Not Only Is [the Race Discrimination Plaintiff] a Perpetual Claimant, He Is a Holdup Artist

From Saturday’s choice in Rogers v. Low Income Investment Fund, determined by Choose William Alsup (N.D. Cal.):

On this employment-discrimination motion, a non-profit neighborhood improvement group and its then-employees transfer for abstract judgment in opposition to a job applicant’s claims that they didn’t rent him for a job monitoring grants in low-income communities as a result of he’s black. The pinnacle of human assets who communicated the denial and bore the brunt of his accusations now additionally strikes for abstract judgment. Each motions are GRANTED. A movement for sanctions is GRANTED….

The entire opinion is lengthy (over 8700 phrases), so I simply thought I would excerpt the sanctions part, which additionally discusses among the information and among the bases the court docket gave for granting abstract judgment; for extra, see the full opinion:

Because of this, the deserves of this motion have been determined in opposition to Rogers, as have the deserves of each considered one of Rogers’s earlier discrimination actions introduced and concluded on this district. Now, LIIF strikes for sanctions.

Rogers is a perpetual claimant. Over ten years in the past, a state court docket [in San Diego County] discovered Rogers vexatious. Just lately, after Rogers had not requested to file a brand new motion in that county for greater than 5 years, Rogers’s repeated utility for the order to be vacated was lastly granted. {The shape order doesn’t present a reasoned choice, however the five-year threshold for filings within the county might have been decisive ….} Rogers by then had relocated to the Bay Space, and the file exhibits his litigation energies are actually directed right here.

Rogers has abused the best to return to court docket by pursuing an unmeritorious trigger and by attempting to extort a settlement by risk of defamation. The sanctions movement explains that such conduct may quantity to felony extortion, and plainly quantities to dangerous religion. The movement additionally identifies legal professional’s charges that however for Rogers’s improper conduct LIIF and its staff wouldn’t have incurred.

As examples of the conduct:

• When LIIF wrote asking for a time Rogers may sit for his deposition, Rogers didn’t reply. As a substitute, the subsequent day, he emailed considered one of LIIF’s donors to say that on “quite a few events” LIIF “has refused to rent African People” and that it ought to defund LIIF. His sworn deposition revealed that he didn’t then have even one instance of one other black applicant having been rejected. Protection counsel ready a cease-and-desist letter[.]
• With three days to go earlier than his Courtroom-ordered deposition, Rogers publicly filed LIIF’s insurance coverage coverage and his demand they settle his claims for an quantity below its limits. Eight minutes later, he emailed LIIF’s counsel to state that “I will not rule out [contacting donors again] sooner or later relying on the way you reply.” Protection counsel responded.
• With two days to go earlier than shut of discovery, Rogers emailed protection counsel, asserting amongst different issues that “a failure to reply will trigger me to contact your donors and supporters which may financially jeopardize your group,” that “[i]n furtherance, I simply might notify sure press launch companies akin to BUSINESS WIRE,” and that “Issues will escalate. I promise.”

Notably, Rogers’s emails and letters broadly alleged gross discrimination whereas attaching no documentation for these claims. He later admitted that he lacked proof, as one instance, displaying that LIIF “has refused to rent African People in its Finance and Operations Division on quite a few events.” In contrast, Rogers’s emails and letters particularly asserted what he did know: The “settlement supply is round 13.4% of the Employment Practices (Half 2) legal responsibility worth on [your] insurance coverage coverage.” And, he connected documented proof to 1 such letter: The insurance coverage coverage, which his diligence had dug up.

To compensate for the time spent responding to those improper settlement gives in addition to making ready the sanctions movement right here, the movement tallies and seeks $5,830.00 in charges accrued by LIIF’s attorneys.

In Rogers’s two-page opposition, which he filed greater than per week late, Rogers states: “Defendant has determined to waste the Courtroom’s time with this mindless, incompetent, and ridiculous movement.” Rogers doesn’t hassle to rebut that he contacted donors in dangerous religion. As a substitute, he invokes a completely new elementary proper: free speech. He fails to understand the boundaries to that proper. E.g., United States v. Hutson (ninth Cir. 1988) (re extortionate speech) (adopting United States v. Quinn (fifth Cir. 1975)). Extra to the purpose, he fails to stay centered on the conduct for which the movement seeks compensation.

The precise to be free from discrimination is key, and the best to petition preserves that proper and is likewise elementary. And but, for a similar causes, defending in opposition to aggressive accusations about such grave considerations is expensive—for personal defendants and the general public’s courts. These prices deliver no profit when claims are introduced and litigated in dangerous religion or via conduct tantamount to dangerous religion. Such prices are compensable.

A court docket might train its inherent energy to impose sanctions for bad-faith conduct. Throughout this case, Rogers mixed reckless disregard for the reality and worse, with frivolousness (claims he prosecuted for months by “mistake”), harassment (badgering, baiting, and belittling remarks in his pre-litigation emails, pleadings, and even abstract judgment papers on factors unrelated to the deserves), and improper function (diligence in getting a payout, not in a lot else). Essentially the most egregious examples of his conduct have been the threats to make false or reckless statements to 3rd events to imperil LIIF’s funds if LIIF didn’t settle. Simply as Rogers was entitled to deliver his claims in court docket, defendants have been entitled to reject settlement and convey their defenses there, too. As a substitute, turning the norms inside out, Rogers filed his settlement calls for on the general public file. Not solely is Brian Rogers a perpetual claimant, he’s a holdup artist.

Certainly, an audacious holdup artist: Our listening to on this movement addressed extortion immediately, an current listening to respecting the upcoming trial introduced that an order on the still-pending motions would situation inside 5 days, and nonetheless Rogers did as follows:

• With 4 days to go earlier than an order on the motions was mentioned to situation, Rogers emailed LIIF’s CEO and staff, however not LIIF’s litigation counsel, stating “LIIF has no person worthy to signify you in court docket in two weeks. Now’s the time to attempt to develop a settlement on this case as you recognize the trial might start as early as January 6, 2025 which is 2 weeks from now [sic]. Your failure to reply to my prior settlement letters will now lead to me contacting YOUR donors and grant suppliers once more about your conduct which may impair your group as a going concern.” LIIF’s litigation counsel docketed Rogers’s e-mail, and responded to Rogers with a renewed cease-and-desist letter; and,
• With three days to go earlier than an order on the motions was mentioned to situation, Rogers responded to protection counsel: “You’re losing your time and the Courtroom’s time with these frivolous motions. In truth, they’re fairly laughable. The decide doesn’t have the time to reply to your foolish diatribe and ridiculous arguments. My speech and communication is protected below the FIRST AMENDMENT TO THE CONSTITUTION. The Courtroom cannot do something about my FIRST AMENDMENT rights. Let’s wake-up ! Have you ever been to legislation faculty ? It seems that you’ve got forgotten a lot and realized little of something.

This order finds that Rogers pressed his extortionate settlement calls for in dangerous religion, somewhat than litigate his claims with diligence in court docket, and that however for this unreasonable conduct LIIF wouldn’t have wanted moderately to reply to these calls for or to organize the sanctions movement right here, which resulted in $5,830 in additional legal professional’s charges. Rogers now lacks the assets to compensate the movant, as he proceeds in forma pauperis. Due to this fact, THE FOLLOWING SANCTIONS ARE ORDERED:

1. A LIEN ON SETTLEMENTS OR JUDGMENTS is imposed within the quantity of $5,830.00 payable to the movant, Low Earnings Funding Fund, in opposition to any monies Rogers receives from any settlement(s) or judgment(s) of any declare(s) introduced by Rogers in any court docket wherever;
2. Low Earnings Funding Fund MAY FILE a “Discover of Lien on Settlements or Judgments” in any pending or future motion introduced by Rogers in any court docket, whereby it shall assert the lien imposed by Paragraph 1 and fix this order; and,
3. The Courtroom shall retain jurisdiction to the extent essential to implement these sanctions.

Because of this the primary $5,830.00 of any future settlements or judgments in favor of plaintiff will go to the movant (till $5,830.00 is paid)….

Word that the road between permissible litigation exercise and sanctionable and even felony extortion can usually be laborious to attract. (That is a particular case of the Blackmail Paradox.) When you’ve got no less than a believable declare, and also you offer to settle it before filing a Complaint, that is good lawyering. Certainly, it is permissible even when it is clear to everybody that, as soon as the Criticism is filed, the media will choose up the Criticism and publicize the allegations in opposition to the defendant. And it is permissible even when your agency has up to now itself put out press releases concerning the claims, so the defendant is aware of you are more likely to do it once more.

But when the declare is clearly baseless, or the quantity you demand is clearly in excess of what’s allowed (see additionally here), then which may be felony extortion. Expressly threatening publicizing your allegations can also get you in bother, particularly in case you’re threatening accusing someone of crime.

Instances akin to this appear to be close to the borderline. Right here, for example, is an excerpt from Chandler v. Berlin (D.D.C. 2020):

That leaves Plaintiff’s counsel’s threats to “take all acceptable steps and leverage our contacts within the media … to place your prior shoppers on discover concerning ICI’s fraudulent enterprise mannequin, and to forestall you from defrauding others with faux stories sooner or later.” This, too, isn’t sanctionable. “Mere warnings by a celebration of its intention to say nonfrivolous claims, with predictions of these claims’ doubtless public reception, aren’t improper.” Sussman v. Financial institution of Israel (second Cir. 1995). As mentioned, Plaintiff asserted no less than one colorable declare of defamation, which was largely premised on the factual assertions concerning Defendants’ enterprise practices outlined within the Demand Letter. Thus, it was not improper for Plaintiff to threaten to publicize these allegations and predict their “doubtless … reception” with Defendants’ shoppers, significantly provided that Plaintiff by no means immediately contacted Defendants’ shoppers or in any other case interfered with Defendants’ companies. See additionally Revson v. Cinque & Cinque, P.C. (second Cir. 2000) (reversing the district court docket’s discovering that counsel’s “risk[] to intervene with the Agency’s different shoppers present[d] a foundation for sanctions” partially as a result of counsel by no means immediately contacted the shoppers (cleaned up)); cf. Bouveng v. NYG Capital LLC (S.D.N.Y. 2016) (holding {that a} plaintiff’s counsel’s “references to probably embarrassing litigation” in a prelitigation demand letter and e-mail weren’t extortionary the place they have been “half of a bigger endeavor to acquire recompense for a perceived incorrect”).

Right here, to make certain, there have been threats to “immediately contact[]” defendant’s donors, although question how a lot of a distinction that ought to make. In any occasion, this struck me as an attention-grabbing case to go alongside.

Theodora Lee and Pamela Woodside (Littler Mendelson, P.C.) signify defendants.