First Stormy Daniels tried to blame Tom Brady for threatening her. And now this…
Today, Stephanie Clifford, aka Stormy Daniels, sued Donald Trump in the U.S. District Court for the Southern District of New York. See Clifford v. Trump, Case No. 1:18-cv-03842 (S.D.N.Y. Apr. 30, 2018). The complaint is short (which is surprising given how stupid it is) and centers on a tweet Trump wrote after Stormy published a sketch she commissioned of the unidentified man she claims threatened her to keep quiet about her alleged sexual affair with Trump.
Specifically, Trump called the sketch and Stormy’s related allegations a “con job,” which Stormy alleges is defamatory. Ken has written enough about the merits, so I will just refer you to Ken’s post. If you don’t want to read it, just suffice to say the Complaint is weaker than that pink drink you bought for the stripper last time you got dragged to a champagne room, you fucking rube.
So since Ken wrote about the fun shit, I’ll just give you a primer on why Trump most likely can invoke the Texas Anti-SLAPP statute, even though the case was filed in the Southern District of New York. This is good shit for anyone who finds that a censorious asshat from a state with a good Anti-SLAPP statute decides to file in an alternate forum, presumably to avoid the Anti-SLAPP consequences.
New York does not have a strong Anti-SLAPP statute. This is most unfortunate, as the defendants in l’affair du Rakofsky will tell you. It is sorta funny that New York doesn’t have one, what with all the so-called media companies based there. You would think they would be able to hire some decent lobbyists one of these decades.
But I digress…
Stormy lives in Texas, which has a strong Anti-SLAPP statute. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011, aka the Texas Citizens Participation Act (“TCPA”). Similar to the California and Nevada Anti-SLAPP statutes, the TCPA allows a defendant to bring a special motion to dismiss any claim that “is based on, relates to, or is in response to the party’s exercise of . . . the right to free speech.” TCPA, § 27.003(a). If the motion is granted, the court is required to grant the defendant’s costs and attorneys’ fees, as well as impose sanctions against the plaintiff. Id. at § 27.009(a).
Stormy’s claim is based on Trump’s exercise of his free speech rights. Trump was writing on a public forum about a highly publicized dispute. The dispute would have been a matter of public concern anyhow, but Clifford and her attorney have fluffed the public relations value of this case like nobody has fluffed anything since the invention of Viagra (which made the fluffery sciences as a porn career go the way of the buggy whip)
The Southern District of New York has subject matter jurisdiction over Clifford’s claims because the parties are citizens of different states and she is alleging damages of over $75,000; this basis for subject-matter jurisdiction is called “diversity jurisdiction.” In diversity cases where there is a conflict between the laws of the states of the parties, the federal court has to determine which state’s laws to apply. New York federal courts will use a multi-factor test to determine which state has the “most significant relationship” to the legal dispute, and will use that state’s laws.
To make things even more complicated, choice of law is determined on an issue-by-issue basis, meaning that the court could decide that Texas law should apply for some issues, while New York law should apply for others. Now drop your foie gras and grab your baguettes, because you’re gonna learn some French today, whether you like it or not.
This issue-by-issue determination is known as dépeçage. When you say dépeçage, you should yell it out really loud followed by “motherfucker!”
Do it for me: DÉPEÇAGE MOTHERFUCKER!
For the purposes of Stormy’s case, Trump is a citizen of New York. Courts presume that the state where the plaintiff’s injuries occurred is the state with the most significant relationship to the suit. That means there is a strong argument for Texas law to be applied. Stormy may prefer this when establishing the merits of her claim, since the New York Constitution is more protective of free speech than the U.S. or Texas Constitutions. This would be a double-edged sword for her, though, since it would open the door to Trump using the TCPA. Nevertheless, she may not be able to avoid the TCPA even if she insists on applying New York law. And, dépeçage motherfucker! The court may apply both laws – just New York law to some parts of the claim and Texas law to other parts of the claim.
The Southern District of Florida dealt with a similar issue in Tobinick v. Novella, 108 F. Supp. 3d 1299 (S.D.F.L. 2015). There were multiple plaintiffs (a doctor and his two medical clinics), two in Florida and one in California, who filed suit against a Connecticut doctor for defamation. Florida did not have an Anti-SLAPP statute. The California plaintiff argued that Florida law should be applied. The court found that because the California plaintiff could only have felt harm from the allegedly defamatory statements in California, where it was located and where it treated patients, California had the most significant relationship with its claims. Id. at 1304. Beyond that, it also found that California had an “interest in limiting frivolous litigation filed by its residents [that] outweighs any interest Florida has in the dispute . . . .” (Id.) Dépeçage motherfucker! The case was affirmed at the 11th Circuit in Tobinick v. Novella, 848 F.3d 935 (11th Cir. 2017) (Disclaimer/brag, I handled that case at trial and at the 11th Circuit).
Novella dealt with a scenario where no one was trying to apply the law of the defendant’s state, however. Another case, and one in this very jurisdiction, is Adelson v. Harris, 973 F. Supp. 2d 467 (S.D.N.Y. 2013). There, Nevada real estate magnate Sheldon Adelson filed a defamation suit in New York federal court against a D.C. citizen. Sound familiar?
The defendant tried to apply D.C. law (because D.C. had a good Anti-SLAPP law at the time), but the court found that Nevada, as the plaintiff’s home state, had a greater interest in protecting its citizens from tortious conduct. See id. at 477. The court applied Nevada’s Anti-SLAPP statute, allowing the defendant to dismiss Adelson’s claims and win an award of attorneys’ fees. The Second Circuit affirmed that decision. See Adelson v. Harris, 876 F.3d 413, 415 (2d Cir. 2017).
In Stormy’s case, Texas has two primary interests: (1) protecting its citizens from tortious conduct, and (2) preventing its citizens from filing meritless lawsuits aimed at expressions of free speech. New York, on the other hand, has an interest in protecting the free speech rights of its citizens. Using dépeçage (motherfucker!), it is most likely that the federal court will use New York law to determine whether Trump’s statements constitute defamation (since New York’s Constitution is especially protective of free speech), but allow Trump to use the TCPA. After all, applying the TCPA would actually further New York’s interests, rather than contravene them, and there is not much of an argument for a Texas plaintiff trying to run away from her home state’s Anti-SLAPP law.
Update: Of course, Alex Kozinski once wrote in a dissenting opinion that Anti-SLAPP laws should not apply in Federal Court, despite applying in Federal Court for a generation. In Makaeff v. Trump Univ., LLC, 715 F.3d 254 (9th Cir. 2013), reh’g denied 736 F.3d 1180 (2013), the en banc Ninth Circuit rejected the Koz’s request to reconsider that view, but it gave life to the idea nonetheless.
Such an argument would fail here. In diversity cases, Federal courts properly apply state substantive law which does not conflict with a valid federal statute or rule. See Horowitch v. Diamond Aircraft Industries, Inc., 645 F.3d 1254, 1259 (11th Cir. 2011). The Texas anti-SLAPP statute is substantive and conflicts with no federal statute or rule. The Fifth Circuit has found that Texas’ Anti-SLAPP statute is a substantive statute that does not conflict with the Federal Rules. See NCDR, 745 F.3d at 753; see also Haynes v. Crenshaw, 2016 U.S. Dist. LEXIS 60122, *5-7 (E.D. Tex. Feb. 11, 2016).
It is possible that Stormy may find a way to defeat an Anti-SLAPP motion if Trump files one, but I find this improbable. The more likely outcome is that Trump will prevail on the motion and get an early win, depriving Stormy of the ability to conduct much meaningful discovery and putting her on the hook for fees incurred by (presumably) high-priced defense attorneys.
All in all, this case is dumber than the stripper who tries to convince you that she’s really in medical school, all while her friend is knocking back $40 fruit punches you keep buying her in the champagne room. If Trump can manage to hire minimally competent defense counsel, and he listens to them this case should be like Jordan Rushie … nasty, brutish, and short.
