Letterman Type Blackmail Common in Legal System

The David Letterman case has caused a great deal of discussion about blackmail, and whether the alleged circumstances of his particular case should constitute a crime. But it raises another important issue for me. I can imagine Andy Rooney (of 60 Minutes) saying:

"Do you ever wonder why so many law suits that are settled are designated confidential, secret and sealed?"

The answer is that they are frequently the result of blackmail and extortion, which has become an accepted and common practice in our legal system. Here is the way that it works:

A claim is made or a suit is instituted and the parties and their counsel meet in order to discuss settlement. The claimant (the plaintiff) and his or her attorney warn that if the matter goes to trial, the public will learn some very embarrassing details about the defendant. The way to avoid the public airing of these embarrassing moments is to pay money and settle the case. The defendant agrees to the settlement, the amount of which may not only serve to compensate the plaintiff but provide a bonus for secrecy as well. The defendant extracts a promise that the settlement and all facts upon which it is based shall remain secret and confidential. Frequently the court will acquiesce in a request to seal the record. So we not only have blackmail and extortion operating within the system, it frequently receives the unwitting imprimatur of the court.

Is there anything wrong with this picture? I think most of us would agree that if a case is settled so as to prevent the disclosure of purely private matters, no harm -- no foul. But what of the priest who has molested children, the company that is continuing to sell a dangerous and defective product, the doctor who is guilty of repeated malpractice, the serial sex harasser or any other matters in which the public or other similar claimants have a vital interest? Thus, not only have we condoned and allowed extortion and blackmail, but in the process, we may have deprived the public of essential information.

Comments

[GrahamInCanada]

I think that in the case of the priest who has molested children, the company that is continuing to sell a dangerous and defective product, the doctor who is guilty of repeated malpractice, and the serial sex harasser, if the civil settlement includes a non-disclosure clause, it was the plaintiff and victim that was blackmailed, and not the defendant and accused.

For example, if a child has been molested by a priest, in any case the child's name would be protected and the priest's name would not (unless it could identify the child). It is the church would would insist on non-disclosure in order to settle, not the victim, on threat of never settling and dragging the case through the courts with all the resources at the Church's disposal, inflicting financial distress on the victim.

[Jeff Norman - Huffpost Blogger]

Judge Sarokin, do you think Robert Halderman’s alleged threat exemplifies conduct that “should constitute a crime”? Here’s why I think it does not:

It’s not generally considered illegal to sell a story, or to identify the pros and cons of the various options associated with such a venture. But New York’s larceny/extortion statute is nonetheless being used in the Letterman case to subject Halderman to potential punishment for having allegedly given Letterman the option to buy a story, and for suggesting what the consequences would be if Letterman were to choose not to buy it.

Don’t lawyers, agents and show business executives have such discussions all the time? Isn’t it sometimes pointed out, emphatically, that it would be ruinous for a person to pick one option over another? Aren’t deadlines sometimes imposed, thereby pressuring people to make quick decisions?

I see nothing that’s significantly different, in a legal context, about what Halderman allegedly did. Do you?

[jackbutler5555]

Good question. The price -- which is currently being described as extortion -- might be the determining factor. If the price is higher than what the going rate for such stories might be, then it might be considered extortion.

This is a crime involving what someone says than what he actually does. But, conspiracies -- which I have my reservations about -- are also crimes of speech. They seem to be digested by the legal system as if they were acts.

I'd be interested in what the judge has to say.

[countfloyd]

Unless Halderman was asking to enter into some type of legal agreement with Letterman to sell him all the rights to the story and would never again make the same or else proposition then it is extortion. If this was really about just selling the story then Halderman should have gotten an agent and asked to set up a meeting with Letterman to discuss the terms including price, Why didn't Halderman go to someone else in the first place? He could have gotten a good pay day out of it but most likely not $2M.

Agents and show business executives enter into discussions and negotiations and I doubt there is a take it or leave approach.

[Judge H. Lee Sarokin - Huffpost Blogger]

Jeff - I could be wrong, but i see a difference depending upon who initiated the conversation. If Letterman went to Halderman and said I hear you are about to publish something derogatory about me, and I will pay you if you don't, I don't think that should be a crime if money passes On the other hand, if Halderman went to Letterman and said I am going to publish this derogatory information about you unless you pay me off, then I think that is a crime or should be, if money is paid.

[Jeff Norman - Huffpost Blogger]

Judge Sarokin, I appreciate that you responded, but I don’t think you addressed my logic, which is based on a comparison between Halderman’s communications and the communications of lawyers, agents and show business executives.

Why should it be illegal for Halderman to initiate a conversation with Letterman, but not for lawyers, agents or show business executives to do so? It’s not otherwise a crime for Halderman to represent himself.

[FilthyHarry]

Lets not forget bribery. A defendant who knows they are guilty may be willing to pay a willing plaintiff just to keep them quiet and save themselves the pr problem.

How many plaintiffs are silenced to the detriment of others who may be suffering in a like manner because a defendant can afford to keep them quiet with a bribe large enough that a less than wealthy person would have trouble turning it down, given the realities of everyday life?

[Judge H. Lee Sarokin - Huffpost Blogger]

FilthyHarry - Agreed. It works both ways.

[drydino]

AND, don't forget that the lawyer used to "carefully" word the complaint, to avoid charges of blackmail, probably was paid half of the settlement. The problem isn't with the people that want to extort money from others, it's the lawyers that make lots of money facilitating it for them. If Letterman had been approached by a lawyer whose client wanted to sell the script idea ... the smuck wouldn't have been arrested.

Healthcare reform without tort reform is absurd!!! And not reform for malpractice, or the healthcare industry itself, but all businesses and all forms of torts (legalized extortion). When people are forced to pay a settlement because it costs less than winning the bogus suit, there is a real problem!!!!!!!!!!

[Judge H. Lee Sarokin - Huffpost Blogger]

drydino - I am not as quick to condemn all lawyers - having been an active one, but I do agree that the costs of litigation frequently mandate a settlement in excess of what a claim is really worth and that is an unfortunate by-product of the system.

[dsarokin]

I don't understand why/how the courts are involved in all. If both parties to a lawsuit agree to drop the suit (after coming to a secret agreement), why isn't that the end of the matter right there? How is it the court has approve or otherwise give a blessing to the agreement?

David Sarokin (no relation to Judge Sarokin, as far as I know)

[FilthyHarry]

Because up til the point both parties agree and walk away, everything is part of the court record. Its that record that needs to be sealed for the agreement to remain silent have any value.

[dsarokin]

Thanks.