By Zach Arnold | May 24, 2015
A nearly six-year long legal battle has ended between Juanito Ibarra, his former clients Tito Ortiz & Rampage Jackson, and a slew of media writers who were sued for libel & slander in Los Angeles federal court. A formal settlement was agreed upon between the two sides on May 15th by Ibarra’s formidable attorney, Samuel J. Smith.
The six years of legal proceedings saw Rampage Jackson burn through numerous lawyers. There were court filings/hearings for sanctions. There were a litany of defendants filing anti-SLAPP motions to strike and a billion different legal lessons to learn for anyone concerned about speech & public participation laws on the Internet. In many respects, the wild and crazy six year legal battle is a blueprint that I would strongly recommend any writers or future writers to carefully study regarding the intersection of Federal & state public participation laws.
Late last week, statements were issued on behalf of both Tito Ortiz & Rampage Jackson in regards to allegations made in the press about Juanito Ibarra’s personal & business character.
Quinton “Rampage” Jackson: “Juanito Ibarra and I have resolved the lawsuits that have been pending for a number of years. While we have had our differences in the past, it is all now behind us. Some things were said in the past, which I now retract and I am deeply sorry that they were said. I wish nothing but the best for Juanito in all of his future endeavors and know that he will continue to do the Lord’s work.”
Jacob “Tito” Ortiz: “In 2008, I gave an interview to Punch Drunk Gamer entitled “Wherever I may roam…..I want the Title.” In that interview, I made several statements including the allegation that Juanito Ibarra was a thief who had mismanaged the finances and stolen from and taken advantage of Quinton “Rampage” Jackson. I made these remarks based on what Rampage had told me. After several years in court and review of all the available records, I realize that Mr. Jackson and I were wrong. Juanito didn’t steal from or take advantage of Rampage and he didn’t mismanage Rampage’s money?it was all accounted for. I regret the effect my words had on Juanito’s life. Juanito is a trainer and manager of superior skills and the fact is, he helped to make Rampage a champion. Anyone would be blessed to be taught by Juanito. So there is no confusion, and so the public and the MMA, boxing and sports community at large know, I retract all of the negative statements, inferences and accusations that I directed at Juanito and sincerely apologize to Juanito and his family. I am grateful to have ended my dispute with Juanito and look forward to refocusing on building a better MMA community with him.”
Why did they spend all that time and money on attorneys in order to avoid the inevitable outcome of issuing retractions and apologies?
The case was set to go to trial in July. On the Los Angeles court web site, it appears there were attempts to try to bifurcate the defendants (Tito and Rampage) in the defamation case, which would have meant separate trials.
In the end, both sides reached a settlement but it cost a lot of money and each side learned some painful lessons in the process — lessons that you should carefully study if you end up on the other end of a Strategic Lawsuit Against Public Participation (SLAPP).
Lesson #1. Until a Federal anti-SLAPP law is passed in the United States, you’re a sitting duck
Only within the last two weeks has there been proposed legislation drafted to try to create a Federal anti-SLAPP law. Compared to states like California, Oregon, and Texas with attractive anti-SLAPP laws, the proposed Federal anti-SLAPP law would not nearly be as aggressive but would significantly bolster protections for comment & speech against public figures, governmental affairs, and topics of broad public interest. California’s statute regarding “public interest” is very broad and has been left to the courts to try to establish boundaries through case law.
Given the rise of the Internet, it has been long past time to make defamation law a Federal and not a state issue. It’s in the best interests of everyone (except personal injury attorneys). As a result of not having a Federal anti-SLAPP law on the books, we’ve seen an incredible mish-mash of libel & slander suits in different Federal courts. Some of those Federal courts apply a state’s anti-SLAPP laws and others do not.
Defamation cases are costly to file and even more expensive to defend. Discovery, deposition, and established precedent makes Federal speech lawsuits a hot mess to try to win and to try to defend. And often times, the judgments awarded by juries are completely disproportionate to the actual damages caused. How do you collect $10 million dollars from someone who is broke?
And the worst part of it all? If you lose a defamation lawsuit, a Federal bankruptcy proceeding won’t automatically wipe out such a court judgment. A libel or slander judgment is considered a nondischargeable tort like student loan debt.
Without a Federal anti-SLAPP law, you’re screwed in a lawsuit — especially if that lawsuit is filed in a state without a legitimate or robust anti-SLAPP law or a Federal court that won’t apply a state’s anti-SLAPP court in proceedings due to esoteric procedural vs. substantive law arguments.
Lesson #2. Only a third of American states have anti-SLAPP laws and most of them are limited
16 of 50 American states have anti-SLAPP laws on the books. 34 do not. And of the 16 that do have anti-SLAPP statutes, only a handful actually are helpful.
Nevada has a very aggressive anti-SLAPP statute but that statute may get neutered in the future by a state senate bill 444, backed by Steve Wynn.
Lesson #3. Depending on the jurisdiction, some Federal courts don’t like using state anti-SLAPP laws
Earlier I mentioned that some Federal courts don’t like applying anti-SLAPP statutes in defamation cases they have jurisdiction over. This may be confusing, so let me further elaborate.
If you file a case in a Federal court, you can either allege causes of action based on violation of Federal law or you can utilize a Federal court’s pendent jurisdiction to allege violation of both state & Federal laws in one cause of action. Most plaintiffs file in Federal court based on diversity jurisdiction: 1) the defendant is out of state and 2) the damages are over $75,000.
In states like California that have good anti-SLAPP laws, defendants in Federal court will often make both Federal and state law arguments. In California, defendants will often use the anti-SLAPP special motion to strike to get causes of action dismissed and win attorney fees if they are successful.
Where it gets messy is the application of a state anti-SLAPP law. Even though anti-SLAPP laws are on the books, they are applied in court proceedings on procedural grounds as motions to strike. There are some Federal judges who make the argument that because state anti-SLAPP laws are applied procedurally in state courts that therefore they are not compatible to be applied procedurally in Federal court since state & Federal court systems use different Civil Code of Procedures.
It’s the classic legal argument of procedure vs. substantial law. Yes, state anti-SLAPP laws are substantive but they are utilized in courts procedurally as motions to strike. It’s a natural conflict.
If you live in California, Federal courts recognize the usage of the state’s anti-SLAPP law and will allow anti-SLAPP motions to strike in Federal defamation cases. However, other jurisdictions are not as charitable.
Lesson #4. The statute of limitations for defamation & emotional distress in many states are built for trial lawyers
When states like California passed anti-SLAPP laws, they assumed that it would end a lot of frivolous defamation lawsuits. Instead, the anti-SLAPP law has caused an explosion in legal activity because so many attorneys in the state either don’t understand what the anti-SLAPP law is or don’t see the motion to strike coming when they file a claim for nuisance, emotional distress, or malicious prosecution.
In a state like California, you will lose a defamation case if you sue another person for statements they made against you in a police report. Why? Because you have a Constitutional right to petition a court or a government agency if you have a grievance. Filing a police report falls under that category. If you give a false claim in a police report, it’s on the authorities to either charge you with a crime or not. If people accused of wrongdoing in police reports were allowed to sue others for defamation, you would chill not only free speech but the ability to petition the police for help. An anti-SLAPP law ensures your right to petition a proper governmental agency.
If your state doesn’t have an anti-SLAPP law, however, you’re in trouble — and that trouble is compounded when you have trial lawyer-friendly statutes for both libel & emotional distress. Some states allow up to four years for such claims. Outrageously generous statute of limitations plus limited or no anti-SLAPP law and/or a Federal court that won’t recognize an application of a state’s anti-SLAPP law equals big trouble, especially if you’re writing or commenting on the Internet.
Lesson #5. Interpretation of long-arm statutes can neuter many state anti-SLAPP laws via jurisdictional battles
There are several major states where their respective state supreme courts over the past decade have interpreted their long-arm statutes to apply to anything published on the Internet. These courts have applied strict interpretation to their long-arm statutes and have expressly stated in their court decisions that it is the fault of state legislatures for not updating long-arm statutes in terms of application to Internet content.
Example: In Ohio, a plaintiff sues you for something mean you said about them online. There’s no anti-SLAPP law in Ohio. The plaintiff sues you in an Ohio federal court. They claim jurisdiction by stating that since any Ohio resident can get on the Internet and read your web page that your material has been “published” to Ohio residents. That’s the power of a long-arm statute.
Example: A recent lawsuit in Atlanta by a supplement company claims that non-Georgia residents made false & malicious statements about an ingredient used in the company’s products. They claimed it violated the state’s Unfair Trade Practices Act. By using the state’s long-arm statute, any writer’s comments are theoretically “published” to Georgia residents and thus justify jurisdictional claims to file suit in Georgia rather than file suit where the defendants reside. Georgia has a limited anti-SLAPP law.
Long arm statutes in most states allow for Federal defamation lawsuits to be filed on hometown soil regardless as to where the defendant was physically located at the time they spoke. This creates an automatic battle of motions to transfer in Federal court.
The application of all lessons in the Ibarra vs. Tito, Rampage, media lawsuit
Juanito Ibarra sued Tito Ortiz & Rampage Jackson for libel and slander. He also sued a number of media writers for publishing the remarks made by Tito & Rampage. Many of those writers were not residents of California.
Some of the writers were eventually removed from the case as defendants. Others hired attorneys and those attorneys filed anti-SLAPP motions to strike. Some of those defendants were granted their motions to strike and were awarded attorney fees. In many anti-SLAPP hearings, attorneys will prevail and then submit inflated fee applications for tens of thousands of dollars. Some judges will rubber stamp such fee applications while other judges will significantly slash those fee apps. Losing an anti-SLAPP motion as a plaintiff in a defamation case can be financially devastating.
Ultimately, the libel and slander case survived demurrers/motions to dismiss from the main defendants. Rampage went through an unbelievable amount of attorneys. The case dragged on. It looked like it was going to go to trial last Summer. Then there were more delays. The case was expected to go to trial this Summer.
Juanito Ibarra wanted public retractions and apologies. He got them, albeit six years later after he filed a lawsuit. The defendants ended up spending a lot of cash on attorney fees and for what? They could have apologized and retracted six years ago. In the process, Juanito lost some anti-SLAPP motions to strike. The lawsuit cost him time, money, and damage to his reputation. He finally got what he had been asking for but persevered through a lot.
When you are involved in a defamation case, especially in a state with no anti-SLAPP statute or a Federal court that is obstinate in applying a state’s anti-SLAPP law on procedural grounds, you have no clue how things are going to play out. States with long-arm statutes and generous statute of limitation rules create breeding grounds for destroying undeserving defendants who are engaging in speech and public participation.
Without a Federal anti-SLAPP law on the books, your speech & public participation on the Internet is anything but protected.