Kutner-ing Corners

Adam Kutner1 is (apparently) a familiar face around Las Vegas.  He's of the genus of lawyers with television advertisements, intoning soberly: "have you been injured in an accident?", as music likely reused from an episode of Unsolved Mysteries fills the background:

Kutner can empathize, because he's also been injured — online.  And his new lawsuit is a good example of why Nevada's pretty-damn-good anti-SLAPP statute is important.

This tale begins eight years ago, when two women — both represented by the same attorney — sued Kutner and his firm in separate, employment-related cases.  The complaints (here, and here) both made similar allegations: that Kutner had assaulted the employees with golf clubs.2  One case eventually settled on undisclosed terms, but not without some turbulence, and the docket on the other suggests that the parties settled.

A now-defunct Las Vegas media outlet, the Las Vegas City Life, covered the allegations.3  Wild Wild Law, a gossipy blog focusing on the wild-and-crazy Nevada legal scene — and hosted on Google's blogspot, so it bears a big stamp of credibility — surveyed the allegations from Las Vegas City Life and asked its readers: "Adam Kutner: Biggest Douchebag in Vegas?"  The readership, taking a short vacation from their YouTube commentariat residency, chimed in with a sprawling tornado of comments.

That made Kutner mad.  So mad that, approximately five years later, he sued Google and the anonymous blogger(s) behind Wild Wild Law.4  The amended complaint mentioned the word "defamatory" quite a few times, but instead asserted claims for false light and, uh, invasion of his constitutional right to privacy, because these false statements were about his "past life."

Because Kutner couldn't figure out who the masked villain behind Wild Wild Law was, he asked the court to allow service by publication, which the court permitted.  This means that the anonymous critics could be deemed to have been made aware of the lawsuit, and obliged to respond to it — and subsequently lose the case if they didn't respond — because Kutner published notices like this one.  Of course, a vague description that a lawsuit had been filed against unnamed persons who had posted on a blog called "Leagle Eagle" is unlikely to notify any of the actual commenters, and perhaps not even the blog operator, that their assets are at risk.

Nevertheless, the anonymous operator of Wild Wild Law showed up and challenged Kutner's lawsuit, filing both a motion to dismiss and an anti-SLAPP motion.  The court recently granted the motion to dismiss, as Kutner's complaint admitted that the challenged words had been published over four years earlier, well outside any applicable statute of limitations.  Because there was a basis to dismiss the case because the allegations simply weren't cognizable, the court declined to beat Kutner over the head with the anti-SLAPP motion.5

Undeterred, Kutner has filed another lawsuit against the site's anonymous operator(s), Google, and the actual commenters.  The complaint is here.

The allegations in this lawsuit are that Google and the blogger are responsible for new comments posted on the blog post.  That's woah-Nelly frivolous: Google and the blogger are both clearly protected by CDA §230.  Companies and people who host or publish a blog cannot generally be held liable for what their commenters say.  This feels less like an attempt to redress a grievance and more like an attempt to harass Google and the blogger into removing the post.6    I doubt that will happen.  This time, I suspect, the blogger's attorneys won't simultaneously file an anti-SLAPP motion and a motion to dismiss, and Kutner will be more likely to face the wrath of Nevada's anti-SLAPP statute, and thereby have to pay attorney's fees and a $10,000 penalty.

There's a closer call as to whether some of the comments themselves are defamatory.

The first comment Kutner targets is that he's "the biggest douche bag ever;" that his practice is a "joke" and that someone employed there — not Kutner — is a "pill popping psycho."  If those are the words from that comment that he's concerned about, they're (1) not defamatory because they're not statements of fact — how, exactly, do you measure whether someone is the biggest douchebag ever?; and (2) there are potentially actionable statements in that comment that are ignored.  That's curious.

The second comment is that Kutner is a loser.  While it's clearly an opinion, a creative defense attorney might find just one case that Kutner has lost and argue that it's true.

The third comment is, per the complaint, that Kutner is a "liar and a cheat."  But the comment itself says that unnamed people in his office are "liers and cheats."  Even if that were a statement about Kutner, it's likely hyperbole.

The fourth comment is that Kutner is the "BIGGEST MOST EXTREME D-BAG," that he uses profanity to refer to employees, and that he and his staff are "careless."  If you're like me, you subconsciously heard a face-melting guitar solo as you read the words "MOST EXTREME D-BAG."  Now you're hearing it.  Yeah.  Hell yeah.

The rest of the comments go on like this.  One commenter stated that he was disappointed in how much money Kutner got for him and that Kutner "other than pass the buck, he didn't do **it!!"  Another that he's a "clown" who does nothing except "sit in his chair and Never sees his clients never!"  Yet another scolds that an employee — again, not Kutner — is "addicted to pills," that Kutner's office is messy, and that he "cheat[s] clients out of their money."  Another that he's a "lowsy" attorney.

While some of these may draw up to the line, few would interpret them as anything more than frothing, hyperbolic statements or opinion.  What objectively verifiable (or disprovable) fact can be drawn from these?  None.7

In any event, even if there are false statements of fact, Kutner — who boasts in the complaint that he's one of the most successful attorneys in southern Nevada — will have to demonstrate that the statements were made with actual malice.

Kutner's complaint is a prime example of why Nevada's pretty-damn-good anti-SLAPP statute8 — is worth keeping around.  Kutner's real goal, it seems to me, is not to redress an actual injury, but to harass a blogger (who has long since given up blogging) into removing a post that accurately describes allegations in lawsuits filed against Kutner.  The path he's chosen is frivolous and abusive, and he should have to pay for it.  After all, the motion to dismiss in the first case didn't deter him from filing a second one.

(h/t John Mehaffey and PogoWasRight for the tips on this.)

  1. No relation.  
  2. I'm not sure whether this commonality corroborates or undermines the credibility of the accusations.  Obviously, I'm not a golfer.  
  3. Apparently, anyway.  I have been unable to locate a copy of the original article.  
  4. This wasn't Kutner's first libel-slander tango.  According to the Las Vegas Review-Journal, he once asked a judge to (among other things) order a former employee to remove a bumper sticker from her car reading "ADAM KUTNER SUCKS."  
  5. It's unclear to me — and I'm not willing to pay $12 per document to download the rest of the case — whether this action is proceeding against the anonymous commenters, or whether Google was even served.  There is an order deeming service-by-publication effective, but I'm not sure whether a default judgment has been entered against the Doe defendants.  If so, that's outrageous: Kutner could probably have sought their identities by way of subpoena (which he'd still have to do anyway in order to effectuate a judgment against them), but that would inconveniently give them actual notice of the lawsuit and a chance to defend themselves. It's also unclear whether Kutner is facing an award of attorney's fees.  
  6. And, once again, although the complaint suggests that he might use subpoenas, Kutner is seeking to serve the commenters not by learning their identities through a subpoena, but by publishing notices to the world at large.  This is, in my view, underhanded and contemptible.  
  7. Well, almost none.  There are probably some statements in the comments that might be actionable for reasons I won't go into here because I don't want to give Kutner any tips that might help him amend the complaint.  
  8. Coincidentally, Kutner's 'blog' (which is on Google's blogspot, so you know it's credib– hey this sounds familiar) notes that Nevada's anti-SLAPP statute protects against the use of defamation lawsuits to silence critics.  

Last 5 posts by Adam Steinbaugh


  1. Ryan says

    "Adam Steinbaugh: KING BEE of the Swarm of Asshole Lawbloggers?"
    You WON'T BELIEVE what Ken White has to say about it!

  2. David C says

    Plaintiff has a constitutional right to privacy that includes, or should include…

    If he thinks the Constitution "should" protect something, perhaps he should lobby for an amendment.

  3. Maebee says

    I feel a bit spoiled with all the recent posts. So much excellent snark! And this time it's a lawyer behaving badly and getting called out on it. Yessssss.

    I really do appreciate all the effort that goes into making Popehat such high quality posts and explanations easy enough that those who have no background in law can follow along. Almost lost a week in the post archives, they were so addictive. So, thank you!

  4. Scote says

    Wow, Kutner is such a pony.

    (I sure hope the anti-SLAPP law in my state is strong. I mean, after reading the posts here can anyone really say that there is anything more vile, loathsome and as inimical to mankind as ponies?)

  5. says

    Just a rhetorical question…would it be defamatory, or hyperbole, to say that the last four digits in Kutner's phone number pretty much sums him up?

  6. NickM says

    Kutner's strategy to prove the posts false: show that his lawyer is a bigger D-bag than he is.

  7. Dave B says

    How can a public notice concerning anonymous defendants even work?

    Are there people religously going over public notice boards every day and try to find out if one is bound to respond.

    Say someone is visiting Vegas and while walking along says something opinionated about someone local who is sitting in the bushes listening to sidewalk traffic chatter. He feels defamed and has no real inclination who it was and now tries to sue for money. The visitor is long gone home and wouldn't even think of a public notice.
    As he couldn't respond to the notice, some judge decides "no defendant here, so he must be guilty guilty guilty" and should pay a cool million dollar in damages.

    Years later the visitor returns to Vegas and the local lawyer now somehow recognizes him by chance and alerts the authorities and can collect his damages???

  8. Dave Ruddell says

    Come on, we all know that John Edward is the biggest douche in the universe. I saw it on TV!

  9. says

    A former insurance defense attorney ought to know better than to walk on the road at the scene of an accident, blocking first responders as Kutner is doing. Shameful.

  10. ZarroTsu says

    I wish consecutive lawsuits had subtitles.

    On an aside, if Kutner were a wiser man, he'd author a secret subpage or blog on his website (I assume everyone has a website) entitled "MOST EXTREME D-BAG" that plays said face-melting guitar solo upon opening.

  11. Adam Steinbaugh says

    @Dave B: To protect myself against this possibility, I spend 13 hours a day reading public notices in Penny Saver magazines from places I've visited. The rest of my day is spent on the Craigslist "missed connections" forum for the same places.

    This situation is probably even worse than your hypothetical: if he wanted to enforce a default judgment against one of these anonymous commenters, he could just subpoena Google for their IP, and then subpoena the resulting ISP for the name of the account holder, then go from there. If he doesn't substantively go after the commenters, then I think that indicates that he's not serious about recovering monetary damages, and more interested in SEO-by-litigation.

  12. Scott Jacobs says

    and more interested in SEO-by-litigation.

    Well, there's no way THAT could backfire…

  13. says

    Well, there's no way THAT could backfire…

    Perhaps he's taking PR tips from a (in)famous singer actress lady of some renown.

  14. OrderoftheQuaff says

    "and hosted on Google's blogspot, so it bears a big stamp of credibility…"

    Excuse me?

    I have been assured by several people that I'M the biggest douche bag around.

  15. Dave B says

    @Adam: Guess i have to change my daily routine now.
    If someone goes the subpoena route, at least you have a chance to fight this even if it would financially ruin most people.
    Getting a default judgement by public noticing anonymous defendants is almost like planning a hyperspace express route through the solar system and having all documents on Alpha Centauri in a unmarked sealed underwater vault inside a volcano.

    If one plans on long term trolling and can get his judge to public notice all filings, a thrifty lawyer could make lots of money. Just guess who will have money in 5 years and suddenly recognize them while the judgement is still valid.

    I'll be better be reading up on all those Penny Savers now.

  16. Scott Jacobs says

    Perhaps he's taking PR tips from a (in)famous singer actress lady of some renown.

    We finally found who Rakofsky's mentor was…

  17. says

    A few weeks back, there was a story of a rushed vote in the Nevada legislature to gut the anti-SLAPP law,and that only the Governor could save it (if he chose). What finally happened?

  18. Adam Steinbaugh says

    As far as I know, there were some compromises on the bill, but nothing too insane was passed.

  19. Bill Boddin says

    I should sue the guy who called attorney Adam Kutner "the biggest douchebag ever." That is clearly an infringement on my common law trademark. It is incontrovertible that there can be only one "biggest douchebag ever," unless of course in the very rare event that there was a tie for first.

  20. Dean says

    How is what this Vegas attorney done any different than Adam Steinbaugh's good friend James McGibney and his attorney Jay Leiderman were attempting to do in their Texas and federal court LOLsuits?

    And why is Pope Hat allowing Steinbaugh to post articles here? Does Ken not know of Steinbaugh's connection to McGibney & Leiderman? This could be very dangerous for White and the Pope Hat group.