A Civil Lawsuit Against Fox News Isn't Particularly Civil

Andrea Tantaros - 2011 Kris Humphries and Kim Kardashian Welcoming Night - Getty - H 2017
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On the eve of a hearing in Andrea Tantaros' federal lawsuit against Fox News, a judge is getting an earful about bad lawyer conduct.

Tantaros, a former anchor, claims she was sexually harassed at the cable news network, but had her first case in New York state court tossed into arbitration. She then filed a second lawsuit in New York federal court alleging she was "tortured" by electronic surveillance and social media "sock-puppet" accounts. Fox slammed the lawsuit as a "hoax," again insisted upon arbitration, and sought sanctions against Tantaros and her then-lawyer, Judd Burstein.

In September, Tantaros split from Burstein, but that's hardly calmed the situation.

She is now represented by the law firm of Morgan, Lewis & Bockius, which has been investigating how to proceed. That's not particularly unusual. Attorneys have ethical obligations to verify pleadings. The lawsuit could be amended or even dropped. But tempers have escalated nonetheless.

On Tuesday, Fox News attorney Linda Goldstein decided to share with the judge a letter from Martha Stolley at Morgan, Lewis.

"Ms. Stolley has informed counsel 'in the strongest terms possible that we (Morgan Lewis) have NOT adopted in any way as our own the current complaint and we will NOT rely on it in any way if the current claims proceed,'" wrote Goldstein. "Ms. Stolley, who has been counsel of record for Ms. Tantaros since September 29, 2017, apparently sent this letter in a bid to avoid liability under Fed. R. Civ. P. 11 for her and Morgan Lewis. This information is highly relevant to whether attorney Judd Burstein conducted a reasonable pre-filing review of the Complaint’s legal and factual allegations, an issue that we will address in greater detail at the oral argument ... ."

That prompted Christopher Parlo at Morgan Lewis to respond rather strongly on Wednesday with his own letter.

"Respectfully, in my nearly 30 years of practice I have never seen a group of lawyers so quick to threaten sanctions against other members of the bar, or who would try to use our response to such threats to seek an advantage with this Court in other pending motions (and all without giving the Court the full background and context)," he writes.

Parlo writes that in less than two months since taking the case, his firm has been "threatened with sanctions or other actions no fewer than five times, and recently with increasing ferocity — all in response to our anodyne statement that we are carefully evaluating all of the allegations."

He complains about the constant threats from Fox News and the other co-defendants and promises in a footnote to bring copies of the threatening letters to the hearing.

There is, though, a potentially novel legal issue here, assuming the back-and-forth doesn't just serve to annoy U.S. District Court Judge George Daniels. (Probably a poor assumption.)

Rule 11 of federal civil procedure aims to discourage frivolous contentions by permitting the sanctioning of attorneys or parties who submit pleadings without a reasonable inquiry. (It's one of the reasons why court filings are rightfully treated more seriously by reporters than say, conspiratorial emails.) Against Burstein, Fox News believes such sanctions are warranted, but how about Burstein's successor? The defendants appear to be arguing that by merely going forward in any fashion, Morgan Lewis is "adopting" what's at fault and should be similarly punished.  

"To be clear, at no time have we said that we would not adopt some or all the substance of the Complaint (only that we have not done so yet)," writes Parlo. "Nor have we indicated in any way that anything Judd Burstein (Ms. Tantaros’ former counsel) or Ms. Tantaros have done to this point was sanctionable or not done in complete good faith — and we believe it was. The complaints here and in arbitration set out a compelling case, particularly in light of recent events involving the treatment of women by high-level executives... [W]e were merely making clear that we are doing our own evaluation of the facts and allegations, and defense counsel should not continue to deliberately misrepresent that we already have adopted (or not adopted) anything."

Parlo is now asking the judge to order Fox News' attorney to immediately cease their threats of sanctions and desist from filing any further letters until after the court hearing on Thursday.