California Defamation Law Blog : Los Angeles Defamation & Anti-SLAPP Lawyer & Attorney : Adrianos Facchetti Law Firm

Faced with a growing backlash from the public for her mini-marriage to NBA basketball player, Chris Humphries, Kim Kardashian has filed a claim for arbitration alleging breach of a confidentiality agreement and defamation.

I won't recount the details about the wedding extravaganza, which was televised, because I think most people are probably familiar with it (for more background, read this). However, what I will discuss is why I think this latest legal move is probably a good one, assuming that the news accounts accurately describe the nature of the claims.

First, I think this is a good PR move. Not only does it send a strong message that her marriage was NOT bogus or a hoax, but also it allows her to control the story. Now, instead of talking about whether the marriage was fixed or not, people will be talking about the individual who Kardashian claims is defaming her. Further, by pursuing these claims in a private arbitration, she can better control how the story develops in the media. This wouldn't be the case had she opted to file a lawsuit. Of course, she may not have had much of a choice. The alleged confidentiality agreement probably had an arbitration clause in it.

The second reason this is a good move is a legal one: avoiding the anti-SLAPP statute (AKA Special Motion to Strike). Had Kardashian filed a lawsuit in state court I can guarantee that defense counsel would have filed an anti-SLAPP motion. There is no question that Kardashian is in the public eye and that comments regarding her marriage are a matter of public interest, so, a SLAPP motion would be warranted. Likewise, on the second prong, she'd have a very difficult time showing that the defendant made the statements with constitutional malice. However, perhaps her attorneys would argue that the SLAPP statute doesn't apply in the first place given the confidentiality agreement, i.e., that the defendant waived his right to use the SLAPP statute. One thing is certain: the defendant stands a much better chance if he can get the case out of the arbitrator's hands. For now, however, Kardashian seems to have the advantage.

In sum, I think Kardashian made a smart play here. It will definitely be interesting to see how this one plays out.

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I recently saw an article that discussed whether Herman Cain would file a lawsuit for defamation. Cain has apparently hired a defamation specialist to advise and monitor the situation for him, particularly the proposed joint conference by Cain's accusers.

If the question is whether Cain will file a lawsuit for defamation, slander, or libel, whatever you want to call it, the answer is: it's very unlikely. Cain is a public figure. This means that he'd need to show that the accusers made the alleged false and defamatory statements with knowing falsity or a reckless disregard for the truth by clear and convincing evidence. This is a heavy burden to meet, one that very few public figure plaintiffs have been able to satisfy.

Another reason not to sue is the potential application of an anti-SLAPP statute. Depending on the state in which he elects to file suit, his complaint could be subject to speedy dismissal. In about half the states, if a plaintiff files a lawsuit which is based on defendant's free speech or petitioning activity, the defendant can file a motion seeking the dismissal of plaintiff's claims. If the plaintiff cannot show a reasonable probability of prevailing on the merits, the case is dismissed, and in many states, plaintiff is ordered to pay the defendant's attorney's fees. If his suit were to be dismissed, the public would view it as a vindication of Cain's accusers. So it's a big risk.

Finally, filing a lawsuit would put the alleged sexual conduct in issue. In other words, defense counsel would be entitled to dig even deeper into Cain's personal life. Discovery is very broad in civil suits and you can bet that whatever is discovered would be leaked to the media.

I would be very surprised if Cain elects to file suit. I don't see any upside to doing it.

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A common cause of failure on an anti-SLAPP motion is a misunderstanding of the evidentiary burdens each side must satisfy. I suppose its understandable given skeletal analysis found in most of the typical practice guides. And with over 400 published decisions in this area, I suppose it's inevitable that busy practitioners--who are not experts--will overlook some of the SLAPP statute's subtleties. This is why it's important to hire a lawyer that concentrates his practice in this area of law. This is not an area one dabbles in.

In addition to the defendant's initial burden under prong one to show that the acts underlying the causes of action arise from petitioning or free speech activity, defendant has a burden on the second prong, depending on the appellate district. In many districts, defendant has the burden to substantiate its affirmative defenses with competent evidence. Other courts, however, have stated that it's plaintiff's burden to overcome all affirmative defenses by showing that they are not applicable to the case as a matter of law or by a prima facie showing of facts, "which if accepted by the trier of fact, would negate such defenses."

Whatever the prevailing view is, the practitioner must be ready to defend his position. Not knowing these applicable standards is, in my opinion, an unforgivable sin.

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Few lawyers are aware that the anti-SLAPP statue applies at the federal level, although some of its provisions are not applied because they collide with FRCP 56. In other words, at the federal level, in some respects, an anti-SLAPP motion is treated as a summary judgment motion. But even though the SLAPP statute is applied by federal courts to state law claims, district courts have unanimously held that the statute doesn't apply to federal questions in federal courts because it would frustrate substantive federal rights. 

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