Category: Reputation and Privacy

Categories
Reputation and Privacy

Today Show (AU): Settlement Has Been Reached in the Dominion Voting v. Fox News

Ken Turkel on the Today show discussing Fox case

TODAY Show (AU), April 19

Transcript

00:00:00:12 – 00:00:20:12
Sarah Abo
Rupert Murdoch’s Fox News has this morning agreed to pay Dominion voting systems more than 1 billion AUD. In a last minute resolution of their defamation case. Ken Turkel, the US attorney who represented Sarah Palin against The New York Times joins us now in Florida. Ken, thanks so much for your time. Now, this would have to be one of the biggest payouts in history.

00:00:22:05 – 00:00:43:01
Ken Turkel
I was checking notes just to sort of refresh my memory on the bigger payouts in these types of cases. What came to mind immediately was the case referred to as the pink slime case, which was against ABC by a meat producer, Beef Products Inc, coincidentally enough, Beef Products was represented by Dan Webb, who defended Fox in this case.

00:00:43:23 – 00:01:16:07
Ken Turkel
When that payout was disclosed, that settlement was disclosed that over $177 million. That wasn’t the full disclosure that showed up in Disney’s public filings. Disney owning ABC. So that one came to mind as far as settlements. We had the Hulk Hogan case that I tried back in 2016. That verdict was $140 million. So when you look at settlements, I can’t think of anything that scratches the surface of $787.5 million other than perhaps the pink slime case, which we know is over $177 million.

00:01:16:18 – 00:01:21:20
Ken Turkel
But that’s all we know. So I’d have to say, as far as my base of knowledge, that’s the biggest one I’ve heard of.

00:01:21:24 – 00:01:36:19
Sarah Abo
It is such it’s an eye watering amount of money. I mean, you’ve been in these kinds of settlements before. Take us through that backroom process. How would these two parties have reached that number and why do you think Dominion settled? I mean, they had an opportunity here to to take Fox to task, to question their presenters, but they opted not to.

00:01:38:04 – 00:02:00:02
Ken Turkel
That jury trial is always a risky thing. Yeah, I know. I’ve sat in a room with people expecting us just to produce, you know, an eight or nine figure verdict. And it’s just not easy. It’s hard. There’s uncertainty. A lot of things can happen. At the end of the day, if the goal is recovering money, then what you’re going to look at when you’re settling is, you know, what is the probability of the damages case.

00:02:00:02 – 00:02:31:06
Ken Turkel
And I’ve done a lot of work on this particular case. I know the lawyers involved, they were they were aggregating their business damages from lost profits to loss destruction of business damages would be a category that they had, they had expert witnesses. Those experts were going to take the money, monetize those numbers as a forensic accounting function. And that’s what they could put on, as we say in trial practice, the board, that’s what they could board to a jury on a white board or some kind of, you know, a screen to run on.

00:02:31:17 – 00:02:51:00
Ken Turkel
So that’s serious money with very good lawyers behind it. I’m sure their experts were very good. So when you ask how do they get to that number, it’s going to be a by-product of balancing the risk of losing with, you know, the number that gets you to where you’re comfortable. Your clients comfortable and all that. Don’t forget, there’s some non-monetary conditions here.

00:02:51:06 – 00:03:01:14
Ken Turkel
One of which I’m just getting my hands around the settlement is Fox admitting it lied. Which defamation cases we are often looking for that retraction, the apology or the acknowledgment.

00:03:01:20 – 00:03:14:21
Sarah Abo
Yeah, well, that’s the thing. I mean, they did have an opportunity here to really embarrass Fox. I mean, we’ve seen that statement, as you touched on their release by Fox, saying that they do accept there were false claims. Do you think this will threaten their credibility going forward?

00:03:15:02 – 00:03:55:04
Ken Turkel
It’s an interesting question in today’s News World, because you and I had a discussion on another show recently where we talked about what is news, what is news, entertainment, right. Where does that line cross and where does this ultimately take us in that that paradigm, right? Instead well, I think it hurts your credibility. I think their credibility got hurt as this case was reported on, as there were numerous articles in shows discussing the evidence in it, where you had these acknowledgments, which we don’t often have in these cases: emails, text message, interoffice chat rooms like Slack, acknowledging their apprehension about the falsity of what they kept publishing or what the guests that they were

00:03:55:05 – 00:04:27:06
Ken Turkel
bringing on were publishing. So I think they take a hit there already. I think an interesting point I don’t see anybody discussing as this shortly before the settlement is reached, Judge Davis finalizes his appointment of a special master to look into the Abby Grossberg tapes that were disclosed just last week on the eve of trial. I don’t know what’s on those tapes, what is alleged to be on those tapes or comments from other personnel, including Giuliani, about this entire attack on Dominion and the sanctity of the election.

00:04:28:01 – 00:04:46:24
Ken Turkel
There may have been something there that put this over the edge as it related to settlement. It’s certainly a consideration. We’ll see how it fits out over the next couple of days. Yeah, I mean, that that coincidence is just a little too much for me, right? He is the master in settlement. There may be something even worse.

00:04:47:05 – 00:04:52:00
Sarah Abo
That’s right. And we’ll see how that plays out. Thanks for joining us. You seem like quite a dude there in your high rise. with those specks.

00:04:52:17 – 00:04:57:21
Ken Turkel
They could be thing. Nice to see you all. Thank you.

Categories
Reputation and Privacy

CNN: Fox News Will Pay $787 Million to Settle Defamation Case

Ken Turkel on CNN dicussing the Dominion Defamation Case

CNN This Morning, April 19

Transcript

00:00:00:01 – 00:00:22:26
Don Lemon
So let’s bring in now CNN media analyst and Axios media reporter Sara Fischer and attorney Ken Turkel. He represented Sarah Palin in her failed defamation suit against The New York Times, as well as Hulk Hogan, who successfully sued Gawker for invading privacy and was awarded $115 million. So glad to have both of you on. Thank you so much, Sarah.

00:00:22:26 – 00:00:27:22
Don Lemon
We’re going to start with you. You were in the courtroom for this last minute decision. What was that like?

00:00:28:10 – 00:00:46:27
Sara Fischer
It was not a total shock, Don, because we were waiting for opening statements after the jury selection was finalized for many hours. And they kept saying, oh, this is just a five minute bathroom break. But here we are, two and a half hours later, we knew. We also are watching the Dominion attorney, Justin Nelson, walk over to the Fox attorney, Dan Webb.

00:00:47:04 – 00:01:03:19
Sara Fischer
They did not look flustered. They looked very calm. They looked kind of happy. And so when you’re watching two attorneys interact that way, you know, something is coming. At that point, every single reporter in the courtroom is sort of rewriting the settlement decision. We kind of knew it was coming, but it was still a shock because we had gotten all the way here.

00:01:03:19 – 00:01:17:27
Sara Fischer
You know, we’d had months of pretrial testimony and hearings. And we had figured that at this point they had done everything they needed to do to allude to the fact and prepare for possibly going to trial. So this was truly an 11th hour decision.

00:01:18:03 – 00:01:38:01
Poppy Harlow
Ken, can you take us into the scenes behind the scenes of what you know, a settlement discussion like this is after a jury has already been selected, seated. You’re about to do opening statements because notably missing in here, it’s a lot of money. Notably missing is a requirement which Dominion wanted initially for the Fox News personalities to publicly apologize on air.

00:01:40:06 – 00:02:00:12
Ken Turkel
It’s always interesting to me when cases settle at these moments, right? When a jury’s picked, right when they’re about to open on a mid-morning break, I like to say if I’ve gotten ready for trial, if I prepared the trial’s actually the fun part. But the you know, you can never put a figure on what’s going on behind the scenes.

00:02:00:19 – 00:02:22:08
Ken Turkel
It could be the non-monetary conditions. Somebody could be hung up on some of the monetary confidentiality, which obviously, at least in part is it happening here? Because we know the number, the I thought I heard yesterday, I haven’t seen a hard copy of any settlement agreement. I thought I heard yesterday that there was some apology component, some non-monetary component.

00:02:22:23 – 00:02:46:19
Ken Turkel
But at the end of the day, you know, these high stakes cases and I, I think one thing it’s easy to lose sight of in the public eye is the idea that there’s no risk, let’s say on the Dominion side, you’re trying with a jury. There’s always a risk. There’s always some risk. Okay. You certainty. You lose your self-determination of the closure of it, and you start with your client’s goals.

00:02:46:19 – 00:03:07:07
Ken Turkel
And they had monetary goals, obviously, large monetary goals that were predicated on lost profits, a business valuation issues that diminished the value of the business. They’re achieving their goals at that number. Okay. And it’s reckless to a degree, did not settle the case in those scenarios. So I wasn’t that surprised. I really wasn’t.

00:03:07:15 – 00:03:08:00
Don Lemon
You weren’t?

00:03:08:27 – 00:03:10:11
Ken Turkel
Not really. No.

00:03:11:24 – 00:03:17:07
Don Lemon
Listen, we were sort of monitoring the papers. Here it is in The Wall Street Journal, which was looking at,

00:03:17:07 – 00:03:17:10
Poppy Harlow
Above the fold.

00:03:17:10 – 00:03:40:29
Don Lemon
above the fold for, you know, the Murdoch owned papers, not in the post at all, and look through and look, I can’t be 100% sure. I went though the Post. I went through it like two or three times. It just sort of went through it. I did not see it. The thing here, though, I think Sarah, is people are disappointed not about the amount because they think it’s a, it’s a, it’s a good amount.

00:03:41:17 – 00:04:01:09
Don Lemon
But that’s the people who actually need to hear this. The Fox News viewers won’t get to hear it because it’s monitored. We looked at it. We checked the Fox News website last night. There was no mention of it on their homepage. The article they do have written doesn’t even say how much money Fox is paying. So who actually wins here?

00:04:01:10 – 00:04:15:23
Sara Fischer
It’s interesting. I actually was sitting next to a Fox News reporter in court and I was watching them diligently take notes and just having them be in court to me felt like a little bit of a level of accountability. Their media analyst, Howie Kurtz, did end up covering it towards the end of the trial. He said in the beginning he wasn’t allowed to.

00:04:16:00 – 00:04:36:11
Sara Fischer
But to your point about not making an apology, you know, the thing that actually makes me more upset is they don’t have to issue any corrections or any retractions in a journalistic entity. If I get something wrong, I have to correct it. That’s the way that it goes. But to your point about what are the broader implications here, you have to remember Fox is facing many defamation suits.

00:04:36:11 – 00:04:53:14
Sara Fischer
It’s not just Dominion. They have a suit from Smartmatic. They also the suit with one of their own producers that’s suing them, claiming that they misled her during testimony. And so what happens is when you settle a case like this, you’re setting a precedent for how you legally are going to likely need to handle all of the other cases.

00:04:53:14 – 00:05:11:10
Sara Fischer
In this case, we know that what they’re willing to do is pay up in order to make sure their execs never have to face a trial. You can best believe that Smartmatic, who’s by the way, their lawsuit is much bigger than Dominion’s, is going to leverage the discovery that they found during the Dominion hearing to strengthen their case.

00:05:11:17 – 00:05:19:07
Sara Fischer
And they’re going to leverage the fact that Fox just made a huge payout to a different competitor when they’re trying to negotiate for their settlement.

00:05:19:15 – 00:05:30:16
Don Lemon
We all been here before, and I mean, not a lot, but where you’ve had that to go on air and say, even if we didn’t do it, we start, we regret the mistake, we apologize, whatever, and we correct it and move on there.

00:05:30:26 – 00:05:36:13
Sara Fischer
They don’t and viewers don’t care by the way, like viewers don’t care if you get something wrong. It builds credibility to own your mistake.

00:05:37:08 – 00:05:54:25
Poppy Harlow
Great point. Ken, can we talk about Smartmatic $2.7 billion defamation lawsuit? To Sara’s point their attorney essentially said yesterday, we got all this discovery from Dominion. We’re going to use that. So what does you think this case settles as well?

00:05:56:13 – 00:06:15:26
Ken Turkel
Smartmatic is lagging behind. They were appealed. I think they were in New York. And you get an intermediate appellate right immediately on any motion there. So their discovery, I think, is just starting, but there’s no way they’re not going to capitalize on what’s out there. Interesting point, because Sara brought up the Abby Grossberg tapes right?

00:06:15:27 – 00:06:16:07
Poppy Harlow
Yeah, the producer

00:06:16:07 – 00:06:39:19
Ken Turkel
Right. And think about this, because this dawned on me when you asked what’s going on, the special master appointment occurs yesterday afternoon. I believe Judge Davis rules on this. Shortly thereafter, we get the settlement. And I’m wondering how deep those tapes go and what’s in there. So they’ve got a treasure trove here. Tell us whether it’s admissible in their case or not is a different issue.

00:06:39:29 – 00:07:05:18
Ken Turkel
But at the very least, it’s going to give them a very broad set of boundaries to design an attack on their own discovery front. And there’s just no way that it doesn’t help them immensely. It’s honestly like having a peek behind the curtain. It makes your job a lot easier. I can’t see in the context, and I don’t know much about Smartmatic in the sense of how they design their damages, you know, to me, this is a pure breakdown of business damages, right?

00:07:05:23 – 00:07:26:26
Ken Turkel
Resident Hogan I got like 60 million non-monetary, right? So at the end of the day, we’ll see how valid the number is. But I cannot see Fox in the wake of this protracted night and not trying to resolve it. It doesn’t make sense, right? You know, you sort of clean the house up completely, put it all the rest.

00:07:27:21 – 00:07:29:18
Ken Turkel
But who knows, maybe Smartmatic won’t let them.

00:07:29:29 – 00:07:40:28
Don Lemon
And we’re discussing all of this. But that is what settlements do. You negotiate. We don’t have to do this. We’re going to pay you this in order for us not to do that. Then that’s that’s how it happens. I thank you Ken and Sara. Appreciate it.

00:07:41:08 – 00:07:43:21
Ken Turkel
Thanks for having me.

Categories
Reputation and Privacy

CNN: Fox News-Dominion Defamation Case Begins Today

MSNBC José Diaz-Balart Reports, April 18 | Twitter

Transcript

00:00:00:01 – 00:00:19:25
Jose Diaz-Balart
There is a lot of evidence and certainly during discovery they’ve gotten a lot of emails, texts that does in some way show people’s thought processes at a certain moment in time. Is that the kind of stuff that makes a difference for a jury?

00:00:21:05 – 00:00:49:15
Ken Turkel
Yeah, and I think that’s the major distinguishing point in this case. There’s volumes of text messages, emails, slack, internal messaging, where any number of personnel from Rupert Murdoch all the way down are expressing, I wouldn’t say just apprehensions about the information, but are downright committing to the fact that they believe that they’re false or that the likelihood of falsity is so strong that they should be revisiting broadcasting it.

00:00:49:27 – 00:01:17:04
Ken Turkel
This is going on real time while various shows are occurring with the named reporters: Hannity; Carlson; Piro and Bartiromo. So you’ve got this dichotomy of them seeing these reports. Meanwhile, behind the scenes, both the reporters themselves and the chain of command are in these dialogs regarding what the falsity issue is here and whether they should provide a platform for guests to talk about it.

00:01:17:15 – 00:01:25:26
Ken Turkel
And then the next step of really what could be the problem, which is embracing what those guests were saying. And that’s really, I think, where the problem comes in.

Categories
Reputation and Privacy

CNN: Jury Selection to Begin as Judge Sanctions Fox

CNN-This-Morning-7_24_58-am-7_30_45-am.00_00_03_12.

CNN Live, April 12

Transcript

00:00:00:01 – 00:00:27:06
Don Lemon
So jury selection is set to begin today in Dominion voting systems, $1.6 billion defamation case against Fox. Fox is experiencing new legal setbacks in the case and the judge is now sanctioning Fox over concerns that it withheld key evidence. He plans to appoint an outside attorney to investigate the matter. Delaware Superior Court Judge Eric Davis admonishing Fox attorneys saying, and I quote here, “I am very concerned that there have been misrepresentations to the court.”

00:00:27:07 – 00:00:53:19
Don Lemon
This is very serious as Fox News is being sued for allegedly promoting false claims about Dominion machines rigging the 2020 presidential election. Fox denies that it ever defamed Dominion and says that it properly disclosed Rupert Murdoch’s role in its public financial filing. So joining us now, attorney Ken Turkel. He has represented multiple high profile figures like Sarah Palin and Hulk Hogan in defamation cases.

00:00:53:20 – 00:01:04:19
Don Lemon
So it’s interesting that we have him and we’re so glad that you’re with us this morning. Thank you, sir. So, judge sanctioning FOX News, appointing a special master to investigate. What is behind this? I mean, this is really significant, legally?

00:01:04:20 – 00:01:26:18
Ken Turkel
Don, I think one of the most significant things is when it’s happening. It’s it’s not uncommon in cases to have battles over discovery. What was, what wasn’t produced. But when you have evidence this  substance showing up in a discovery fight on the eve of trial… I’ve never experienced this in 34 years.

00:01:27:12 – 00:01:46:19
Poppy Harlow
Never. And again, you, you even represented Hulk Hogan in that very famous case. I mean, I read that. I read that in First Amendment class. Yes. I mean, so for you to have not seen something says a lot. That’s my point here. Can you talk about. Go ahead.

00:01:47:13 – 00:02:11:23
Ken Turkel
What I was going to say, you know, you’ve seen discovery fights, right. But to have the Grossberg reporting the Murdoch testimony on the eve of a trial that has been this hotly contested. There’s been so much back and forth that to me is just it’s uncommon, the discovery fight, not so much. You get those in every case, but this kind of evidence, when they’re about to pick a jury and they’re sanctions now and a special master.

00:02:11:26 – 00:02:13:02
Ken Turkel
I know fascinating to.

00:02:13:02 – 00:02:14:01
Poppy Harlow
Me is to.

00:02:14:11 – 00:02:18:14
Ken Turkel
Know how it plays out, because there is investigation.

00:02:18:14 – 00:02:35:20
Poppy Harlow
So it is fascinating, especially of a special master looking at this. Can I just ask you, because yesterday we had Sarah Fischer on, one of our journalist colleagues who said she is a little bit worried about what this suit could mean for journalism because of the malice standard here. Can you just speak to your view on that at large?

00:02:36:28 – 00:02:59:06
Ken Turkel
Yes. I mean, the Palin Case was a malice case. And, you know, I default to something that I think is the panel discussion that hasn’t been had yet. And that is, in an Internet age, right, when everyone has the same access to media by targeting media outlets and you have a computer and you put out whatever salacious content and then tag everybody.

00:02:59:27 – 00:03:20:15
Ken Turkel
You’ve really gotten to the core of what started the public figure exception, the political figure exception and actual malice. Information is traveling at rates we just didn’t anticipate. It’s being consumed in disseminated in a way that people and newscasters are on the news, telling their stories. And at the same time, the stories are changing real time all over the Internet.

00:03:20:29 – 00:03:46:21
Ken Turkel
So, look, I think we need to take a hard look at that component of this anyway. Beyond that, though, you know, in this case, I don’t I don’t know how much it’s going to be tested because there’s an overwhelming amount of documentary evidence that memorialized the state of mind. And you don’t really have that most of the time. Yeah, it’s emails and text, etc..

00:03:47:06 – 00:04:05:01
Don Lemon
It’s interesting. Listen, not all public figures are the same, right? I mean, you have the Fox News newscasters and then you have Fox News on top, which they work for. And just and that’s another thing because we were talking about journalists and I want to get bogged down that I want to talk about Rupert Murdoch’s taking the witness stand.

00:04:05:09 – 00:04:08:18
Don Lemon
What do you think that’s going to do for the case?

00:04:08:29 – 00:04:35:10
Ken Turkel
Don, you know, we talked about it last time. I said it’s more about the atmospherics of the case. The optics of the case. Right. Because the state of mind of Hannity, of Carlson, the four that are in the line of fire according to the reports is what’s going to matter. What is in the mind of the writer, what is in the mind of the broadcaster with respect to actual malice, the knowledge of truth or falsity or reckless disregard?

00:04:36:07 – 00:05:01:25
Ken Turkel
Rupert Murdoch Does it really matter for that? But but what is a trial lawyer? You’re telling a story and the optics, the atmosphere surround this guy at the head of everything admits under oath that he did not believe in the veracity of these statements. And as I told Don last time we talked, it was what they led with in their summary judgment, opposition, what the media led with the Rupert Murdoch testimony, jurors,

00:05:02:11 – 00:05:21:08
Ken Turkel
I have a great deal of faith, the jury system, but they’re humans, too. And even though that particular fact, that particular aspect of the case, i.e., what did Rupert Murdoch know when Hannity was broadcasting? Does it matter? Is that going to be in the very form, but it’s going to affect how they perceive the entity? I don’t see how it could.

00:05:22:08 – 00:05:25:12
Ken Turkel
So I think Dominion’s done a good job strategically of setting that up.

00:05:25:17 – 00:05:32:04
Don Lemon
Yeah. Hey, we got to go. Yes or no? Everyone seems to think it’s bad for Fox News. Is there a path to victory for Fox.

00:05:34:01 – 00:05:43:28
Ken Turkel
Dan Webb is an awful good trial lawyers John. But I have a hard time seeing it. Okay, now, look, I don’t know the whole case, but it’s hard to see it on the facts that are there right now.

00:05:44:09 – 00:05:46:05
Poppy Harlow
That’s fascinating. Ken, thanks.

00:05:46:19 – 00:05:46:26
Don Lemon
Thank you.

Categories
Reputation and Privacy

CNN: New Trove of Documents Made Public in Dominion Case Against Fox

Transcript

00:00:00:04 – 00:01:56:25
Poppy Harlow
… pages of previously unreleased documents, and Dominion’s $1.6 billion lawsuit against Fox News are now public. This huge trove includes emails and text messages from top executives and talent that further reinforced that they did not believe the false claims about election fraud that they were still pushing on air. Even Rupert Murdoch himself admitted in an email to the CEO of Fox News that the hosts of his network went too far in pushing Trump’s lies. He describes a meeting with Republican lawmakers writing this, quote, Big morning with McConnell meeting with Graham and other anti-impeachers but still getting mud thrown at us. Is it unarguable that high profile Fox voices fed the story that the election was stolen and that January 6th was an important chance to have the results overturned? Maybe Sean and Laura went too far.

All well for Sean to tell you that he was in despair about Trump. But what did he tell his viewers? Close quote. Now, these documents also include a bunch of text messages between Fox host Tucker Carlson and a member of his staff in which he actually says and details his disdain for former President Trump. He writes, quote, We are very, very close to being able to ignore Trump most nights. I truly can’t wait. I hate him passionately. I blew up at Peter Navarro today in frustration. I actually like Peter, but I can’t handle much more of this. That’s the last four years. We’re all pretending. We’ve got a lot to show for it because admitting what a disaster it’s been is too tough to digest. But come on, there isn’t really an upside to Trump. Close quotes. Those are the words of Tucker Carlson. Hmm. Wow.

Joining us now, Ken Turkel. He has represented several high profile clients in defamation and lawsuits, including probably most famously, the case you won Ken, against Gawker for Hulk Hogan. That was in 2016. And that was really precedent setting. Right? Because you guys were able to overcome a high bar against a media organization.

What does this do to Fox? Does this put Fox in more peril?

00:01:59:01 – 00:03:50:17
Ken Turkel
When we say “this” ? In looking at what’s been released? There’s an awful lot of documentary evidence, text messages, emails, quite a bit to digest. Breaking it down. The thoughts that I have here first. You rarely see that much paper in one of these cases, internal messaging rooms, things like that. But there’s so much here, so much communication. And then you have this emerging testimony of Rupert Murdoch, which is dynamite.

It’s actually tremendous evidence for a jury trial. It’s it’s storytelling, I think, in their opposition to the summary judgment motion that Fox filed, Dominion started with an excerpt from that testimony because it really is, you know, at the end of the day, we tell stories and the stories have to make sense and they have to be compelling and persuasive.

It’s a great story. Lead it. But there’s really no legal impact to it from an actual malice perspective, because the law is always going to focus on the mindset or what I like to call the undisclosed mental process of the speaker. And that’s what usually makes these cases so hard, is you’re trying to prove what someone was thinking, what they knew, when there is rarely any direct evidence of that.

What is interesting about this case right now, keeping in mind, the judge already denied a motion to dismiss and I think the legal issues are going to stay the same. We’re dealing with summary judgment. Is there dispute, material, fact? And rarely do you see this much clear indication that a broadcaster, a writer, was disclosing their state of mind directly, disclosing it. I don’t believe this. Then you have a report. That’s to the contrary. Fascinating. All right.

00:03:51:02 – 00:04:09:15
Don Lemon
With all of that said, then, does it say anything to you that there has not been a settlement at this point? Because usually at this point, especially considering they said so much paper and depositions and all that, usually that, you know, let’s get this behind us. We don’t want this much disclosed about our company.

00:04:09:15 – 00:05:02:25
Ken Turkel
It’s sort of a different world, these bigger cases. I can tell you my own experience, having had to try Hogan, which was really a privacy case with a bad First Amendment defense. Right, but implicated all these issues in Palin. And I mean, I didn’t settle those. They went to trial. The question really is, what is the end game here?

What does that mean you’re looking for? Because so often in these cases, it’s vindication. Reputational rehabilitation, clear retraction with unambiguous language that we lied, things like that. They also have a pretty robust damages case with a nice business damages element for lost profits and lost enterprise value. But the question really is, what’s their endgame? That’s always the issue. What is the client’s goal? I would not be surprised if this thing went to trial.

00:05:02:29 – 00:05:06:01
Don Lemon
You wouldn’t be surprised if what?

00:05:06:01 – 00:05:25:18
Ken Turkel
I said I wouldn’t be surprised if this went to trial. Given the way the litigations proceed it’s unclear. Considering who is the lead counsel for Dominion, you know, an excellent attorney. I know, Tom. I would not be surprised if they try this case. It’s really an issue of what is the goal? What are they looking for?

00:05:25:19 – 00:05:34:13
Poppy Harlow
Quickly before you go, are they. I mean, the idea, though, that they’re actually going to get $1.6 billion seems unrealistic. Unrealistic when you talk to people about this case, what do you think?

00:05:36:07 – 00:06:05:24
Ken Turkel
I looked at their damages breakdown and it’s an interesting model. They have lost 600 million. They have a lost enterprise, lost business value. When you have business damages like that, which I had in part in Hogan, not the same kind of very different type of damages that gives you a baseline number. They’re not crazy numbers, you know, if you assume they’re going to have experts who can prove up those business damages. Right. Forensic accountants. So, not crazy. You never know until you get the courtroom.

00:06:06:03 – 00:06:09:18
Don Lemon
Yeah, I don’t I don’t think this is about money, though. I think it’s about something else.

00:06:09:24 – 00:06:13:19
Ken Turkel
I tend to agree. I think there’s a little more going on here. Yeah.

00:06:14:07 – 00:06:17:01
Don Lemon
Thank you, Ken. Good to see you again. I appreciate it.

00:06:17:07 – 00:06:19:23
Ken Turkel
Thank you. Thanks for having me. Have a good day.

00:06:19:24 – 00:06:20:05
Don Lemon
All right, you too.

 

 

 

Categories
Reputation and Privacy

CNN: Johnny Depp v. Amber Heard Verdict

Transcript

00:00:01:17 – 00:00:21:20
Laura Coates
But Johnny Depp, Amber Heard defamation battle has finally come to an end. Today, jurors found that both stars were liable in some way for defaming the other, but they primarily sided with Johnny Depp, awarding him a total of $15 million in compensatory and punitive damages. Although there might be some caps in terms of what they’re actually able to extend.

00:00:22:00 – 00:00:45:20
Laura Coates
Now, while Hurt was awarded $2 million, none of that was actually punitive. The jury sided with her on one of the three counts, finding that one of Depp’s lawyers actually defamed her. The verdict caps a seven week trial that was full of lurid details and drama. That all started, of course, after Depp sued his ex-wife over a 2018 op ed that identified her as a domestic abuse survivor.

00:00:45:28 – 00:01:13:08
Laura Coates
So how did jurors sort through the weeks of really dirty laundry and get to the heart of each case to reach this verdict? Joining me now is Ken Turkel, an attorney who specializes in celebrity defamation cases. Well, Ken, here we are. We’ve been waiting for this moment to find out what the jury might actually find. First of all, were you surprised by the verdict in favor of Johnny Depp and also a liability in for a film by the attorney of Johnny Depp for Amber Heard?

00:01:13:10 – 00:01:38:03
Kenneth Turkel
I’m not sure anything could really surprised me in this case. It was it was just not conventional in so many ways. Was I surprised? I never read much into the social media, into the buzz around these trials because I’ve done them and I know what ultimately means nothing. All that means anything is what the jury thinks. What would, I guess would surprise me?

00:01:38:20 – 00:01:57:27
Kenneth Turkel
These are very much zero sum games, Laura. You don’t really see compromise verdicts. You don’t see a liability verdict with 50,000, 100,000. So the idea that there’s an eight figure verdict there doesn’t surprise me, given the way the evidence came in and what it seemed like the vibe was in the courtroom. That part.

00:01:58:05 – 00:02:14:02
Laura Coates
Was. I do I do want to walk. I want to hear your answer. But I also want to walk through because, you know, we got the word defamation on the screen right now. And you and I have talked about the fact that most of this trial did not follow the sort of flowchart one would go through when you’re talking about a defamation trial.

00:02:14:03 – 00:02:31:00
Laura Coates
The idea of, here, here’s what you got to prove. So I want to walk through a little bit the elements of what you had to prove in this case, because as you heard the jury, the jury’s verdict being read, they marched through these questions and had to answer yes. And so walk me through in terms of what the take is, the idea of the question was, was it made or a statement?

00:02:31:00 – 00:02:55:04
Laura Coates
Was it made or published by Hurd? Was it about Johnny Depp? Was it false? Was there a defamatory implication about Johnny Depp? Was there a defamatory implication by someone who saw it, who was not Johnny Depp? And did they prove these things about actual malice? Walk me through in terms of how this how this was laid, the crux of what the jury had to look for.

00:02:55:04 – 00:03:16:04
Kenneth Turkel
And so some of these elements, as we talked about, one of the earlier parents said this sounded more like a he said she said almost domestic violence, you know, counter-accusations. But it boils down to the statements made in this op ed and the statements were set forth in each part of the verdict form with the elements you just read.

00:03:16:22 – 00:03:38:18
Kenneth Turkel
Now, when you look at these statements, one of the elements is, was a statement false? Right. Or is one of the things you have to prove is that it’s capable of being proven false. It’s a provably false statement. Now, when you look at some of these statements and things like, I incurred the wrath of a nation for standing up to a powerful man, etc., I am still questioning how that’s provably false.

00:03:38:26 – 00:04:00:00
Kenneth Turkel
And you really parse these statements out. Divide them up, and you can literally split a sentence to figure out which part is true and provably false, etc.. So as you go through these, obviously all the evidence of all the incidences that came in, the jury wasn’t convinced that he ever acted with any sort of physical violence towards her.

00:04:00:09 – 00:04:26:13
Kenneth Turkel
And therefore, these statements that were implicitly directed at him were therefore false. The publishing, the writer is considered a publisher under the law, as is the platform on which they publish. And so the things that jump out in my mind when you talk about defamation, by implication, and we’re not saying true false, we’re saying in the totality they’ve read this and this is what it’s implying.

00:04:26:22 – 00:04:33:25
Kenneth Turkel
So the jury instructions that led to these are going to be a lot more complex, these elements sound. And then you have all the First Amendment defenses.

00:04:34:20 – 00:04:38:27
Laura Coates
But you take a stand and then I’ll go ahead. Excuse me. Let’s take with.

00:04:38:27 – 00:05:02:25
Kenneth Turkel
You. Yeah, take it. They believed him, not her. The actual malice is even at a higher standard of proof, not preponderance of the evidence, but clear and convincing evidence. That is, she did it with knowing falsely. She knew it was false or recklessly disregarded. Truth and falsity that could follow from this story. They very much believed him. But then you have the counterclaim verdicts.

00:05:03:08 – 00:05:26:17
Laura Coates
You’re right. And on that counterclaim, they did find that the attorney who was speaking on behalf of John Johnny Depp, they found, did, in fact defame Amber Heard on one of the statements that was made. And he was she was obviously awarded some damages there. But this is a it was a really complex trial in the sense that they strayed so far away from where the meat and potatoes of how you prove these cases of defamation.

00:05:26:28 – 00:05:43:08
Laura Coates
And so I’ll be curious, as you are, I know about what happens now and the impact. She certainly believes that the impact going forward will be a devastating one on women victims going forward and any victim of domestic violence. We’ll talk more about the fallout and the repercussions from there. CANTOR Carol, thank you so much.

00:05:44:18 – 00:05:45:08
Kenneth Turkel
Thank you, Laura.

00:05:46:01 – 00:05:47:08
Laura Coates
We’re turning back to Tulsa.

 

Categories
Reputation and Privacy Trial

Palin v. New York Times pushes new boundaries on libel suits

By Josh Gerstein  |  POLITICO  |  January 23, 2022  |  Read Original Article
The libel case focuses on a 2017 editorial that suggested a link between a PAC’s map and a deadly Arizona shooting. More than a decade after Sarah Palin found herself roundly mocked by the nation’s media elite as a small-town rube during her stint as Sen. John McCain’s populist vice presidential running mate, the former Alaska governor has a chance this week to strike back in court at those she viewed as her tormentors.
Palin is set to take on the colossus of the establishment press, The New York Times, in a libel suit she filed over a 2017 editorial that erroneously linked her political activities to the 2011 shooting attack in Tucson, Ariz., that left six people dead and Rep. Gabrielle Giffords (D-Ariz.) badly wounded. Within a day, the Times corrected the editorial and noted that no connection was ever established between the rampage and a map that Palin’s political action committee circulated with crosshairs superimposed on the districts of 20 Democrats, including Giffords. The Times also acknowledged it erred by suggesting that the crosshairs appeared over images of the candidates themselves. But less than two weeks after the errant editorial ran, Palin filed suit against the Times, accusing the news outlet of defaming her.
After years of litigation, as well as delays because of the coronavirus pandemic, a trial in Palin’s suit is scheduled to begin with jury selection on Monday in federal court in New York City. Some media advocates say the fact that the case is going to trial at all is a sign that almost a half-century of deference to the press in the courts is giving way to a more challenging legal landscape for journalists, media companies and their attorneys.
“Everybody representing media entities has noticed the chill is there,” said Bruce Johnson, a Seattle-based attorney who has represented journalists and publishers in a slew of legal battles. The prominent First Amendment litigator Floyd Abrams recalled: “If you go back to the ’70s and ’80s, there were a number of very pro-press decisions coming down in the Supreme Court and trial courts, as well. A student of mine at Yale Law School called that ‘the golden days. …’ Those days are over. … The sort of broad sweeping, powerful generalizations about the role that the press plays cut little ice.”
That shift has been on clear display at the highest level of the American legal system in the past few years, with two members of the Supreme Court — Justices Clarence Thomas and Neil Gorsuch — urging that the court’s landmark decision reining in libel cases brought by public officials, 1964’s New York Times v. Sullivan, be rethought. The conservative justices’ opinions emerged amid very public calls from Donald Trump as a candidate and then as president to “open up” libel law to make it easier to sue the media. In addition, the barrage of criticism of social media companies from the right and the left appears to have eroded public support for the basic First Amendment notion that a publisher has the right to decide what appears in its publication. Some on the left also seem so dejected by the traction of Trump’s views and rhetoric that they’ve lost faith in the bedrock notion that a freewheeling marketplace of ideas can be relied upon to govern the country.
“Social media has transformed the landscape in ways I don’t think anyone would have expected 10 years ago,” Johnson said. “The onrush of social media commentary, much of which is completely false, must have had an impact or will have an impact on the law.”
Just how these factors will play into the spectacle of a Palin v. New York Times trial is unclear. While some judges are clearly tilting at Sullivan’s famous “actual malice” standard for libel cases, it remains the law of the land. While Palin’s lawyers envisioned their case as a potential vehicle to overturn that standard, that hope seems to have been dashed in 2020 when the New York Legislature passed a bill that effectively enshrined the Sullivan standard for virtually all libel cases related to disputes on issues of public policy. Palin is represented in the case by two Florida lawyers who spearheaded the last major courtroom defeat for a publisher: the $140 million that a jury in St. Petersburg, Fla., awarded to former professional wrestler Hulk Hogan over Gawker’s publication of a sex tape depicting him. Hogan eventually settled for $31 million, but the outsize damages awarded in the case essentially drove the gossip website out of business. Palin and her attorneys are clearly looking to deliver a similar blow against the Times and are seeking punitive damages. However, the chief danger for the newspaper may be less one of a substantial monetary verdict and more the public airing of the storied news outlet’s dirty laundry. For one thing, the Palin case lacks the salacious subject matter of the Hogan-Gawker fight. The legal standards involving an invasion-of-privacy suit and a defamation case are quite different. And the political overtones in Palin’s case mean it may be hard for her team to convince a New York jury that the Times intentionally lied about the Alaska governor or acted recklessly enough to satisfy the actual malice standard.
“In this case, you have a very prominent plaintiff who is suing in a city that I would say would not be her favorite place to be judged,” observed Abrams, who earlier in the case filed a friend-of-the-court brief for other news organizations backing the Times.
Much of Palin’s case is expected to focus on the role of the Times’ editorial page editor at the time, James Bennet, who has admitted inserting into the editorial two phrases claiming a link between the Tucson shootings and Palin’s political map. Palin’s lawyers have argued that because Bennet edited another publication, The Atlantic, when it published an article making clear that no connection had been established between the Palin PAC’s crosshairs publication and the shooting, he must have known the claims were false. Palin’s attorneys are also expected to call attention to the fact that Bennet’s brother is a prominent Democratic senator, Michael Bennet of Colorado. However, the aspect of the case that has the potential to be the messiest for the Times is the Palin team’s effort to discuss the fraught circumstances of Bennet’s departure from his prestigious post as the paper’s editorial editor in June 2020. Bennet resigned after a revolt from Times readers and many of its own employees over an op-ed from Sen. Tom Cotton (R-Ark.) urging the use of military troops to quell rioting and looting in U.S. cities that followed the killing of George Floyd, an unarmed African American man, by Minneapolis police. The publication of the Cotton op-ed and Bennet’s subsequent departure from the paper drew attention to racial and generational divides at the Times. It also raised questions about whether, in the Trump era, the newspaper had become so devoted to and dependent upon its liberal readership that it could not air the views of a staunchly conservative senator. Palin’s attorneys have suggested that Bennet’s resignation under pressure was the product of several factors, including lingering concern among Bennet’s superiors about his handling of the Palin editorial. If so, that could amount to an admission by the Times of wrongdoing in that episode, her lawyers argued.
“Anytime internal hiring and firing decisions come up publicly, it’s uncomfortable for the entity,” Abrams said. “It should have no impact on the resolution of the case.”
Bennet, who was added to the case as defendant after it was initially filed, is being represented by Times lawyers in the suit and declined to comment on the looming trial. Palin’s attorneys did not respond to messages seeking comment. A Times spokesperson, Jordan Cohen, said the trial amounted to a test of whether news outlets can report on public figures without fear that a mistake will lead to a libel judgment.
“In this trial we are seeking to reaffirm a foundational principle of American law: public figures should not be permitted to use libel suits to punish unintentional errors by news organizations,” Cohen said in a statement.
“We published an editorial about an important topic that contained an inaccuracy. We set the record straight with a correction,” he added. “We are deeply committed to fairness and accuracy in our journalism, and when we fall short, we correct our errors publicly, as we did in this case.”
In addition to delving into Bennet’s exit from the paper, Palin’s lawyers have asked Judge Jed Rakoff for permission to tell jurors about a slew of other Times controversies, including the newspaper’s decision to eliminate its public editor, or ombudsman, position weeks before the flawed Palin editorial. The journalist who held that position at the time, Liz Spayd, criticized the decision as indicating that the Times was “morph[ing] into something more partisan, spraying ammunition at every favorite target and openly delighting in the chaos,” a Palin legal filing notes. The former Alaska governor’s lawyers even want to raise the Times’ taste in theater, zeroing in on its role in 2017 as a sponsor of a Shakespeare in the Park production of “Julius Caesar” that imagined Trump as the emperor being slain. Of course, the Times’ lawyers will also have an opportunity to trot out some of Palin’s baggage and to remind jurors that a large swath of the country didn’t hold her in high esteem well before the Times editorial. A Gallup poll taken in 2010, two years after she made history as the Republican Party’s first female vice presidential nominee, found that 52 percent of Americans viewed her unfavorably. There may also be discussion in court of some of her more unusual career choices in the wake of her vice presidential run, including her hosting of two short-lived reality TV series. It remains unclear how far afield of the central allegations in the case Rakoff will allow lawyers for either side to trudge. Lucy Dalglish, dean of the University of Maryland journalism school and a former media lawyer, said she expected Rakoff to try to confine the trial largely to the process of publication of the editorial at the heart of the case.
“A good judge is going to say, ‘You know what? So what?’” Dalglish said. “I’d be really surprised if the judge allows [Palin’s lawyers] to try to show a pattern of behavior.”
Rakoff tried to resolve the case soon after it was filed by holding an unusual hearing where Bennet testified that the misstatements in the editorial were the product of time pressure as he sought to strengthen the piece, which was prompted by the shooting of Rep. Steve Scalise (R-La.) in Alexandria, Va., as Republican lawmakers practiced for a congressional baseball game.
Rakoff, an appointee of President Bill Clinton, later dismissed Palin’s suit. The judge said that the statements in the editorial were too ambiguous to qualify as statements of fact, and that Bennet’s actions were “much more plausibly consistent with making an unintended mistake and then correcting it than with acting with actual malice.”
Palin appealed, however, and a 2nd U.S. Circuit Court of Appeals panel ruled, 3-0, in 2019 that the expedited proceeding Rakoff held violated the former Alaska governor’s right to try to buttress her case through fact-gathering and depositions of people involved. That set in motion the trial expected to open this week. While civil jury trials remain essentially suspended in many parts of the country and criminal jury trials are also rare at the moment, Rakoff seems intent on proceeding with the Palin-Times trial this week. At a telephone conference earlier this month, the judge said he’d presided over six trials since the pandemic began. While the urgency of trials for jailed criminal defendants has been widely accepted, jurors might be resentful about being called in during a pandemic to decide a civil dispute about an inaccuracy in a four-and-a-half-year-old editorial that was corrected within hours. Rakoff said 82 people had been summoned for potential jury service in the case. The judge said he planned to seat nine jurors. All members of the jury will have to agree for a verdict to be returned for either the Times or Palin. The law firm representing the Times, Ballard Spahr, also regularly represents POLITICO and other media outlets in a range of legal matters and litigation.
Categories
Million Dollar Verdicts Reputation and Privacy Trial

CVN Florida Plaintiff’s Attorneys of 2016: Lawyers Whose $140M Verdict Broke Media Giant

Posted by Courtroom View Network on Dec 22, 2016 10:56:49 AM | Read Original Article

Billions of dollars were at stake in CVN-covered trials throughout Florida in 2016. However, the two lawyers who earn this year’s title as CVN Florida Plaintiff’s Attorneys of the Year spearheaded a win in a landmark trial over celebrity privacy that ultimately toppled a media giant.

CVN Florida Plaintiff’s Attorneys of 2016

Kenneth Turkel and Shane Vogt

The trial: Bollea v. Gawker Media

The verdict: Jurors awarded Terry Bollea $140.1 million, including $25 million in punitives, in his invasion of privacy suit against Gawker Media, its founder, and its former editor.

The details: Terry Bollea, better known as wrestling superstar Hulk Hogan, sued online media empire Gawker Media, claiming the company invaded his privacy and damaged his reputation when it published a clip of a sex video taken without Bollea’s knowledge by a friend of the wrestler’s. Gawker, which received the tape from an anonymous source and which it published with commentary by editor A.J. Daulerio, claimed the video was newsworthy based on Bollea’s celebrity status and his public discussion of his sex life.

The trial focused on standards of journalism and Gawker’s own business goals, with Vogt portraying Gawker founder Nick Denton as a mogul obsessed with driving viewers to his sites at any cost. “They knew it was wrong, they knew it was an invasion of privacy, they told other people and they did it anyway,” Vogt said. “We will prove they crossed the line.”

In closing statements of the punitive phase, Turkel told jurors the trial would serve as notice to other media sites regarding the limits of their coverage. “You send a message, you make a statement; that statement is ‘We’re going to draw the line,’” Turkel said. “Literally, you draw the line at the publication, without consent, of a private act accorded in a private bedroom.”

The trial and its stunning verdict made headlines nationwide and ultimately forced Gawker into bankruptcy. The case launched discussions on journalistic ethics, celebrity rights to privacy, and, when it was discovered PayPal co-founder Peter Thiel bankrolled the suit after Gawker allegedly outed him in a publication, the role the wealthy play in shaping media coverage.

But the landmark verdict itself was driven by the courtroom work of Turkel and Vogt. Their win in one of the country’s biggest trials of 2016 earns them Florida Plaintiff’s Attorney of the Year honors.

FL Plaintiff Atty of the Year_Turkel.pngFL Plaintiff Atty of the Year_Vogt.png

Categories
Million Dollar Verdicts Reputation and Privacy Trial

Hulk Hogan, Gawker Brace for Jury Verdict at Sex Tape Trial

“Do you think the media can do whatever they want?” asked Hogan’s attorney in closing arguments.

The time has nearly come for a verdict in the first-ever trial pitting a celebrity against a media organization for the posting of a sex tape. The proceedings represent a probing of newsworthiness and whether the press can be held to maintain a standard of decency. More than three and a half years since Gawker published a post titled, “Even For A Minute, Watching Hulk Hogan Have Sex In A Canopy Bed Is Not Safe For Work But Watch It Anyway,” jury deliberations began after Hogan and Gawker gave a six-member jury in a Florida courtroom their closing arguments. These jurors began deliberations without having yet seen the sex tape in question.

Hogan (real name: Terry Bollea) contends that a less-than-two-minute excerpt of a 30-minute video, showing the famous wrestler sleeping with Heather Cole, then the wife of his best friend Bubba the Love Sponge (a radio host born Todd Clem), was an invasion of privacy, illegal wiretapping, a violation of the right of publicity and inflicted emotional distress. In weighing Hogan’s claims, the jury has been instructed to consider whether the video was highly offensive and was outside the bounds of human decency, causing (purposely or by reckless disregard) Hogan to experience shame and embarrassment. The jury will also consider whether Hogan had a reasonable expectation of privacy and whether Hogan’s name and likeness was used in a commercial purpose. If Hogan has proven the elements of his claims, the jury will also take up Gawker‘s defense — that the publishing of the video is protected by the First Amendment because it related to a public concern, meaning it was “newsworthy.”

Before closing arguments began, Pinellas County Judge Pamela Campbell noted the line between free speech and unfair intrusion, telling the jury they’d have to consider what “ceases to be the giving of legitimate information to which the public is entitled and becomes a morbid and sensational prying into private lives for its own sake.”

Ken Turkel gave Hogan’s summary of the case.

Categories
Million Dollar Verdicts Reputation and Privacy Trial

How Kenneth Turkel’s Voir Dire Questions Set the Stage for $140M Verdict

Effectively addressing damages is critical during voir dire. And during jury selection of a headline-grabbing trial against Gawker Media, Kenneth Turkel’s questioning helped select a jury that delivered him a blockbuster verdict.

Terry Bollea, better known as wrestler Hulk Hogan, sued Gawker when the company’s celebrity gossip site posted a clip from a sex video involving Bollea and the one-time wife of a local radio personality.

Jury selection in the 2016 trial stretched across three days. By the time Turkel, of Tampa’s  Bajo | Cuva | Cohen | Turkel turned in earnest to the issue of damages, he’d spent more than three hours questioning jurors on matters ranging from their opinions on marriage to their radio listening habits. 

Importantly, during that time, Turkel had worked to build a strong rapport with the jury pool, through humor and a conversational style that encouraged prospective jurors to be forthcoming and candid in their answers. 

And when jurors weren’t immediately forthcoming, as when Turkel initially turned to the issue of damages issue, he drew on that rapport to press them. 

Turkel opened on the damages issue by asking if anyone in the pool heard about a civil lawsuit they thought was frivolous. 

When no one in the jury raised their hands, Turkel became clearly incredulous. “Nobody’s ever heard anything in the news, and they’ve never looked at it and said ‘Oh my God, can you believe so-and-so recovered that amount?”

At that, hands began to raise. “All right, yeah,” Turkel said, smiling. “I figured.”

That kind of back-and-forth encouraged prospective jurors to open up on their opinions, with some recalling their shock at the famous multi-million-dollar McDonald’s “hot coffee” verdict. And one prospective juror mentioned her surprise at hearing about a claim involving a woman who had allegedly died after being startled by a snake. 

“Could’ve been  a really, really scary snake,” Turkel deadpanned, as the jury pool erupted in laughter. 

As other jurors shared their views, Turkel drew them out with follow-up questions, while also turning to quieter jurors whose body language may have signaled concern. 

“Number 3, you look very pensive right now,” Turkel said to one prospective juror who had been quiet on the issue. “Do you have an opinion? You were, like, in hard-core thinker pose right there.”

Throughout the questioning, Turkel walked a line of drawing out jurors who may be against awarding a large verdict while highlighting a vocal consensus among the pool that they would consider the case on its merits. 

And Turkel’s masterful voir dire helped select a jury that ultimately found for Bollea and awarded him $140 million.

Original article on Courtroom View Network

Linkedin-in Facebook Rss Envelope Phone

Our Lawyers