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Representing such clients as Charlie Sheen, John Travolta and Scarlett Johansson, attorney Marty Singer has become famous for sending menacing legal threats. But Thursday, a California appeals court will consider whether Singer crossed the line with one demand letter sent two years ago, later determined by a judge to be an “extortion” attempt.
Singer sent the letter July 25, 2011, on behalf of Top Chef Canada judge Shereene Arazm to Big Brother contestant and VH1 Famous Food host Mike Malin.
Arazm and Malin were business partners in a restaurant group until Arazm said he discovered that Malin allegedly had embezzled and mismanaged more than $1 million in assets. In his letter, Singer demanded a full forensic accounting and the return of funds. He attached a draft of a lawsuit that he said would be filed in court if the dispute wasn’t resolved. Perhaps most intimidating was the part of the letter (read here) that stated, “I have deliberately left blank spaces in portions of the complaint dealing with your using company resources to arrange sexual liaisons with ——————. 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 shocked the legal community by determining that Singer’s communications weren’t protected. “The allegations of sexual misconduct contained in the demand letter in this case are very tangential,” wrote Los Angeles judge Mary Strobel, adding that the “letter is best read as extortion as a matter of law [because] [i]t threatens to reveal the names of sexual partners.”
On Thursday, Singer will take his case on appeal — and he’s being supported by several lawyer associations as well as the ACLU. At stake might be how aggressive Hollywood attorneys can be in messages to would-be defendants. Singer’s own attorney Jeremy Rosen tells THR, “We remain confident in prevailing in this litigation because, under the trial court’s analysis, virtually all pre-litigation demand letters routinely sent by attorneys throughout the state would constitute extortion.”
Singer believes that the judge should have stricken Malin’s claim as an impingement of his client’s First Amendment rights. The reason why the claim survived an anti-SLAPP challenge was because the judge determined that the pre-litigation communication was not protected due to it falling into an exception for illegal activity.
On appeal, Singer challenges this assessment.
Rosen tells California’s 2nd Appellate District that in Flatley v. Mauro, the California Supreme Court articulated a “narrow exception” to the 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.”
According to Singer’s appellate brief, “Indeed, the actual evidence demonstrates that the demand letter was not the type of rare and highly egregious letter that could satisfy the narrow definition of extortion. As an initial matter, the demand letter simply stated the factual bases of the anticipated lawsuit detailing the wide range of financial wrongdoing Malin engaged in, including using restaurant group assets to pay his sexual partners.”
The appeal brief contains many other arguments and can be read in full here.
In response, Malin’s attorneys say that Singer is attempting to “hide behind the litigation privilege” by contending that “anything that an attorney puts into a ‘demand letter’ constitutes ‘protected speech’ … no matter how egregious, or how unrelated the statement (threat) may be to the actual basis of the dispute.”
Represented by Barry P. King, Malin hopes to make the promised revelation of sexual misconduct in a demand letter the equivalent of threatening physical harm, filing a false criminal report or committing vandalism — acts not protected by the First Amendment. Read the full respondent’s brief here.
The case is being closely watched in the California legal community, as well as others. For example, besides amicus briefs filed by local bar associations and the ACLU, there’s also one from SNAP — Survivors Network of those Abused by Priests — which throws out a hypothetical example of a legal demand being sent to a clergy person accused of sexual misconduct. According its brief, “Absent a settlement, Singer did what every lawyer would do and state that a lawsuit would be filed. Under no set of facts could this conduct amount to blackmail.”
E-mail: email@example.com; Twitter: @eriqgardner
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