Weekend Update: Rakofsky v. Internet Week 25 — "Extra Tentacles, Please" Edition

This is the tenth in the ongoing series of posts compiling the most recent publicly available developments surrounding the litigation Commonly Known As Rakofsky v. Internet, in which New Jersey attorney Joseph Rakofsky has sued some 81 95 media organizations, professional institutions and, above all, individual legal bloggers, claiming that he was damaged by those defendants' publication of reports and commentary on his performance as defense counsel in a murder trial in Washington, D.C., and issues appurtenant thereto. All installments in this series are collected in the Rakofsky v. Internet category of this blog. 

Pleadings/Court Filings/Commentary

Decs&Excs has not posted on this case since the Week 13 Update, because the Rakofsky litigation had been largely quiet—until the past few days when, like some tentacled legend of the deep, it burst again into view, vaster and more monstrous than ever before.

In the interim between Updates, on September 15, the Court finally heard and granted the long-pending motion to admit Marc Randazza pro hac vice to appear on behalf of the Group of 35 defendants that includes this blog. At the same time, the Court set a March 14, 2012, date for consideration of any and all pre-Answer motions—motions raising procedural, jurisdictional or other objections that may appropriately be addressed prior to a defendant admitting, denying or otherwise responding to the factual assertions in the First Amended Complaint—and a related briefing schedule. The Court also set a November 15 deadline for Rakofsky to find an attorney to take over representation of the plaintiffs following the withdrawal of former counsel, Richard Borzouye. (See the Decs&Excs Week 11 Update.) If no new counsel is found, Rakofsky—who is admitted to practice law in New Jersey, but apparently not in New York—will be permitted to continue to represent himself, but only as an individual plaintiff. The Rakofsky Law Firm, a professional corporation, will not be allowed to proceed with its claims unless an attorney is found to represent it. Proceedings are otherwise stayed until such time as the Court permits them to proceed. The Court's scheduling and stay order is viewable here [PDF].

As always, action in the courthouse has been monitored and reported by [my co-defendant and New York local counsel] Eric Turkewitz.  On August 25, Eric posted the news that, the Court's stay order notwithstanding, Joseph Rakofsky has filed a new motion seeking a smorgasbord of remedies and relief. Eric has uploaded a scanned copy of the motion here. 

What does Mr. Rakofsky want from this motion? His wish list includes:

• Permission to serve subpoenas on Google and certain web hosts as part of his effort to obtain the identity of the author of a now-withdrawn blog post formerly hosted on Blogspot, and of anonymous/pseudonymous commenters who have written mean things about him on the BanniNation.com site;
  
  
•  "[A]n order to preserve electronic data and forbidding any party from destroying, altering, deleting or spoiling their communications, documents, other material or content relevant and material to this case."
  
  
  • This is apparently an attempt to prevent any of the defendants from deleting their allegedly offensive writings about Rakofsky. It is an ironic request, given that Rakofsky himself quickly deleted his own websites when they became subjects of scrutiny among bloggers. (Some portions of Rakofsky's sites were saved and preserved via cached information; they are viewable here.)
    
    
• Permission to file a Second Amended Complaint, in which Rakofsky's claims are reorganized and restated and some 14 new defendants—among them, Google, Yahoo, Techdirt, various units of The Atlantic, Thomson Reuters Canada, and Canadian Lawyer Magazine—are added;
  
  
• A call for unspecified investigations of unspecified parties or counsel by New York disciplinary authorities;
  
  
• An order for monetary sanctions against Rakofsky's own former counsel, Richard Borzouye, for having "abandoned his professional responsibilities" to his client while in the process of withdrawing;
  
  
  • It is worth recalling at this point that Borzouye was not idly selected as counsel by Rakofsky: before he pulled it down, Rakofsky's website represented that he and Borzouye practiced together in some capacity within the Rakofsky Law Offices.
     
• Orders of default against nine defendants Rakofsky contends were served with earlier pleadings but who have not entered an appearance in the case.

The big news here is the proposed overhaul of the operative Complaint. The current First Amended Complaint is 82 pages long. It names 81 defendants and asserts claims for damages under four counts/causes of action: defamation, intentional infliction of emotional distress, intentional interference with contracts, and purported violation of New York's Civil Rights Law (relating to the "unauthorized use" of Rakofsky's image).

Possibly with the aid of artificial giant squid hormones, the proposed Second Amended Complaint has nearly quadrupled in size, running to 302 pages. The expansion is driven in part by a restructuring: while the prior complaints lumped all defendants together in each cause of action, now Rakofsky proposes to separate out his particular claims against discrete groups of related defendants. Thus, what was once a single cause of action for defamation is now 38 separate causes of action for defamation. Moreover, Rakofsky has added a similar collection of 33 separate causes of action on the new, if similar, theory of "injurious falsehood." Still in place are single counts seeking damages for infliction of distress, interference with contract, and the claimed Civil Rights Law violation, along with a new cause of action for intentional interference with "economic advantage."

Most notable, however, is the final, Seventy-Eighth [78! - Count 'em! - 78!] Cause of Action for "Prima Facie Tort." Here, Joseph Rakofsky alleges that each of the defendants has conspired with all of the others

... for the purpose of intimidating, injuring grievously and destroying the reputation, business and profession of plaintiffs (a practice hereinafter known as 'mobbing').

"'Mobbing'?" I hear you cry, "What is this 'mobbing' of which he speaks?" Gentle Reader, read on.

It is possible—not likely, mind you, but possible in this Most Possible of All Possible Worlds—that Joseph Rakofsky came up with this "mobbing" theory on his own. It is also possible—and rather more likely, in my untutored opinion—that the notion left its seeds while he was sleeping by way of this little Rakofsky-related thought experiment posted in early August on the blog of [non-defendant] Norm Pattis.  From whichever dank underplace of the mind it may have sprung, the act of "mobbing" seems to consist of little more than linking online in an implicitly supportive way to someone else's commentary elsewhere online. From the Second Amended Complaint:

1230.  Defendants have conspired with each other and have acted in combination and concert with each other by linking their Iinternet websites [sic] to the Internet websites of their co-conspirators, thereby magnifying the damage they intended to cause to plaintiffs.

1231.  Defendants linked their Internet websites to the Internet website of their co-conspirators to silence plaintiffs and intimidate them from, and retaliate against them for, resorting to the legal processed available to them under the law, thereby interfering with their legal and constitutional rights, doing so through the use of the Internet ( hereinafter referred to as 'cyber-bullying').

You caught that, right? "Mobbing" has become "cyber-bullying", and both of them consist of expressing to the World, via the Internet and/or a website thereon, one's, er, skepticism of the merits of Joseph Rakofsky's having sued one. 

There's more: some [unidentified sub set of the 95] defendants are alleged to have identified Rakofsky's publicly available Facebook contacts and to have contacted them "for the purpose of alerting them" to unfavorable remarks about Rakofsky online. Some unidentified others  "have attempted to rely upon the anonymity they believe the Internet has afforded them" to publish who-knows-what that has sufficiently offended the plaintiff that he considers it "despicable" or "obscene" or " illegal." And so on, and so on, to the tune of $25 Million in supposed damages on that cause of action alone. 

Those anonymous/pseudonymous defendants seem to be the real catalysts of the sudden metastatic giantism of Rakofsky's claims. He hates them and is driven to conniptions because he cannot seem to Get At Them. He is so thoroughly put out by that merry band of sophomoric zanies that he is prepared to advance, as if it were credible in what we so quaintly embrace as Reality, the notion that the known and named defendants —the ones with day jobs and good names of their own to protect—are responsible for it. Yes, friends! In Rakofskyworld, it seems, the likes of the Atlantic and the Washington Post and a Who's Who of reputable legal bloggers are encouraging basement-bound trolls to speculate publicly on random strangers' intimate relations with Equine Americans, fresh fruit, or members of the Nubility. An entirely compelling premise for a lawsuit, yes indeedy, that it is, eh? [For those playing along at home, the correct answer to that bit of hyperbolic japery is "no." Right?] 

Ah, well. Enough of this larking about. Herewith, some concluding links:

• Eric Turkewitz has uploaded the proposed Second Amended Complaint in two parts: Part 1, Part 2.
  
  
• Co-Defendant Mark Bennett has some pointed thoughts on the Rakofsky-Borzouye schism: ¡Que Pendejosidad!
   
• Non-defendant Ken at Popehat has posted thoughts on the "mobbing"' cause of action: The Tort of Internet Mobbing Is Perfect For Suing The Internet
   
• Non-defendant Goth-lawyer-blogger Siouxsie Law has expressed solidarity with the anonymous/pseudonyous masses, declaring: "I'm J-Dog"
   
• Co-defendant Antonin Pribetic reminds us that The Rakofsky Effect: It Actually Works!
  
  
• [Just added:] Defendant of Defendants Scott Greenfield waxes psychophilosophical, contemplating the pathos of a case in which the quest absorbs the man: Rakofsky's Dedicated Life

No doubt, there's more to come. There's always more: that's what "more" means.

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The Rakofsky Weekend Update will return to Decs&Excs next week, barring the unlikely event that nothing happens in Rakofskyworld in the next seven days. The Rakofsky Weekend Update will return next as developments warrant. .

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Disclosure/Disclaimer: I am a defendant in the Rakofsky case, one of the jointly defended group I refer to above as the "Group of 35," because of my having written this post; I commented previously on my involvement in the action here.  To the extent that I may have any non-public information concerning the case, my policy is not to share it in these update posts.

Mark Bennett continues to maintain and update a thorough compendium of links to Rakofsky-related posts on his blog, Defending People.  My own selection of links is purely subjective and not intended to be comprehensive, so I recommend regular consultation of the ever-expanding Compendio Bennetticus for the fullest range of blog responses to Rakofsky v. Internet. 

The progress of the case through the courts is also being monitored on the Rakofsky v. Internet "Threat Page" maintained by the Citizen Media Law Project; at this writing, that page has been updated through late July.

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Illustrations: The battle with the giant squid, 20,000 Leagues Under the Sea, via Wikimedia Commons. Post title inspired by a Bärtische quip in "Homer's Night Out," a Season One episode of The Simpsons:

Comments

[Antonin I. Pribetic]

George, your post is a culinary masterpiece and epicurean delight, crafted by a true Cordon Bleu blawger. Plat du jour est frit calmar géant, bon appétit!

[SiouxsieL]

Great post. Thanks for the link.