Libel litigation against Lindell: Why not here?

Dominion, the company that makes voting machines used in a number of different jurisdictions, including at least a half dozen counties in Minnesota, finally has come through with its monthlong threat to sue pillow manufacturer Mike Lindell. The owner of Chaska-based My Pillow has involuntarily joined some of his electoral conspiracy confederates, like lawyers Sidney Powell and Rudy Giuliani, as defendants in civil libel litigation brought by the voting machine maker, based on statements he has made about its ballot-counting machinery. The suit seeks $1.3 billion.

Powell, who represented pardoned prevaricator Gen. Michael Flynn, was the first to be sued, followed by Giuliani, also in a $1.3 billion-dollar lawsuit. Shortly thereafter another lower profile ballot-counting technology company, Smartmatic, followed suit, literally and figuratively, by suing the pair of lawyers and Fox News, and three of its star anchors, too, for $2.7 billion, running the claimed price tag to a nice round $4 billion, before Lindell became the latest in the civil defendants dock in federal court in the District of Columbia. He has persisted, notwithstanding the threats of a suit, in his claims of Dominion deception, including a two-hour video documentary he paid for and aired on cable television some 13 times.

The 115-page lawsuit against Lindell alleging that he committed defamation by impugning the reputation of the Denver-based software maker and engaged in a conspiracy to harm its standing claims that he harbored illicit motives, aiming to raise the profile — and revenue — of his pillow products and elevate his political profile for a possible run for governor.

Lindell welcomed the lawsuit, asserting that it was “good news” and that he was “very happy” to be sued, although he lamented that the lawsuit also snared his company as a co-defendant.

The lawsuits have been brought in the jurisdictions where the alleged lies were spouted, Washington, D.C., and New York City. Lindell, who made his accusations far and wide, could theoretically have been sued anywhere. A logical spot for any such litigation could have been here in Minnesota, where Lindell is based and many of his assertions have been propounded. But it wasn’t about to happen here.

Inhospitable issues

One reason Minnesota would not have been a favored forum for any such lawsuit against the self-proclaimed “My Pillow Guy” is because the issues in the law of libel have generally been resolved inhospitably to claimants in this state.

Under the so-called New York Times rule, a doctrine emanating from a decision of the Supreme Court in 1964 in the landmark case entitled New York Times Co. v. Sullivan, those who are considered “public officials,” elected or high placed government officials, or are “public figures,” well known personages or others who voluntarily inject themselves into high profile controversies, must prove “actual malice” in order to prevail in most defamation lawsuits. This requires proving with convincing clarity that the dissemination of the defamatory statements was perpetrated with knowing falsity or reckless disregard for the truth, a high standard compared to other defamation litigation, which generally requires proving only by a preponderance or slight balance of evidence that the defamation was uttered carelessly or negligently.

To facilitate the “robust” debate over issues of public importance welcomed by the New York Times case, its elevated standard has been applied in Minnesota to cover businesses and corporations like Dominion. Thus, as the claimant in a libel lawsuit, Dominion would have to establish that Lindell actually knew that his statements were false or that he was extremely reckless in making such statements. While it might be possible to do so, it generally is difficult to satisfy that standard, especially if the party being sued can show that he or she believed their statements or, at a minimum, took some steps to verify the remarks and was not totally oblivious to contrary considerations.

Since Lindell was probably a true believer, the first prong of the New York Times standard might be hard to attain. The focus, therefore, would be on whether his behavior was so reckless as to indicate that he entertained “serious doubt” about the veracity of his remarks. It would be much easier for Dominion to prevail in another jurisdiction where the “actual malice” standard is not applied to business entities, and there are many from which to choose. That Minnesota is not one of them militated against Dominion bringing a lawsuit against the pillow maker here.

Practical problems

There are additional concerns that caution against suing Lindell in this state. A lawsuit could have been brought in either state or federal court and, if brought in the former, it could have been transferred by Lindell into federal court, where he would probably prefer to be because that tribunal tends to be more conservative, particularly in defamation litigation. Although the trial court judges in Minnesota are fairly evenly split between liberal and conservative jurists, the appellate level, the Eighth Circuit Court of Appeals, which oversees federal litigation in Minnesota and the six surrounding states, is conservatively imbued. All of its 11 active members are Republican appointees, except for one member, an Obama appointee, Jane Kelly. That tribunal’s inhospitality to libel claimants was reflected in the five-year litigation saga nearly a decade ago initiated by former Gov. Jesse Ventura and his $1.8 million verdict, which he obtained from a jury in St. Paul, but was overturned by the Eighth Circuit, which preceded a settlement for a presumably lesser amount.

Beyond that, if a Lindell libel lawsuit were ever to reach the U.S. Supreme Court through the state or federal judicial systems, the likelihood of him prevailing is even greater. That tribunal customarily turns down or rejects libel claimants. Thus, Dominion understandably steered clear of Minnesota as a litigation forum.

The issue of damages

While a lawsuit against Lindell is largely seemingly brought as a matter of principle to hold the alleged wrongdoer accountable, money is in play, too. But the $1.3 billion sought in the suit would have been hard to come by in Minnesota, where juries are much less likely to award large verdicts to libel claimants, compared to some other jurisdictions, particularly on the East Coast.

Minnesota’s aversion to larger jury verdicts is reflected in the state law that limits assertion of an amount of claim to “reasonable damages in an amount greater than $50,000” in initial legal pleadings, rather than the gargantuan amounts that can be claimed in some other states. The Minnesota law does not restrict claimants from recovering more than $50,000, but simply sets that as a ceiling to be inscribed in initial lawsuit papers. The restriction may be intended to reduce the “sticker shock” attendant to the commencement of litigation, although it is also reflective of a more restrained approach to the award of damages in this state compared to some other places.

There are other practical reasons in addition to diminished damages why Dominion likely refrained from suing Lindell in Minnesota. As a job creator, he may have been viewed more favorably by prospective jurors around here, compared to how those in other parts of the country might regard him. Indeed, his business is in a hiring mode these days, running full-page newspaper advertisements seeking workers, even though some of its main retail outlets have at least temporarily stopped stocking his products.

While Dominion or others may primarily be seeking vindication of reputation and deterring others from making or continuing similar aspersions against them, obtaining monetary damages may be more difficult. The claimants would have to show they have suffered financial harm because of the statements made by Lindell and ascribe what portion of that detrimental impact is attributable to Lindell’s statements, compared to the statements made by so many others. That creates a foreboding task.

For these reasons and others, it’s not surprising that Dominion chose not to sue Lindell here.

Marshall H. Tanick is a constitutional law attorney with the Twin Cities law firm of Meyer Njus Tanick.

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