SLAPP victim doesn't turn the other cheek Michigan House to consider anti-SLAPP amendment

By John Minnis

Legal News

What began as a dispute between a Western Michigan University student and a Kalamazoo towing company may lead to an anti-SLAPP law in Michigan.

On Wednesday, July 21, the state House Judiciary Committee reported out House Bill 5036, which would allow defendants to ask a judge to dismiss lawsuits filed in an attempt to stifle criticism. Such actions are known as SLAPPs -- strategic lawsuits against public participation.

Originally introduced last summer by state Rep. Kate Ebli, D-Monroe, the anti-SLAPP bill took on new urgency with the filing of a $750,000 lawsuit by T&J Towing of Kalamazoo against WMU student Justin Kurtz.

Despite having a parking permit displayed, Kurtz alleges, his car was towed from his apartment complex in January. When Kurtz's objections fell on deaf ears and T&J Towing insisted Kurtz pay $118 to get his car back, the student created a Facebook page, "Kalamazoo Residents Against T&J Towing."

The Facebook page struck a chord with WMU students and Kalamazoo motorists, as well as with underdog sympathizers on the Internet. Today the Facebook page has more than 14,000 members and hundreds of posts.

Kurtz alleges T&J Towing broke into his car and stole his parking pass to justify the towing. Not only does the towing company deny the charge, it also filed lawsuit in April in the Ninth Judicial Circuit of Michigan, Kalamazoo County, demanding that court order Kurtz "to immediately cease and desist any further libelous and slanderous written claims" and "to make restitution for the lost income resulting from defendant's 'crusade' in the amount of $750,000."

In his answer to the complaint, Kurtz, through his attorney, Christopher Vreeland of Marshall, denies the claims are false. He admits creating the Facebook page as a form of protected free speech and says that he cannot possibly know the facts underlying every posting or link on his Facebook pages "as the posts and links are presently far too numerous."

Vreeland and Kurtz also filed counterclaims, alleging T&J Towing "engaged in unfair and deceptive acts, methods and practices prohibited by (state law)" and are seeking damages and losses in excess of $25,000.

The defendants are also counterclaiming abuse of process, alleging that plaintiffs "filed suit against Kurtz ostensibly seeking $750,000 in damages, but (T&J's) true motivation is to suppress truthful public discussion of ... unlawful and unethical business practices."

In other words, Kurtz claims he was SLAPP'd.

In its response, T&J Towing denies any wrongdoing or engaging in deceptive practices and denies the suit was an attempt to suppress truthful public discourse.

State Rep. Ebli sides with Kurtz, as does the ACLU of Michigan, which supports the anti-SLAPP legislation.

Kurtz was the star witness before the House Judiciary Committee hearing.

"When Justin has chance to speak," Ebli told committee Chairman Rep. Mark Meadows, D-East Lansing, "you will see what this really means."

Ebli, with the help of the Michigan Association for Justice, rewrote the bill to address online communication, the so-called social media.

"We need to address what communication means in this era of Twitter and Facebook," she said. "In this bill, we have to address all forms of communication, not just what are traditionally addressed. If this legislation had been enacted, we would have saved a lot of money in frivolous lawsuits. This would allow judges to dismiss frivolous lawsuits and save money."

Kurtz gave a brief account of his travail. He said his car's security system was disabled, his car broken into and his parking pass taken by the towing company. He reported it to police, who did not take it seriously, he said. Nor did the towing company.

"They made me pay $118," Kurtz told the Judiciary Committee.

After being dissed by the police and the towing company, Kurtz launched his Facebook page.

"I was sued for $750,000," he said.

Committee member Rep. Lee Amash, R-Kentwood, asked why the bill contained treble damages.

"These lawsuits by definition are frivolous and are to limit someone's free speech," Ebli responded. She also agreed that they were punitive. Amash pointed out that they would have to be called something else since punitive damages are not allowed in Michigan.

With that, H.B. 5036, with substitute H1, was reported out with recommendation by a 9-0 vote.

Not everyone thinks a state or national anti-SLAPP law is needed.

"I'm sympathetic to both sides," said Jason Shinn, of Lipson, Neilson, Cole, Seltzer & Garin in Bloomfield Hills. "You have to look at the public relations aspect."

Shinn is leery about businesses filing lawsuits to curb criticism.

"You can see where this snowballs out of control," he said. "Once you've filed a lawsuit, you may have lost control of the thing."

James Allen Sr., city attorney for several southeastern Michigan municipalities, once filed a SLAPP suit on behalf of a client. It turned out to be a bad experience.

"Both sides in a SLAPP suit are not satisfied with the results," he said. "I tell my clients it's not worth it. You never know how it is going to boomerang back at you. The law of unintended consequences is usually the one that prevails."

Still, Shinn and Allen do not favor an anti-SLAPP law.

"There are remedies," Shinn said of existing law.

"I'm not a big advocate of laws restricting these kind of suits," Allen said. "They screen out the legitimate claims as well."

Both attorneys suggest that judges should take a more proactive role in winnowing out the frivolous from the legitimate complaints.

"It's the judge's responsibility to decide if a case has merit," Allen said. "Those who advocate anti-SLAPP laws have little faith in the system."

Published: Thu, Jul 29, 2010

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