On Feb. 23, real estate development company Veranda Partners LLC delivered a stern warning to Orange County Sheriff's Deputy and MetroWest resident Larry Giles: Take down his two-week-old website, www.verandaparknews.com, by 11:59 p.m. on Feb. 24, or Veranda Partners would sue.
"Your website is a campaign designed to disparage and injure `Veranda Park's` reputation and goodwill and is intended to interfere with VP's contractual relationships with its customers and potential customers," reads the letter, which was signed by attorney Henry Cooper of the Bogin, Munns & Munns law firm. "Your website has tarnished VP's goodwill and reputation by subjecting VP to distrust, ridicule, contempt and disgrace."
The company, which is developing a mixed-use town center in MetroWest, didn't seek a correction or demand that he take down the parts of the site it found offensive, which is common practice in disputes over libel or slander. It demanded he take down the entire site. Giles didn't think he was doing anything wrong, but he took the site down as asked.
Veranda Partners sued him anyway.
"Just because he took the site down doesn't mean he won't put it up again," says Bogin, Munns & Munns attorney John Bolanovich. "It doesn't mean it erases all the damages `to Veranda's reputation`."
On April 2, Giles sued right back, claiming that Veranda Partners was using the weight of the law to shut down his message. He claimed Veranda's lawsuit was an illegal SLAPP suit — a Strategic Lawsuit Against Public Participation — or a frivolous action aimed more toward censoring a critical voice than seeking redress for actual slander. He also put the site back online.
In Veranda Partners' original complaint, there's little specificity about Giles' alleged slanderous statements. Nowhere in the filing does the development company's attorney quote from the website. Rather, it says that Giles' alleged the developer was unscrupulous, had partnered with the city to get an unfair business advantage (Veranda Partners LLC did receive an economic development incentive package from the city in 2003) and that it owned a paving company that profited from street improvements. The lawsuit alleged that Giles knew this information was false, but put it online anyway "with intent to injure and defame plaintiff."
As of Feb. 22, according to Veranda's complaint, 1,051 people had visited the site, which led Veranda Partners to claim that the damage done to its reputation was worth an unspecified sum that exceeds $15,000. (Giles says he set the site's visible hit counter at 1,000, so it had only 51 hits.)
Allegations of powerful companies using the threat of lawsuits to shut down critics are nothing new. In April, for example, Fort Lauderdale developers the Related Group and Rabina Properties sued a nonprofit company that had been trying to block the development of a skyscraper. The nonprofit's supporters claim it's a SLAPP suit, though the developers' attorneys deny it.
California passed the first anti-SLAPP litigation in 1992. Twenty-four states, Florida included, have since followed.
This case, however, may be about more than silencing a critic. "We look at the whole thing and it seems a little weird," says Giles attorney Marc Randazza. The case is "Bogin, Munns & Munns being vindictive toward my client."
In December 2002, Giles hired the law firm to represent him in a case stemming from a commercial business dispute. The case dragged on for more than two years, until March 2005, when the Bogin firm asked to withdraw from the lawsuit and sued Giles for $2,000 in unpaid legal fees. Giles filed a complaint against the law firm with the Florida Bar Association, accusing the firm of foot-dragging and excessive fees.
"I felt like they had run up the fees," Giles says. He says he'd invested $10,000 in the case already, but seen little progress.
"Indeed, the potential for the appearance of impropriety and the potential for arousal of public suspicion are only further amplified by the fact that Giles previously filed a Bar complaint against BM&M, and BM&M's conduct of the litigation to date certainly creates the appearance that its motivation in this case is to retaliate for that complaint," Randazza wrote in a motion to disqualify the law firm from the case over its alleged conflict of interest.
"The way I saw it, this whole lawsuit seemed to be (at least in part) motivated by Bogin, Munns & Munns' hatred for me," Giles wrote on another of his websites, www.mworlando.wordpress.com.
Further complicating matters, the law firm has access to Giles' financial records and has refused to promise that it won't use those confidentially obtained records against him.
In May, Judge Reginald Whitehead denied Randazza's motion to disqualify the Bogin law firm. Ironically, perhaps, on June 7 Veranda Partners asked Whitehead to recuse himself after the judge told lawyers that he lived in the MetroWest area and, "what you are talking about all in here in the complaint, I see it every day, you know." The judge agreed and had the case reassigned.
On Aug. 21, Giles will ask an Orange County judge to basically put Veranda Park's lawsuit on hold until the court decides whether that suit was, in fact, an illegal "abuse of process." That claim "can, and should, be evaluated prior to evaluating the `Veranda Park's` case in chief, since `Giles` should not be required to defend an abusive action against him."
Bolanovich says such a request is inherently unfair; it would allow Randazza to interview witnesses and gather information for the SLAPP claim, while his side was forbidden from doing the same. "One party would be handcuffed," he says. "There's no precedent for that."
And, he adds, the entire SLAPP claim is, in his opinion, based on a flawed interpretation of Florida law. According to Florida Statute 720.304, slander suits are only SLAPP suits when a homeowners association prevents someone from exercising their First Amendment right to "instruct his or her representatives or the right to petition for redress of grievances before the various governmental entities of this state."
Since Giles' site, Bolanovich contends, wasn't aimed at lawmakers, the anti-SLAPP law shouldn't apply here.
"I would say he needs to go do a little more legal research," Randazza counters. "The right to petition doesn't mean you have to be walking up the steps of the state House in Tallahassee with a petition in your hand."
Giles says that Veranda Partners offered him a settlement in which both parties would drop their claims. He turned it down because, he says, Veranda wouldn't agree to cover the $60,000 he's racked up in legal fees defending the case.
Bolanovich says that he can't comment on any potential settlement offers until he gets a chance to question Giles in a deposition. If Giles wins in court Aug. 21, he might not get that email@example.com