Thursday, January 19, 2017

Why Did Summer Zervos Sue Trump in State Court?

by Michael Dorf

Summer Zervos, onetime contestant on The Apprentice, has sued Donald Trump for defamation based on statements that Trump made calling Zervos a liar after Zervos went public with allegations that Trump had groped her much in the manner of his boasting to Billy Bush in the infamous Access Hollywood recording. The complaint is available here. It is juicy reading.

1) The complaint is clearly aimed not only at the court but at the public, containing details that are not directly relevant to the establishment of Trump's liability for defamation but nonetheless aim to expose negative aspects of his character. For example, Zervos avers that Trump "complained about the price" of the room service club sandwich and fries that he and Zervos shared in the room where Zervos expected to be mentored but, the complaint alleges, she was first groped. Complaining about the price of a sandwich is not at all relevant to the legal issues in the case. However, it does tend to show that despite being very wealthy, Trump is a petty cheapskate.

Another irrelevant detail of the complaint describes Trump's financial advice to Zervos. Here is paragraph 33 of the complaint:
The conversation focused on Ms. Zervos’s mortgage on her home. Ms. Zervos told Mr. Trump that her mortgage was in good standing. Mr. Trump told her to let her mortgage go into default and then tell the bank that they could take back her home. He told her to tell the bank that she would be leaving the keys to her home on the table, and the bank could come pick them up. He said that it was a mini-version of what he does. He was emphatic that Ms. Zervos should not make another payment on her loan.
Again, there's no connection between this exchange and Trump's allegedly defamatory statements. They appear to be in the complaint simply to remind the public that Trump's modus operandi is not to pay his bills and that he doesn't even realize this is dishonorable behavior.

Is it a problem that the complaint contains material that is not, strictly speaking, relevant to the legal claims being alleged? Not really. Good complaint writers--especially in high-profile cases--understand that the complaint has multiple audiences, including the press and the public. So long as the factual allegations of the complaint mostly tell the story that forms the basis for the legal claims, courts will allow some leeway to include additional narrative details.

2) Wait. Can the president be sued? Probably. Nixon v. Fitzgerald held that a president has absolute immunity from civil liability for acts taken in his official capacity, but that immunity does not extend to private conduct before he became president.  Thus, in Clinton v. Jones, the Supreme Court held that there is no temporary (much less permanent) immunity of a president for such conduct. However, Jones was litigated in federal court, thus raising concerns of separation of powers. The majority opinion of Justice Stevens left open the possibility that litigation in state court might give rise to a different result, because such litigation would present issues of federalism and comity. A footnote (number 13) indicated that the Supremacy Clause might also play a role in determining whether the president has immunity to state court civil litigation.

Accordingly, it is open to Trump's lawyers to argue that notwithstanding Clinton v. Jones, the state court lawsuit of Zervos is barred by some as-yet unannounced immunity.

3) That possibility in turn raises the question why Zervos chose to sue in state court where there is at least a chance that Trump could have some immunity as president, rather than suing in federal court where he certainly would lack any such immunity under the rule of Jones. Zervos could have sued in federal court because she is a resident of California while Trump is a resident of New York. However, because she chose not to sue in federal court, the case will remain in state court even if, for some reason, Trump wants the case in federal court. Under the federal removal statute, a case that could have been brought in federal court can be removed to federal court, but not where the basis for federal jurisdiction would be diversity of citizenship and the defendant is sued in his home state, as Trump was. Federal law also allows removal by federal officers sued in state court, but only where the lawsuit is based on the performance of official duties.

Thus, having chosen to sue in state court, Zervos is probably stuck there. If Trump's lawyers succeed in obtaining a new state-court-only immunity based on footnote 13 of Jones, then presumably Zervos can re-file in federal court, assuming that the statute of limitations hasn't run or the initiation of state court litigation is deemed to toll it.

4) Given the seemingly greater risk of proceeding in state court, why did Zervos do it? One possibility is the hope for a friendly jury, although a federal jury in the Southern District of New York would likely have been friendly to a plaintiff suing Trump as well.* The substantive law to be applied in state court is the same as would apply in federal court, so that can't be a reason. Finally, my research into New York law and federal law in the Second Circuit reveals more or less the same standard for what could be the biggest impact of the case: financial disclosure. Zervos has alleged punitive damages. In assessing punitive damages, the defendant's net worth is relevant (because a larger fine is necessary to inflict the same amount of punishment on a wealthier defendant than on a poorer one). Thus, if Zervos succeeds in establishing a right to punitive damages, she could in theory, gain access to Trump's financial records or even his tax returns. However, both New York law and federal law erect a pretty high standard for such access--a requirement that the information not be obtainable from some other source. Thus, I count as pretty low the likelihood that the Zervos lawsuit leads to public disclosure of Trump's tax returns or other substantial details of his finances.

5) Just before the election, I suggested that the alleged Trump gropees might bring a class-action lawsuit against him for defamation and that if so, their claims would be mutually reinforcing. But even proceeding solo, Zervos has a good chance of winning if the case goes to trial. She will likely be a credible witness. Plus, she can call as additional witnesses those people (including her father) whom she told about the groping when it occurred under the hearsay exception that allows prior consistent statements into evidence to rebut a charge of recent fabrication. Although that exception is typically triggered by the suggestion of recent fabrication during cross-examination, it also should apply in a defamation case where the defendant's allegedly defamatory statement consists of stating that the plaintiff recently fabricated her claims about the defendant's past conduct.

* * *

Bottom Line: Unless the lawyers for Zervos know something I don't (which I freely admit is possible), filing in state rather than federal court looks like a strategic blunder, given the risk posed by the opening left in Clinton v. Jones. I do not see any great benefits of proceeding in state court sufficient to overcome that risk. Having said that, the lawsuit also poses very substantial risks for Trump. If Zervos is willing to accept a settlement without admission of liability and with a gag order on the amount, Trump's lawyers would be wise to offer her one. Of course, this could be just the first of a dozen similar suits, so that approach could prove expensive. But hey, no one ever became president in order to make money, right? Oh, right.

* Update: In a Facebook comment, one reader noted that the SDNY and the New York County (i.e., Manhattan) jury pools are not co-extensive. The former comprises Manhattan, the Bronx, Westchester, Putnam, Orange, Rockland, and Sullivan counties. I was aware of that, which is why I said in the original post that the SDNY jury would likely be plaintiff-friendly, even if not necessarily as plaintiff-friendly as the state jury pool. The non-NYC components of the SDNY jury pool are small compared with Manhattan and the Bronx. And Westchester, which is the largest of the non-NYC counties in the SDNY, went 2-1 against Trump.  Thus, to my mind, the small advantage in jury pool doesn't justify the risk of an immunity ruling or even the delay that an effort by Trump to assert an immunity defense could occasion.


Joe said...

The complaint says Trump claims to not even have met the woman at a hotel. Perhaps, the details can be used to help show that they did meet and she had a good memory of the details. This might help to show the whole thing is also still fresh in her mind, causing her distress. Of course, along with various other comments,* it can very well be largely to show he is an asshole.

The state v. federal court thing is an interesting wrinkle. In cases like this, I generally assume there was a reason, even if on balance it was a bad idea.


* Such as: "And what did Donald Trump, the liar and misogynist do, to cover up his lies? He lied again, and debased and denigrated Ms. Zervos with false statements about her." Well, being a "liar," apropos to a Geico commercial, that's what you do.

el roam said...

Thanks for that interesting post , I couldn’t just understand :

The respectable author of the post , claims clearly , that Trump denies the occurrence alleged in that complaint ( which is of course the very basis of the defamation suit ) yet :

The author of the post, insist, that such " trivial " details like : expensive sandwich, or the right strategy for avoiding payment or defaulting on mortgages, are not relevant to the legal issue??

Well, trust me, every goddamn detail, would become as hell decisive. Because the factual configuration , would have to be established first . In such case , the factual detail , can suggest what is the credibility of the claimant' s version . And this is what is all about it seems .

Suppose that one of the parties , describes the content of a sandwich, and , no way , that particular hotel , would the other side claim , never ever sold on earth there . How would it look then ??

It seems that the respectable author of the post, undermines, the abilities of one cunning lawyer.


Keith Kaplan said...

Interesting post.

However, both New York law and federal law erect a pretty high standard for such access--a requirement that the information not be obtainable from some other source

Assuming disclosure happened (agreed, this is unlikely), wouldn't it only be to her attorney and will a protective order barring disclosure?

I also had a question about our honorable behavior.

Again, there's no connection between this exchange and Trump's allegedly defamatory statements. They appear to be in the complaint simply to remind the public that Trump's modus operandi is not to pay his bills and that he doesn't even realize this is dishonorable behavior.

Is this any different than me choosing to pay the penalty to terminate my cell phone contract rather than keep paying the monthly fee?

I realize we don't tend to look at things this way, but businesses (like the bank) do so all the time. Why is that dishonorable when done by an individual?

el roam said...

just a correction to my comment above :

Should be : underestimates , and not : undermines ...


Asher Steinberg said...

About your suggestion of a class-action, would it really be certifiable? I don't see any common questions of fact; common questions of law, maybe, as to whether the plaintiffs are all limited-purpose public figures, but I wouldn't think that issue would predominate over individual questions.

Asher Steinberg said...

And numerosity would be a real problem.

Michael C. Dorf said...

I'll grant that numerosity might be a problem, but the number of plaintiffs could easily rise above 12. As to common issues, Trump's statements themselves allegedly defamed them collectively. He called them all liars and all part of a political conspiracy. Whether each potential plaintiff is a liar presents a separate issue for each, but whether there was a conspiracy is a factual issue that is common to all and that I think would predominate.

Another possibility is joinder as separate plaintiffs per FRCP 20. If the cases proceeded together to trial that would provide the same benefit of mutual reinforcement as a class action.

Asher Steinberg said...

Could you point me to the statement with the language about the conspiracy? I found a speech mentioning a conspiracy, but it simply says that "this" is a conspiracy and doesn't clearly accuse, or even imply, to me at least, that each accuser is a conspirator. Supposing he did clearly say that, I don't quite see why the accusation of conspiracy predominates over the falsity of his denials of each allegation, especially where he made multiple specific denials, e.g. "she wouldn't be my first choice." The accusation of conspiracy, unlike the denials themselves, seems so obviously unsubstantiated and speculative that I wonder if it isn't defensible as opinion or hyperbole: of course, all that's a common question, but the flat denials, being more clearly factual, are much more clearly actionable, and for that reason, I think a lot of courts would say that the questions about them predominate over the issues concerning the more tenuous claim as to the conspiracy accusation. At most, the common/individual questions feel like they have equal weight, to me. Of course, predominance is a squishy standard, but I can't quite see what the argument that the conspiracy accusation predominates would be - unless the complaint simply didn't allege the denials were false.

Also, while the existence of a conspiracy seems like a common question, is it after Walmart? What if some of the class members are conspirators and others aren't? The mere existence of a conspiracy, it seems to me, has a common answer, but at least in theory that question isn't necessarily terribly germane to the class members' claims; what matters is whether each was a conspirator, and that's a question that could generate non-common answers (in theory, and the fact that it almost certainly wouldn't in practice shouldn't, I don't think, bear on the commonality analysis).

Shag from Brookline said...

Is "gropees" libel distinguishable from group libel? Who's got more class, the plaintiff or the defendant? And which of them is "certifiable"?

Joe said...

"Is this any different than me choosing to pay the penalty to terminate my cell phone contract rather than keep paying the monthly fee?"

Defaulting on your mortgage and having the bank take the home even when you have the means to pay seems a tad different than paying a penalty to stop paying a cell phone contract. This includes the effect overall of defaulting of a mortgage (it is not harmless when a person defaults on a mortgage and writ large can cause serious financial effects on third parties) simply to game the system and the size of things involved. Yes, some might find one dishonorable, the other not.

Asher Steinberg said...

A caveat/refinement:

My statement that the fact that the question "were Trump's accusers conspirators?" would almost certainly have a common no answer in reality shouldn't bear on commonality is at least a little overbroad. I don't think a court could properly certify based on supposition that the question would have a common answer; however, if the plaintiffs could prove that the answer to that question would be a common no at certification, it would no longer matter that the question could have non-common answers in theory. And it wouldn't be so hard to prove that to a preponderance at certification. So I think it could be shown that there's a common question as to the conspiracy with a common answer. I do, though, still have some rather formalistic commomnality doubts as to whether the existence of a conspiracy is, quoting Wal-Mart, a question that's "central to the validity" of each class member's claim (each of which "must depend upon" the answer to the question to satisfy commonality), because even if the answer is yes, any individual member could still prove that she didn't conspire. The question that's technically central to the validity of the claims is the individual question of whether a given member conspired with the campaign, not whether or not some members did or all did (if you formulate it that way, the answer could be no and yet some claims would fail if individual members conspired).