On April 19, 2007, District Judge Jack Camp granted Enney’s motion for judgment and dismissed the libel case, but rejected the motion for Rule 11, which permits for the reimbursement to Enney for attorney fees for the defense of the lawsuit.
Charles Tobin, who chairs Holland & Knight’s national media practices team and is a partner in the Washington office of the law firm, said there has been “too much predilection to let libel go forward,” in the courts. When cases are dismissed, the courts essentially tell the defense to “Get over it,” rather than applying Rule 11, he said.
According to Enney, even after the dismissal of the libel lawsuit brought against her, she felt “we didn’t win anything” in that the plaintiffs had been able to “force me to defend a frivolous lawsuit and nobody won.”
By the time of the dismissal, Enney had spent more than $300,000 defending herself. Tobin said that Rule 11 should dissuade plaintiffs from filing frivolous lawsuits, but its value is limited since plaintiffs know that it is only rarely applied.
Counts, Enny’s attorney, appealed to the 11th Circuit Court, requesting the application of Rule 11. How often is Rule 11 applied? “Once in a blue moon,” said Tobin, adding “you have to move heaven and earth” to get the courts to pay attention.
But Counts apparently did just that. The 11th Circuit reversed and remanded the case noting “that the district court abused it discretion by denying Enney’s Rule 11 motion.” According to Tobin, this is a strong statement by the extremely prominent 11th Circuit Court, and its action on this case “should lead to more fee awards” and therefore fewer frivolous lawsuits.
Last September 25, Judge Jack Camp referred the case to mediation. The result - a global settlement approved by Camp on March 10, 2009, which included the $545,000 payment to Enney.
Enney said it is important to her for the case to serve as an example to others, and hopefully dissuade frivolous libel lawsuits. While she was able to pay the legal fees, Enney understands that most people would not have this ability and needed someone else to fight this battle for them.
Her belief is that free speech is one of the cornerstones of our country; her hope is that people will not be afraid to speak. When something needs, as she says, a bit of “sunshine shown on it,” Enney hopes those who can pull back the shades will not be afraid to do so.
In our country, it is important for us to feel safe to speak up for what is right without fear of a resulting lawsuit. That right was reinforced last week, thanks to Enney.
Cynthia Counts is also Jackie Cushman’s lawyer.