Employment Law Daily No sanctions for suit alleging hacking, surveillance in reprisal for sex harassment allegations
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Wednesday, March 21, 2018

No sanctions for suit alleging hacking, surveillance in reprisal for sex harassment allegations

By Joy P. Waltemath, J.D.

Demonstrating the myriad manifestations of the #MeToo litigation explosion, a federal district court in New York refused to sanction a former Fox News analyst and commentator for a lawsuit in which she alleged federal wiretap and Stored Communications Act (SCA) violations, as well as intentional infliction of emotional distress claims—based on actions she contended were intended to punish her for filing a sexual harassment lawsuit in state court. Although the defendants made much of the fact that what the plaintiff actually claimed were “sockpuppet” social media accounts (fronts by Fox and other defendants to harass her) were not fictitious but were actual accounts by real individuals, which she could have easily ascertained, the court noted she had already filed an amended complaint, pro se, dropping most of the “sockpuppet” allegations. The court declined to characterize her claims as “clearly frivolous,” or alleged in bad faith and for an improper purpose to support the imposition of sanctions (Tantaros v. Fox News Network LLC, March 16, 2018, Daniels, G.).

Harassing hacking of her devices alleged. Alleging that Fox News Network and other defendants had hacked her cellphone and personal computer and used information from her confidential communications to harass her, the former analyst and commentator said they had done so to punish her for filing a sexual harassment lawsuit against senior Fox News executives. Specifically, she filed claims against all defendants for allegedly violating the federal wiretap statute by listening in on her calls, and against Roger Ailes and (former) Fox News executive William Shine for allegedly violating the SCA by directing others to unlawfully access her emails stored on her personal computer. She also alleged an IIED claim.

She claimed that after she complained to Fox News execs of sexual harassment, Ailes and Shine enlisted another individual and his company, Disruptor, Inc., to target her for retaliation primarily through electronic surveillance, “sockpuppet” account harassment (faked accounts actually on behalf of the defendants), and internet trolling. She based this on a “very large uptick in overtly sexual and offensive posts from purported followers of her on Facebook, Instagram, and Twitter” after she went public with the harassment allegations. The analyst said that messages were deleted from her Blackberry, and a forensic analysis of her computer allegedly revealed “unique surveillance viruses that are not found in any mass malware,” which Plaintiff attributes to Fox News and its agents’ attempts to hack her devices. The sockpuppet accounts, and one “Block account” in particular, made her believe that she was under surveillance.

Defense seeks sanctions. Most of the defendants moved to sanction her and her attorney, claiming her complaint was “replete with outrageous accusations against them without any legitimate factual basis.” They said it was readily determinable that the “Block account” was not a fictitious sockpuppet account, but rather the personal Twitter account of a real individual, which a cursory review would have revealed. Calling her claims legally meritless, they accused the analysist and her attorney of filing this suit for an “improper purpose … extracting an extortionate settlement.”

False claims of fake accounts. The defendants stressed that her original claims had lacked both legal and factual support, which they contended would have been readily apparent if she had performed a reasonable pre-filing inquiry as required by Rule 11—especially as to the alleged sockpuppet accounts. They also said here wiretap and IIED claims were clearly time-barred, and that her claim under the Stored Communications Act was foreclosed as a matter of law by precedent from four federal appellate circuits that the Act does not apply to communications stored on personal computers and devices. And they claimed the point of her suit was just to publicize “false and salacious allegations to force them to settle.”

Maybe non-meritorious, but no sanctions. But even if the claims in the analyst’s original complaint were not sufficiently supported by plausible allegations of fact, that was not enough to support sanctioning either her or her counsel—the appropriate remedy would be dismissal under Rule 12. “Parties who prevail on a motion to dismiss for factual insufficiency are not thereby entitled to have sanctions imposed against the losing party merely for filing a non-meritorious complaint,” said the court. It also refused to impose sanctions for asserting tenuous claims based on novel legal theories, or claims that may ultimately prove to be time-barred, since the imposition of sanctions has the potential to create a chilling effect on counsel seeking to advance new or creative, and potentially meritorious, claims.

Not clearly frivolous or in bad faith. Calling the underlying employment dispute “contentious and acrimonious,” and characterizing the analyst’s original approach as an “aggressive, scorched-earth, take-no-prisoners” one, the court still would not find her claims to be “clearly frivolous,” or alleged in bad faith and for an improper purpose. From a defense perspective, “many meritless lawsuits are strike suits designed to force a settlement,” noted the court but pressuring a defendant to settle by publicizing a lawsuit, “does not, by itself, suggest that a case was brought for an improper purpose.”

Some good faith pre-filing inquiry. Here, there was no evidence that the analyst did not sincerely believe in her claims and, before filing, she and her attorney did have a forensic analysis of her computer to investigate her claims of hacking and electronic surveillance, suggesting at least some good-faith pre-filing inquiry. After it became apparent that the sockpuppet allegations lacked sufficient factual support, most were dropped from the analyst’s pro se amended complaint. Finally, her counsel had already withdrawn; her original complaint had been dismissed; and she was proceeding pro se on an amended complaint that abandoned most of the objectionable allegations. If, on motion to dismiss, that complaint also was found to lacked sufficient factual allegations, it too would be dismissed, concluded the court, but there was no need for sanctions now.

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