A noteworthy case involving free speech issues in which The Kaplan Law Firm represented the Defendant has settled. The Plaintiff in the case, titled Bret Wade v Erin Foster, had sued my client, Erin Foster, for over $1.5 million, alleging that Foster had falsely accused him of sexually assaulting her. My client countersued, asserting that her statements were true and seeking damages for having been sexually assaulted. Under the settlement agreement, which was negotiated at a mediation session presided over by a United States Magistrate Judge, both sides made a joint statement, neither party admitted to any wrongdoing and no money will change hands. The case was in the United States District Court for the District of Maryland.
In an interesting twist, after the settlement was reached Plaintiff’s attorneys filed a motion to reopen the case. My response to that Motion is here. Plaintiff’s counsel has, however, now withdrawn that motion and, on December 18, 2017, Magistrate Judge J. Mark Coulson issue an order finalizing the settlement.
Setting aside the facts of this particular matter, what happened in this case is relevant to the ongoing national debate about sexual harassment. This case was brought against my client because she made an allegation that she had been sexually assaulted. As a result she was compelled to pay tens of thousands of dollars in legal fees and litigation costs and suffer the mental anguish of being a defendant in protracted federal litigation. The costs of litigating the case threatened to bankrupt her before she would ever see the inside of a courtroom and she still has substantial unpaid debts arising from this matter. Some might argue that that is appropriate because it discourages women from coming forward with false allegations. And I agree that false allegations can be made and can do real harm. But the reality is that, despite all the publicity that the issue has recently received, as our legal system currently functions women who have been sexually assaulted or harassed have a strong financial incentive not to come forward as, regardless of whether their claims are truthful, they subject themselves to being sued in jurisdictions far from their home (Foster lives in New Mexico, but was sued in Maryland) and being forced to pay crippling legal fees.
A potential partial solution is the enactment and expansive interpretation of state Anti-Strategic Lawsuit Against Public Participation (SLAPP) Statutes. SLAPP Statutes recognize that the threat of litigation can chill speech and are meant to deter frivolous lawsuits about matters of public concern. Maryland—the place where this lawsuit was filed—has an Anti-SLAPP Statute. But it is not clear that it applies to lawsuits alleging false claims of sexual assault, at least when the person bringing the lawsuit is not a public figure. More importantly, unlike every other SLAPP Statute in the country, Maryland’s law lacks a “fee shifting” provision—language which allows someone to who has been subjected to a frivolous lawsuit to recover their attorneys’ fees. Consequently, the Statute’s theoretical protections are essentially meaningless. There is an interesting discussion of this issue on this Reporters Committee for Freedom of the Press web page. In my view, the Maryland statute should be amended to permit recovery of attorneys’ fees in appropriate cases and to explicitly encompass frivolous lawsuits meant to suppress claims of sexual harassment or abuse.
To state what I think is obvious: the views expressed in this blog post are mine and mine alone. Moreover, while I believe that, as a general matter, Maryland needs a stronger Anti-Slapp law, I am not saying anything about the merits of the Plaintiff’s claims in this particular case, a subject which is addressed in the Parties’ settlement agreement.