A Matter Of National Security

SLG Publications

July 15, 2007

A Matter of National Security (Federal Legislation & Public Policy)

The Rail and Public Transportation Security Act of 2007 was recently passed by Congress, however, Section 137 of HR 1401 falls short of its manifest objective. The so-called “Flying Imams” litigation currently pending in Minnesota underscores a vital public policy need to prevent good faith tipsters of suspicious activity from being intimidated by lawsuits. However, the law does not stop someone from being sued; It merely codifies a defense that was already available to tipsters at common law. Unfortunately, the intimidation factor still persists in that any good faith reporter can still be sued, and they will necessarily incur daunting legal expenses to prove their innocence. The average hourly rate for attorneys in most jurisdictions currently hovers between $250 and $500. Consequently, it is not uncommon for defense fees to approach $75,000 or even $100,000 through trial, and the far majority of Americans simply cannot afford such an exorbitant expense. Even if good faith tipsters prevail at trial, they face economic ruin. This stark reality may continue to dissuade most good citizens from stepping forward with information that can potentially spare us from countless deaths, losses in the billions, and another national catastrophe.

On the other hand, we must not be insensitive to the legitimate interests affected by offering immunity to tipsters. Specifically, if blanket immunity is offered to all tipsters, there will be much room for malicious abuse based on religious animus, racial animus or even personal animus. It would be quite facile to wreak havoc upon innocent persons who are traveling to conduct important business or to enjoy a well-earned vacation. We cannot tolerate such bad faith chicanery being perpetrated with impunity.

Fortunately, there are a number of legislative initiatives that can adequately resolve these competing interests. Accordingly, we should implore our congressmen to champion the following proposed revisions to Section 137 of HR 1401:

Any Plaintiff who seeks to name an individual as a defendant because he reported suspicious behavior must have credible evidence of malicious intent prior to naming and serving that individual in the lawsuit;

In addition to the attorneys’ fee & cost provision set forth in Section 137(e), the Court should also have discretion to award a statutory damage of up to $25,000 to a reporter of suspicious activity who was inappropriately named as a defendant in such a lawsuit;

In addition to the Plaintiff, attorneys representing the Plaintiff should be jointly and severally liable for any affirmative awards imposed upon the Plaintiffs under this Section;

Any person or entity that assists in financing an action against a redeemed Defendant should also be jointly and severally liable for awards payable to the wrongfully sued defendants; and

Plaintiffs should have to post a bond in the amount of $100,000 before they name and serve an individual reporter of suspicious activity.

Comments:

These proposed revisions essentially shift economic risk from reporters in good faith to allegedly aggrieved Plaintiffs while still maintaining a cause of action against malicious reporting. Since the public interest in preventing another terrorist attack indubitably outweighs the public interest in unburdened actions against individuals for malicious reporting, this shifting of risks is both necessary and appropriate.

By requiring Plaintiffs to have evidence of malicious intent prior to filing against reporters of suspicious activity, we would be compelling them to adhere to a quotidian standard of ethical conduct. We are essentially instructing Plaintiffs not to sue people unless they have an objectively reasonable belief in their liability. Prospective plaintiffs cannot argue that they are impeded by this prerequisite because in the course of related litigation (eg., a lawsuit against an airline or the government) they are permitted to conduct discovery which promises to yield evidence bearing directly on reporters’ good faith -- including taking depositions of such persons as third party witnesses. On the other hand, if a Plaintiff sues an individual reporter based on naked suspicion in lieu of credible evidence, he will be violating public policy and should consequently bear the risk of such action.

The proposed discretionary statutory award would combine with the attorneys’ fee award to eliminate lawsuit intimidation and create a win-win scenario. Good faith reporters will not only understand that their defense costs will be covered, but also that they may additionally realize a windfall of up to $25,000 if they are inappropriately named as defendants. These legislative elements convert good faith reporting from a potentially ruinous liability into an appealing duty. We want and need to encourage our people to give authorities as much information as possible to prevent another terrorist-wrought calamity.

Allowing aggrieved defendants to collect attorneys’ fees and a statutory award does not offer enough confidence to would-be good faith reporters. Unethical plaintiffs’ lawyers and organizations with political agendas will no doubt exploit judgment-proof plaintiffs who will not care if they have a monetary judgment entered against them. Therefore, we need to spread the risk among all those who would assist such plaintiffs to violate public policy in this regard. Plaintiff’s lawyers are in an even better position than their lay clients to evaluate credible evidence of bad faith, and therefore they should be held to a higher standard. There is, of course, well established law in every U.S. jurisdiction that confers liability unto attorneys who bring groundless actions against defendants without first investigating the claims. The revisions proposed herein simply incorporate this venerable principle and obviates the necessity for an aggrieved defendant to bring a separate action to recover against the transgressing attorneys. Furthermore, other individuals and organizations with political agendas that finance and support public policy violations should also share in this risk.

The bonding requirement is yet another added level of financial security for the good faith reporter. Not only will they have numerous pockets from which to satisfy their affirmative relief, but they will know to a moral certainty that there is at least $100,000 held by the Court for their benefit. (I estimate that defense fees through trial could easily total $75,000 considering billable hours, deposition costs, expert witness fees, filing fees and investigation expenses. Add to this the potential $25,000 statutory award and the result is $100,000. If this seems excessive for a required bond, imagine how the average American citizen feels about the prospect of defending himself through a full blown trial whose costs are exacerbated in no small part by today’s 24-7 media environment. This is why the risk must be shifted, and it must be shifted effectively) Aggrieved defendants should not, of course, be limited by the amount of this bond. If their aggregate award of attorneys’ fees and discretionary statutory damages exceeds the bond principal, they should be free to pursue the unsatisfied amount through judgment enforcement proceedings against all parties jointly and severally liable under the revised statute. The security elements of the proposed revisions are essential because it enables defendants with relatively meager means to entice attorneys to litigate on their behalf on a “deferred-payment basis”. Prospective attorneys for aggrieved good faith reporters will see that there is security for the payment of their services and they will be more likely to accept an engagement knowing that their fees are easily and fully collectible. Alternatively, if the attorneys suspect that the reporter acted in bad faith, they will shy away from the engagement for fear of ultimately not being paid for their litigation services. If the Plaintiff prevails in his lawsuit against a bad faith reporter, he should be entitled to recover actual damages, attorneys’ fees, punitive damages and the cost of the $100,000 bond.

Our country continues to be subjected to threats that are growing in both quantity and magnitude. Recent current events prove that our best detection assets are our own citizenry (eg., the foiled terrorist plot against Fort Dix). We must move quickly to ensure that this crucial asset does not wither and succumb to litigation abuse. The aforementioned proposed revisions to Section 137 of HR 1401 strike the proper balance between the public interest in national security during a time of war and the public interest in protecting justice within our civil court system.

HOME