I am not a lawyer, nor do I play one on the Internet, and I don’t particularly care for lawyers either. But after reading and listening to the statements coming out of the Barry Bonds camp with regards to the details surrounding the Game of Shadows lawsuit, one thing is clear: the lawsuit has nothing to do with trying to prove that the drug allegations contained in Game of Shadows are false.
Bonds’ legal team filed a suit that claimed all parties associated with the book Game of Shadows should be held liable for publishing “illegally obtained grand jury transcripts.” So they are liable — not for libel — but for printing testimony from the grand jury?
When news of the suit was announced on Thursday, March 23, the statement from the Bonds camp said that Bonds “will seek andex parte application for a temporary restraining order…to obtain, in summary, disgorgement related to any profits related to or derived from the publication and distribution of the book.” In English this means that they don’t want to stop the book from being sold to the public, they just want to get all of the money that came from the book sales.
The lawsuit was filed under California’s Unfair Competition Law (CUCL).
Here’s a few interesting facts. An “ex parte application” means “from one side only with the other side absent or unrepresented.” Is it a surprise that the Bonds camp wouldn’t want to have to defend themselves against those who they are trying to silence?
CUCL is California’s most used consumer protection statute and it gets more popular each year, as it is used not only in issues of consumer protection, but in a wide range of other types of litigation. This law has been the subject of much controversy because lawyers have misused this law to extort fees from small businesses.
The following passage is from a review of CUCL done by the law firm of Stroock, Stroock & Lavan LLP.
“The reach of (CUCL) is broad and imposing…Unlike other unfair and deceptive practice statutes, intent is irrelevant since a plaintiff is not required to show that the defendant actually intended to injure anyone.” (emphasis added)
This whole approach stinks, but don’t just take my word for it.
Bruce Simon, Chairman of California’s State Bar Commission’s Committee on Unfair Competition and Anti-Trust Law said in an item that appeared on ESPN.com, “It’s a very ill-conceived lawsuit. I think the judge sees that.” The judge sees that, the bailiff sees that, my bookie sees that, for crying out loud.
But the gall of lawyers can never be overestimated, as evidenced by the letter sent from Bonds’ lawyers to a U.S. District Judge that said Game of Shadows authors Mark Fainaru-Wada and Lance Williams should have been held in contempt of court.
Try to read this without laughing out loud.
“The true victim is not Barry Bonds, but the sanctity and integrity of the grand jury process,” Bonds’ lawyers wrote to the judge, apparently unaware of their creation of inadvertent comedy.
So now that Judge James Warren has said this suit has little chance of success since free speech protections shelter the authors and other parties from the accusations of Bonds and Company, what can we expect?
My bet is that we’ll see a lot of bluster and nonsense. The Bonds legal team will attempt to impugn the reputations of all the authors, their motives, their sources and everything else, but will not file another suit.
By challenging the use of the grand jury transcripts and not what was said in them, Bonds’ lawyers seem to confirm what most of us already know.
These lawyers must also realize that they have no shot at filing a successful libel lawsuit, or any kind of lawsuit, since Bonds will have to sit for a deposition. A deposition means that he’ll have to go under oath and answer all kinds of questions. Questions about his reported drug use, his income from sports memorabilia, his mistresses, etc. Every aspect of his life is fair game. That will never happen.
So the only thing that Bonds and the Balco Boys can do is follow Capo Conte’s edict and deny, deny, deny. And all the while, the walls will be closing in on them.