Judge Not Impressed By Rakofsky v. The Internet; Dismisses Defamation Claims

from the don't-sue-a-bunch-of-lawyers dept

Two years ago, we wrote about the case dubbed Rakofsky v. the Internet. The details are too numerous to go into, so I suggest reading that post, but the very short summary is that Joseph Rakofsky, a recent graduate of Touro law school, somehow got himself onto a case defending someone accused of murder. The case was not going well, with the judge asking the defendant a few times if he was happy with Rakofsky's representation. After a supposed "communications breakdown" the defendant let the judge know he was no longer comfortable with Rakofsky -- and the judge declared a mistrial. As part of that, the judge also clearly expressed his belief that Rakofsky was not qualified to be in the position he was in:
I was astonished that someone would purport to represent someone in a felony murder case who had never tried a case before and that local counsel, Mr. Grigsby, was complicit in this.

It appeared to the Court that there were. . . defense theories out there, but [Rakofsky had] the inability to execute those theories. It was apparent to the Court that there was ... not a good grasp of legal principles and legal procedure of what was admissible and what was not admissible that inured, I think, to the detriment of Mr. Deaner."
Also of concern was that an investigator hired by Rakofsky in the case had revealed to the court an email from Rakofsky in which Rakofsky told him:
I) Please trick Leigh (old lady) into admitting:
a) she told the 2 lawyers that she did not see the shooting and
b) she told 2 lawyers she did not provide the Government any information about [the] shooting.
Rakofsky later refused to approve a voucher for that investigator's payment, leading the investigator to claim to the court that he was "terminated and uncompensated... based on his refusal to follow an e-mail request from Mr. Rakofsky ...instructing him to try to 'trick' a witness into changing her testimony."

After all of this, Rakofsky, oddly, appeared to celebrate the ruling in a post on his Facebook account, suggesting he was happy with the results. That posting resulted in more mockery in online circles.

Again, all of this was reported widely, including here at Techdirt. However, what we mainly reported on was the fact that after lots of people talked about this and mocked Rakofsky (with some questioning the claims on his website), Rakofsky appeared to sue nearly everyone who wrote about him and the case -- including a whole bunch of bloggers, but also the Washington Post (who did the initial report) and the American Bar Association (no joke) whose blog wrote about the story as well.

At the time, we said the story would be an interesting one to follow. That was two years ago. Six months after that, Rakofsky filed an insanely long amended complaint which, among many other things, attempted to add us to the lawsuit with a bunch of claims (including some that were factually untrue). Of course, once again hinting at Rakofsky's experience level and proficiency with the court systems, the motion to file that amended complaint later had to be withdrawn, because he filed it while a stay was in place barring him from such a filing. It took a while, but the case finally progressed -- and we have yet to be officially added to the lawsuit, something I certainly hope remains the case because suing us for reporting factually on what happened, while also providing some statements of opinion, is generally not going to end well. And indeed, so far, Rakofsky's case is not going well.

In a ruling on Friday, the Supreme Court of the State of NY basically shot down every single one of Rakofsky's claims, and granted the motions to dismiss of various defendants. The court very carefully details the factual background and then explains why the motions to dismiss are being granted. The court rejects Rakofsky's motion to file a second amended complaint based on a failure to state a claim:
granting plaintiffs' motion to amend would be futile since the allegations set forth in the proposed Second Amended Complaint are not sufficient to state a cause of action; as will be discussed below in defendants' motions to dismiss. dismiss.
First, the court rejects the jurisdictional argument. Not surprisingly, the non-NY bloggers pointed out that a NY state court did not have jurisdiction over them, and the court was not convinced by various arguments by Rakofsky to the contrary:
It is quite clear that defendants" herein who operated legal blogs or posted comments' on those blogs residing out of the country in Canada, or even in the United States ranging from Washington, D.C. and Florida in the east, to Texas and California in the west, had virtually no purposeful activity or minimum contacts with this state. There was certainly no purposeful activities in this state which were substantially related to the alleged defamatory statements as defendants neither wrote the alleged defamatory statements in this state nor did they direct them to our state alone. The statements were posted on the internet with potential world-wide accessibility.

This Court rejects plaintiffs' primary argument in opposition that defendants received "commercial benefits" from the hyper-links contained in their websites to invoke long-arm jurisdiction. This connection to New York, if any, is too attenuated to exercise personal jurisdiction over the out-of state defendants. Plainly stated, there are insufficient contacts with this state to "hale" into court multiple defendants living thousands of miles away in other states which would "chill" their right to free speech.
Good, clean ruling on that one. Moving on to the defamation claims. Again, Rakofsky runs into trouble. The court rules that the reporting on both the "trick" email and the mistrial may not have been exactly worded, but was close enough. On the email:
While the precise words are not exactly identical, they are similar enough to convey a fair report of the Rakofsky e-mail and the Bean motion that were inextricably intertwined with the judicial proceedings before Judge Jackson in the Deaner case. Even though the "trick" e-mail, the Bean motion and Judge Jackson's comments do not portray Rakofsky in a positive light, and Rakofsky may wish to disavow or interpret them in a different way, the defendants were permitted to publicly disseminate them as a report of a judicial proceeding.
On the mistrial question:
You can not look at Judge Jackson's comments in isolation, but in context considering all of his comments and Rakofsky's trial performance. The clear import of Judge Jackson's rulings was to excuse Rakofsky due to his lack of competence and inexperience to defend Deaner in a murder trial. It is acknowledged that the Deaner murder trial was Rakofsky's first trial in a foreign jurisdiction and with which he was totally unfamiliar, and Judge Jackson was vigilant in protecting Deaner's right to effective assistance of counsel.

Significantly, the reported fact that Judge Jackson declared a mistrial in the Deaner case was not defamatory because even Rakofsky initially celebrated the mistrial as a positive development in his career. In other words, defendants' report that a mistrial occurred does not constitute defamation. Instead, the reported statements that Rakofsky was allegedly not competent, inexperienced and unethical are the operative words which may give rise to defamation, except that said content was privileged under the Civil Right Law § 74,
That last bit, Civil Rights Law § 74, says that you can't sue someone for libel "for the publication of a fair and true report of any judicial proceeding." Basically, the defamation claims fail because what people reported was more or less accurate.

The court goes on to give more reasons why Rakofsky's claims fail, including the fact that some defendants are protected by a "republication" exception to defamation law and that they were expressing opinions rather than statements of fact in many cases. It also rejects the idea that there was "intentional infliction of emotional distress" as Rakofsky claimed, or intentional interference with a contract. Rakofsky also, quite amazingly, tried to use NY's publicity rights (sometimes called privacy rights) law, basically arguing that people weren't allowed to use his name/likeness without his permission. That failed pretty spectacularly too:
This statute has been narrow construed to meet its limited objective to prohibit commercial appropriation of a person's name and likeness.... These sections also do not apply to reports of "newsworthy events or matters of public interest" otherwise known as the newsworthy exception.... To foster freedom of expression, the meaning of "newsworthiness" has been broadly construed to permit a wide and liberal interpretation....

In this case, it is abundantly clear that coverage of a murder trial in the Deaner case comes within the broadly construed newsworthy exception as a report of a newsworthy event or a matter of public concern. Thus, plaintiffs' fourth cause of action fails to state a claim for a violation...
The court also rejected Rakofsky request for sanctions on Marc Randazza, a lawyer who many of you are familiar with given his frequent appearance in stories on this blog. Randazza was representing many of the bloggers that Rakofsky sued, and Rakofsky apparently didn't like the way Randazza treated him, leading to a request for sanctions. The court rejected that too, noting that "Randazza's conduct was acceptable to practice law in this state, and impliedly not sanctionable."

On the flip side, the court did refuse to sanction Rakofsky, basically arguing that, viewed generously, some of the people reporting on the original case "did not fairly report Judge Jackson's comments." The court also notes that, since Rakofsky withdrew a claim of negligence against defendants he "partially acted in good faith."

We shall see what happens next, though Randazza certainly expects Rakofsky to appeal, and given Rakofsky's two-plus year aggressive pursuit of this case, I think it's likely that, indeed, there will be an appeal, though I find it unlikely that the results of any appeal will turn out any better for Rakofsky.
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Filed Under: defamation, joseph rakofsky, marc randazza

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  • icon
    That Anonymous Coward (profile), 10 May 2013 @ 7:25pm

    OHAI Marc, grats.

    So whats the over under on both the crazy C.C. people joining up with J.R. to sue the world next?

    reply to this | link to this | view in chronology ]

    • icon
      G Thompson (profile), 10 May 2013 @ 11:08pm


      awww what ya got against C.C and the "sunshine" Band ;)

      reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 11 May 2013 @ 1:14am

        Re: Re:

        I think your word inverter is borked again...
        it was K.C. and the sunshine band...

        You know who I refer to when I say C.C.'s
        Charles... and well the name Randazza should make the other one obvious.

        reply to this | link to this | view in chronology ]

        • icon
          G Thompson (profile), 11 May 2013 @ 5:55am

          Re: Re: Re:

          Ah but both Marc and Myself see the Initials C.C and crazy and think of another form of 'Crystalline' weirdness where the "sunshine" is very much needed

          reply to this | link to this | view in chronology ]

          • icon
            That Anonymous Coward (profile), 11 May 2013 @ 11:36pm

            Re: Re: Re: Re:

            Which is why I said BOTH the crazy people C.C.

            Can you picture that...
            Charles, Tara, Joseph... all being 'crystallized' into the ultimate gem of insanity...

            One also has to wonder if crystal meth has anything to do with all of this...

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 May 2013 @ 7:49pm

    He should team up...

    Rakovsky should team up with Charles Carreon - they could have their own TV show..

    Two down-on-their-luck attorneys, fighting for the right to be public laughingstocks.

    Quick, someone get David E. Kelley on the line - I smell Emmy!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 May 2013 @ 8:11pm

    Supreme Court of the State of NY

    For those of you not familiar with the organization of New York Courts, the New York Supreme Court, is not that state's highest appellate court. Rather, it is, as Wikipedia phrases it, ”the trial-level court of general jurisdiction”.

    In other states, the analogue would usually be called Superior Court.

    But you knew all this already, 'cause you watch Law and Order on TV, right?

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    out_of_the_blue, 10 May 2013 @ 9:26pm

    Yeah! The whites "Sorry been watching South Park" erm I mean the internet wins again!

    reply to this | link to this | view in chronology ]

  • identicon
    gyffes, 10 May 2013 @ 9:26pm

    Hey Rakovsky...

    Team Prenda is always on the lookout for law-talking guys with questionable morals and absolutely no self-awareness or real understanding of Law! Call now, before everyone's in prison.

    reply to this | link to this | view in chronology ]

  • icon
    Bob Pendleton (profile), 11 May 2013 @ 1:45am

    The public interest in the legal profession

    Whenever I read unbelievable stories about the behavior of lawyers I am aghast that nobody mentions the public interest in policing the profession. The public needs its faith in the legal system restored by disbarring any lawyer who fails to meet high standards of ethics and competence and making room for young graduates. At the same time, the public needs to see the legal profession disciplining the law schools who graduate such incompetents.
    The longer the people distrust their most important institutions, the greater the risk of revolution.

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 11 May 2013 @ 3:01am

      Re: The public interest in the legal profession

      But if you started at the top who would run the DoJ?

      When there are rules and penalties in place to remind these top lawyers of the land to not hide evidence that shows the defendant is actually innocent... we have no hope for the others.

      When the top lawyers refuse to pursue violations of the law because they are worried they might not have an easy slamdunk win... how can we have hope?

      When they are so weighted down with debt that they advertise on Craigslist and participate in questionable legal actions, they aren't bad people all they were paid to do was sign and file some papers...

      So many laws and rules now are written by lawyers to "protect" us from people weaseling away from them, and there is an entire cottage industry in finding ways to avoid the rules in a legal way someone missed...

      reply to this | link to this | view in chronology ]

  • icon
    WysiWyg (profile), 11 May 2013 @ 2:59am

    What about Deaner?

    Am I the only one that wants to know what happened in the Deaner case with the new trial?

    reply to this | link to this | view in chronology ]

  • icon
    OldGeezer (profile), 11 May 2013 @ 3:57am

    Just another dumb ass that does not understand the Streisand effect.

    reply to this | link to this | view in chronology ]

  • icon
    Bob Pendleton (profile), 11 May 2013 @ 4:07am

    Re: The public interest in the legal profession

    That Anonymous Coward is frustrated with the system and those who run it. Me too, though I have not lost hope. There are tools which aid public accountability of those in power; the ex-mayor of Laval, QC was just arrested on a charge of racketeering. A powerful anti-corruption agency did the investigation.

    At the root, though, it is the people who must prefer to seek the truth and reject political bluster. In the U.S., politicians are happy to try to split the electorate into warring camps.

    There is broad consensus that systems are broken, but no consensus as to how to fix them. But I don't despair, I keep reading blog posts!

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 11 May 2013 @ 11:44pm

      Re: Re: The public interest in the legal profession

      I have some hope, but I have no grand illusions that we'll see any solutions soon. I read the blog posts, I even make some...

      It takes hard work and effort to try and undo the damage and you take what victories you can find. Steele and co didn't fall over night, it took many people working very hard to make it happen... but it happened.

      reply to this | link to this | view in chronology ]

  • icon
    Thomas (profile), 11 May 2013 @ 6:53pm

    And what kind of law school..

    did this Rakofsky go to? How did he manage to pass the bar exam? It's not just the legal profession - the medical profession is just as bad at dealing with members who don't follow the rules or are just plain incompetent. The associations have a huge interest in protecting their own which far outweighs interest in protecting the public. Still find it hard to believe that such a twit got through law school and passed the bar exam.

    reply to this | link to this | view in chronology ]

  • identicon
    Brian Cuban, 11 May 2013 @ 8:06pm


    You can expect to get sued by Rakofsky for this post

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 13 May 2013 @ 3:48am

    Time to change job?

    I think McDonnalds is hiring burger flippers mr Rakofsky.

    reply to this | link to this | view in chronology ]

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