When I first started practicing law, almost 20 years ago, it was widely understood that if you filed a lawsuit that you knew had no merit you would face sanctions. In federal courts, Rule 11 of the Federal Rules of Civil Procedure codifes this principle, which is still used to sanction attorneys who file frivolous lawsuits.
Let us turn our hymnals now to the current affairs section and the story of Fox News vs. Al Franken. By now we all know that Fox News, because of the insistence of Bill O’Reilly, filed a lawsuit against Franken based on its “fair and balanced” trademark,” and that their argument was rejected as meritless by a federal judge. The lawsuit sought to prohibit the publication of Al Franken’s book, supposedly because Franken’s book improperly used the term “fair and balanced.” Naturally everyone with even a passing acquaintance with the First Amendment of the U.S. Constitution thought Fox’s lawsuit was laughable (read: “frivolous”).
So why would Fox file a meritless lawsuit? Answer: because Bill O’Reilly insisted on it and Fox chose to appease him. Not only did they file the lawsuit, but they also larded the allegations of the complaint with gratuitous personal attacks on Al Franken. I use the word “gratuitous” in a legal sense, meaning that the descriptions of Al Franken’s behavior and personality (e.g. he is “shrill”) had absolutely no legal relevance. At least not in a complaint that seeks to assert rights based on a trademark. Of course, as we have noted, we are finding out now that the lawsuit was not about protecting Fox’s trademark rights, but about appeasing Bill O’Reilly.
So, not surprisingly, after losing the preliminary injunction hearing last week Fox dismissed the lawsuit. You would think that at this point Fox’s lawyers would caution everyone involved with the case to just to just keep quiet and ‘whistle past the graveyard,’ so to speak. And perhaps they did. Although maybe they lacked the temerity to say this to Bill O’Reilly. Hey, Bill O’Reilly is the one who tells other people to “shut up.” No one would dare say that to him.
So, since he can say what he wants (even if it is legally advisable to keep quiet), Bill O’Reilly apparently chose to speak out and explain the strategy behind the Fox lawsuit for the record: “we never thought we were going to win the lawsuit. We wanted to expose the vicious tactics being used by [Al Franken].” Washington Post Story.
Oh, really? That’s very interesting. And if that’s true then Fox’s attorneys might be at risk of being sanctioned. But let’s forget about the attorneys for a moment. I don’t want Fox’s attorneys to be sanctioned, even though they might qualify for sanctions, especially given the legally irrelevant allegations in the complaint (i.e. the ones that which were simply personal attacks on Franken).
If it were possible, I’d like to see Bill O’Reilly sanctioned. Unfortunately, since he almost certainly didn’t sign any of the pleadings that were filed in court, O’Reilly is probably off the hook. Still, if it were possible to sanction him, I have a proposal for an appropriate punishment.
He should, first of all, be barred from ever complaining or insinuating in any way whatsoever that our legal system is burdened by stupid lawsuits. He should be required, at least once a week, to have as a guest on his show someone who has filed a meritless lawsuit, and he should be required to listen with patient dignity as they complain that their rights have been trampelled. If he interrupts in any way as they tell their tale of woe a studio audience should be available to shout in unison for him to “SHUT UP!”
And then, lastly, he should be made to write 100 times in legible handwriting “I will not file lawsuits that I know have no merit, even if I think that my reputation has been tarnished.” And since we lack the power to impose this sanction on Bill O’Reilly then perhaps someone in Congress should propose a law that grants Judge Chin this power. Bill O’Reilly’s appreciation of the purpose of legal system is not merely flawed, it is contemptible. And we can’t afford to let people (especially ones who have access to top-notch legal representation, and who know better) use the publicly-funded legal system to satisfy their vanity.
P.S. If you want a better practice, check out this Ultimate Guide.
I have used this lawsuit by Fox News to teach my Civil Procedure class (because it’s certain to generate many laughs and is easy to work with factually. I’ve also used it in my Professional Responsibility class (i.e., legal ethics) on the issue of frivolous cases. Although O’Reilly has burdened the federal court and Judge Chin, he’s certainly enriched my class with some wonderful lessons. And I can’t feel too sorry for Franken and Penguin, since “THE BOOK” has rocketed to the top of the best seller lists and more than paid for the attorneys fees involved in defending Fox’s silly case.
Someone sent me this link to a rant by Bill O’Reilly about deception in the justice system. It’s not exactly him complaining about frivolous lawsuits, but it is not at all consistent with his venal use of the legal system (or his insistence that Fox use the legal system on his behalf in an essentially venal manner).
If someone can dredge up a link to O’Reilly kvetching about frivolous lawsuits we can put this rant to rest.
I’m not so sure that sanctions against the Fox attorneys aren’t in order. Fox wasn’t represented by some flight-by-night law firm or political shill organization (like Paula Jones, for instance). Fox hired Hogan and Hartson to represent it — a powerful and prestigious law firm with enough attorneys to rank as one of the largest in the country. H&H should have had the chutzpah to tell Fox that this was no legal matter — and refused to file this frivolous suit. That the complaint came from a firm that definitely should have known better, in my opinion, weighs in favor of Rule 11 sanctions.
Hey, can *anyone* file for Rule 11 sanctions? Maybe one of us should file a complaint with the court? 😉
Let’s not forget 28 U.S.C. § 1927, which applies to any person who is before the court; or to the court’s inherent power. In fact, I’m not at all sure that Ernie’s suggestion to treat Bill O’Reilly like Bart Simpson–hey, isn’t that a Fox show?–is outside the scope of the court’s inherent power. Perhaps it would be unusual; but not, based on O’Reilly’s out of court admissions, outside of the court’s power to impose a sanction.
https://scrivenerserror.blogspot.com/2003_08_01_scrivenerserror_archive.html#106165377710198182
Sometimes you have to wish that the courts could impose punishments more appropriate to the “crime” in a way you describe above.
But back to Fox’s attorneys. I have no idea off the top of my head what firm or attorneys they used, but the attorneys had to recognize that this was frivilous. There are a lot of cases that I think unsupported, but you can sit back and imagine some argument somewhere that supports their claim, at least in theory, if not established law.
The most disturbing thing is that these attorneys may have allowed the courts to be used simply so that O’Reilly can vent his personal insults at Franken.
I think its worth at least looking in to. Especially since Fox and O’Reilly probably think that our courts are otherwise burdened by excessive litigation.
RussEditor – Legal Memo-Random