Judge Rules Surveillance Lawsuit Against Fox News Doesn't Warrant Sanctions

The judge won't characterize Andrea Tantaros' claims as "clearly frivolous" and says sanctions against attorney Judd Burstein "may lead to unintended and problematic consequences."
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Andrea Tantaros

Former Fox News host Andrea Tantaros and her former attorney Judd Burstein won't be punished over a lawsuit against Fox News that alleges that the late Roger Ailes and underlings "tortured" her by hacking into her digital devices and feeding nasty stuff about her to social media "sock-puppet" accounts. On Friday, a federal judge noted the acrimonious nature of the dispute between Tantaros and her former employer, but expressed concern that an imposition of sanctions "may lead to unintended and problematic consequences."

Tantaros brought her surveillance lawsuit in federal court in April 2017, a month after a New York state judge ruled that her prior lawsuit alleging sexual harassment and retaliation should be arbitrated.

In reaction, Fox News ripped the new claims as an "outright hoax." For example, the defendant identified one of the supposed sock-puppet accounts as belonging to a real individual named Daniel Wayne Block, which Fox News argued that Burstein would have discovered if he undertook a reasonable investigation as required by Rule 11 of  Federal Rule of Civil Procedure. Fox News also argued that the lawsuit was legally meritless and that it was only commenced for the purpose of extracting an extortionate settlement.

"The underlying employment dispute between [Tantaros] and Fox News has clearly escalated to a contentious and acrimonious level," writes U.S. District Court Judge George B. Daniels. "Plaintiff and her counsel have proceeded with an aggressive, scorched-earth, take-no-prisoners approach to this litigation."

"However," he adds, "this Court declines to characterize Plaintiff's claims as 'clearly frivolous,' or alleged in bad faith and for an improper purpose sufficient to support the imposition of sanctions. ... From a defendant's point of view, many meritless lawsuits are strike suits designed to force a settlement. However, filing and publicizing a lawsuit, and thereby exerting considerable pressure on a defendant to settle, does not, by itself, suggest that a case was brought for an improper purpose. Nor does it automatically warrant sanctions to deter or punish conduct."

In warning how sanctions could lead to bad precedent, the judge quotes an appellate decision that stated, "[U]nless such measures are needed to protect the integrity of the judicial system or a criminal defendant's right to a fair trial, a court's steps to deter attorneys from, or to punish them for, speaking to the press have serious First Amendment implications."

Daniels does say that a more fulsome investigation by Burstein might have uncovered the true nature of the Block account, but also points to how Tantaros and her attorney at least conducted a forensic analysis on her computer to investigate claims that Fox News was cyberstalking her.

Burstein is no longer representing Tantaros and neither is Morgan Lewis attorney Christopher Parlo, who replaced Burstein last autumn. Tantaros recently filed an amended pro se lawsuit, meaning she is now representing herself in an action that alleges among other things that Fox News talent were secretly recorded disrobing.

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