Shirley Sherrod’s Malicious Pro-Bono Suit Against Andrew Breitbart’s Widow (Updated and Clarified)

Update: I see that Mr. Adams wrote a post discussing my discoveries, and let me clarify a bit on what I said below.  It isn’t strictly accurate to say they are only going after Brietbart’s estate but that is in essence what they are promising.  Let me quote the email I received on “background” exactly:

The motion does not seek to hold Mrs. Breitbart liable, in any way, in her individual capacity.  She is being joined as a substitute for Mr. Breitbart because no estate has been formed.

That is, in my opinion, a very thin distinction.  The fact is that a stream of income to this family has literally died.  Going after their inheritance seems malicious to me.  If Shirley Sherrod really was defamed (a debatable point), and really suffered financial damages and wanted to be made whole, why not sue Breitbart’s companies, instead?

Also Adams raises the question: why does she need a free lawyer when her and her husband’s “New Communities”got $13 million in Pigford money?  I’ll say it again.  I used to work for a firm like Kirkland and Ellis, and it is extremely unusual for her to get pro bono representation.  Ordinarily in a simple tort claim like this, lawyers leave it to a contingency fee, figuring that if it didn’t make sense as a contingency fee (either because it didn’t have a strong chance of winning or because it had little promise of a payout), maybe it shouldn’t be a lawsuit.  By taking it on pro bono, Kirkland is lowering the bar on what claim would actually come to court.  I frankly doubt that any lawyer taking it on contingency would do so.

Update (II): McCainalanche!  Thanks Stacy!  And now an Aceolanche and a Twitchalanche.  Thank you very much.

We now resume the original post, as is.

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That word, “malicious,” is just my opinion on the subject based on the evidence, but let me lay out the case for you, dear reader and you can decide for yourself.

On Tuesday, via the excellent J. Christian Adams, we learned that Shirley Sherrod had filed with the court to substitute the widow Breitbart for Andrew Breitbart in her long-running defamation suit against Breitbart, Larry O’Connor and an unknown John Doe.

Just to review, a long time ago Andrew Breitbart personally wrote a post called Video Proof: The NAACP Awards Racism—2010.  In it, he showed how Shirley Sherrod, the USDA Georgia Director of Rural Development, talked about racistly denying help to a white farmer and then later deciding in a milquetoasty fashion that she was wrong and so on.  By the way, that arc is in the video.  You only had to watch it to see.

But it made Sherrod look so bad that she lost her job even though Breitbart himself always said the target was the NAACP and its reaction to her, not Sherrod herself.  And so she sued Andrew Breitbart, Larry O’Connor (who also works there) and whoever created the video.  Breitbart himself has said that he had never seen the unedited video (indeed the unedited video has never been released contrary to popular claims).

You can look at the complaint here.  I read over it, and there are some curious things that leapt out at me.  The first is this: they didn’t sue Breitbart’s corporate entitity.  I called up Lee Stranahan who had been working for Breitbart all of this time, and he verified that yes indeed Breitbart had a corporate identity.  That corporate identity is more than likely the same one that Dana Loesch sued late last year, “Breitbart.com LLC.”  I mean, what Dana did was typical for plaintiffs when they have a grievance: you sue the corporation.

How strange is it that Sherrod didn’t sue the corporation?  So much that it endangers her entire case.  Typically an employee is not liable for the actions taken in the course of employment.  So if Andrew Breitbart was officially an employee of Breitbart.com LLC (and he almost certainly was), and he was acting in the scope of that employment (which he almost certainly was), then he can’t be held responsible.  The case would be dismissed on summary judgment, with it remaining, at most, against the person who made the video.

And even if it didn’t endanger the case, it would endanger the payout.  Breitbart.com LLC more than likely has deeper pockets than Mr. Breitbart ever did.  Really, most lawyers go out of their way to find a way to sue the underlying corporation in every auto accident, etc.  And now with Breitbart himself dead they are facing the ugly prospect of suing a widow in his stead.

I indeed wrote to the named counsels in the matter, all of whom work for the law firm Kirkland and Ellis, and got back, on background, a form comment that they are not suing her, but just the estate (see the Update for clarification).  But that estate is what she and Andrew’s four children are going to live off of (plus whatever she can contribute).  You can’t pretend they aren’t endangering those children’s future.

All of that, to me, speaks of malice.  I mean surely the Kirkland and Ellis lawyers recommended to Sherrod that she sue the company as well.  That is just standard legal advice.  They would be incompetent if they didn’t and Kirkland is not incompetent.  So it seems to me that she more than likely made the decision to focus on Breitbart himself, that she ordered them not to sue the company and only these individuals.

And surely they told her it would look bad to now substitute Breitbart’s widow.  It’s legally sound but most people in her position would let the suit die when the defendant dies, just out of human decency.  Or maybe she could just seek a declaratory judgment.  But to seek damages against an estate that is supporting four children?  That seems kind of vindictive and I strongly suspect it is Sherrod’s vindictiveness at the bottom of it all.

I also wrote to them because Mr. Adams was asking another good question: Is Kirkland and Ellis Pursuing Breitbart’s Widow Pro Bono?  For the people who are not law nerds, “pro bono” means more or less for free, for a good cause.  And I definitely got that vibe when I started looking into who was signing these documents—each of the named attorneys were partners in the firm.  Simply put, ordinary clients do not get that kind of treatment—this was seen to Kirkland as a “prestige case.”

So in the response to my letter, still on background, a person speaking for the firm stated that, yes, this was a pro-bono case.

Which I have to tell you, is really odd.  Ordinarily pro bono cases are about poor people, or otherwise people who have trouble standing up for themselves, or rarely people who shouldn’t have to hire lawyers—like people seeking to end discrimination.  For instance, if you go to their page describing recent pro bono work, you see the kind of stuff you normally see in a pro bono situation.  You see them working with the ACLU to address alleged patient abuse at a hospital.  You see them providing free help to a non-profit loan company.  You see them working to help prisoners who believe that new DNA testing will exonerate them.  You see them helping special education students.  That’s the sort of thing you typically see.

One reason why this is odd is that most firms use some kind of means test before they help in most cases.  This is not a strict rule, necessarily, but as a rule of thumb if Donald Trump wants free legal help most lawyers are not going to offer it.  Or perhaps if someone’s freedom of speech is being trampled on, they will take it, even if that person can afford it.

But a defamation case of at best marginal value, for a woman who probably could afford an attorney?  That is just weird.

No, more than likely, the case was not taken because they felt she was a particularly deserving plaintiff.  More than likely, it was taken because it would impress their paying clients.  This is another way that pro bono is often used: as a method of sucking up to the paying clients.  So say you have a CEO of a company who survived breast cancer.  So when you learn of this you take on the Susan Komen foundation as a client and casually let the person learn of this and this improves your image in that person’s mind.

So in my opinion, this is probably the case of taking on a pro bono case in order to suck up to a paying client.  One can only speculate as to whom they are trying to impress...

...but I did learn that one of Soros’ companies was represented by them.  You will have to pay to read this entire article, but here is the relevant passage:

"We almost converted the debt into an acquisition finance structure," says Erik Dahl, a partner at Kirkland & Ellis, legal advisers to Soros Capital Partners.

That could be a coincidence.  Or perhaps not.

Oh and as for why Sherrod is really mad at Breitbart, you might remember that Andrew (and Lee Stranahan) worked hard to bring the Pigford scandal to light and she had a cozy relationship in that one, too.  (Warning: my language was much coarser back then.)  This case might ultimately have nothing to do with the blog post officially at issue in the case.

And incidentally, take a look at McCain’s take on all of this.  He is more moralistic than legalistic.

P.S.: And thanks to Matthew Vadum for helping me with the Soros connection.

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Also as a programming note, I am busy but mostly back.  I apologize for the long absence.  As I tell friends, I was first waylayed by the happy interruption of the birth of a nephew (it was not a finger!) and then I was waylayed by the less happy interruption of catching the flu from his older brother as we helped take care of him while his brother was arriving.  I will warn you that sometimes preparing for the legal battles with Brett Kimberlin will make it difficult to find time to blog, but I will do my best.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.