Lawsuit update: Legal bloggers rally to support free speech online

I wanted to take a moment to say “thank you” for the support I’ve gotten from lawyers in the blogosphere after being hit with a frivolous defamation lawsuit from a Florida travel agency earlier this year.

We’ve filed a motion to dismiss the suit and there’s no question that the case will be thrown out of court with prejudice.

In the meantime, it has become clear to the experts that this case was filed with the sole purpose of silencing this blog — what’s called a strategic lawsuit against public participation (SLAPP), or a suit intended to censor, intimidate and silence someone by burdening them with the cost of a legal defense until they abandon their criticism.

Maritime lawyer Jim Walker was one of the first bloggers to report on this case.

Suing travel writers for uncovering consumer fraud stories appears, in my opinion, to be retaliatory in nature and counter-productive. Mr. Elliott was ahead of this story in 2008 when he warned consumers of the Prime Travel policies in an article “A Travel Insurance Mystery: Who is Prime Travel Protection Services?”

Mr. Elliott indicates that he made a public records request for information regarding the state of Florida’s case against Palm Coast Travel, and will release the information on his website. This will be interesting reading.

He was right. The public records were interesting reading, and I haven’t even released all of the documents yet.

The case was also highlighted by the South Florida legal blog, The Legal Satyricon, and later picked up by Walter Olson’s Overlawyered blog. Here’s what the Satyricon had to say:

These kinds of actions threaten to shoot the messenger, and shoot him or her dead. Where an apology or clarification would have been sufficient, a lawsuit has been filed, and with the hope that Elliott will never engage in this kind of speech again.

The Citizen Participation Act, a bill that will introduce new punishments against these kinds of SLAPP cases, reward defendants who are wrongly sued, and ensure that only constitutionally protected speech is preserved, has been introduced to Congress. Send a letter to your representative supporting this bill today.

I was struck by some of the comments from other lawyers on the blog, particularly this one:

This suit is not only meritless, but is truly shameful. The defendants should pursue a counter action. This lawsuit would be like Toyota suing a customer who has spoken out against the problems with their car’s brake system. Do you think any judge, anywhere would have sympathy for Toyota?

Actually, we are pursuing a counter-action. We’ve sent a 57.105 motion to the company’s lawyers, which will require them to pay our legal fees when we prevail. We’re also weighing a counter-suit.

  • http://everything-everywhere.com Gary Arndt

    Go get em!

    I have to hand it to you Chris, the type of reporting you do has got to be one of the most difficult you can engage in. You are always in danger of this type of thing happening, and given the nature of what you do it naturally limits your ability to accept certain advertising.

    Between this and the TSA mess, you’ve had to deal with more crap than anyone else I can think of in the blogosphere.

    I appreciate the work you do and you are always the example I use when people ask me for a good travel writer/blogger.

  • Bill McDonald

    Great job, Chris. Where there’s smoke, there’s fire and I bet if you dig deeper you’ll find much more to this story than has already been reported. Why would a travel agency sue a customer and the press for merely crying foul over the sale of insurance that was deemed by the state to be improper? Was the plaintiff afraid more would come out if you continued reporting? If so, they have their wish. Don’t stop, Chris. Get to the bottom of this story.

  • Noah

    “This lawsuit would be like Toyota suing a customer who has spoken out against the problems with their car’s brake system. Do you think any judge, anywhere would have sympathy for Toyota?”

    –actually, given that a large number of people are probably telling lies so that they can blame Toyota for what is really driver error, it wouldn’t be too surprising to see some legitimate defamation lawsuits from Toyota. Not as to the people whose cars actually had problems, but to the people who actually slammed on the gas, then blamed the car.

  • frostysnowman

    Go get ‘em, and get ‘em good!

  • Jasper

    Keep it going!

  • Ron B

    @Noah

    It won’t happen, Noah. Even if a Toyota customer confesses to lying, Toyota will not initiate a lawsuit. What would the lawsuit do for Toyota anyway? It would make current and future customers fearful if they say something that may be construed as not truthful, they would be sued. Sometimes businesses whose public personna is most important have to just sit back. This is what the travel agency that sued Chris should have thought about before initiating their lawsuit.

  • http://kurttfrancis.blogspot.com Mekhong Kurt

    Chris — I haven’t visited your blog in awhile, so I’m late getting to this story. (Sorry!) While I know you’re perfectly capable of deciding whether or not to counter-sue, I will say I won’t be disappointed if you do.

    You’re a great advocate, and, it seems, a brave one!

    I’ll be covering this –

  • http://www.JudyColbert.com Judy

    Keep up the good work. Continue to make the travel world safe and approaching sane. Let us know if you need legal funds until your part of the “costs” issue is resolved.

  • JoeM1929

    @Chris
    You might be interested to learn about another lawsuit Smolinski and Associates DBA Palm Coast Travel were involved in nearly 11 years ago. Palm Coast Travel was named as a counter-defendant in a lawsuit filed by Continental Airlines in federal court in West Palm Beach (Case #99-8318). Continental Airlines claimed Mr. Smolinski and his wife were involved in “a fraudulent scheme involving the frequent flyer miles program, by arranging for the improper purchase of frequent flyer miles and rewards from airline customers, that were then sold or bartered in the form of upgrades to other airline customers, in violation of counter-plaintiff’s (Continental Airlines) rules and regulations”.
    No mention of the type of insurance he sold along with the frequent flier miles.

  • Christopher Elliott

    @JoeM1929, this is very interesting. I’m aware of this case and at least one other involving British Airways. I received a call from a legal expert yesterday who was familiar with the plaintiff’s litigation history, who suggested that we should invoke the doctrine of unclean hands when we present our defense — the idea that the plaintiff is not entitled to obtain an equitable remedy on account of the fact that the plaintiff is acting unethically or has acted in bad faith.

    I do think Lee Smolinksi’s past history will factor into any defense. That will all be part of the court record, which could be very interesting, assuming Palm Coast Travel continues with this ill-advised lawsuit.

  • Michael

    @Chris
    If you pursue the doctrine of unclean hands, you may want to check with Continental Airlines and the Airline Reporting Corporation (ARC) to see if there was any disciplinary action against Palm Coast Travel as a result of the actions described in the lawsuit. It’s possible the agency may have not been allowed to ticket, at least on Continental, for a period of time. Frankly, Chris, if I was handling this case I would subpoena records from every vendor Palm Coast Travel deals with in search of issues like the one in this lawsuit.

  • Jason

    @Chris
    Smolinski and Associates are listed as the plaintiffs in the British Airways case that was filed in Palm County Court. I’m going to try to pull the case file when I’m in court unless the file has been destroyed (sometimes happens after a period of time). Also, this is interesting, Smolinski as well as the defendants/plaintiffs in the Continental Airlines case (Holtz, Smart Flyer) are named as defendants in a case filed in Palm County Courts by State Farm Insurance. That case was settled. State Farm also named Continental. I’ll see if I can get details on that one, too. Love that idea of the unclean hands doctrine. The guy loves to sue obviously.

  • Liz E., CTC

    When I worked the retail side of this business I found a number of different ways ethically challenged travel agents manuevered the system in an assortment of schemes. A popular one was known as the hidden city itinerary. Airlines usually caught on. The lawsuit mentioned previously is the first I heard of an airline taking such aggressive action. Good that they did as the travel industry still needs to rid itself of these scammers as the scheming is probably still occurring.

  • Alac Marshall

    @Liz
    @Joe
    The sale or barter of frequent flier miles as well as the building of hidden city itineraries is not against any law. I think it’s unfair to label these business practices, “schemes” and to paint agencies as “scammers”.

  • http://profile.yahoo.com/OQY2BPIMCQANCHAAQ3BL45UIBM AshleaHu

    Once you get to the police station, you’ll be fingerprinted and photographed. Then you’ll probably wait in a holding cell until you’re taken before a judge. (If a lot of protesters are arrested, you’ll probably spend a lot of time sitting around and waiting for something to happen.)

    The judge may ask whether you’re guilty, and will then decide whether to release you until your trial. Assuming you weren’t charged with something serious—burning down a building during the protest, beating up a cop, throwing a Molotov cocktail—you’ll probably be released. A final word of warning: Don’t get arrested again while out on bail! The judge may not be as happy to see you the second time around.