In 1999, 60-year-old Francis Worst contacted Eric Turkewitz after being sued for $300,000, plus punitive damages, for defamation.
His sin? Reprinting something in one Internet stock market forum that he had read in another.
While Mr. Worst had an interest in the content of the message, he had no connection with the original author—which was signed with a real name, phone number and e-mail address—or with the people or companies that were named in that message.
In other words, he acted exactly as millions of others do each day on the Internet: He saw something of interest to him that was already in the public domain and passed it along.
The complicated suit Mr. Worst was swept into for his simple “cut-and-paste” action concerned a blown corporate financing deal that included allegations of misconduct.
Mr. Worst, a retired and disabled airline mechanic living in Florida, had the misfortune of having reprinted the message while participating in an obscure financial forum with only 10 participants.
Mr. Worst’s only prior brush with the law was sitting jury duty.
Now he feared losing his home and was afraid to exercise his right to free speech.
We Ask, Very Nicely, To Be Dismissed
In one of the more bizarre aspects of the plaintiffs’ suit against Mr. Worst, two large businesses (Sovereign Partners Limited Partnership and Dominion Capital Fund, Ltd.) were claiming to have been defamed by Mr. Worst to the tune of $100,000 each (plus punitive damages) for the reprinting of the message to the 10 participants. The allegation is bizarre, not just due to the minimal activity of Mr. Worst, but also because these two defendants were not even mentioned in the message claimed to be defamatory.
Early on, we explained to their lawyers that the message was already public, that the reprinting was certainly not done with any kind of malice, that Mr. Worst was unaware of any defamatory content, that he had not added any original content, and that injury, if any, was inadvertent and not attributable to Mr. Worst.
Surely, under these circumstances, they would simply dismiss as to Mr. Worst, right?
Wrong. Instead, they proceeded to demand three things from Mr. Worst in exchange for dismissal: 1) that money damages be paid; 2) that he apologize, and; 3) that they reserved the right to publicize the apology*
We Are Forced To Litigate, And We Aren’t Happy
The case became a classic David v. Goliath mismatch, with David having begged and pleaded to leave the battlefield, but forced to fight.
After repeated efforts to gain a voluntary dismissal, and it being apparent to us that they had no intention of doing so without receiving something of value from Mr. Worst, we finally moved for dismissal.
At this juncture, the main defendants had all settled the real financial dispute at issue. The settlement included a public apology from those who had authored the allegations of illegal conduct.
We Turn the Tables
We did not believe that the plaintiffs ever intended to try the case against Mr. Worst in a courtroom, and that the lawsuit was used solely for its coercive purposes. It was clear to us that suit had been maintained against him with two objectives: First, to chill his First Amendment rights, and; second, to punish him with legal bills for having the audacity to engage in public discussion about these people.
Apparently believing they had accomplished these two goals, plaintiffs modified their demands, asserting that they would dismiss the case without any payments or apology, so long as there was a gag order on the dismissal and no costs or legal fees paid.
A gag order? After they tried to embarrass him by coercing an apology from him? We refused and would not accept any conditions on dismissal at this late date, only an unconditional dismissal.
Plaintiffs were also informed that we would ask the court for sanctions against them for having engaged in frivolous and bad faith conduct and using the federal court for an improper purpose.
Plaintiffs, having now seen their bluff called and now desperate to gain dismissal, offered to withdraw the lawsuit simply “without costs.”
We again refused, asserting that the attachment of a “no costs” condition to any dismissal was unacceptable. It made it look like a settlement.
We kept our word in moving for sanctions against the plaintiffs and their lawyers.
Why, Why, Why?
Why go through all this when dismissal was at hand? Most litigants would beat a hasty retreat if offered a dismissal, especially if the only condition was it being “without costs.”
This battle was fought, however, because a principle was at stake: No one should be intimidated from speaking freely simply because one litigant has the money to hire expensive lawyers to make threats. When it appears that bringing and maintaining a suit was done in order to chill free speech and force legal fees on a defendant as punishment, then an appropriate sanction should be made. If Mr. Worst took the safe and easy route, and walked away, these people and their attorneys would be free to continue their conduct, and the world would never know what they had done. In other words, they would see no down side to bringing such suits again and again, solely in order to intimidate someone from speaking.
Faced with an unexpectedly adamant Mr. Worst, the plaintiffs were embarrassed into asking the court for their own dismissal.
Judgment for Mr. Worst
Federal District Judge Robert Ward dismissed this case January 12, 2001, and Mr. Worst was declared to be a “prevailing party”. The court granted the plaintiffs’ own cross-motion to be dismissed from the suit, which they had been forced to make since we had refused attaching conditions to the dismissal. Our motion for summary judgment was then denied as moot.
The court, unfortunately, denied the application for sanctions. In its decision, the court did not address the fact that two of the plaintiffs, Sovereign Partners and Dominion Capital, had sued Mr. Worst for both compensatory and punitive damages despite having never even been mentioned in the retransmitted message to that obscure Internet forum.
Goliath was represented by Orrick, Herrington and Sutcliffe, www.orrick.com, a 500+ attorney corporate firm with offices in ten
cities and four countries.
David was represented by Eric Turkewitz.
The docket number was 99 Civ 0564 (RJW)(JCF).
The title of the action was:
SOVEREIGN PARTNERS LIMITED PARTNERSHIP, DOMINION CAPITAL FUND, LTD., and STEPHEN M. HICKS,
RESTAURANT TEAMS INTERNATIONAL, INC., CURTIS A. SWANSON, STANLEY L. SWANSON, HARRY McMILLAN, LEE WALSH, MARC STAGER,CONSYGEN, INC., THOMAS DREAPER, MARK WEISS,“TECH”, “FALCON74”, ERIC DAVIDSON, and FRANCIS G. WORST.
Note: While the terms of settlement negotiations are usually confidential, these became part of the public record when the plaintiffs submitted them to the court as motion exhibits.