Tort Action Against Casselman’s Law Firm Not a SLAPP

Friday, September 22, 2017

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Tort Action Against Casselman’s Law Firm Not a SLAPP—Court of Appeal

Investigator’s Harmful Disclosures About a Man Soliciting Investments Are Held to Be Extraneous to The Inquirer’s Purpose in Seeking Information to Assist in Enforcing Judgments Against the Solicitor

By a MetNews Staff Writer

DAVID CASSELMAN

Founder, Casselman Law Group

A lawsuit against trial lawyer David B. Casselman’s firm by a company that lost a potential investor because an investigator for the law firm bad-mouthed the company’s agent is not a SLAPP, the Court of Appeal for this district held yesterday.

The opinion, by Acting Justice Michael Johnson, a Los Angeles Superior Court judge sitting on assignment, affirms the decision of Los Angeles Superior Court Judge Ruth Ann Kwan in denying an anti-SLAPP motion. Johnson’s opinion, for Div. Three, was not certified for publication.

The action was brought Feb. 3, 2016, against Wasserman, Comden, Casselman & Esensten, LLP, which had engaged the services of private investigator Paul Cohen, who is also a defendant. Casselman Law Group is the successor law firm, and Johnson refers to both law firms, collectively, as “Casselman.”

David Casselman was the 2009 president of the California chapter of the American Board of Trial Advocates and 2005 president of the Los Angeles chapter. He has obtained several multi-million dollar judgments.

The plaintiff is Eye Machine, LLC, headquartered in Michigan. It makes devices used in treatment of macular degeneration.

The company sued for intentional interference with prospective business advantage, negligent interference with prospective business advantage and unfair competition and business practices, seeking “compensatory damages in an amount in excess of $100,000.00” plus punitive damages.

Warning Providing

The conduct of which it complains is Cohen contacting Harris Hatzissmou Phillip, who was contemplating an investment in the company of $100,000 to $150,000, and warning him of the peril inherent in dealing with Peter Pocklington, who was soliciting investors for Eye Machine. Pocklington, a Canadian now living in Palm Desert, was owner of the Edmonton Oilers, a hockey team, from 1976-98 and was a candidate in 1983 for the leadership of Progressive Conservative Party in Canada.

The Casselman firm was seeking to collect on two judgments against Pocklington: one in the amount of $806,475.60 from a U.S. district court in Florida, in favor of a foundation and an individual, and a Canadian judgment, in favor of the Government of the Province of Alberta, in the amount of $10 million in Canadian dollars (about $810,600 in U.S. dollars).

Cohen’s purpose in contacting Phillip was to learn something of Pocklington’s finances. He learned nothing, but provided detailed information as to Pocklington’s activities, including his conviction for bankruptcy fraud.

Follow-Up Email

The investigator followed up by sending Cohen an email, with attachments. He said:

“As discussed, I have attached some articles along with the docket of the Riverside Federal Court regarding the Pocklington conviction.

“Again, he was never vindicated.”

He supplied the name and phone number of an FBI agent Phillip could phone to verify the information, adding:

“You can also check me out by calling the attorney I am working on who represents the Canadian Government on their judgement. His name is David Casselman.”

Cohen provided the phone number.

Phillip forwarded the email to Pocklington, saying: “I trust you and I will leave all this to your judgement.”

But in the end, he did not invest in Eye Machine, resulting in the lawsuit.

Eye Machine alleged in its complaint that that Cohen was “acting on behalf of” the law firm and that the communications were not privileged.

Bases of Motion

Casselman’s anti-SLAPP motion was based on the contention that Cohen’s statements were in connection with litigation, coming under Code of Civil Procedure §425.16(e)—which protects “(1) any written or oral statement or writing made before a…judicial proceeding…, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a… judicial body….”

Also cited was subsection (e)(4): “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

On appeal, Casselman abandoned the contention that Cohen’s statements were made “before” a judicial body, but the contention that they were made “in connection with” a judicial proceeding.

Relationship Too Tenuous

Johnson agreed that statements in connection with post-judgment proceedings can be covered by the anti-SLAPP statute. However, the relationship between Cohen’s disclosures and the efforts to collect on two judgments was too tenuous, he said, for the statute to apply.

He explained:

“Eye Machine’s claims against Casselman are based on Cohen’s statements to Phillip that Pocklington engaged in misconduct during his bankruptcy proceeding, was denied a discharge in bankruptcy, had a criminal conviction and criminal record, and engaged in other acts of misconduct. These statements were made in a setting that was only remotely related to the litigation against Pocklington—an informal telephone interview in which Cohen was seeking information about Pocklington’s assets. They were not made during a proceeding that was sanctioned by statute or court rule, they were not made by an attorney or an officer of the court, and they were not directed to a party or participant in the underlying litigation.

“More important, the content of Cohen’s statements had no relationship with the issues in the underlying litigation against Pocklington.”

—AP

In this 2010 file photo, Peter Pocklington, former owner of the Edmonton Oilers NHL hockey team, leaves the Riverside courthouse of the U.S. District Court for the Central District of California after agreeing to pay more than $5 million to settle a securities fraud case in Arizona.

‘Personal Gibes’

Johnson said that questions about Pocklington’s assets were relevant to the purpose of collecting on the judgments, but that Cohen’s “gratuitous comments about Pocklington’s bankruptcy misconduct and criminal conviction were not,” declaring the “personal gibes” to bear no relationship to the purpose.

The jurist went on to say:

“Casselman has argued that Cohen’s statements about Pocklington’s bankruptcy misconduct and criminal conviction advanced the collection efforts because Cohen subjectively believed that his comments might encourage Phillip to reveal information about Pocklington’s bank accounts. This is hard to believe, but in all events the test is objective rather than subjective.”

Evidence Inadequate

With respect to Pocklington being someone in whose activities there is “of public interest,” Johnson said that the appellant had provided evidence of that which was too slight. It pointed to an article on one Canadian Internet site, with 36 comments posted by readers.

“In short, the Edmonton Sun internet posting is not evidence of a robust public debate about the misdeeds of someone in the public eye; it involves a small group of Oilers hockey fans reliving the old days and making a wide range of sports comments that include some negative and positive things about Pocklington,” Johnson wrote. “This is insufficient under section 425.16, subdivision (e)(4).”

The case is The Eye Machine, LLC v. Wasserman, Comden, Casselman & Esensten, LLP, B270815.

The attorneys on appeal were David B. Casselman, David Polinsky and Kirk S. Comer of Casselman Law Group for the appellants and James Andrew Hinds, Jr., Paul R. Shankman and Rachel M. Sposato of Hinds & Shankman, for Eye Machine.

Casselman did not respond to a request for comment.

Sposato said only:

“We are pleased with today’s decision. As the underlying case is still pending, we cannot provide further comment.”