In a time of massive Ponzi schemes and widespread financial turmoil, it is important for people to feel they can speak up when they believe that something improper is being done. The protection of free speech was given a big boost this past week with a $545,000 settlement, which wrapped-up over three-and-a-half years of court cases.
During that time, Elizabeth Enney lost both parents, survived a fifth heart surgery and paid more than $300,000 to defend herself against two libel lawsuits ultimately found to have been without any basis in law or fact. The lawsuits were described by Enney’s lawyer, Cynthia Counts, as “frivolous.”
The 11th Circuit scolded the plaintiffs who brought the suits, which tied Enney’s life into knots. The court stated in its decision that, “based on a reasonable inquiry, they either knew or should have know that they could not satisfy necessary elements of their cause of action for libel.” In other words, the lawsuit should never have been filed in the first place.
Enney’s saga began in July 2005, when she e-mailed the board of directors of the Rolls-Royce Owners’ Club, a non-profit corporation, regarding a “serious conflict of interest,” regarding a $9,000 payment the club made for a computer system.
One month later, Enney was named in a $1 million federal libel lawsuit filed in Connecticut by M.S. Koly and Delcath Systems. The libel portion of this lawsuit was dismissed due to lack of jurisdiction. But Enney was then named in a second $1 million lawsuit filed in the Northern District of her home state of Georgia, in July of 2006.
While others might back off, apologize and hope that the lawsuit would disappear, Enney said “I just look at it as my civic duty,” to stand up for what is right.
Enney comes from a long line of people who have loved and served their country. Her father, Kenneth Enney, served 33 years in the U.S. Navy as a naval aviator. Fulton Lewis, Jr., her maternal grandfather, was a conservative syndicated newspaper columnist and radio commentator in the 1950’s. Her brother serves today as a lieutenant colonel in the Marines.
Referring to her family as “good old-fashioned salt of the earth,” Enney said “I’ve been a fighter all my life,” and I was not going to just walk away.”
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.