Steve Wynn is a plaintiff in a new defamation suit — this time in Boston.
The Boston Globe reports:
In a lawsuit filed Monday in Suffolk Superior Court, Wynn Resorts Ltd. says unknown defendants defamed the company by providing subpoenas to the media related to a City of Boston lawsuit against the Massachusetts Gaming Commission.
The suit alleges the city’s subpoenas were intended not to collect information but to spread falsehoods contained within the documents to hurt Wynn, the company that holds a state license to build a $1.7 billion casino resort on vacant industrial land in Everett.(source)
Of course, there’s this thing called the “litigation privilege.” I’ll update this once I get a copy of the complaint, but in most states, in most situations, unless you thread a very narrow gap, the litigation privilege is an absolute bar to defamation claims. Essentially, you can say what you want in a court document – no defamation liability can attach. See Sriberg v. Raymond, 370 Mass. 105, 108, 345 N.E.2d 882 (1976) (“We have hitherto held that statements by a party, counsel or witness in the institution of, or during the course of, a judicial proceeding are absolutely privileged provided such statements relate to that proceeding.’”)
Wynn’s statement said this about the case:
“Someone knowingly disseminated sham subpoenas containing falsehoods–outright lies–designed to interfere with our license granted by the Gaming Commission and defame our reputation. We intend to identify the malicious individuals who did this and call them to account.”
Here’s the part that is unclear: I don’t know what they mean by “sham” subpoenas. If Wynn means that someone disseminated fake subpoenas with defamatory information on them, well, he just might have a case. You can’t just write “subpoena” on a defamatory publication and thus make it one, or give it the litigation privilege. On the other hand, if these were real subpoenas, for a real case, they would then have an address where the responses are supposed to be delivered — thus making the “someone” question pretty easy to resolve.
So which is it? The complaint is not available online, and the statements and press on the story don’t make it clear.
Of course, since we don’t know what is in these subpoenas (or “sham subpoenas” as it were), we can’t evaluate whether they are defamatory or not. But, the last time Wynn went after someone for defamation, it didn’t go very well for him. See Wynn v. Chanos.
On the other hand, he had a better luck against Joe Francis. See Wynn v. Francis.
If the subpoenas really are “shams” and contain defamatory information, Wynn ought to win.
On the other hand, if they’re subject to the litigation privilege or otherwise not defamatory, Wynn might lose, but the “winner” will likely be out six to seven figures in defense costs.
Since Massachusetts lacks a real Anti-SLAPP law (shame the fuck on you, Massachusetts), Wynn’s downside here is nothing, really.