Adam Kutner1 is (apparently) a familiar face around Las Vegas. He's of the genus of lawyers with television advertisements, intoning soberly: "have you been injured in an accident?", as music likely reused from an episode of Unsolved Mysteries fills the background:
Kutner can empathize, because he's also been injured — online. And his new lawsuit is a good example of why Nevada's pretty-damn-good anti-SLAPP statute is important.
This tale begins eight years ago, when two women — both represented by the same attorney — sued Kutner and his firm in separate, employment-related cases. The complaints (here, and here) both made similar allegations: that Kutner had assaulted the employees with golf clubs.2 One case eventually settled on undisclosed terms, but not without some turbulence, and the docket on the other suggests that the parties settled.
A now-defunct Las Vegas media outlet, the Las Vegas City Life, covered the allegations.3 Wild Wild Law, a gossipy blog focusing on the wild-and-crazy Nevada legal scene — and hosted on Google's blogspot, so it bears a big stamp of credibility — surveyed the allegations from Las Vegas City Life and asked its readers: "Adam Kutner: Biggest Douchebag in Vegas?" The readership, taking a short vacation from their YouTube commentariat residency, chimed in with a sprawling tornado of comments.
That made Kutner mad. So mad that, approximately five years later, he sued Google and the anonymous blogger(s) behind Wild Wild Law.4 The amended complaint mentioned the word "defamatory" quite a few times, but instead asserted claims for false light and, uh, invasion of his constitutional right to privacy, because these false statements were about his "past life."
Because Kutner couldn't figure out who the masked villain behind Wild Wild Law was, he asked the court to allow service by publication, which the court permitted. This means that the anonymous critics could be deemed to have been made aware of the lawsuit, and obliged to respond to it — and subsequently lose the case if they didn't respond — because Kutner published notices like this one. Of course, a vague description that a lawsuit had been filed against unnamed persons who had posted on a blog called "Leagle Eagle" is unlikely to notify any of the actual commenters, and perhaps not even the blog operator, that their assets are at risk.
Nevertheless, the anonymous operator of Wild Wild Law showed up and challenged Kutner's lawsuit, filing both a motion to dismiss and an anti-SLAPP motion. The court recently granted the motion to dismiss, as Kutner's complaint admitted that the challenged words had been published over four years earlier, well outside any applicable statute of limitations. Because there was a basis to dismiss the case because the allegations simply weren't cognizable, the court declined to beat Kutner over the head with the anti-SLAPP motion.5
The allegations in this lawsuit are that Google and the blogger are responsible for new comments posted on the blog post. That's woah-Nelly frivolous: Google and the blogger are both clearly protected by CDA §230. Companies and people who host or publish a blog cannot generally be held liable for what their commenters say. This feels less like an attempt to redress a grievance and more like an attempt to harass Google and the blogger into removing the post.6 I doubt that will happen. This time, I suspect, the blogger's attorneys won't simultaneously file an anti-SLAPP motion and a motion to dismiss, and Kutner will be more likely to face the wrath of Nevada's anti-SLAPP statute, and thereby have to pay attorney's fees and a $10,000 penalty.
There's a closer call as to whether some of the comments themselves are defamatory.
The first comment Kutner targets is that he's "the biggest douche bag ever;" that his practice is a "joke" and that someone employed there — not Kutner — is a "pill popping psycho." If those are the words from that comment that he's concerned about, they're (1) not defamatory because they're not statements of fact — how, exactly, do you measure whether someone is the biggest douchebag ever?; and (2) there are potentially actionable statements in that comment that are ignored. That's curious.
The second comment is that Kutner is a loser. While it's clearly an opinion, a creative defense attorney might find just one case that Kutner has lost and argue that it's true.
The third comment is, per the complaint, that Kutner is a "liar and a cheat." But the comment itself says that unnamed people in his office are "liers and cheats." Even if that were a statement about Kutner, it's likely hyperbole.
The fourth comment is that Kutner is the "BIGGEST MOST EXTREME D-BAG," that he uses profanity to refer to employees, and that he and his staff are "careless." If you're like me, you subconsciously heard a face-melting guitar solo as you read the words "MOST EXTREME D-BAG." Now you're hearing it. Yeah. Hell yeah.
The rest of the comments go on like this. One commenter stated that he was disappointed in how much money Kutner got for him and that Kutner "other than pass the buck, he didn't do **it!!" Another that he's a "clown" who does nothing except "sit in his chair and Never sees his clients never!" Yet another scolds that an employee — again, not Kutner — is "addicted to pills," that Kutner's office is messy, and that he "cheat[s] clients out of their money." Another that he's a "lowsy" attorney.
While some of these may draw up to the line, few would interpret them as anything more than frothing, hyperbolic statements or opinion. What objectively verifiable (or disprovable) fact can be drawn from these? None.7
In any event, even if there are false statements of fact, Kutner — who boasts in the complaint that he's one of the most successful attorneys in southern Nevada — will have to demonstrate that the statements were made with actual malice.
Kutner's complaint is a prime example of why Nevada's pretty-damn-good anti-SLAPP statute8 — is worth keeping around. Kutner's real goal, it seems to me, is not to redress an actual injury, but to harass a blogger (who has long since given up blogging) into removing a post that accurately describes allegations in lawsuits filed against Kutner. The path he's chosen is frivolous and abusive, and he should have to pay for it. After all, the motion to dismiss in the first case didn't deter him from filing a second one.
- No relation. ▲
- I'm not sure whether this commonality corroborates or undermines the credibility of the accusations. Obviously, I'm not a golfer. ▲
- Apparently, anyway. I have been unable to locate a copy of the original article. ▲
- This wasn't Kutner's first libel-slander tango. According to the Las Vegas Review-Journal, he once asked a judge to (among other things) order a former employee to remove a bumper sticker from her car reading "ADAM KUTNER SUCKS." ▲
- It's unclear to me — and I'm not willing to pay $12 per document to download the rest of the case — whether this action is proceeding against the anonymous commenters, or whether Google was even served. There is an order deeming service-by-publication effective, but I'm not sure whether a default judgment has been entered against the Doe defendants. If so, that's outrageous: Kutner could probably have sought their identities by way of subpoena (which he'd still have to do anyway in order to effectuate a judgment against them), but that would inconveniently give them actual notice of the lawsuit and a chance to defend themselves. It's also unclear whether Kutner is facing an award of attorney's fees. ▲
- And, once again, although the complaint suggests that he might use subpoenas, Kutner is seeking to serve the commenters not by learning their identities through a subpoena, but by publishing notices to the world at large. This is, in my view, underhanded and contemptible. ▲
- Well, almost none. There are probably some statements in the comments that might be actionable for reasons I won't go into here because I don't want to give Kutner any tips that might help him amend the complaint. ▲
- Coincidentally, Kutner's 'blog' (which is on Google's blogspot, so you know it's credib– hey this sounds familiar) notes that Nevada's anti-SLAPP statute protects against the use of defamation lawsuits to silence critics. ▲
Last 5 posts by Adam Steinbaugh
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