Thread by @AkivaMCohen

OK, #LitigationDisasterTourists, let's talk about @BauerOutage suing @TheAthletic for defamation

Bauer, for those of you who don't know, is a really really good, really highly paid pitcher. He's also got a temper (the above gif is him launching a baseball in frustration after, IIRC, giving up a home run) and, well, you'll see ...

Bauer is suing two and only two defendants: The Athletic itself, and Molly Knight, one of its former reporters.

And he's suing in his home state of California.

Now, when I say "his home state" I mean "the state in which he plays baseball"

Bauer claims he's still a citizen of Texas, which is how he's claiming he can get into federal court on a defamation claim. ("Diversity jurisdiction" requires the parties be from different states)

Wait, Akiva, why are you jumping to the Parties/Jurisdiction section? You skipped the juicy intro and you usually fly right past this part

Because in this particular case, the Parties/Jurisdiction section tells you *almost* everything you need to know about where Bauer's head is in filing this

Trevor Bauer is a very famous dude. He's absolutely a public figure. And bringing a defamation case as a public figure is *always* very very hard.

Maybe the hardest thing to succeed at in American litigation

Free speech matters here

But if there's a single jurisdiction in America where it's hardest to win a defamation case, it's California.

California, home to many many media companies, has a STRONG anti-slapp statute. The OG, IIRC, and one the 9th Circuit says applies in Federal Court, too

So if you have any choice to bring your defamation case anywhere else, you do it.

Except ... Bauer didn't

Take another look at the Parties section. Bauer could have sued The Athletic in Delaware - its state of incorporation, and a state with basically NO anti-slapp law. rcfp.org/anti-slapp-gui…

So why is he in California?

Again, look at the Jurisdiction section. Bauer could have sued *The Athletic* in Delaware or California. But he couldn't have gotten personal jurisdiction over *Molly Knight* there.

She's a California resident, and didn't do anything in or impacting Delaware. So he can't just sue there if he wants to name her as a defendant.

I have to take a break to take care of stuff this morning, but that's the first thing to know about this lawsuit: Bauer decided to make an already difficult case even harder for himself for no reason *other* than that he really really wants to hurt Molly Knight.

That maaay become relevant later in this thread, I'm thinking

OK, gonna need to take a break in a bit, but before we do, let's take a look at what Bauer is suing over

Here's a link to the primary article, and then some screenshots.

Warning, these are graphic

storage.courtlistener.com/recap/gov.usco…

First, the Athletic reported what the woman filed: An ex parte restraining order (meaning no response or questioning by Bauer allowed) alleging choking, punching, black eyes, bruising, bloody lip, scratching, and anal rape

The Athletic made clear that these were unilateral allegations, reached out to Bauer for comment, and when Bauer's camp declined to give new comment, ran his agent's earlier denial. And then it got & ran her lawyer's response to that

Then we get more detail from the filing: She and Bauer miscommunicate about what "choking" means, he tries to fist her throat, stops when she says no, chokes her unconscious and starts having anal sex with her while she's unconscious.

For whatever reason, she sends him flirty text messages including about asphyxiation - which we learn about because The Athletic adds that info after Bauer's camp gets it to them after the story is initially published - and goes back to have more sex with Bauer.

Predictably, it doesn't go all that well, according to her: he chokes her unconscious twice, punches her in the face repeatedly, and she wakes up crying and shaking violently and Bauer tells her she's safe because she's with him and that he'd only do those things "sexually"

The Athletic then reports what she says happened next. As you'll see when we get to Trevor's lawsuit - and I gotta say, Trevor, good job ensuring all this detail makes the rounds again, A+ crisis PR - the part in red is particularly important.

Why?

Because as far as I can tell, it makes crystal fucking clear that The Athletic does not actually have the woman's medical notes at the time it's reporting this story.

If that's false, they may have a bumpy road. But otherwise, Trevor's in for a hard time

Anyway, back to the article Trevor is angry about and yet simultaneously wants everyone to read again, a year later

Per her filing, she goes to the police, who have her record Bauer *admitting* that he choked her unconscious and then punched her repeatedly (in the butt, says Bauer) while she was unconscious

The Athletic then wraps up the report with additional comments from the police and the accuser's lawyer, and Bauer's status.

Reporter's name is highlighted because hey, *she's* not a defendant

For timeline purposes: The story comes out on June 30, 2021. It's updated shortly thereafter with the additional info from Bauer's camp and, apparently, some of the info on the hearing being set for 7/23

So what did Molly Knight do?

Well, that article was Exhibit A to the complaint. Exhibits B-D?

A series of Molly's tweets from July 2, 2021. For timeline purposes, that's 2 days after the article is published, & 21 days before the hearing

OK, with that background out of the way, let's take a look at what Bauer is alleging in his lawsuit.

He starts with his strongest point: The 7/23 hearing went VERY well for him. If it's as described, the claims were rejected as not credible or criminal.

Based on that, he alleges that the media's *accurate* reports of what the woman filed - roughly a month earlier - were lies

Notice a couple of things here:

1) The "exoneration" he's relying on happened well after the article was published. It's completely irrelevant to any defamation claim

2) The one and only part of the article and "narrative" he's attacking as false and defamatory is the "implication" that the CT scan showed a cracked skull

Not the reporting that he repeatedly choked her unconscious. Or gave her two black eyes. Bruised her jaw. ANALLY RAPED HER

Apparently, Trevor thinks that none of that would have damaged his reputation; it was the accurate reporting that the woman was sent for a CT because there were concerns of a skull fracture, without saying that "but there was no fracture" that did the real harm

3) He is *simultaneously* arguing BOTH that the article clearly implied to anyone who read it that the medical records showed a skull fracture AND that Knight (who didn't report the story) must not have actually believed based on the article that Bauer fractured the woman's skull

4) As against the Athletic, EVERYTHING hinges on the Athletic actually having and reviewing, and then disregarding, the medical records - despite the face of the report suggesting they didn't have them at all

5) His lawyers somehow think that "they don't like me personally" is relevant to actual malice

OK. On to the fact section. Bauer starts by arguing that the people at the Athletic just happen to hate him and want to see him fail, for reasons unknown and inexplicable

Yes, yes, Trevor, the only reason anyone would report on the fact that you're a massive asshole, or the implications for a team signing a massive asshole, is because they don't want anyone to sign you.

Egomaniacal much?

I'm just going to pause here and insert *Bauer's own description* of one of his totally non-problematic interactions with women on the Twitter, taken from his SDNY lolsuit against Deadspin

I mean holy cats, look at this shit

World-famous athlete with hundreds of thousands of followers quote tweets a rando for daring to say she doesn't want him on her favorite team? And explicitly asks his followers to offer an opinion on her take?

What a fucking douchebag

I mean, yeah, that's goddamn textbook "targeting for harassment"

Anyway, let's leave Trevor's first lolsuit (for now, we'll get back to it later because it's relevant) and come back to his new one.

Bauer spends paragraphs backing up the point that many many writers at the Athletic have somehow noticed and written about his status as an asshat

I don't need to screenshot them for you. Summary: they wr-wr-wr-wrote mea-mean th-th-things about meeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

Then (after mentioning Ken Rosenthal, who he isn't suing) he goes after Knight:

And holy shit how are his lawyers stupid enough to write paragraphs 27 & 28???

Note: None of this needed to be in the complaint at all. The allegations here are completely irrelevant and unnecessary to the claims. If for some stupid reason you want to put in his history with Knight, you can leave out 27 & 28 and still do that

Instead, you decided to argue that Bauer quote-tweeting a reporter with "here, let me send some followers your way" isn't "telling his followers to go after her"?

Fuck AAAAALLLL the way off, Trevor

But also, this is just a massively stupid self-own by Bauer, and his lawyers fucked him over by adding paragraphs that were entirely designed as client-service (I'm sure Bauer, who appears to be an idiot with no idea what he's in for, loved reading them).

Credibility is a scarce resource in litigation, and it needs to be cultivated, hoarded, and preserved. You just let the Athletic's lawyers depose your client about an incident that makes him look horrific (which would've been otherwise irrelevant) AND locked him into denying that

he expected his followers to say nasty things to her when he said "let me send some followers your way" - which nobody with half a brain will believe.

Why? Why would you do that?

Continuing on about Knight.

In case it isn't clear, none of this is even potentially defamatory: it's opinion (and pretty well founded opinion, from what I can tell). It's got no business in this complaint

They then go back to "other writers at the Athletic kept pointing out what a dick I am"

With that out of the way, we finally get to what the case is about. And Bauer has big problems

Again, we're back to Twiqbal plausibility. Bauer isn't alleging that the Athletic actually read the CT scans. He's just alleging that the scans were *available* to it to be read.

That's not going to be enough to get to actual malice

Bauer then goes on to argue that when Knight sent out her tweets, she did so knowing the skull fracture claim was false because ... she works at the Athletic and reports on baseball.

Seriously. That's it.

@BauerOutage's attorneys then dedicate a paragraph to SPECIFICALLY ALLEGING that Bauer's complaint against Knight is frivolous and 100% needs to be dismissed. Trevor, clearly, doesn't understand why that is. But you all do

That's right, Bauer just *affirmatively alleged* that when Knight tweeted the "defamatory" tweets, she actually believed what she was tweeting was true, based on the article.

As if that wasn't enough, Bauer then pleads several paragraphs of "and other people believed it too, based on the Athletic's reporting!"

Now we get to the actual malice allegations. And full disclosure here - the Athletic's initial response to this isn't a great look; they should have updated with the CT results as soon as they knew about them. BUT

1) Failing to update a *previously published* article that contains false information (and note, we're going with "saying she had a CT because they suspected a skull fracture implies the CT showed a skull fracture) doesn't retroactively make that previous publication defamatory

Again, time is linear.

2) THIS lolsuit doesn't mention the timing of the Athletic's eventual update. Bauer's OTHER lolsuit does:

So the update came 3 days after publication, and a day after Knight's tweets. I wonder why they mention that date in the Deadspin suit but not here?

3) You're going to argue that "diagnosis with signs of a skull fracture" is meaningfully different, to a lay audience, than "the doctor saw indications that she might have a skull fracture and ordered a test"?

Yes, in the medical world, those terms mean different things, or so I'm told.

Not to a lay audience they don't. They all mean "the doctor ordered tests because something made them think she might have a skull fracture"

ahahahahahahahahahahaha

No, seriously

This you?

"Molly Knight understood the article to be saying that Bauer fractured the woman's skull, which is why she tweeted that she had. Also, she didn't cite any source, so she must have known that was false"

Guys, I literally just held up an agreed upon set of redactions (which the court wouldn't have cared about) because I noticed that something we were going to redact had actually been publicly disclosed elsewhere.

It's a small thing, no real impact on the case either way, but I'm not going to implicitly represent to the court that something isn't publicly available when I know it is.

Because I have ethics. And so did everyone else involved, btw - they all agreed.

These guys? Guess not

You cannot - CANNOT - file a defamation suit on behalf of a public figure plaintiff against a defendant you know believed the things they said. And you affirmatively alleged she did.

How do you file this claim against Knight? How?

And no, none of this closes that gap. Not remotely. Nothing you've pled suggests that Knight ever saw the CT scan results before tweeting. The fact that she noticed that Bauer sucks as a human being doesn't have anything to do with anything. Stop it.

This, from Rosenthal, is probably closest to the line, though it's a fair characterization of Bauer's claim that the woman's bruised and bloody face was from consensual rough sex. But also, he's not suing Rosenthal. Just the damn woman who wouldn't shut up

But he deeeefinitely doesn't have a problem with women

There's a hearing on the claims, and it goes well for Bauer. Hard not to notice, though, that he didn't attach the full ruling. And also that he's not alleging the August 19 article is defamatory

Here, btw, is how that article starts, and some key quotes: The judge found her petition "materially misleading", she didn't communicate her boundaries to Bauer, "she sa[id] yes"

They're upset that the article included reporting on her testimony

Bauer also isn't alleging that these articles are defamatory, IIRC

Maybe that's because this is how that August 20 article starts

And back to Knight, again without any basis to allege actual malice

Again, linear time is gonna be an issue, Trev

OK, we've reached the causes of action but I need to pause here to do some client work, will pick this back up later

Crap, broke the thread. Continues here

https://twitter.com/AkivaMCohen/status/1509534958389452810

Alright, let's look at those causes of action. We start with defamation, against the Athletic

First thing to understand is that this claim is just flat toast, because of the "fair report" privilege.

The only thing the article did was accurately report what had been filed.

The law is crystal clear that news organizations get to do that. They don't have any obligation to investigate whether someone's allegations made to a court are true before reporting that those allegations were made

Separately, this is just completely nuts, I'm sorry.

If you report "Carl Lawson had signs of a torn ACL and had tests done", nobody reads that as "and the test confirmed". Check the tweets from when Jets fans were waiting on those results to see that in action

Frankly, I personally read "she had signs of a skull fracture and they did tests" without "that confirmed the fracture" as "but the tests were negative [or still pending]"; if the tests confirmed, you would say so

And OMG they went farther this time: they expressly plead that Knight was "reasonable" in thinking Bauer had fractured the woman's skull.

Again, they're suing her for saying that anyway, because Bauer is a thug and his lawyers are apparently deeply unethical

And as @pinkhippos10 and others have pointed out, what the hell's the difference? If the article had reported "Bauer beat her so badly doctors suspected he'd fractured her skull and had to run tests to exclude it" would that have been meaningfully better for him?

He loses this case on sooooo many grounds. Actual malice. Substantial truth. Fair report. Hell, defamation proof. This is crazy

Again, the one fact in the entire article he's complaining about is the lack of mention, originally, that her skull wasn't actually fractured.

"Yes, I killed him and raped his wife, but I NEVER took anything from that house, and saying so is defamatory"

I'm sorry, but I need to take a reader poll here. Is "did Bauer's conduct fracture her skull" something meaningfully worse than what was alleged in the petition (face and vagina punching, bloody lip, black eyes, anal rape, choking to unconsciousness, etc)?

And again, the article never claimed that the medical records showed a skull fracture. It was a 67 page filing; the article *by definition* can't replicate every detail of every allegation, and there's exactly no rule that says they had to mention that the tests were negative

Holy what?

Did ... did you just suggest that implying that Trevor Bauer broke someone's skull during rough sex "maligns him in his profession"??

I ... either Zuckerman Spaeder has been watching a VERY different version of baseball than the rest of us or they are out of their fucking minds

Next we have count 2 against Knight ***and the Athletic*** for Knight's three tweets about the thing that Bauer just got through pleading it was entirely reasonable for her to believe.

And "you had access to contrary information because your employer had it" is just nuts

Also, Paragraph 129 is another major unforced error. This never ever gets to discovery, but if it did, the amount of fun you could have questioning him on which details in the story he found "humiliating" and which he didn't is just ... we live for days like that.

And no joke, that's the entirety of the claims.

This is a garbage lawsuit, filed by a garbage human being, as a way to hurt someone he doesn't like. And his lawyers should be ashamed.

/end

Update

https://twitter.com/AkivaMCohen/status/1509871036199850016