Strategy: Accept your flaws then no one can use them against you. Or, own your bad facts.
It is not illegal to be a gadfly. When Martin O’Boyle, a prominent Gulfstream businessman, was accused of violating the federal racketeering statute, Etan Mark served as co-counsel to defend him from those claims. Specifically, the Town of Gulfstream claimed that Mr. O’Boyle submitted hundreds of bogus public records requests in the hope that the Town of Gulfstream would be so inundated by these requests that it would neglect to respond to some of them. Then, the allegations went, Mr. O’Boyle would spearhead the filing of dozens of lawsuits seeking attorneys’ fees and costs in the hope of extorting many thousands of dollars from the Town and beating it into submission (cue Bond villain laugh here). While the allegations had to be accepted as true at the motion to dismiss stage the United States District Court for the Southern District of Florida still found that, consistent with well-established case law, it’s not illegal to file lawsuits, even if there are a lot of them filed. The Court agreed with our argument that the legal use of the public records statutes, no matter how obnoxious, cannot state a claim under the federal RICO statute. [The opinion is here if you really want to read it.] The 11th Circuit Court of Appeals affirmed the trial court’s opinion, resulting in a final and complete victory for Mr. O’Boyle.