Saturday, March 9, 2013

In October 2012, Donald Trump offered President Obama $5 million if the president released his college transcripts to the public.

My daughter plays a game at her school called Pinto. She'd kill me if I told you the rules. Part the game is the other person has to figure out the rules. But it involves feeding back a previous person's statement, using their language, and making it a bit more absurd.

In February 2013, Bill Maher pintoed Donald Trump when he offered to pay $5 million to the charity of Trump's choice if the man could prove that his father wasn't an orangutan. I don't have a link to the video of that offer. But I do have a clip with Bill Maher on Conan O'Brien's show where he talks about Trumps subsequent lawsuit against Bill Maher to enforce this "offer." 

Apparently, Donald Trump took Maher's statement as a serious, legally binding offer. He then proved that he isn't descended from an orangutan and wants Maher to pay up. When Maher didn't immediately hop to and write a check, Trump sued for breach of contract in the Superior Court for the County of Los Angeles. In the clip, Conan O'Brien characterizes the orangutan offer as a joke. Maher confirms it was a joke and points out the wrongness of using courts for frivolous, punitive litigation. 

In the context of this litigation, Maher raises a reasonable point. If Trump knew this was a joke, then his lawsuit is not only frivolous, but clearly brought for an abusive purpose Some have already questioned whether Trump's lawsuit qualifies as a Strategic Lawsuit Against Public Participation (SLAPP). SLAPP lawsuits are a kind of lawsuit generally intended to shut up someone, not through the merit of a particular claim, but by making the SLAPP target spend time and dollars to fight against a frivolous lawsuit until the target is worn out and wants to crawl off and hide somewhere.

Mind you, the problem of suing someone like Bill Maher is (1) he can afford to litigate until hell freezes over; (2) far from wearing him out, unlike the fear and desperation a lot of people feel when sued, he's only going to see his ratings go up; and (3) Trump will most likely end up paying Maher's attorney fees.

Ultimately, Trump is going to get publicity, which he appears to enjoy. Maher will get publicity. He's an entertainer and while he may not need the publicity, it won't hurt him. What about the public though? Courts in Los Angeles County are seriously impacted (type Los Angeles Courts closing in Google; you'll get a sense of how bad it is).

People are now spending hours on buses get get across town so they can defend against their landlord throwing them out. Guys trying to collect on bad debts for their business find themselves waiting two years to resolve cases that used to be concluded in one. Courtrooms are dark, trials are trailing. Money is short everywhere. The last thing California needs is more frivolous litigation.

And the knee-jerk reaction to this lawsuit is that it is frivolous (really, really, terribly frivolous). But let's look closer. After all, Donald Trump didn't get hacks to represent him. His counsel is the well-respected Cooley law firm and three of its star attorneys:

Scott Balber is a New York partner in Cooley's Litigation Department and the head of its Financial Services Litigation group. He's an experienced trial lawyer with dozens of trials under his belt. Jonathan Cross is special counsel with the firm. Also a New York lawyer, he focuses on complex commercial litigation and arbitration. Finally, Michael Rhodes is a California attorney and litigation partner with Cooley who represents heavy hitter technology and Internet companies such as eBay, Nintendo, Facebook, Google, NVIDIA, HortonWorks, Wikimedia Foundation, Mutual Pharmaceuticals, Shoe Dazzle and LinkedIn. None of these attorneys are lightweights. So if experienced, well-regarded blue chip attorneys like this are putting their reputations behind this lawsuit, there must be a chance that Trump will prevail.

Right? It's not like these gentlemen just signed on for the money regardless of how frivolous the claim might appear. This is because under the ethical rules of the road for attorneys, there are standards that lawyers must adhere to before filing a lawsuit. In New York, attorneys can't file litigation merely to harass or maliciously injure another. In other words, this lawsuit can't be just about screwing with Bill Maher. Before a lawyers can sign off on a lawsuit, they have to make an affirmative determination that the action is not frivolous.

These guys must have listened to Donald Trump, investigated the facts of the case, and made their own independent determinations that this is a legitimate lawsuit with a chance of Trump prevailing. They know the law that you can't enforce the terms of a joke. They're familiar with SLAPP laws.

Yet, they decided to go forward with this case. So I'm assuming that Trump looked them straight in the eye and told them, "Oh yeah, I totally believed that Bill Maher was absolutely serious. It was a legitimate question, I could realistically have been a hybrid human-orangutan and people wanted to know if this was true or not. Now, having disproved this legitimate question by flashing my birth certificate, he's got to pay up."

And these three lawyers then nodded and said, "Yeah, I could see a reasonable person thinking this is a legitimate offer and we have a shot in hell of prevailing in a lawsuit for breach of contract, let's file this puppy." Now, they might be wrong. But in general, lawyers get to rely on whatever information is provided to them by their client. Only if they later find out that Donald Trump wasn't truthful about a particular fact do they have to back off. See Daniels v. Robbins, 182 Cal. App. 4th 204, 223 (2010).

So I assume that Bill Maher's defense will be to point out that his comments were a joke and that because a contract requires a meeting of the minds, no contract was formed. His lawyers might point out the classic case that illustrates this point is called Keller v. Holderman and involves two people joking about selling a watch. It's black letter law and I'm sure Trump's lawyers knew this case before they filed their lawsuit.

A better example was brought to my attention in a tweet by Max Kennerly:

It's a case called Leonard v. Pepsico, where Judge Kimba Wood refused to make Pepsi give someone $23 million Harrier Fight Jet in return for 700,000 Pepsi Points. Judge Wood found:
The advertisement featuring the jet did not constitute an offer under the Restatement (Second) of Contracts. 
Even if the advertisement had been an offer, no reasonable person could have believed that the company seriously intended to convey a jet worth roughly $23 million for $700,000, i.e., that it was mere puffery. 
The value of the alleged contract meant that it fell under the provisions of the statute of frauds, but the statute's requirement for written agreement between the parties was not fulfilled, so a contract had not been formed.

In other words, if no reasonable person would believe Bill Maher was serious, then Donald Trump loses. This case won't go to a jury. Bill Maher won't have to wade through depositions. Maher's attorneys will file a special motion to strike the lawsuit. They'll include a declaration from Bill Maher saying it was a joke. They may include a DVD with copies of the relevant clips

The judge assigned to the case will then rule that this lawsuit is classic free speech concerning a public figure. The fact that this is a breach of contract lawsuit and not a libel suit will be ruled irrelevant. Navellier v. Sletten, 29 Cal.4th 82 (2002). It will dismiss the lawsuit, ruling as a matter of law that no reasonable person could find this to be a contract. The Court will then order Donald Trump to pay Maher's attorney's fees.

The only rational tactic for Trump and his attorneys at this point is to dismiss the lawsuit on Monday before Maher has time to file his anti-SLAPP motion. If this happens, we'll know  two things. Trump and his lawyers should have known this was a frivolous action when they filed it. And second, Trump's lawyers are in better shape, because they beat Maher's lawyers to the courthouse (once Maher files his anti-SLAPP motion, Trump must pay Maher's attorney fees regardless of any future dismissal).

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