Litigation can be an ugly business. Some of the darkest corners often involve the opening stages of a dispute, when the plaintiffs or their counsel first make their accusations and warn the defendant of the potential consequences if satisfactory accommodations cannot be made. The conversations sometimes carry the faint whiff of the underworld, as if the plaintiff’s demand letter were scented with cigar smoke and opened with the phrase “It’d be a real shame if . . .”
Sometimes the whiff is not so faint.
The latest celebrity sexual assault scandal, this time a federal criminal case against Sean Combs, has brought on a cottage industry of follow-on civil litigation, much of it led by a single plaintiff’s lawyer with a taste for publicity and an aggressive approach to negotiation.
It has also inspired one putative defendant to preemptively strike back with a lawsuit for extortion, which provides another opportunity to explore the outer boundaries of what is permitted in a litigation demand letter.
Diddy, Buzbee, and Doe
As anyone with a passing awareness of pop culture since the mid-1990s knows, Combs (aka Diddy, née Puffy, née Puff Daddy, née P. Diddy) is a rapper / producer / executive / menswear designer with an impressive record of hits and a rotating collection of names. He is also an inmate at the Metropolitan Detention Center in New York, detained without bail on federal RICO and human-trafficking charges, based on allegations involving sex trafficking, forced labor, kidnapping, arson, bribery, obstruction of justice, and something called "freak offs" (if you don't know, don't ask).
Tony Buzbee is a Texan plaintiff's lawyer who has specialized in suing celebrities for sexual assault, and has filed more than a dozen such cases against Combs, to much media fanfare. He has also publicly promised to sue an array of other unnamed, high-profile figures who allegedly participated in Combs's criminal exploits.
According to the new lawsuit, filed in Los Angeles state court, plaintiff John Doe is a self-described “celebrity and public figure,” and the recipient of a demand letter from Buzbee, which Doe alleges crossed the line into illegal extortion. Specifically, Doe claims that after making various public pronouncements about his intentions to sue a long list of Diddy's alleged accomplices and to refer them to the FBI for criminal investigation, Buzbee contacted Doe and demanded a settlement payment—or else . . .
We thus enter the murky and nefarious realm of California extortion law, as applied to plaintiff demand letters.
Extortion in the Golden State
Under California Penal Code §§ 518(a) and 519, extortion is "obtaining of property . . . from another by a wrongful use of force or fear." Wrongful use of force or fear includes a threat to accuse someone of a crime, to "expose, or to impute . . . a deformity, disgrace or crime," or to "expose a secret affecting" the victim. It is a felony punishable by up to four years in prison, and can be the basis of a private lawsuit for damages.
This would seem to present an obstacle to plaintiff lawyers, whose business largely consists of accusing others of, if not crime, then at least "disgrace," often exposing secrets in the process. Before filing the lawsuits that contain these allegations, the lawyers typically send letters demanding that the prospective defendant enter into a confidential monetary settlement in order to avoid the litigation and the ignominy it may bring.
So why are plaintiff lawyers not all behind bars? (Yes, yes, hilarious.) And why are they not getting sued into oblivion? Largely because of the litigation privilege.
Under Civil Code § 47, statements made in or directly connected to a judicial proceeding are privileged, and a person generally cannot be sued or prosecuted for making them. The privilege extends to plaintiffs’ demand letters.
But there is a limited exception to the privilege, named after the famous case—Flatley v. Mauro—in which it was established. In a nutshell, Flatley was a famous dancer, and Mauro was a lawyer who sent Flatley a letter accusing Flatley of raping Mauro’s client. Mauro warned that if Flatley did not pay a seven-figure settlement, then Mauro would publicize the allegations in the media and “expose” information about Flatley’s supposed, unrelated tax and immigration issues. Flatley sued Mauro for extortion, and Mauro invoked the litigation privilege.
The California Supreme Court held that the litigation privilege did not apply because Mauro’s conduct amounted to extortion under California law. The first part of the court’s analysis focused on Mauro’s threats to disclose “criminal activity entirely unrelated to any alleged injury suffered by Mauro’s client”—the tax and immigration issues—which “exceeded the limitations of [Mauro’s] representation of his client.”
In later cases, courts have distinguished the Flatley demand letter from others that threatened only to publicize allegations that were part of legal claims to be filed by the plaintiff. For example, in Malin v. Singer, the court held that an aggressive demand letter threatening to publicly sue the recipient for embezzlement was not extortion, and thus was protected by the litigation privilege, because the allegation was “inextricably tied to” the plaintiff’s proposed legal complaint.
So how is Buzbee looking?
Mr. Doe’s complaint against Buzbee attaches several exhibits, but Buzbee’s demand letters are not among them. Thus, we are left to rely on the complaint’s partial description of the letters (at paragraphs 51-63), at least unless Buzbee attaches the letters to his response.
The complaint does not assert that the demand letters threaten to refer Doe to law enforcement authorities. Nor does it say that the letters threaten to publicize any misconduct other than what would be the basis for the complaint itself—that is, Doe’s alleged sexual assault. Per the complaint, the letters specifically threaten to “immediately file” a “public lawsuit” alleging sexual assault, and to seek other victims to bring similar lawsuits against Doe.
Under Malin and other cases applying the Flatley test, Buzbee’s demand letters don’t appear to qualify as extortionate. Their only clear threats involve taking actions that are “inextricably tied” to the potential legal case Buzbee would bring, alleging claims for sexual assault, similar to others he has filed. While the complaint discusses at length the elaborate media campaign Buzbee has launched to publicize his various Diddy-based lawsuits, that conduct does not support an extortion claim under existing authority.
At one point, the complaint states that the demand letters threatened to “take a different course” if Doe did not agree to discuss settlement. The complaint alleges “on information and belief” that this was “a reference to the threats [Buzbee] made in statements to the media, including that he would report [Doe] to the FBI,” among other things. Perhaps a court extend the Flatley doctrine to consider plaintiff counsel’s outside conduct and statements as part of the implied threats in the demand letter. But I’m not aware of any precedent for that.
If Not the Battle, then the War?
Expect Buzbee to file an anti-SLAPP motion to strike the complaint, arguing that the demand letters are “protected conduct” under California Code of Civil Procedure § 425.16, and Doe cannot prevail because of the litigation privilege. If that motion succeeds, Doe would have to pay Buzbee’s attorney fees incurred in filing the motion.
But Doe and his counsel may have a broader strategy in mind with their complaint. Buzbee’s leverage over high-profile targets like Doe depends largely on the court of public opinion—the negative publicity the allegations themselves would bring, even if the lawsuits never succeed. One responsive tactic is to strike first, immunizing the media landscape against the reputational harm of the assault claims by preemptively casting them as illegitimate and abusive, and posing Doe as the true victim. Separately, Doe may want to signal that if Buzbee does file such a suit without a proper investigation or good-faith basis, he and his client could face sanctions, or even a retaliatory lawsuit for malicious prosecution. The benefit to Doe may be worth the risk of an anti-SLPP motion.
Doe may also be seeking to undermine Buzbee’s own reputation and ability to target other prominent figures in the future. Most of the complaint focuses on Buzbee’s own background of allegedly extortionate conduct, as well as his purportedly dubious relationship with disgraced former federal judge Samuel Kent. On their face, many of those allegations have nothing to do with Doe’s own case, but they may well be fodder the same audiences that are currently gawking at Diddy’s predicament.
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