Judge Suzukawa. "First, the 'secret' that would allegedly expose him and others to disgrace was inextricably tied to Arazm’s pending complaint. The demand letter accused Malin of embezzling money and simply informed him that Arazm knew how he had spent those funds. There is no doubt the demand letter could have appropriately noted that the filing of the complaint would disclose Malin had spent stolen monies on a car or a villa, if that had been the case. The fact that the funds were allegedly used for a more provocative purpose does not make the threatened disclosure of that purpose during litigation extortion."
The second "problem" has to do with how the extortion law is specifically set up in California. Judge Suzukawa says "the threatened disclosure of a secret affecting a third party, who is neither a relative nor family member, does not constitute extortion."
Because the letter is deemed to fit under the category of protected speech, the appeals court moves onto the question of whether Malin has a likelihood of prevailing on the extortion claim. He can't meet the burden of showing he's going to win because litigation privilege -- immunity given for certain acts and statements made in connection with litigation -- provide Singer and Arazm with cover.
Malin might argue that the sexual innuendo was irrelevant, but the judge says that he "has cited no evidence in support of his position that the demand letter’s sexual misconduct allegations were not related to Arazm’s proposed lawsuit or that the lawsuit was not contemplated in good faith and under serious consideration when the letter was sent. "
Thus, the extortion claim dies.
How about the other stuff? Namely, how did Arazm figure out all that alleged dirty stuff about Malin?
Malin, represented by Barry P. King, alleged there was something nefarious going on, that Arazm and Singer had obtained his private communications and emails through illegal computer hacking and wiretapping activities.
That's a whole different story, concludes the appeals court.
It the defendants' burden to show that the claims of hacking and wiretapping are protected activity and Judge Suzukawa says "those acts do not fit one of the categories of protected conduct defined by the Legislature."
To emphasize that point, the judge refers to another case involving a notorious Hollywood private eye. In that dispute, it was found that the anti-SLAPP statute "was not enacted to protect an attorney who allegedly hired an 'investigator' like Anthony Pellicano to wiretap telephones so as to get an unfair advantage in a client's legal matters."
Overall, Singer scores a victory, but is still facing claims related to the obtainment of information as well as an emotional distress claim. He was represented in the appeal by Jeremy Rosen at Horvitz & Levy.
Reacting to today's news, Singer says, "“We have been completely vindicated by the Court of Appeal’s holding that our pre-litigation demand letter was not extortion. This case is about embezzlement by Mike Malin and his partners. The defensive lawsuit that Malin filed was a desperate and futile attempt to prevent Ms. Arazm from pursuing her claims for embezzlement and using our firm to represent her.”