UPDATE: On Aug. 18, Judge William Zloch dismissed the DNC Fraud Lawsuit. In his decision, Zloch cited the central issue raised in this article, writing that ”[t]he Court must now decide whether Plaintiffs have suffered a concrete injury particularized to them, or one certainly impending, that is traceable to the DNC and its former chair’s conduct——the keys to entering federal court. The Court holds that they have not, which means the truth of their claims cannot be tested in this Court.”
A few months ago, the names Jared and Elizabeth Lee Beck might not have meant much to anyone outside of Florida (unless of course, you remember the Trump / breast pump deposition scandal). Today however, the pair, who form the law firm Beck & Lee, have become minor celebrities among left wing circles as the lawyers fighting the DNC fraud lawsuit. Word has spread quickly about the case to hold the Democratic Party accountable for its treatment of Bernie Sanders in 2016. But while the Becks have helped give voice to outraged progressives, they’ve also likely given them false hope.
Provided the case makes it past the pleading stage (by no means a guarantee), there are glaring issues this journalist picked up on which cannot be ignored.
These all trace back to the Becks’ choice of plaintiffs.
The most apparent is establishing detrimental reliance. Detrimental reliance is an essential part of the majority of the claims filed, including fraud, negligent misrepresentation, the violation of § 28-3904 of the D.C Code, and unjust enrichment.
The Becks will have to demonstrate to the satisfaction of the court, that each individual in the three classes represented in the suit—Bernie Sanders donors, DNC donors, and Democratic Party members more generally—made their fruitless contributions based on assurances by the DNC that it was a neutral party during the primary. This will be difficult.
The issue is not whether the Becks can prove the Democratic Party leadership acted in a way that favored Hillary Clinton despite its charter-mandated neutrality and claims to the contrary by its representatives. The evidence submitted to the court should be satisfactory to that end. For instance, the Becks submitted a strategy memo from a month after Sanders entered the race showing that protecting the former Secretary of State was the DNC’s top priority—even if that meant muddying the issues Sanders himself was running on.
No, the problem is that an ideal plaintiff here is someone who had never donated to a campaign in their lifetime or who had only donated to the GOP until Bernie Sanders announced his candidacy. This individual would’ve then donated to both Bernie’s campaign and perhaps the party generally, ceasing after news broke of the damning DNC leaks or when Clinton became the party’s nominee.
With these unicorns, detrimental reliance could possibly be demonstrated because the circumstances suggest it was belief that Sanders could win which motivated their donations. However, even then there is no guarantee a court would rule in their favor, barring outside evidence like postings on social media.
That said, Mark Carmanica of the law firm Thomas and LoCicero, one of the attorneys for the DNC, did acknowledge to Paste that such plaintiffs could possibly prevail.
“I suppose theoretically, if you had that factually ideal plaintiff, you could have a case,” he speculated, dismissing the Becks’ class action claims. “Even if they did exist, there probably aren’t enough of them to rise to class action status.”
This journalist is inclined to disagree, given that in a matter of minutes on Twitter, Paste was able to come by several individuals who claimed to fall into this category.
@WalkerBragman Me!— Forever Berning (@2016bethechange) May 25, 2017
@WalkerBragman@BenjaminPDixon I did— C I L L My Landlord (@GuruBluXVIII) May 25, 2017
@WalkerBragman@BenjaminPDixon Yup— Laura McNamara (@mcnamaraorama) May 25, 2017
@WalkerBragman ???????— Grrrr???? (@S3NTi3NT) May 25, 2017
The Becks, however, did not narrowly tailor their clientele to individuals like these. Using their super PAC, JamPAC—promoted as “the first and only truly progressive grassroots Super PAC”—they advertised the case, asking anyone who had been a DNC or Sanders donor to sign up for the suit. Those who obliged were vetted using the following email questionnaire:
As such, the classes in this case are likely too broad to prove detrimental reliance.
“They [the Becks] are arguing that being a member of a political party gives you the right to sue in court every time the party doesn’t live up to a platform promise,” Carmanica told Paste. “But in a class action, every member of the class has to have the same identifiable, redressable injury.”
In the numerous interviews Jared Beck has given to discuss the lawsuit, not once has he been able to provide a satisfactory answer to this problem.
Although the specifics of his answers change, they all seem to boil down to the following question he asked Jordan Chariton of The Young Turks:
“Who would donate to a campaign that has no chance of winning?”
But this response falls short. Every four years, millions of voters nationwide, donate to candidates they know stand no shot of winning. They do so for a number of reasons, not the least of which is to make a point. This past presidential election, for example, Libertarian candidate Gary Johnson raised $13,370,951, and Green Party candidate Jill Stein raised $3,713,170.
The problems associated with the Becks’ choice of plaintiffs are not just limited to proving detrimental reliance. Their strongest claim in the case—negligence—is also potentially undermined.
To establish a prima facie case of negligence, injured plaintiffs must show that the defendant owed them a duty of care, breached said duty, and that the breach was the cause of their injury. The burden then shifts to the defendant to show that the plaintiff either assumed the risk, or to prove there were intervening factors mitigating liability.
Here, the DNC’s servers were infiltrated by hackers, certain donor information was stolen and subsequently leaked to the public. However, the Becks are not suing specifically on behalf of those specific individuals affected. Their classes are far broader, so proving injury may be difficult.
Additionally, while U.S. officials did warn the party of its vulnerability to cyber attacks months before the DNC took any action to remedy the situation, the hackers were already been in the system by the time the warning came. This might mitigate the breach of duty—although perhaps not.
In response to Paste’s inquiries about the likely problems stemming from their selection of plaintiffs, Elizabeth Lee Beck would only say that she and her co-counsel didn’t feel comfortable talking about future legal strategy to the press, adding, “Honestly, whoever sent you these questions should come out and talk to me about it. I can probably tell you exactly why they’re hostile to the case.”
Nobody sent Paste any questions. This journalist has a legal background. Moreover, the issues pointed out in this piece would be apparent to any second semester law student.
Disturbing as the insinuation is, it isn’t altogether unexpected. Lately, demagoguery seems to be the Becks’ modus operandi:
Such tactics may serve to gin up publicity and support, but they are no substitute for addressing the holes in the case—holes DNC attorney Marc Elias of Perkins Coie and former general counsel for Hillary Clinton’s campaign, told Paste are indeed in the defendant’s brief.
While the outcome of the DNC fraud lawsuit is uncertain, a smaller suit with tailored plaintiffs, would likely have a better chance of succeeding. Instead of pursuing this latter option, however, the Becks chose to gamble on a high profile long shot. And unfortunately, it isn’t their credibility on the line—they will come out of this with a heightened public profile no matter what—but rather, that of everyone who claims Bernie Sanders was denied a fair shot in 2016.
Therein lies the problem.