Former President Jimmy Carter has been named in a disturbing and clearly frivolous lawsuit over his representations on the Israeli-Palestinian conflict in his 2006 book “Palestine, Peace Not Apartheid.” The five plaintiffs are seeking $5 million, but, in my view, should be held for Rule 11 sanctions in filing a vexatious and frivolous lawsuit. There is certainly a basis for the court to conclude that the lawsuit is a case, to paraphrase the book, “sanctions, not damages.”
The lawsuit alleges that Carter and Simon & Shuster violated New York consumer protection laws and common law principles by engaging in “deceptive acts in the course of conducting business” and for promoting the book (which they claim is full of falsehoods) “as a work of non-fiction.” Attorney Nitsana Darshan-Leitner seems intent to establish the filing as completely without merit, stating that it is intended to “prove that his hatred of Israel has led him to commit this fraud on the public.”
The lawsuit was filed in the United States District Court for the Southern District of New York and captioned Unterberg et al v. Jimmy Carter et al. Here is the complaint: Jimmy Carter Complaint
The complaint is written like a press release without a thin pretense of legal claims. The plaintiffs are Stephen Unterberg, Susan Eckman, Ryan Shuman, Danica Bernard, and Steven Tabak “who purchased the book.” They are the named plaintiffs as part of a class action on behalf of everyone who purchased the book.
They allege such falsehoods as stating that Israel’s borders are established when the authors insists that they have never been “finalized.” (p.10) They also say he is lying when he says that Israel has not honored its obligations under international agreements despite the fact that he is clearly stating this as his opinion. (p. 13).
The first claim is breach of contract. (p. 24)
The second claim is unjust enrichment. (p.25)
The third claim is negligent misrepresentation (p. 25)
The fourth claim is intentional misrepresentation (p. 26)
The fifth claim is the consumer protection act violations (p. 26)
They then ask for declaratory judgment and a jury trial.
The lawyers who sign this bizarre lawsuit are David Schoen of Montgomery, Alabama and Nitsana Darshan-Leitner of Ramat Gan, Israel.
Schoen’s bio lists a degree from George Washington University and has received an award from the American Bar Association for his pro bono work. He certainly has a wide array of volunteer projects and he cites his work as a commentator. He also lists being a member of the National Board of Directors of the Zionist Organization of America and the recipient of the Migdal Ohr Tower of Light Award “by a leading Israeli organization.”
Darshan-Leitner is described as leading “a wide-range of legal actions in Israel and abroad on behalf of other Jewish rights cases. She has sued the Egyptian Ambassador over his sexual assault of an Israeli belly dancer. She represents the families of 12 missing Iranian Jews, believed to be secretly imprisoned in Tehran, in a civil action brought against the Mossad and Jewish Agency. Moreover, she has represented the family of a young Israeli officer accused of killing an anti-Israel I.S.M militant during an IDF operation in Gaza.” She is the founder of Shurat HaDin, an organization fighting for Jewish rights. The organization, in discussing the lawsuit, insists that “no individual more than former American President Jimmy Carter has sought every possible opportunity to defame the Jewish State and endeavored to challenge its right to exist.”
The only question in my view of the appropriate legal sanctions that should be levied against both these litigants and their lawyers under Rule 11 below.
I fail to see the good-faith basis for this filing, which seems intended for public consumption. Federal courts are not forums to achieve cathartic satisfaction by venting views against an author. There are a vast array of non-fiction books challenged over their accuracy in the public forum with subjects ranging from the Kennedy assassination to global warming. Carter’s book has been criticized in newspaper columns and television programs as well as celebrated in the same forums. That is where such debates belong. If these attorneys are correct, every controversial book could be used as the basis for a lawsuit. This use of tort and consumer protection law is a direct threat against free speech.
Shurat HaDin takes credit on its website for being the first to sue ” a former President and a publishing house . . . for violating consumer protection laws by knowingly publishing inaccurate information while promoting a book as factual.” There is a good reason why it is the first such filing. The filing is overtly meritless and vexatious.
In Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120 (1989), the Supreme Court affirmed the power to sanction attorneys under Rule II though did not sanction their law firm. The Court sent back the issue of sanctions against the law firm given the reference in the rule to “the person who signed” such filings.
Lower courts have imposed a duty on lawyers to establish a legal and factual basis for complaint. For example, in Garr v. U.S. Healthcare, Inc,, the Third Circuit found sanctions were appropriate given the failure of the attorneys to properly establish a basis for such a filing. Lawyers are not allowed to file action on the mere chance that they can find factual or legal basis to support it. One court noted in Vista Mfg., Inc. v. Trac-4 Inc., 131 F.R.D. 134, 138 (N.D. Ind. 1990), “A shot in the dark is a sanctionable event, even if it somehow hits the mark.”
Likewise, in Janky v. Batistatos, 259 F.R.D. 373 (2009), attorneys were sanctioned after the court found the “entire lawsuit was not warranted by existing law or by a nonfrivolous argument . . . [and] was brought for an improper purpose, both to harass Defendants and to needlessly increase the cost of litigation.”
Sanctions are only awarded in the most extreme circumstances and courts must be careful not to punish attorneys for creative filings or time-pressured errors. However, this filing is neither creative nor excusable in my view. It simply takes objections previously heard in opinion articles and repeats them as legal claims. If the district court agrees, it will ordinarily wait for a motion to dismiss to be filed and rule on that motion. With the ruling, it would then issue a Show Cause order on why the attorneys and their clients should not be sanctioned for a frivolous filing. In the interim, the defense attorneys should (if they have not already) notify the Plaintiffs that they have filed a frivolous filing. Some courts look closely at the safe harbor period to allow a filing to be withdrawn in deciding whether to impose sanctions and how great of sanctions to impose.
Rule 11 states:
Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name — or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.
(b) Representations to the Court.
By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
(1) In General.
If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
(2) Motion for Sanctions.
A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.
(3) On the Court’s Initiative.
On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).
(4) Nature of a Sanction.
A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.
(5) Limitations on Monetary Sanctions.
The court must not impose a monetary sanction:
(A) against a represented party for violating Rule 11(b)(2); or
(B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
(6) Requirements for an Order.
An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.
(d) Inapplicability to Discovery.
This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.
Source: Washington Post