Federal Court Tells Lawyer Something He Already Should Know: Facts Aren’t Defamation

Sometimes, people who think they know things about defamation pursue their own lawsuits, making fools of themselves because they so very firmly believe anything said about them that they don’t like must be libel.

Then there are the lawyers who do the same thing. They should know better. Even if they don’t specialize in defamation law or First Amendment issues, they must be aware of the general principles. Presumably, this sort of thing is addressed during their years at law school and some aspects must be part of testing required to pass the bar exam.

And yet, certain lawyers act as though they’ve never heard of defamation law and handle it like the most ill-informed of laypeople. They forge ahead with libel lawsuits where their only argument is that they think it must be actionable that someone else said mean things about them.

This case involves public actions by a real estate firm that followed public actions taken by a judge against the lawyer-turned-litigant in a prior civil case. (via Courthouse News Service) Here are the facts according to the judge, which, ironically enough, happen to be the same facts attorney Brett Soloway felt he needed to sue over after they were reported publicly.

Soloway used to work for real estate giant Cushman and Wakefield. He served as general counsel from 2014 to 2023 for the real estate firm. While still employed by Cushman and Wakefield, the company was subpoenaed by the New York Attorney General to produce documents related to the AG’s fraud case against the Trump Organization.

Cushman and Wakefield was less than fully compliant, leading to a a bit of benchslap from the judge and a contempt of court order for failing to respond to the subpoena. This happened in 2022, while Brett Soloway was still employed as the firm’s general counsel. Seven months later, Soloway resigned and Cushman issued a press release announcing the arrival of its new general counsel.

The day after that, Law.com journalist Hugo Guzman published an article that delivered several factual facts about Soloway’s exit, the firm’s entanglement in the Trump Organization prosecution, and the seemingly apparent connection between the contempt order and the unexpected exit of the firm’s general counsel. These facts — bullet-pointed in the federal court decision [PDF] — form the basis of Soloway’s (unfounded) defamation claims.

The subheadline read, “The real estate services giant says it has hired former Archer Daniels Midland attorney Noelle Perkins as legal chief. It didn’t explain the departure of GC Brett Soloway, who has been removed from the company’s website.”

An introductory section was titled “What You Need to Know” and referenced, in bullet points, Cushman’s “long-standing relationship with the Trump Organization,” the “deluge” of subpoenas Cushman had received from the New York Attorney General, the July 2022 contempt holding, and the later lifting of the contempt holding.

The first paragraph noted that Cushman “replaced” plaintiff as general counsel in “a move that c[ame] eight months after a judge found the company in contempt of court for not complying with subpoenas in New York Attorney General Letitia James’ Donald Trump investigation.”

The second paragraph identified plaintiff’s successor; noted that Cushman’s press release announcing her appointment “made no reference to [plaintiff], who had been general counsel for nine years”; and added that “[h]is bio was removed from the company’s website.”

The third paragraph claimed that “Cushman did not respond to requests for comment, and [plaintiff] could not be located for comment.”

The rest of the article detailed Cushman’s role in the Trump Organization litigation; its response to the contempt holding, including a statement from a Cushman spokesman that “the firm ‘disagrees with any suggestion that the firm has not exercised diligence and good faith in complying with the court’s order’”; the contempt holding’s eventual reversal (accompanied by a hyperlink to a more detailed article on that development); and the professional background of Cushman’s new general counsel.

The decision also notes the reporter didn’t contact either Soloway or his former employer before going to publication. I don’t note this because it means anything in terms of defamation. I only note it because it’s something lots of spurious defamation lawsuits tend to claim are smoking guns of actual malice, when there’s absolutely nothing in defamation law precedent that has ever demanded journalists offer subjects of coverage an opportunity to comment before going to press. It’s a stupid thing to assert in court. It’s not much better than the court decided to add this meaningless sentence to its decision which finds firmly in favor of the Law.com reporter.

Four months after publication, ex-GC Brett Soloway sent a letter to Law.com demanding the article be retracted. Law.com refused to do so. However, it did make some alterations to the original article to soften some of the language but without undercutting any of its original inferences. It simply noted the real estate firm had refused to comment publicly on the reasons for Soloway’s exit and replacement.

That didn’t satisfy Soloway, who insisted — in court — that the original and altered article had “prevented him from working with recruiters and securing employment” because Guzman’s post “falsely claimed” he was “fired for his job performance…. in a highly publicized New York case involving Trump.”

But, of course, the article — even in its original form — never made that claim. It simply said Soloway had resigned, had been replaced, and that these events had happened a few months after the real estate firm had been hit with a contempt order for failing to comply with the New York AG’s subpoenas in the Trump case.

The court is left with the unenviable task of patiently explaining in small-ish words concepts a long-term lawyer should already know and understand.

Plaintiff takes great issue with the headline’s use of the phrase “in the wake of.” According to plaintiff, the phrase can be read only to mean “because of” and, as a result, the headline can only be understood as stating that plaintiff left Cushman “because of” his performance with respect to the Trump Organization litigation.

Read as a whole, however, the April 2023 article contextualizes plaintiff’s exit from Cushman within the firm’s latest legal and personnel developments. It accurately describes plaintiff’s professional background, Cushman’s relationship with the Trump Organization, the events that led to the contempt holding, the overturning of the contempt holding, plaintiff’s exit from Cushman eight months later, his nonappearance in Cushman’s press release and on Cushman’s website, and the professional background of Cushman’s new general counsel.

In fact, plaintiff is only mentioned in the first three paragraphs of the 13-paragraph article. Even if a reader were to understand the headline to imply that plaintiff was fired because of the contempt holding, that misconception would be cured once the reader read the actual article and learned that Cushman publicly defended the manner in which its attorneys responded to the subpoenas in the Trump Organization litigation; the initial contempt holding was later set aside by another court; and after it was set aside, plaintiff departed Cushman for unannounced reasons.

Just because you — the allegedly injured person — can construe innocent construction to be something far more nefarious subjectively doesn’t mean you have an actionable case. What you have is some hurt feelings, a vague sense of injustice, and the desire to make other people pay for imagined slights that probably have little to nothing to do with your inability to immediately find work that pays you as handsomely as a general counsel position at large real estate firm.

While the plaintiff/lawyer might be able to make factual reporting sound like actionable disparagement, the court isn’t willing to turn his inferential extrapolations into a plausible defamation lawsuit.

[P]laintiff’s interpretation requires a reader to make several linguistic and logical leaps: that “replaced” really meant “removed”; that “in the wake of” really meant “because of”; that “rebuke” really meant “contempt holding”; that because plaintiff’s departure was not explained in Cushman’s news release and his biography was unavailable on Cushman’s website, he must have left on bad terms; that because he left on bad terms, he must have been fired; that because the article discussed the contempt holding, the contempt holding must have instigated his firing; and that because he was fired, he must have performed poorly in his job. None of these implications are spelled out in the article and instead require plaintiff’s extensive annotations to follow.

The court does give this aggrieved but extremely incorrect lawyer a chance to amend his lawsuit. But not with an eye on re-establishing any defamation per se allegations. He can go for the longer defamation per quod shot if he feels it’s worth it — a legal standard that allows some outside information to be considered as part of the allegedly-defamatory whole — but it doesn’t say anything that even remotely suggests this will be less of a waste of time than his original lawsuit.

Brett Soloway is, of course, free to continue spending his own time and money trying to sue Guzman for his truthful reporting. And that’s unfortunate, because it means Guzman must spend his own time and money defending against himself against this bullshit lawsuit. Once again, it’s far past time to pass a federal anti-SLAPP law, which, at the very least, would double Soloway’s losses by making him pay the journalist for wasting his time.