Why was Wednesday's pre-anti-SLAPP hearing so important???

Earlier this week, BD's lawyer scored a major victory in the ongoing saga (more like an Italian opera without the fat lady) of Kingston vs Adelman now playing out in the Dallas County Courthouse. To quote from the Dallas Observer piece

Through his attorney, Justin Nichols of San Antonio, Adelman has asked that the suit be dismissed under Texas' anti-SLAPP laws, which prohibit lawsuits meant only to stifle criticism. That motion wasn't considered today; however, the judge did consider whether letters sent by both sides during an attempted settlement negotiation could be used to prove Adelman's assertion that the lawsuit is an attempt to shut him up. The judge eventually granted that motion.

In most cases, settlement discussions are kept confidential in order to allow for a free exchange of ideas and open negotiations. In this instance, we argued (successfully) that the demands made were so above and beyond what could be awarded by a judge or jury in a trial, they showed an extreme bias and prejudice. And since the presentation of the settlement offer only showed intent and not liability, the offer could be used in the anti-SLAPP hearing.

The Texas Anti-SLAPP (Strategic Litigation Against Public Participation) law is less than two years old, so this decision is groundbreaking. BD's been talking to anti-SLAPP folks all over Texas, who have unanimously recognized this as a major tool for future anti-SLAPP actions.

If you consider reading legal documents a form of cruel and unusual punishment, then you are like many of BD's readers who have asked him what was so important about the settlement agreement that it even needed to be admitted as evidence in the anti-SLAPP hearing (set for mid-January 2013). To that end, we are posting the entire settlement offer as a text file here (it's already included in the legal documents filed with the County as a PDF and posted here).

The anti-SLAPP law is very clear.

Sec. 27.002. PURPOSE. The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.

BD has highlighted those sections he believes were meant to stifle BD's constitutional rights to petition, speak freely, associate freely and otherwise participate in government - not only in the upcoming City Council election, but also issues in and around Lowest Greenville. There's no information available to show if any of the neighborhood associations listed agreed to be included in the demands. That's a discussion you need to hold with your neighborhood association leadership.

The key paragraphs are highlighted by BD, not in the original document. Pay special attention to Paragraphs 1-I, 1-J, 1-K, 1-M and 1-N.


Sent @ Tuesday, September 18, 2012 / 2:48pm

Justin,

While we appreciate Mr. Adelman's offer outlined below, as we discussed briefly yesterday, I cannot accept it in full resolution of this dispute. I would, however, be willing to enter into a settlement along the following lines:

1. Mr. Adelman, on behalf of himself and all entities he owns or controls, agrees to enter into a permanent injunction whereby he agrees:

a. to turn over the administration and registration of the domain melissakingston.com to me as quickly as possible at his expense;

b. to redirect Melissakingston.com to yahoo.com with a search for me in the meantime;

c. to turn over the administration and registration of the domain philipkingston.net and philipkingston.org to Philip Kingston as quickly as possible at his expense;

d. to redirect philipkingston.net and philipkingston.org to yahoo.com with a search for Philip Kingston in the meantime;

e. not to ever register or use in any fashion my name or any iteration thereof as part of a domain name, email address, or other similar communication tool;

f. not to ever send communications as though they are coming from me or endorsed by me or seek to cause confusion regarding whether I have made or endorsed any statements by him;

g. not to ever register or use in any fashion the name of any member of my family, including Philip Kingston and his law firm, or any iteration thereof, as part of a domain name, email address, or other similar communication tool;

h. not to ever send communications as though they are coming from any member of my family, including Philip Kingston, or endorsed by any member of my family or seek to cause confusion regarding whether any member of my family has made or endorsed any statements by him;

i. not to ever register or use in any fashion the name of any officer or director of any neighborhood association in Lower Greenville, including, without limitation, Belmont Addition Conservation District, Lower Greenville NA, Vickery Place NA, Lower Greenville West NA, Belmont NA, and Greenland Hills NA, or any iteration thereof, as part of a domain name, email address, or other similar communication tool without the express written consent of the person whose name he uses;

j. not to ever send communications as though they are coming from any officer or director of any neighborhood association in Lower Greenville, including, without limitation Belmont Addition Conservation District, Lower Greenville NA, Vickery Place NA, Lower Greenville West NA, Belmont NA, and Greenland Hills NA, or endorsed by such persons or seek to cause confusion regarding whether such persons have made or endorsed any statements by such him;

k. not to ever register or use in any fashion the name of my law firm or any member of my law firm, or any iteration thereof, as part of a domain name, email address, or other similar communication tool without the express written consent of the person whose name he uses;

l. not to ever send communications as though they are coming from my law firm or any member of my law firm or endorsed by such persons or seek to cause confusion regarding whether such persons have made or endorsed any statements by such persons;

m. not to publish in writing or on the internet disparaging statements about me, my law firm, members of my law firm, and/or my family, including without limitation my husband, Philip Kingston;

n. not to ever register or use in any fashion the name of any neighborhood association in Lower Greenville, including, without limitation, Belmont Addition Conservation District, Lower Greenville NA, Vickery Place NA, Lower Greenville West NA, Belmont NA, and Greenland Hills NA, or any iteration thereof, as part of a domain name, email address, or other similar communication tool without the express written consent of the then president of such organization;

2. Mr. Adelman shall respond to the following requests for information:

a. Identify all emails, correspondence, tweets, texts and other written communications by Mr. Adelman using the name Melissa Kingston or variations thereof in the last year and provide copies of same

b. Identify all internet domain names registered to Mr. Adelman or to any entity Mr. Adelman owns or controls;

c. Identify all internet domain names that Mr. Adelman has sold to any other person. Include in your response the domain name, to whom Mr. Adelman sold it, and the amount paid.

d. Identify all internet domain names that Mr. Adelman has offered for sale or held out as being for sale. Include in your response the domain name, to whom Mr. Adelman offered to sell it, and the asking price.

e. Identify all Twitter accounts, Facebook accounts, and other social media accounts owned or controlled by Mr. Adelman. For any domain names or accounts Mr. Adelman has established in violation of the foregoing, he will agree to make full disclosure of same and transfer control over same to the appropriate party.

3. Mr. Adelman shall pay in cash or enter an agreed judgment wherein he pays all of my court costs and attorneys' fees in this case. For purposes of settlement, I will agree to accept a reduced amount of $10,000. I will agree to dismiss my claims with prejudice, save and except the items in the injunction and judgment for fees.

4. Mr. Adelman will execute a full release for me, Philip Kingston, his law firm, my law firm, and the lawyers in my law firm.

1. Mr. Adelman will turn over the administration and registration of the domain belmontna.org to one or more officers of Belmont Neighborhood Association as quickly as possible at his expense.

If these terms are acceptable in concept to Mr. Adelman, I'll draft documents for you to review. Unless and until we have fully executed documents, these emails are for discussion purposes only, shall not be disclosed as they are confidential settlement communications, and are not binding.

Thank you.

Melissa R. Kingston | Esq.

By Avi S. Adelman under Public safety , Legal issues