#15: There was a lawsuit, and I won

Wherein I tell you exactly what went down with the lawsuit.

In 2022 I researched and wrote an article for AIN (Aviation International News) on Boutique Airlines, a Part 135 scheduled air carrier in the Lower 48. It was published in September 2022 and then, very rapidly, I moved onto writing an article I had been researching for months on Yute Commuter Service; it was published in November. I did not think about the Boutique article again until the following spring when my primary editor at AIN emailed me about submitting both articles for consideration to the Aerospace Media Awards. I ended up being a finalist in two categories and, at the Paris Air Show in June 2023, won the Best Business Aviation category for the article on Boutique. (I did not go to Paris, but it was still cool!) AIN gave me a bonus, more articles were coming out, and more were planned. Everything was good.

In September 2023 Boutique filed a lawsuit against me, AIN and a former Boutique employee named Mark Hendrix over the 2022 article, but I didn’t know about it then. (Neither did AIN - I have no knowledge of Mr. Hendrix’s awareness.) The first amended complaint was filed in late December and it was after that, in January of this year, that AIN was served. I was phoned on January 3 by AIN’s president letting me know we were being sued. The libel allegation is self-explanatory; the breach of contract and trade secrets allegations were due to Boutique’s claims that Mr. Hendrix provided me with the information to write the article. As I would assert many times over the following months, I never met Mr. Hendrix nor communicated with him in any way. The research was all my own and I could prove it. (I do not believe Mr. Hendrix has ever claimed to know me either.)

What you need to know about Anti-SLAPP laws

The primary defense strategy against the lawsuit was to prove it was an anti-SLAPP case. Here’s a short explainer from the Reporter’s Committee for Freedom of the Press:

Here’s what I thought would happen: AIN’s lawyers would represent both me and the publication, we would assert that the case fit the anti-SLAPP statute criteria in CA (where the case was filed) and further defend ourselves by also disproving the claims of defamation and theft by showing that all my research came from public records via government entities. I could show how records were obtained via Freedom of Information Act requests (FOIA) from the FAA and other records were found via online public sources (DOT, Bureau of Transportation Statistics, Dept of Treasury, etc.). In my initial conversations with AIN it seemed like this was going to happen. I spoke with AIN’s lawyer in NJ many times in January; I was personally served on the 31st.

Some disappointing things happened next. (That might be the theme of 2024 for me.)

In February I talked to the AIN lawyer multiple times and, upon his request, I drafted a multi-page narrative for his review responding to every allegation in the lawsuit and explaining (paragraph by paragraph) where all of the information in my article came from. I did this after assurances from the lawyer that I would soon be provided representation. I retained all my source documents, however while waiting for a legal services engagement letter. This month there was also brief communication with editorial staff concerning potential future articles but it was made clear that I could not discuss the lawsuit and thus the communication was awkward at best.

Day after day, the promised engagement letter did not arrive.

In late February and early March, I became quite concerned and started looking for my own lawyer in earnest. Every one I spoke to - every single one - told me that the publication should be representing me, that my case was tied to AIN’s and separate representation was going to be unnecessarily cumbersome. As a freelancer, I could not get any lawyer to take me on. They all said the case was potentially too big and costly; they all said they represented publications AND reporters.

Finally, on March 25 I was informed by AIN that due to my freelance status, their lawyer would not be representing me.

Four days later I was served with a Notice of Default for failing to respond to the lawsuit. The next few days…..well, the next few days were terrible.

This is a geyser explosion; it’s also what my life felt like at this moment.

Toot suite, y’all

I needed to find a lawyer toot suite. I talked/emailed with a few who could not represent me for whatever reason but all of them said I was at the equivalent of Def Con 1 and needed to respond asap to the Default Notice. (One of these lawyers worked for the firm that represents the Seattle Times, and another recently became a judge in AK so I feel it is fair to assume they knew what they were talking about.)

I reached out again to the Reporter’s Committee for Freedom of the Press (they earlier said they couldn’t help because it was potentially too big of a case) and this time they figured they could find someone to at least deal with the Default Notice. Over the next few days a great guy at RCFP reached out to a lot of lawyers and they all had issues (conflicts, caseloads, whatever). How many lawyers had turned me down by this point? Two dozen? Three dozen? The rejection was brutal.

I might have had a total meltdown the week of April 1st. (I’m reading my Field Notes planner right now and yes, it says “Total Meltdown” for April 4th.) On April 5th I was referred via one of the RCFP lawyers who couldn’t help to three more lawyers who maybe could (and he kindly said I could use his name in my emails). The first one I emailed was Jim Wagstaffe at AMMCG. He responded right back and told me to call him immediately and I did and three days later, after verifying no conflicts, I signed with Jim. He then dealt with the Default Notice and we were off to the races.

Over the next few months there was motion filing and declaration writing and exhibit compiling and allegation refuting and waiting and waiting and in the end I put together about 400 pages of exhibit documents backing up my research and spent…I don’t even know how many hours on this case. I knew the aviation terminology and my research sources and could draft references on that while Jim knew the anti-SLAPP case law like a superhero. (SERIOUSLY.) I learned to keep things simple, stay focussed and even write like a lawyer. And last Friday, we won. It sounds so easy like that, doesn’t it? It was not easy though, not for one minute.

I will never ever be able to thank Jim enough for his work, his knowledge, and his immense kindness.

The judge’s decision

First, we proved the case met the anti-SLAPP standard. Here’s a bit on that from the judge:

(The reference to FilmOn refers to a case that Jim brought forward as precedent.)

Then, the judge ruled on the merits of Boutique’s case. Here’s a bit of that :

This part on “true facts” is where all that documentation of source material from FAA FOIA requests and government websites was key:

Note to all journalists: KEEP YOUR FOIA RESPONSE DOCUMENTS!

To conclude there is this:

For the case, what comes next is a filing to be reimbursed for all fees as permitted under an anti-SLAPP judgement. I will have to pay for Jim’s work to get that money back so the lawsuit is still costing me. (Getting sued, as you all probably know, is not cheap.) (That is a vast understatement.) Boutique could appeal and if that happens, well, I’ll let you know. For now though, there is a moment to breathe and think and consider what, to me, both personally and professionally, this lawsuit has done.

What Do I Do Now?

I don’t know. I know I have a book proposal on the Cosmic Ray Expedition. I know that I haven’t been able to get an agent with that proposal so just writing a substantial amount of the book and trying again later seems to be the way to go.

This book has seriously languished in all this (and for too long before) and I need to have it done.

I am also drafting a proposal on the ways the bush pilot myth negatively influenced how the FAA and NTSB operated in Alaska. It resulted in agency blind spots and misconceptions which, I believe, have contributed to the state’s devastating Part 135 safety record. (“Catastrophic Errors” is a working title.) (I’m not just talking about FAA and NTSB personnel working in AK but FAA and NTSB overall.) This shouldn’t surprise people who have followed my work on Alaska aviation; I’ve been writing around this topic for a long time.

But writing investigative articles submitted for publication? I don’t know. It just…things did not happen with this situation as I thought they would. I was, I realize now, grossly naive. I blame All the President’s Men for giving me a skewed vision of the journalism profession. I thought it was filled with heroes and I learned, well, I learned a lot.

I have been working on my databases in the past few weeks and will be posting here some rather startling things about Part 135 both in AK and the entire US. It’s info I have never seen discussed anyplace else and I look forward to sharing it. Beyond that, I have to think. I don’t know if the aviation industry wants investigative journalism about smaller, less well known companies, and I don’t know if there is space in general media for talking about the aviation industry in the research-intensive manner I prefer. (Boeing, Part 121 and money/plans/promises within the unmanned aerial vehicle industry seem to eat up all the attention there.)

But hey - I held on, and I won. And that’s not nothing. For the moment, it’s got to be enough.

Also - everyone who told me not to give up until I found a lawyer was right. Going forward expect me to be joining that chorus.