(This October 13 story corrects description of legal standard regarding Trump in paragraph 15)
By Alison Frankel and Dan Levine
Donald Trump hasn't sued a newspaper for libel in three decades, despite the Republican presidential nominee repeatedly threatening to do so over the course of his business career, according to databases of state and federal court records.
A lawyer for the New York real estate developer demanded on Wednesday The New York Times retract a story in which two women accused Trump of inappropriately touching them. If the newspaper did not comply, Trump, who says the allegations are fabricated, would "pursue all available actions and remedies," the lawyer, Marc Kasowitz, said in a letter.
Trump said at a rally on Thursday he was preparing a lawsuit.
An attorney for the Times, David McCraw, said the story was of national importance and the paper would "welcome the opportunity" to defend it in court.
Over the years, media outlets including the Wall Street Journal, the Village Voice, the New York Post and Fortune Magazine have reported receiving similar threats from Trump or his representatives in advance of unflattering articles.
However, Trump rarely makes good on those threats, according to a Reuters review of court dockets in the database of online legal research service Westlaw, a unit of Thomson Reuters.
The last time he sued a news organisation for libel was apparently in 1984. Trump filed the case after the Chicago Tribune’s architecture critic called his proposed 150-story Manhattan skyscraper an "atrocious, ugly monstrosity."
In 1985, a federal judge in Manhattan dismissed the suit, ruling the critic had a First Amendment right to express his opinion. The skyscraper was never built.
In the 32 years since Trump brought that suit, he has not taken similar action against another news organisation, although he or his companies have sued at least three individuals and a book publisher. He was successful in one of those cases.
Book author and former New York Times reporter Timothy O'Brien defeated a Trump libel lawsuit in 2011, after Trump underwent a gruelling deposition by O'Brien's lawyers.
Trump's suit against O'Brien, which also named O’Brien’s publisher, Time Warner Book Group, alleged the author deliberately underestimated the businessman's net worth. A New Jersey state judge found in 2009 that Trump had not established O’Brien’s actual malice.
"OPENING UP OUR LIBEL LAWS"
Former Miss Universe contestant Sheena Monnin was hit with a $5 million default judgment after she failed to appear for arbitration in a case in which Trump claimed she falsely denigrated the pageant as “rigged.” The arbitration judgment was upheld by a federal judge in Manhattan in 2013. The court record indicates the judgment was paid in 2014.
The same year, a San Diego federal judge ruled Tarla Makaeff, who was lead plaintiff in a class action against Trump University, did not act with malice when she said in letters to her bank and the Better Business Bureau that Trump University engaged in fraudulent business practices. The judge, Gonzalo Curiel, dismissed Trump's defamation claim.
Trump's attorneys, as well as a spokeswoman for his campaign, did not respond to requests for comment on his libel litigation record, including requests for information on any suits the Reuters docket search may have missed.
U.S. courts have routinely deemed Trump a public figure in libel lawsuits. That means he has to show not only that the story is false, but also that the media outlet knew that it was false or published it in "reckless disregard" for the truth.
If Trump were a private person, he would have to show the paper was negligent in failing to learn the allegations were false, which is a lower standard of proof.
The New York Times attorney, David McCraw, wrote that the paper carefully vetted the allegations in the story.
CHANGING LAWS NOT EASY
Any Trump claim will be difficult because Trump's accusers were on the record, said Jane Kirtley, a media law expert at University of Minnesota Law School. That would bolster the newspaper’s argument that it didn’t act recklessly in publishing their accounts.
Trump has vowed to "open up our libel laws," if he wins the presidency on Nov. 8, to make it easier to sue news organizations. In reality, he would not be able to unilaterally change the laws because they are generally governed by individual states and court precedents.
Court records show that Trump or his businesses have themselves been sued several times for libel or defamation. Most of those suits, including a complaint by a former tenant of a Trump condominium and another by a former dealer at a Trump casino in Indiana, were dismissed.
One defamation suit against Trump survived dismissal, however. Stock analyst Marvin Roffman sued Trump for $2 million in federal court in Philadelphia in 1990, claiming he was fired from his job after publicly predicting the failure of the Taj Mahal casino in Atlantic City.
Roffman alleged Trump defamed him in critical statements to numerous newspapers and magazines. After a federal judge refused to toss the case, the Trump Organization settled in 1991.
An attorney for Roffman declined to comment.
(Reporting by Alison Frankel in New York and Dan Levine in San Francisco; Editing by Amy Stevens and Ross Colvin)