Litigation Against Critics

Three separate stories caught my eye this week.  First, in Business Week a feature story on Jim Kramer noted that a blogger in Tacoma Washington was keeping track of Kramer's stock picks on his hit show Mad Money and was charting whether or not the picks made money.  The blog was popular.  CNBC lawyers shut the cite down with a "cease and desist letter.  Second, Gretchen Morgenson wrote a column in the Sunday NYT on Jay M. Meier, who, as a stock analyst, correctly projected in March of this year a falling stock price for Digital River.  The company sued Meier for technical errors in some of his reports (e.g., number of options held by executives) and forced him to stop commenting on the company.  The stock was 40 when he made his projection and is currently trading at 28.  Third, Special Prosecutor Fitzgerald indicted the Vice President's Chief of Staff, Lewis Libbby, for perjury in his investigation of a leak of the identity of a covert CIA agent.

The common thread?  If you do not like the essential message (and cannot contest it without difficulty), sue for a technical violation of something to stifle the messenger.  You could care less about the technical violation; it is just a tool to disable someone who is giving you trouble.

To err is human.  We all make mistakes.  Many years ago a prosecutor friend of mine told me that he could indict anyone, given enough time to inspect every aspect of their lives.  A tax mistake here, a false or unfilled record there, an exaggeration on a resume when young, a divorce document filed in anger ...  He himself relieved the stress of his job with some weed. 

Those in high profile jobs, especially when they criticize other high profile folks who do not like it, are busy and there jobs care complicated.  They, of course, are the most likely to skip a detail and the most likely to have an angry opponent sue them for it.  Once turned over to litigators these prosecutions have a life of their own, as those hired to prosecute or sue have an interest in results not the common sense of perspective.  Judges can operate around the edges of legal doctrine to bring reason to the process but it is hard to do once the charges are in proper form and in a public forum.   

Using litigation as a tool to attack critics has social consequences.  It would be a dull place if every high profile critic wrote in bland legalese to avoid litigation.