Tarla Makaeff

In 2008, Tarla Makaeff enrolled in a three-day Trump University workshop called “Fast Track to Foreclosure Training."1 She was interested in learning about real estate investments, so she coughed up the $1,500 fee. But according to Makaeff, she didn’t learn much—the workshop's practical value was sparse, and the instructors spent much of the time trying to sell attendees on the other services that Trump University offered.

Throughout the training, she and the other attendees were allegedly told four times to increase their credit card limits. The ostensible reason was so that they "could enter into 'real estate transactions.'" Yet once the class ended, Makaeff claimed that attendees were encouraged to "use that credit to purchase an additional Trump 'Gold' seminar for $34,995."

Makaeff wasn't convinced that she should drop a year's worth of college tuition on the program and "was on the fence about spending the additional money." But, she claims, "[A Trump University speaker] persuaded [her] to sign up by 'guaranteeing' that her first real estate deal would earn her in the ballpark of $35,000, so that she could immediately pay off her Trump University debt, leaving only profits for the future." So Makaeff paid the $35,000, charging the money and the accompanying interest and fees to her credit card. In the end, she says, she spent almost $60,000 on Trump University in just one year. By the end of 2009, however, Makaeff "realized she had been scammed." From a 2010 Class Action Complaint:

Plaintiffs and Class Members who attended Trump University’s real estate investing classes, were promised a “complete real estate education,” a “one-year apprenticeship,” a one-on-one mentorship, practical and fail-safe real estate techniques, a “power team” consisting of real estate agents, lenders, personal finance managers, property managers and contractors... Instead of a complete real estate education, students merely received an “infomercial” pushing additional Seminars or workshops they were told they would need to take to succeed. The “one-year apprenticeship” they were promised was actually just a three-day seminar; the one-on-one year-long mentorship consisted of no practical insights and no mentorship, but rather excursions to Home Depot and “mentors” who either recommend real estate deals that they stood to benefit from financially, raising a conflict of interest, or who quickly disappeared and failed to return calls.

Makaeff tried to get her money back. She reached out to her bank, government agencies, and the Better Business Bureau. She also tried to get Trump University to refund her tuition, since, she claimed, they had not satisfied their numerous guarantees. She sometimes posted on message boards about her negative experience. Finally, in debt and disappointed, she filed a proposed class action lawsuit against Donald Trump and Trump University for deceptive business practices in 2010. Said the Complaint, "The primary lesson Trump University teaches its students is how to spend more money by buying more Trump Seminars."

Trump promptly countersued Makaeff for defamation.

On its face, this isn't particularly surprising. Trump is excessive in his litigiousness, filing lawsuits on a hair-trigger. He seems to consider this thirst for lawsuits to be an innate part of his character—not just what he does, but who he is.

But there is something he likes more than suing people. And that's winning. More than anything, he likes victory. The defamation claim against Makaeff, however, was one he couldn't win.

Because the law is generally structured to protect free speech, winning a defamation claim is not easy. And because Trump is a public figure, winning this case would be even more difficult. It wouldn't be enough for Trump to simply establish that Makaeff made a false statement of fact that negatively impacted Trump's reputation. Trump would also have to prove that Makaeff knowingly lied—or, at the very least, recklessly disregarded the truth. In other words, the likelihood of him prevailing on a defamation claim was very, very slim.

But Trump wasn't trying to win. He was just trying to shut her up.

Trump has (or had?) plenty of resources, and could fight both the defamation lawsuit and the class action in court. Makaeff, on the other hand, was struggling. By suing her, he could tie up her limited funds, time, and energy, and intimidate her into dropping her suit.

Trump’s countersuit was a textbook example of a SLAPP, which are used “to silence and harass critics by forcing them to spend money to defend baseless suits," reports the Public Participation Project. "SLAPP filers don’t go to court to seek justice. Rather, SLAPPS are intended to intimidate those who disagree with them or their activities by draining the target’s financial resources."

Trump fought against her right to speak about her experience. In other words, he fought against her right to free speech.

——

This certainly wasn't Donald Trump's first time filing a SLAPP, and such lawsuits are generally not unusual. "[SLAPPS] are a sadly familiar sight in courthouses around the country," the Los Angeles Times said in an editorial last year. "A deep-pocketed corporation, developer or government official files a lawsuit whose real purpose is to silence a critic, punish a whistleblower or win a commercial dispute."

These lawsuits don't get much attention, but they do pose a dangerous threat to First Amendment rights. The rich and powerful—people like Trump, casino moguls Sheldon Adelson and Steve Wynn, Coal executive Robert Murray, and others—have been known to file SLAPPs to stifle speech and silence criticism. There are even stories of government officials filing SLAPPs against their constituents.

SLAPPs aren't always defamation lawsuits. They can take other forms, as well—such as interference with prospective economic advantage, intentional infliction of emotional distress, invasion of privacy, and a host of other tort claims.

Regardless of the form, the devastating potential is the same: newspapers virtually bankrupted by special interest lawsuits, activists punished for speaking out, consumers afraid to give bad restaurants a negative review, and many average citizens who have found themselves in court for expressing an opinion or asking a question. Even anonymous commenters have come under threat.

The good news is that a proposed federal bill is finally gaining traction. On July 22, a House Judiciary subcommittee held a hearing on H.R. 2304, or the Speak Free Act, introduced last year by Texas Rep. Blake Farenthold, a Republican, and California Rep. Anna Eshoo, a Democrat. And there's reason to be hopeful. The bill, which would give courts the ability to shut down unwarranted lawsuits by implementing anti-SLAPP protections everywhere, has bipartisan support.

But there’s not a lot of time, especially while there's still a chance that Donald Trump will ascend to the West Wing. Even Rep. Farenthold, a Trump supporter, thinks Trump's support of the bill is unlikely. “Obama will sign this," Farenthold said. "I don’t think Trump will."

It seems unfathomable that Trump would willingly sign such a law. In fact, Trump has basically said that he would do the opposite. “We're going to open up those libel laws,” he said in February. “So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected.”

Libel law is considered well-settled doctrine, and Trump’s insistence on restricting free speech protections is terrifying. (Also a clear sign that he doesn’t quite understand just how presidential power works. As president, he can’t just “open up” libel laws.)

But there’s something else frightening about his statement, too. When Trump states that he has “no chance” of winning, he wants people to think that he’s helpless under the law. In truth, though, he knows that he doesn’t need to win. He’s found a loophole. Even if he knows he can’t win, he can file a lawsuit and force the other side into submission. And while The New York Times and The Washington Post are not as financially at risk as other victims of SLAPPs, they too are inconvenienced and left vulnerable by lawsuits such as these.

In other words, the extent of libel law protection is irrelevant. Without anti-SLAPP protections, corporations and the wealthy can silence criticism, anyway.

Without a strong anti-SLAPP federal law, we all remain at risk.

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It may seem unlikely that such a lawsuit could ever affect you. But just look at what happened to Evelyn*. After suffering financial and physical elder abuse at the hands of her assisted living home, 86-year-old Evelyn and her family spoke to an attorney. Soon after, the facility retaliated by suing Evelyn’s family for defamation for telling their story to their own lawyer.

It began in 2008, when Evelyn, a diabetic breast cancer survivor, moved into the Los Angeles Jewish Home for the Aging (LAJHA). She had reached a point where she required more assistance, and she and her daughter Val were hopeful that LAJHA could provide it.

Almost immediately, however, Val and Evelyn became concerned with LAJHA's approach to care and costs. Soon after her mother moved in, Val discovered that she wasn't receiving the correct medication dosage. She also noticed some of Evelyn's insulin was missing. LAJHA allegedly promised to investigate but never followed up. Problems with Evelyn’s medication inventory continued throughout her time there.

There were also ongoing contractual disputes. LAJHA failed to include expected rent in their Resident Admission Agreement, as required by law.2 Val and the facility also repeatedly disagreed about expected rent payments and pharmaceutical charges.

Once, Evelyn was waiting in the dining hall for lunch when a staff person handed her a stack of documents to sign, allegedly assuring her that the forms were identical to ones she had already completed. But, according to Val, LAJHA had coerced Evelyn to sign a new Resident Admission Agreement. The new agreement gave LAJHA the right to read Evelyn's private mail and access her trust fund, which was promptly emptied. LAJHA also had Evelyn sign forms authorizing an address change for her social security and pension checks, ensuring that money would go straight to the facility instead of into Evelyn's bank account.3

Interactions between LAJHA and the women became increasingly strained, and Val and Evelyn's list of concerns grew longer. Finally, uncomfortable with how LAJHA seemed to be taking advantage of Evelyn, the two women contacted a legal aid attorney in November 2009. After consulting with their lawyer, the women filed complaints against LAJHA for healthcare violations, financial misconduct, and elder abuse. The complaints were filed with state agencies, including the Department of Social Services, and after thorough investigation the facility was issued at least a dozen deficiency citations.

Needless to say, LAJHA wasn't happy. Soon after these reports were filed, a new notice was posted to the facility's wall. In big letters, it said "Do not contact Department of Social Services."4 Then, that December, a staff member allegedly confronted Evelyn about being the whistleblower.

It got worse. One day in January 2010, Evelyn's glucose levels began to rise, hitting 302. Her endocrinologist had provided written instructions requiring the facility to call him immediately if it ever went above 250. But LAJHA authorities didn't call. Instead, they called the facility’s physician, even though he was not on site at the time and didn’t even speak to Evelyn. He prescribed the wrong type of insulin and an ambulance was called. Evelyn spent two days in the hospital.5

Later that month, after having lunch with Evelyn, Val and her friend David tried to give LAJHA's director of nursing new directives from Evelyn's doctor. Instead, the facility's executive director called the police and reported them for trespassing.6

Then came the SLAPP. That February, LAJHA filed a lawsuit against Val and David for multiple causes of action, including defamation. Bizarrely, LAJHA claimed that emails that David sent to LAJHA's COO were defamatory because Val's legal aid attorney was copied on the emails.

In other words, they sued Val and David for talking to their own attorney.

To call this lawsuit outrageous is an understatement. A free society depends on a functional justice system and the protection of rights. It would be unconscionable for the court to attempt to punish someone for talking to their attorney. Such conversations are privileged and out of the scope of a defamation claim.

Furthermore, the email contents were explicitly not defamatory. David had written truthful statements of fact about the facility's established misdeeds. In fact, the state issued a deficiency citation against LAJHA, and LAJHA staff admitted to the wrongdoing. LAJHA never protested the statements, never denied their truthfulness, never asked David to correct the record, and never requested David cease and desist communication.

LAHJA wasn’t worried about defamation. They were angry about the deficiency citations and they wanted to stop the whistleblowing.

They wanted to get back at Evelyn and Val, and they wanted them to shut up.

——

LAHJA’s lawsuit was a quintessential SLAPP, filed by an organization unwilling to be held accountable.

Luckily, both the facility’s defamation suit and the Trump defamation suit were filed in California, which has an anti-SLAPP law. U.S. District Judge Gonzalo Curiel (yes, that Judge Curiel) ruled that Trump’s defamation claim couldn't continue and ordered him to pay Makaeff’s attorneys fees. LAJHA's defamation claim was also immediately dismissed, and LAJHA was also ordered to pay Val and David's attorneys fees.

But ultimately, Makaeff, Val, and David got lucky— not everyone has protection against SLAPPs. In 22 other states, its highly possible that Trump and LAJHA's lawsuits could have pushed forward, steamrolling the less powerful into submission and thereby suppressing additional criticism.

The Speak Free Act could alleviate much of the strain such meritless lawsuits cause, and it’s a great sign that there are supporters on both sides of the aisle. But until it passes, there continue to be countless victims of SLAPPs.

It’s important to differentiate anti-SLAPP laws from traditional tort reform. As a rule, tort law is a critical part of a healthy civil justice system, and victims of defamation (or tortious interference, or invasion of privacy, or any relevant causes of action) should have the right to legal recourse. In many cases, tort law actually ensures that the powerful are held accountable for their misdeeds.

But other times, the powerful take unjust advantage of the system. SLAPPs are an example of such wrongdoing. In cases like Makaeff’s and Evelyn's, the plaintiffs are perpetrators, not victims.

When these lawsuits allow those with resources to bully others into silence, everyone's right to free speech is infringed upon. The risk is widespread. Anyone who speaks out against a corporation, asks a question about a business, criticizes a person, writes a comment, expresses an opinion, looks into a story, stands up against special interests may be at risk. Are you next?

*Some last names have been withheld for privacy reasons.

This is the first installment in a multi-part series. Part 2 will address journalists and activists who have been hit with SLAPPs. Have a story of your own to tell about SLAPPs? Email me at josie@dailykos.com.

1Trump University, which ceased operations in 2010, was not an accredited university.

2California law requires such facilities to include that cost in writing.

3In court filings, LAJHA disputes this point, stating that such money is "held in trust as federal and state statutes and regulations require."

4California law requires facilities like LAJHA to prominently post procedures for filing confidential complaints, and prohibits retaliation or interference.

5California law gives residents the right to choose their own physician and requires facilities to adhere to advance healthcare directives.

6In court documents, LAJHA stated that Evelyn and Val had failed to follow proper protocol, an accusation that Val strenuously denied.