As longtime readers may know, last February, Washington Redskins owner Dan Snyder, following the advice of his P.R. guru, Tony Wyllie, decided that he was going to threaten the Washington City Paper over a months-old cover story penned by staff sportswriter Dave McKenna, titled, "The Cranky Redskins Fan's Guide to Dan Snyder."
Snyder had originally named the hedge fund that owns the City Paper's publisher, Atalya Capital Management, in the suit, but when the trigger was finally pulled on the filing, he opted instead to file suit against the paper directly in DC court.
Well, today was the deadline for the City Paper to respond to the suit with a filing of their own, and this afternoon, that's precisely what they did. In a move that should surprise nobody, the paper has chosen to pursue an anti-SLAPP suit defense. What's more, the City Paper's massive filing contains an astounding amount of material that serves to back up what was originally reported in McKenna's article.
Now, let's have some dime-store legal talk. "SLAPP" refers to "strategic lawsuit against public participation," and it refers to "a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition." SLAPP suits can upend the scales of justice when a deep-pocketed plaintiff like Snyder takes on a less-well-to-do of a defendant like the Washington City Paper. By dragging out the process and driving up the little guy's legal expenses, SLAPP plaintiffs can bully their way to victory without even winning in court -- or without even having a suit that has merit.
Here's the key portion of the City Paper's filing:
Not only has [Snyder] publicly acknowledged the improper purposes that in fact undergird this litigation, but his ever-shifting explication of why the Commentary is allegedly actionable in defamation further reveals his lawsuit for what it is—a pretext for punishing and silencing his critics. As demonstrated in the materials accompanying this motion, Mr. Snyder has moved from complaining publicly about statements that, on inspection, appear nowhere in the Commentary; to suing over artwork that any first-year law student knows is not the proper basis for a defamation action; to his current Complaint, which wrenches out of context substantially accurate accounts of his prior conduct, themselves drawn from the voluminous archives of public records and previously published press accounts that document his public life, and ascribes to them allegedly defamatory meanings that no reasonable reader would credit. Simply put, Mr. Snyder cannot demonstrate that it is even arguable he can succeed on the merits of his current claims, much less that he is, as the Anti-SLAPP Act requires, likely to do so.
Snyder's made some stupendously idiotic decisions on the road to this legal action. By relocating this suit to DC's courts, he's going to be playing ball on hostile turf. DC has become an unfriendly venue for SLAPP suits, and Snyder's suit will be the first test of a recently-passed anti-SLAPP statute. Under that statute, Snyder will have to demonstrate in advance that his complaint will be "likely to succeed" on the merits, or it will be dismissed.
And Snyder is going to have real trouble avoiding running afoul of that statute, because his legal team and his aide-de-camp Wyllie have made it clear that this is a strategic lawsuit against public participation because they keep saying so rather brazenly in their public statements. When Snyder first slapped a lawsuit on Atalya, the message his legal team sent was pretty clear.
Here it is, in their own words: "We presume defending such litigation would not be a rational strategy for an investment firm such as yours. Indeed, the cost of litigation would presumably quickly outstrip the value of the Washington City Paper."
And then Wyllie, who's clearly not the sharpest tool in a shed that's clearly full to brim with them, went in front of an "Ethics in Sports Media" panel -- an "Ethics in Sports Media" panel! -- and said, "Some people ask, are you firing a warning shot at other members of the media, and I'd say yes."
So, when the City Paper says that Snyder has "publicly acknowledged the improper purposes that in fact undergird this litigation," they are not referring to anything that has shades of grey. (And the whole matter is just so thunderously grotesque that Rep. Steve Cohen (D-Tenn.) is drafting legislation for federal anti-SLAPP protection for the entire nation, because he was inspired to do so by Dan Snyder.)
Now, Snyder has claimed throughout this process that the Washington City Paper, in allowing McKenna's article to be published, has treated him unfairly and irresponsibly in several instances. In his full complaint, he...uhm, complained:
The City Paper falsely and maliciously asserts that Mr. Snyder has engaged in "heinous deeds" and acts of treachery, disloyalty, and deceit. The most egregious falsehoods in the Article (or items referenced in the Article) ("the Misrepresentations") include, without limitations, the following:
a. that "Dan Snyder...got caught forging names as a telemarketer with Snyder Communications;"
b. that Mr. Snyder caused Agent Orange to be used to destroy trees "protected by the National Park Service" on "federally protected lands," a matter about which previously published reports had been publicly corrected;
c. that Mr. Snyder bragged that his wealth came from diabetes and cancer victims; and
d. That Snyder was "tossed off" the Six Flags board of directors.
Here's a lesson for anyone who wants to take on an organization that employs reporters: Those reporters are often pretty good at reporting!
And in the City Paper's large offering of supporting material (available in Scribd format here), they include many "facts" that undergird their original reporting. (Full disclosure: Some of the articles I have written on this matter have been included in the City Paper's filing.)
Here are some highlights:
On the matter of Snyder getting caught forging names:
It's an extensive section, the commences with this:
Attached hereto as Exhibit 38 is a true and correct copy of excerpts from the sworn testimony of Ruben Rios, a District Manager for Snyder Communications, taken during the course of the Florida Attorney General’s investigation of Snyder Communications and GTE. Mr. Rios testified, in relevant part, to the following:
a. The Sarasota and West Palm Beach offices of Snyder Communications were closed down in 1998 due to the large number of slamming complaints, and “there were problems in all of the [company’s] offices” in South Florida...;
b. Some marketers employed by Snyder Communications used the social security numbers for deceased individuals, which they had obtained through their former employment at cemeteries or funeral homes, to achieve their sales quotas...;
c. Mr. Rios terminated approximately three to four sales associates from each office per week for forging signatures...; and
d. Mr. Rios responded to questions concerning whether Mr. Snyder was aware of the slamming by his company at issue in the proceeding as follows: “I’m sure he knew. He had to have known.”
On the matter of the Agent Orange:
Well, as I've previously explained, I expect the court to make short work of that because McKenna's original phrase, referring to some trees that Snyder sought to have cut down on government land, read, "going all Agent Orange on federally protected lands." Surely no court will criminalize metaphor! As to the cutting down of the trees themselves, McKenna had a lot of documentation and reporting backing up that part of his piece, beginning with this:
Attached hereto as Exhibit 60 is a true and correct copy of a report issued by the Office of the Inspector General of the U.S. Department of the Interior titled “Investigative Report on Allegations that the National Park Service Improperly Allowed Daniel Snyder to Cut Trees on Government Land.” It is available online at http://wapo.st/l9c5Sf.
On the matter of Snyder "bragging that his wealth came from diabetes and cancer victims":
Snyder eventually dropped this from his complaint, and it's a good thing he did, considering the fact that he did brag that his wealth came from diabetes and cancer victims, and he did so on television, and there are DVDs that exist that document his bragging that his wealth came from diabetes and cancer victims.
On the matter of being tossed off the Six Flags Board of Directors:
Well...he was tossed off the Six Flags Board of Directors, as it happens!
Attached hereto as Exhibit 76 is a true and correct copy of a motion by one of the holders of Six Flags’ Preferred Income Equity Redeemable shares, Resilient Capital Management, to appoint a trustee to oversee Six Flags during reorganization, filed with the U.S. Bankruptcy Court for the District of Delaware on February 11, 2010. The motion argues, in relevant part, that members of the then-current management of Six Flags, including Mr. Snyder, were “wholly inappropriate parties to supervise the [company] through this reorganization,”...that the management team should not be kept in place “especially when it was the same management team’s incompetence and double dealing that led the company into bankruptcy in the first place,”...and that “the business community has little or no confidence that the [company’s] management, which drove [Six Flags] into bankruptcy based on their poor decision-making, should be permitted to continue to run the [company’s] affairs...
In the rest of the City Paper's response, they include pages and pages of exhibits on matters from McKenna's original article that Snyder has opted to not sue over. It seems to me like a shrewd thing to have done, because it helps to enforce the quality of McKenna's reporting, and it aids the anti-SLAPP suite claim by making it painfully clear that media organization after media organization had time and again highlighted Snyder's failings and incompetencies, but it wasn't until the City Paper came along and put it all in one place that Snyder got angry. You know, three months after the fact, at the behest of his flack, who obviously thought that threatening a dinky alt-weekly would -- I don't know -- "send a warning shot to the media," maybe?
Let me tell you: if you liked McKenna's original "Cranky Guide," you will love the City Paper's supporting affidavit, because it's like a super-enhanced version of the original -- with deleted scenes and extensions. Thanks to Snyder, that's on the web for public perusal now, too!
This whole lawsuit strategy was just genius, wasn't it?