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Thursday, March 23, 2006 |
The Tar Baby
Barry Bonds' lawyer plans to sue the authors of Game of Shadows, but he must be forgetting that in this country, truth is proof against libel suits. Call it a show:
"I don't know what the legal action they contemplate is," [book co-author and San Francisco Chronicle reporter Lance Williams] said. "Gotham can speak to the legal issues but the facts in our book are true and they will stand up to scrutiny."Dunno about you, but were I Bonds, I'd be keeping my profile low...
Comments:
Not only is truth a defense, but when the plaintiff is a public figure such as Bonds, he must prove "actual malice." That is to say, not only does Bonds have to PROVE that the statements in the book are false, but also that the authors KNEW they were false, or had no reason to believe that they were true.
Given the sources for the book, it is literally impossible for Bonds to prove that the authors had no reason to believe that what they wrote it true. When the people who made and supplied the steroids tell you that they gave some to Bonds and there are documents to back it up (along with the various federal investigators & the testimony of Bonds' girlfriend, who has personal knowlege of these matters), it simply cannot be shown that the authors had no legitimate basis for believing the truth of what they wrote.
If the lawsuit is filed in California state court, it would also be subject to the "anti-SLAPP" statute. Without going into the legal details, the authors could file a motion that would basically require Bonds to prove his case at the outset, without the benefit of any discovery. Upon losing the motion, Bonds would be liable for the opposing side's attorneys' fees.
Bonds won't sue. If he does, he'll lose basically instantly, and will have to pay attorneys' fees.
Given the sources for the book, it is literally impossible for Bonds to prove that the authors had no reason to believe that what they wrote it true. When the people who made and supplied the steroids tell you that they gave some to Bonds and there are documents to back it up (along with the various federal investigators & the testimony of Bonds' girlfriend, who has personal knowlege of these matters), it simply cannot be shown that the authors had no legitimate basis for believing the truth of what they wrote.
If the lawsuit is filed in California state court, it would also be subject to the "anti-SLAPP" statute. Without going into the legal details, the authors could file a motion that would basically require Bonds to prove his case at the outset, without the benefit of any discovery. Upon losing the motion, Bonds would be liable for the opposing side's attorneys' fees.
Bonds won't sue. If he does, he'll lose basically instantly, and will have to pay attorneys' fees.
# posted by 
: 3/23/2006 02:54:00 PM
: 3/23/2006 02:54:00 PM
From the articles I've read, it doesn't appear that Bonds is claiming libel. Rather that the book is unfair under California fair business laws because it is based upon gand jury transcripts were "illegally obtained and possessed under federal law."
Seems to me that pursuing legal action against the authors and not claiming libel to almost an admission of guilt.
I guess we'll find out more details when (or if) Bonds actually files the lawsuit.
Seems to me that pursuing legal action against the authors and not claiming libel to almost an admission of guilt.
I guess we'll find out more details when (or if) Bonds actually files the lawsuit.
The lawsuit could be one method to force the authors to reveal the illegal leakers of said transcripts - and civil litigation (regardles of the truth of the allegations) could be taken against the person breaking the law - which could scre over the authors if they are revealed to have PAID for the sealed transcripts, et cetera - a can of worms labeled REVENGE is slowly opening.
# posted by : 3/23/2006 03:32:00 PM
: 3/23/2006 03:32:00 PM
I just read the article, and it mentioned the UCL (Unfair Competition Law), which is California Business & Professions Code section 17200.
This doesn't make it any better. First, it is still subject to the anti-SLAPP statute, and Bonds would have to prove his case at the outset or it will be dismissed (and Bonds required to pay attorneys' fees).
Secondly, to state a claim under B&P 17200, Bonds must demonstrate that he actually lost money or property as a result of the publishing of the book.
Also, though the attorney says that they'll be seeking to make the authors forfeit any profit, there is no legal way to do that. His attorney might misunderstand the way 17200 works (many lawyers do). He's thinking of something called "disgorgement of profits." But the California Supreme Court has ruled over and over again (because many dumb lawyers still don't understand the ruling) that "disgorgement" is available only in class action lawsuits. This would not be a class action, obviously. The ONLY monetary remedy Bonds could get under 17200 is restitution. To get restitution from the authors, Bonds would have to establish that the authors somehow came into possession of money or property in which Bonds has a vested ownership interest. Obviously, that's not the case. The profit they make from the book isn't coming from Bonds unless he buys the book. And he'd still have to show that their conduct caused him to buy the book. I'm not even sure how that is logically possible.
This is all grandstanding by the lawyer. While those outside of the legal profession might not know it, the fact is that any lawsuit he files will be tossed out of court in short order.
This doesn't make it any better. First, it is still subject to the anti-SLAPP statute, and Bonds would have to prove his case at the outset or it will be dismissed (and Bonds required to pay attorneys' fees).
Secondly, to state a claim under B&P 17200, Bonds must demonstrate that he actually lost money or property as a result of the publishing of the book.
Also, though the attorney says that they'll be seeking to make the authors forfeit any profit, there is no legal way to do that. His attorney might misunderstand the way 17200 works (many lawyers do). He's thinking of something called "disgorgement of profits." But the California Supreme Court has ruled over and over again (because many dumb lawyers still don't understand the ruling) that "disgorgement" is available only in class action lawsuits. This would not be a class action, obviously. The ONLY monetary remedy Bonds could get under 17200 is restitution. To get restitution from the authors, Bonds would have to establish that the authors somehow came into possession of money or property in which Bonds has a vested ownership interest. Obviously, that's not the case. The profit they make from the book isn't coming from Bonds unless he buys the book. And he'd still have to show that their conduct caused him to buy the book. I'm not even sure how that is logically possible.
This is all grandstanding by the lawyer. While those outside of the legal profession might not know it, the fact is that any lawsuit he files will be tossed out of court in short order.
# posted by : 3/23/2006 03:41:00 PM
: 3/23/2006 03:41:00 PMNewer› ‹Older
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