June 18, 2007

An Update on the Chops v. LaBan Lawsuit

There have been two significant developments in the Chops v. LaBan lawsuit. The first is that The Philadelphia Inquirer and Craig LaBan have filed an answer, which strikes a serious blow at Plotkin’s claims. The second is that Plotkin’s attorneys took LaBan’s deposition…and videotaped it.

The Answer

The assertions in the Inquirer and LaBan’s answer—one of which Plotkin now admits is true—do not bode well for Plotkin.

LaBan denies that he was served a “steak sandwich without the bread,” as Plotkin alleged in the complaint. Rather, LaBan asserts that he was served “Steak Frites.” And LaBan has the receipt to prove it. LaBan further alleges that “[t]he waiter serving LaBan and his lunch companion described the steak served as ‘Steak Frites’ as a ‘strip steak.’” Presumably, LaBan dines with others so he can taste multiple dishes in one sitting. But the ancillary benefit of having done so here is that LaBan now has a corroborating witness, illustrating that this practice is something other food writers leery of libel suits would be wise to employ. Moreover, LaBan states that “the steak Chops served as ‘Steak Frites’ was sliced from the same piece of meat purchased by the restaurant for the strip steak it serves at dinner as strip steak.” It is not clear from the answer how LaBan knows this; however, it is important to note that this assertion does not start off with the phrase “Upon information and belief…”—a somewhat tepid predicate often used to hedge your bets when you’re not 100%.

Surprisingly, Plotkin has recanted his “steak sandwich without the bread” story and now admits that LaBan ordered and ate “Steak Frites,” a fact that probably should have been discovered before the complaint was filed given that it’s the basis of his lawsuit. Although Plotkin denies the rest of the above-mentioned assertions, this could signal the beginning of the end of his lawsuit. It appears from the pleadings that, at a minimum, LaBan believed that the meat he was eating was strip steak. And if that’s what LaBan believed, Plotkin will not be able to prove “actual malice”—the intent requirement in a libel claim asserted by a public figure, which is what Chops will most likely be held to be. Keep in mind that the “actual malice” standard is subjective, not objective. In other words, it doesn’t matter what a reasonable person would have believed; it only matters what LaBan actually believed. The hurdle for Plotkin is extremely high.

The Deposition

The second development in the case, however—which Steve Volk wrote about today online at Philadelphia Weekly—is a little more sensational. And it shows that this lawsuit may end up being less about truth than about strategy. Plotkin recently noticed LaBan’s deposition, which is a bit early in the case but not improper. But instead of seeking the more traditional type of deposition, where only the deponent’s words are stenographically recorded, Plotkin wanted the deposition to be videotaped.

The defendants sought a protective order to prevent it. “LaBan’s anonymity is important to the process by which he reviews restaurants,” the defendants argued to the court. “If a restaurant knew Mr. LaBan was in its dining room, it might put on a show for him that would not be provided to the general dining public.”

In opposing the defendants’ motion, Plotkin denied that LaBan’s identity was a secret by stating the following:

Defendant LaBan has not only appeared in public recently to promote a book he wrote on behalf of co-defendant The Philadelphia Inquirer, he even permitted another journalist on a widely-read Philadelphia restaurant review website to publicize a photograph of half his face. Anyone with an interest in the “trade secret” of his identity certainly would have attended his book signing, seen his face, listened to his voice, and studied the photo available online.

The journalist to whom Plotkin is referring is yours truly (at least I wasn’t called a “sham blogger”). The website to which he’s referring is this one. And the photograph to which he’s referring is the one LaBan allowed me to shoot at his book signing in December 2006 and post on my blog.

First, I was not happy to discover that I was referenced in a document filed in this lawsuit (though I appreciate that Plotkin and/or his attorneys extended the professional courtesy of not identifying me or my blog by name). Second, my photograph technically does not show half of LaBan’s face; it shows only his lips and his goatee. And to put it in context, my photograph shows less of LaBan’s face than you see in his recently-shot video, “Cheeseburger, I Hold,” or the screenshot accompanying his article about the making of the video (pictured above). Third, contrary to Plotkin’s assertion, the photograph actually demonstrates (as does the video) that LaBan and the Inquirer, in fact, do take great care to protect LaBan’s identity. LaBan showed up at the book signing wearing a hooded cape, a curly wig and a Zorro mask, and he wears the same wig and mask in the video. Wearing a disguise is exactly how you protect your identity, not how you reveal it.

The court technically granted the defendants’ request in part, but denied the most critical aspect of their motion. The judge’s order allows LaBan’s deposition to be videotaped. And although the video will be kept confidential until trial, the order does not prohibit the video from being played at the trial, which could threaten LaBan’s anonymity if the entire proceeding is left open to the public.

In Volk’s article, Plotkin’s attorney says that the videotaped deposition took place on June 5 and that they expect to use it at trial. Plotkin’s attorney claims that the case isn’t about LaBan’s anonymity (though it does play a key role in his complaint as LaBan’s alleged motive for his less than stellar review). Rather, Plotkin’s attorney claims their “interest is in what [LaBan] did wrong and in encouraging him not to do it again.”

However, to the trained or skeptical eye Plotkin’s insistence on videotaping LaBan’s deposition looks like a strategic move designed to leverage a settlement, especially given LaBan’s devastating answer. Videotaped depositions are not all that common, and the need for one in a case like this is questionable (there’s nothing to suggest, for example, that LaBan would be unavailable for trial). Plotkin knows that anonymity is a vulnerable spot for LaBan. So, it’s not surprising that Plotkin’s attorney is attempting to apply some pressure; it’s what lawyers do. But in light of the discussion above and Plotkin’s own admission in his complaint that he previously threatened (“jokingly,” of course) to reveal LaBan’s identity when he visited The Palm in 2002, Plotkin’s insistence on videotaping LaBan’s deposition just leaves a bad taste in your mouth.

Actually, all of this is good news for LaBan. Plotkin’s whole lawsuit was based on LaBan having a steak sandwich without the bread. And LaBan chopped one of his legs off with two words: Steak Frites. If the rest of the above-mentioned assertions in LaBan’s answer are verified through discovery, the game is over for Plotkin. The fact that Plotkin had to play the video deposition card shows that he’s on the ropes. And although it’s troubling that the tape is out there, it’s unlikely that it will ever see the light of day.

Photo Credit: A still from the video of Craig LaBan recording "Cheeseburger, I Hold." Video shot by Chris Jolissaint.


Anonymous said...

There's nothing unusual about taking a video deposition. The rule was recently changed in Pennsylvania to make video the practice as a matter of course.


PhilaFoodie said...


Unfortunately, that rule does not go into effect until July 1, 2007.

Anonymous said...

True, but that's not the point. The point is, these days a video deposition is neither a hail mary for the one taking it nor a sign of total defeat for the deponent. It's such a standard practice these days that the rule has been amended to reflect that. Don't be surprised if LaBan takes a video deposition of Plotkin. Same as would be done in any suit of significance.

PhilaFoodie said...

Anonymous: Taking a video depo of someone who wants to protect their identity is leverage for settlement. The explanatory comment doesn’t say the rule is being amended to conform to the practice. Instead, it acknowledges that technological advances have lowered the cost, and—more importantly—it makes it clear that a key reason for allowing video depos as a matter of course is to deter abusive conduct by attorneys who obstruct the discovery process without a reasonable basis, which is a pretty sad commentary. I have an extensive civil litigation background, and in my experience video depos were rare almost to the point of being taboo.

Anonymous said...

Don't know how common it is in Philadelphia, but it's certainly not common in California.

Philafoodie-Read your article before I checked your profile. I thought you might have been a lawyer. Your description of actual malice is very Barbri-esque.

PhilaFoodie said...

Anonymous: BarBri-esque, eh? Not sure if that's a compliment or a dig, but it made me laugh nonetheless. Though, for the record, I did not crib that from BarBri; I threw those books out long ago.