The Hulk Hogan trial that could redefine freedom of expressi

Gathered together in one place, for easy access, an agglomeration of writings and images relevant to the Rapeutation phenomenon.

Re: The Hulk Hogan trial that could redefine freedom of expr

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IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA

TERRY GENE BOLLEA professionally known as HULK HOGAN, Plaintiff, v. HEATHER CLEM; GA WKER MEDIA, LLC aka GAWKER MEDIA; GAWKER MEDIA GROUP, INC. aka GAWKER MEDIA; GAWKER ENTERTAINMENT, LLC; GAWKER TECHNOLOGY, LLC; GAWKER SALES, LLC; NICK DENTON; A.J. DAULERIO; KATE BENNERT, and BLOGWIRE HUNGARY SZELLEMI ALKOTAST HASZNOSITO KFT aka GAWKER MEDIA, Defendants.

Case No. 12012447-CI-011

FILED CIVIL COURT RECORDS DEPARTMENT DEC 28 2012
KEN BURKE
CLERK CIRCUIT COUNTY COURT

FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff Terry Gene Bollea ("Plaintiff' or "Mr. Bollea"), professionally known as "Hulk Hogan," sues defendants Heather Clem aka Heather Cole ("Clem"), Gawker Media, LLC aka Gawker Media, Gawker Media Group, Inc. aka Gawker Media, Gawker Entertainment, LLC, Gawker Technology, LLC, Gawker Sales, LLC, Nick Denton, A.J. Daulerio, Kate Bennert, Blogwire Hungary Szellemi Alkotast Hasznosito KFT aka Gawker Media (collectively, the "Gawker Defendants") (collectively with Clem, "Defendants"), and alleges as follows:

NATURE OF THIS ACTION

1. Defendants have engaged in outrageous, irresponsible and despicable conduct that should be punished to the maximum extent under the law. Defendant Clem caused Mr. Bollea to be secretly videotaped in or about 2006, without his knowledge or consent, while he was engaged in private consensual sexual relations with her in a private bedroom. On or about October 4,2012, the Gawker Defendants posted to the Internet a one-minute and forty-second "highlight reel" of the secretly-taped video and audio footage depicting Mr. Bollea naked and engaged in private consensual sexual relations with Clem in a private bedroom (the "Video"). The Gawker Defendants also posted~ with the Video, a graphic narrative that describes the sexual activity in the Video in lurid detail (the ''Narrative''). The Gawker Defendants posted the Video and Narrative at their website www.Gawker.com (the "Gawker Site"). The Gawker Defendants posted the Video and Narrative for the public to view, for the purpose of obtaining tremendous financial benefit for themselves, including without limitation (a) the sale of advertisements at the Gawker Site to viewers of the webpage with a link to the Video and Narrative, and (b) attracting new viewers to the Gawker Site for the long-term financial benefit of the Gawker Defendants and their numerous affiliated websites, and additional revenues from the substantial new viewers brought to the Gawker Site and its affiliated web sites by the Video and Narrative.

2. Mr. Bollea had no knowledge that the intimate activity depicted in the Video was being recorded. To the contrary, Mr. Bollea believed that such activity was completely private, and he had a reasonable expectation of his privacy in the private bedroom, and he reasonably believed that his privacy was safe and protected at all relevant times.

3. Both Clem's secret recording of Mr. Bollea naked and engaged in private consensual sexual activity, and the Gawker Defendants' posting of the Video and Narrative at the Gawker Site, constitutes a shameful and outrageous invasion of Mr. Bollea's right of privacy by a group of loathsome Defendants who have no regard for human dignity and care only about maximizing their revenues and profits at the expense of all others.

4. Mr. Bollea is informed and believes that the activities by both Clem, and the Gawker Defendants, constitutes a criminal violation of Florida's Video Voyeurism law codified at Section 810.145 of the Florida Statutes.

5. This lawsuit was necessitated by Defendants' blatant violations of Mr. Bollea's right of privacy and other rights as discussed herein. Clem violated Mr. Bollea's rights by participating in the secret recording of Mr. Bollea naked and engaged in private sexual activity in a private bedroom. The Gawker Defendants violated Mr. Bollea's rights by their wrongful disclosure of the private acts depicted in the Video; their unauthorized commercial exploitation of Plaintiff' s name, image, identity and persona; their refusal to remove the Video and Narrative when Plaintiff repeatedly requested and demanded its removal from the Gawker Site; and other calculated wrongful and tortious conduct as described herein.

6. Defendants' malicious conduct violates Plaintiff's constitutional and common law privacy rights and publicity rights, and exceeds all bounds of human decency. Defendants' gross and egregious intrusion into Plaintiff s privacy must be stopped, and must be punished to the maximum extent of the law.

JURISDICTION

7. This Court has jurisdiction because Plaintiff seeks relief in an amount greater than $15,000, exclusive of interest, costs and attorneys' fees.

8. This Court has personal jurisdiction over the Defendants as follows:

a. Defendants committed tortious acts within the State of Florida thereby satisfying Florida's long-arm statute, section 48.193, Florida Statutes;

b. Defendants have committed intentional torts expressly aimed at Plaintiff, the effects of which were suffered in this circuit. Defendants' intentional conduct was calculated to cause injury to Plaintiff in Florida. Based on their intentional torts, Defendants should have reasonably anticipated being haled into this Court and due process is satisfied.

9. Venue is proper in this Court pursuant to section 47.011, Florida Statutes, because, among other things, the claims at issue accrued within this circuit.

PARTIES

10. Plaintiff Terry Gene Bollea is a resident and citizen of the State of Florida, and resident of Pinellas County.

11. Defendant Heather Clem aka Heather Cole is a resident of the State of Florida, believed to reside in Hillsborough County.

12. At all relevant times, defendant Gawker Media, LLC aka Gawker Media, was and is a limited liability company organized and operating under the laws of the State of Delaware, with its principal place of business in New York.

13. At all relevant times, defendant Gawker Media Group, Inc. aka Gawker Media, was and is a Cayman Islands corporation.

14. At all relevant times, defendant Gawker Entertainment, LLC, was and is a New York limited liability company. Thus, defendant Gawker Entertainment, LLC was and is a citizen of New York.

15. At all relevant times, defendant Gawker Technology, LLC was an is a New York limited liability company.

16. At all relevant times, defendant Gawker Sales, LLC was an is a New York limited liability company.

17. Plaintiff is informed and believes and based thereon alleges that defendants Gawker Media, LLC, Gawker Entertainment, LLC, Gawker Technology, LLC, and Gawker Sales, LLC were and are all under the control of defendant Gawker Media Group, Inc. based in the Cayman Islands.

18. At all relevant times, defendant Blogwire Hungary Szellemi Alkotast Hasznosito KFT aka.Gawker Media ("Blogwire Hungary") was and is a Hungarian off-shore company, and owns the Internet domain name GAWKER.COM.

19. Defendants Gawker Media, LLC, Gawker Entertainment, LLC, Gawker Technology, LLC, Gawker Sales, LLC, Gawker Media Group, Inc., and Blogwire Hungary are collectively referred to herein as "Gawker Media".

20. Gawker Media owns, operates, controls and publishes several Internet web sites, including the Gawker Site, which disseminate information worldwide via the Internet.

21. At all relevant times, defendant Nick Denton ("Denton") was and is a citizen of Hungary and the United Kingdom, and is a resident and domiciliary of the State of New York. Defendant Denton is the founder of Gawker Media and currently owns all of, or a controlling or substantial interest in, Gawker Media.

22. At all relevant times, defendant A.J. Daulerio ("Daulerio") was and is a citizen, resident and domiciliary of the State of New York. Plaintiff is informed and believes and based thereon alleges that defendant Daulerio is the Editor in Chief of the Gawker Site and Gawker Media.

23. Plaintiff is informed and believes that defendant Kate Bennert ("Bennert") is a citizen, resident and domiciliary of the State of New York and is employed by Gawker Media.

24. Plaintiff is informed and believes and based thereon alleges that the Gawker Defendants, and each of them, were and are the agents, licensees, employees, partners, joint-venturers, co-conspirators, owners, principals, and employers of the remaining Gawker Defendants, and each of them are, and at all times herein mentioned were, acting within the course and scope of that agency, license, partnership, employment, conspiracy, ownership, or joint venture. Plaintiff further is informed and believes and based thereon alleges that the acts and conduct herein alleged of each of the Gawker Defendants were known to, authorized by, and/or ratified by the other Gawker Defendants, and each of them.

FACTS GIVING RISE TO THE CLAIMS

25. Plaintiff is a professional wrestler, motion picture actor, and television personality who. has enjoyed mainstream popularity as the character "Hulk Hogan." Plaintiff is a twelve-time world wrestling champion.

26. In or about 2006, Mr. Bollea engaged in private sexual relations with defendant Heather Clem, in Clem's private bedroom. Unbeknownst to. Mr. Bollea, and without his knowledge or consent, Mr. Bollea was filmed naked and engaged in private sexual relations with Clem. Plaintiff is informed and believes and on that basis alleges that Clem was involved in filming the private consensual sexual encounter between Mr. Bollea and Clem. Mr. Bollea understood, believed and expected that the sexual· activities in which he and Clem engaged in her private bedroom were completely private and would not be viewed by any other persons. Had Mr. Bollea known that his private sexual activities were being secretly filmed, Mr. Bollea would net have engaged in any such activities.

27.· Plaintiff is informed and believes and thereon alleges that the Gawker Defendants, based on the actions of Clem and others, obtained a copy of the secretly-filmed recording depicting Mr. Bellea naked and engaged in sexual relations with Clem. The recording was edited by the Gawker Defendants into. a one-minute and forty-second "highlight reel" depicting Mr. Bollea fully naked; showing his sex partner, Clem, performing oral sex en him; and showing him engaged in sexual intercourse with her. The footage was not blocked, blurred or obscured in any way by the Gawker Defendants, who created the edited "highlight reel" and also added English subtitles to the Video to ensure that viewers did not miss a word of their private encounter. The Gawker Defendants also prepared the Narrative describing the sexual encounter in lurid detail.

28. On or about October 4, 2012, the Gawker Defendants published at the Gawker Site the Video depicting Plaintiff having private consensual sexual relations with an anonymous woman in a private bedroom, and the Narrative graphically describing the actions taking place in the Video in lurid detail. Defendant Bennert, with the help or under the direction of defendants Denton and Daulerio, edited the secretly-filmed recording into the Video without Plaintiffs knowledge or consent. The Narrative was written and edited by defendants Daulerio, Denton· and Bennert. Plaintiff made numerous and repeated demands to the Gawker Defendants, including directly to defendant Denton, to remove the Video from the Gawker Site. However, the Gawker Defendants failed and refused to do so.

29. At no time prior to, during, or after the private consensual sexual encounter between Mr. Bollea and Clem did Mr. Bollea ever authorize or consent to any person or entity recording the private, intimate acts depicted in the Video, or the storage of the Video, or the editing of the Video, the dissemination, publishing or exploitation of the Video in any way or manner whatsoever, or the creation of the Narrative or other work based on the Video. On the contrary, Plaintiff finds the secret recording of his private sexual activity by Ms. Clem and the publishing of the Video and Narrative by the Gawker Defendants to be outrageous and egregious. The Video and Narrative have never been authorized by Plaintiff for any purpose whatsoever, including any form of disclosure to the public whatsoever.

30. Numerous media outlets and websites picked up on the Video and Narrative posted at the Gawker Site, and posted links to it, thus exposing hundreds of millions of people to the Video and Narrative. As a natural and foreseeable consequence, massive numbers of individuals were drawn to the Gawker Site, for which the Gawker Defendants have reaped tremendous revenues and profits, and have been unjustly enriched therefrom, based on both the short term web traffic of millions of people who have viewed the Video and Narrative and advertisements displayed thereat, and the long term increase in viewership to the Gawker Site and the Gawker Defendants' other affiliated sites, and the revenues and profits associated therewith for a prolonged period of time. Such tremendous benefits are a direct result of the tremendous fame and goodwill of Plaintiff.

31. As a natural and foreseeable consequence of Defendants' actions, Plaintiff has suffered, and continues to suffer, tremendous emotional distress. His life was "turned upside down" by the unlawful actions of the Defendants, including the continued display of the Video and Narrative at the Gawker Site, and Plaintiff continues to suffer from substantial emotional distress, on a daily basis, as a result. In particular, Plaintiff has suffered, and continues to suffer, substantial embarrassment, humiliation and hurt feelings as a result. Moreover, Plaintiff's goodwill, commercial value, and brand have been substantially harmed as a result as well.

32. Plaintiff has devoted a tremendous amount of his time and effort to developing his career as a professional champion wrestler, motion picture actor, and television personality, and to developing his universal goodwill, reputation and brand. Such efforts have created considerable commercial value in his name, image, identity and persona.

33. The commercial value of Plaintiff's name, image, identity and persona has been, and continues to be, substantially diminished by Defendants' actions, including the secret taping of Plaintiff naked and having sex; the unauthorized transmission of that recording to the Gawker Defendants; and the unauthorized posting, publishing, distribution and dissemination of the Video and Narrative, which is perceived unfavorably by the public and by the negative portrayal of Plaintiff in the Video and Narrative to the general public.

34. Defendants' conduct manifests a depraved disregard for Plaintiffs privacy rights and an unauthorized commercial exploitation of his publicity rights.

35. Plaintiff is informed and believes and alleges thereon that unless enjoined and restrained, the Gawker Defendants will continue to post, publish, distribute, disseminate and exploit the Video and Narrative, despite Plaintiffs numerous and repeated demands that the Gawker Defendants cease and desist. Such infringement and violation of Plaintiff s rights will continue to cause Plaintiff severe emotional distress and damage, for which there is no adequate remedy at law, if the Video and/or Narrative continue to be posted, published, distributed, disseminated and exploited by the Gawker Defendants. Such conduct and activity has caused and will continue to cause Plaintiff to suffer irreparable harm for which there is no adequate remedy at law.

36. All conditions precedent to the bringing and maintenance of this action and the granting of the relief requested have been performed, have occurred, or have been waived.

FIRST CAUSE OF ACTION

(Invasion of Privacy by Intrusion Upon Seclusion Against Defendant Heather Clem).

37. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive; as though fully set forth herein.

38. Clem, without Plaintiffs knowledge or consent, has grossly invaded Plaintiff's protected rights of privacy as recognized under the United States Constitution, Florida Constitution, and the common law, by filming Plaintiff in or about 2006 engaged in private consensual intimate sexual relations with Ms. Clem in a private bedroom. Plaintiff recently learned of the existence of this secretly-filmed video, and brought this lawsuit promptly thereafter.

39. Clem further violated Plaintiff's rights of privacy by disclosing the secretly filmed video to third parties, which then resulted in excerpts of the secretly-filmed video being posted on the Gawker Site.

40. The videotaping of Plaintiff engaging in consensual sexual relations in private quarters was not carried out for reasonable or legitimate purposes. Plaintiff had a reasonable expectation of privacy at all relevant times, and did not know about, nor consent to, the taping of the activity depicted in the secretly-filmed video.

41. The unauthorized taking and dissemination of the secretly-filmed video is highly offensive and objectionable to Plaintiff and to any reasonable person of ordinary sensibilities, and is not of legitimate public concern.

42. Clem knew or should have known that the secretly-filmed video contained private and confidential information, that Plaintiff had a reasonable expectation of privacy, that her conduct would cause private and personal things about Plaintiff to be revealed which Clem had no right to disseminate or disclose, and that the publication of these private facts constitute a clear and substantial violation of Plaintiff's right of privacy.

43. Clem violated Plaintiff's fundamental privacy rights by the conduct alleged herein, including the outrageous intrusion into Plaintiff s privacy and the publication, and dissemination of the secretly-filmed video in an unprivileged manner in conscious disregard of Plaintiff's rights.

44. Plaintiff is informed and believes and thereon alleges that Clem acted with actual malice and reckless disregard of Plaintiff's right of privacy.

45. Unless and until enjoined and restrained by order of this Court, Clem's continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the secretly filmed video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the secretly filmed video and all portions and content thereof and all copies thereof.

46. Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the secretly-filmed video, and any portions and content thereof; mandating the delivery of all reproductions and copies of the secretly-filmed video and all portions and content thereof; and transferring to Plaintiff all right, title and interest in and to the secretly-filmed video and all portions and content thereof.

47. Unless and until enjoined and restrained by order of this Court, Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the secretly-filmed video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the secretly-filmed video and all portions and content thereof and all copies thereof.

48. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of Clem were done intentionally or with a conscious and/or reckless disregard of Plaintiff's rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

SECOND CAUSE OF ACTION

(publication of Private Facts Against Defendant Heather Clem)

49. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive, as though fully set forth herein.

50. Clem disclosed or caused to be disclosed to third parties the contents of the secretly-filmed video depicting Plaintiff in or about 2006 engaged in private consensual sexual relations between with Ms. Clem in a private bedroom. Clem knew, or should have known, that the secretly-filmed video contained private and confidential information; that Plaintiff had a reasonable expectation of privacy in engaging in the activity depicted in the secretly-filmed video; that the secretly-filmed video was taken without Plaintiff's knowledge, consent, or approval and would reveal private and personal things about Plaintiff if disclosed to third parties which Clem had no right to disseminate or disclose; and that this publication of these private facts would be offensive and objectionable to a reasonable person of ordinary sensibilities, and would have the natural tendency of causing substantial damages to Plaintiff.

51. Clem's actions served no legitimate public interest.

52. Plaintiff is informed and believes and thereon alleges that Clem, acted with actual malice and reckless disregard of Plaintiff' s right to privacy.

53. Unless and until enjoined and restrained by order of this Court, Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the secretly-filmed video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the secretly-filmed video and all portions and content thereof and all copies thereof.

54. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has suffered substantial injury, damage, loss, harm, anxiety, embarrassment, humiliation and shame. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has been damaged and will be damaged, in an amount subject to proof.

55. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of Defendants were done intentionally or with a conscious and! or reckless disregard of Plaintiffs rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

THIRD CAUSE OF ACTION

(publication of Private Facts as Against the Gawker Defendants)

56. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive, as though fully set forth herein.

57. The Gawker Defendants disclosed to the public the contents of the confidential Video depicting Plaintiff fully naked and engaged in private consensual sexual relations with Clem in a private bedroom. The Gawker Defendants knew or should have known that the Video contained private and confidential information, and that Plaintiff had a reasonable expectation of privacy in being fully naked and engaged in consensual sexual relations in a private bedroom, and that the Video, taken without Plaintiff s knowledge or consent, would reveal private and personal things about Plaintiff which the Gawker Defendants had no right to disseminate, disclose or exploit, and that the publication of these private facts would be offensive and objectionable to a reasonable person of ordinary sensibilities.

58. The Gawker Defendants' posting, publishing, distributing, disseminating and exploiting of Plaintiff engaged in sexual relations in private quarters was not carried out for reasonable or legitimate purposes. Plaintiff had a reasonable expectation of privacy in being fully naked and having private consensual sexual relations with Clem in a private bedroom, and had no knowledge of, and did not consent to, the recording of such private sexual activity.

59. The unauthorized publication by the Gawker Defendants of the Video, Narrative and any portions or content thereof, is offensive and objectionable to Plaintiff, as well as to any reasonable person of ordinary sensibilities, and is not of legitimate public concern. Plaintiff did not consent to any use, distribution or exploitation by Defendants, or any other persons or entities, of the Video, Narrative or any portions or content thereof, whatsoever.

60. The Gawker Defendants knew or should have known that the Video, Narrative and/or any portions or content thereof, contained private and confidential information, and that Plaintiff had a reasonable expectation of privacy in the sexual activities depicted therein, and that the Gawker Defendants' conduct would reveal private and personal things about Plaintiff which the Gawker Defendants had no right to disseminate, disclose or exploit, and that the publication of these private facts would constitute a clear and egregious violation of Plaintiffs right of privacy.

61. The Gawker Defendants violated Plaintiff s fundamental privacy rights by the conduct alleged herein, including the outrageous intrusion into Plaintiff s privacy and the publication, dissemination, exploitation of the Video, Narrative and/or any portions or content thereof, in an unprivileged manner calculated to financial capitalize therefrom and gamer publicity throughout the world, to unjustly enrich the Gawker Defendants and in conscious disregard of Plaintiffs right of privacy.

62. Plaintiff is informed and believes and thereon alleges that the Gawker Defendants acted with actual malice and reckless disregard for Plaintiff s right of privacy.

63. The Gawker Defendants have continued to invade Plaintiffs right of privacy by continuing to disseminate and post the Video and Narrative. Unless and until enjoined and restrained by order of this Court, the Gawker Defendants' continued acts will cause Plaintiff to continue to incur severe and irreparable injury that cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to a temporary restraining order and preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the Video and all portions and content therefrom, including without limitation all still images thereof, and the Narrative.

64. As a direct and proximate result of the aforementioned acts by the Gawker Defendants, Plaintiff has suffered injury, damage, loss, harm, anxiety, embarrassment, humiliation, shame, and severe emotional distress in an amount subject to proof.

65. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of the Gawker Defendants were done intentionally or with a conscious and/or reckless disregard of Plaintiffs rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

FOURTH CAUSE OF ACTION

(Invasion of Privacy by Intrusion Upon Seclusion Against the Gawker Defendants)

66. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive, as though fully set forth herein.

67. The Gawker Defendants, without Plaintiffs consent and against Plaintiffs will, have grossly invaded Plaintiff s protected rights of privacy as recognized under the United States Constitution, Florida Constitution, and applicable common law, by obtaining, watching and editing the secretly recorded video and audio footage involving Plaintiff Clem and by posting and publicly disclosing the Video depicting Plaintiff fully naked and engaged in private intimate consensual sexual relations with Clem in a private bedroom, and by describing, in graphic, lurid detail, the private activities that occurred in private quarters. In doing so, the Gawker . Defendants "peered into the private bedroom" and enabled the general public to "peer into the private bedroom" and watch Plaintiff when he was fully naked and engaged in private sexual activity, without Plaintiff's knowledge, authorization or consent.

68. The Gawker Defendants' acquiring, viewing, editing, posting, publishing, distributing, disseminating and exploiting of Plaintiff fully naked and engaged in sexual relations in private quarters was not carried out for reasonable or legitimate purposes, but rather to reap substantial revenues and profits at the expense of Plaintiff and others. Plaintiff had a reasonable expectation of privacy in having private consensual sexual relations with Clem in a private bedroom, and had no knowledge of, and did not consent to, the recording or dissemination of such private sexual activity.

69. The actions by the Gawker Defendants are offensive and objectionable to Plaintiff, and would be offensive and objectionable any reasonable person of ordinary sensibilities, and is not of legitimate public concern.

70. The Gawker Defendants knew or should have known that the private video and audio footage, depicting Plaintiff naked and engaged in consensual sexual activity in a private bedroom, contained private and confidential information and content, and that Plaintiff had a reasonable expectation of privacy in the activities depicted therein, and that the Gawker Defendants' conduct would reveal private and personal things about Plaintiff which Defendants had no right to disseminate, disclose or exploit, and that the publication of these private facts would constitute a clear and egregious violation of Plaintiffs right of privacy.

71. The Gawker Defendants violated Plaintiffs fundamental privacy rights by the conduct alleged herein, including the outrageous intrusion into Plaintiffs privacy and the publication, dissemination, and exploitation of the Video and Narrative in an unprivileged manner calculated to financially capitalize therefrom, to garner publicity throughout the world, and to unjustly enrich the Gawker Defendants in conscious disregard of Plaintiff s right of privacy.

72. Plaintiff is informed and believes and thereon alleges that the Gawker Defendants acted with actual malice and reckless disregard of Plaintiffs right of privacy.

73. The Gawker Defendants have continued their invasion of Plaintiffs right of privacy by continuing to disseminate and post the Video and Narrative. Unless and until enjoined and restrained by order of this Court, the Gawker Defendants' continued acts will cause Plaintiff to continue to incur severe and irreparable injury that cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to a temporary restraining order and preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the Video and all portions and content therefrom, including without limitation all still images thereof, and the Narrative.

74. As a direct and proximate result of the aforementioned acts by the Gawker Defendants, Plaintiff has suffered injury; damage, loss, harm, anxiety, embarrassment, humiliation, shame and severe emotional distress. As a direct and proximate result of the aforementioned acts by the Gawker Defendants, Plaintiff has been damaged and will be damaged, in an amount subject to proof.

75. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of Defendants were done intentionally or with a conscious and/or reckless disregard of Plaintiffs rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

FIFTH CAUSE OF ACTION

(Violation of Florida Common Law Right of Publicity Against the Gawker Defendants)

76. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive as though fully set forth herein.

77. Plaintiff is a professional wrestler, motion picture actor, and television personality who has enjoyed mainstream popularity as the character "Hulk Hogan." Plaintiff is a twelve time world wrestling champion. Plaintiff has devoted a tremendous amount of time and effort developing his career and developing his universal goodwill, reputation and brand. Such efforts have created considerable commercial value in his name, image, identity and persona.

78. The Gawker Defendants' unauthorized use of Plaintiffs name, image, identity and persona in connection with the Video and Narrative constitutes a violation and misappropriation of Plaintiff s right of publicity in that the Gawker Defendants misappropriated Plaintiff s name, likeness, image, identity and persona by using the Video and Narrative for the purpose of commercial gain, without Plaintiff s consent.

79. The misappropriation of Plaintiffs publicity rights was for the Gawker Defendants' advantage in that Plaintiffs name, likeness, image, identity and persona were used and intended to create and enhance the Gawker Defendants' pecuniary gain and profit.

80. The Gawker Defendants have continued to use Plaintiffs publicity rights continuing to disseminate the Video and Narrative at the Gawker Site, notwithstanding Plaintiff s numerous and repeated requests to Gawker Media and defendant Denton that they cease and desist immediately and permanently. Unless and until enjoined and restrained by Order of this Court, the Gawker Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot be adequately compensated by monetary damages. Plaintiff is entitled to a temporary restraining order and preliminary and permanent injunctive relief enjoining the publication, distribution, dissemination and use of the Video and all portions and content therefrom, including without limitation all still images thereof, and the Narrative.

81. As a direct and proximate result of the aforementioned acts by the Gawker Defendants, the Gawker Defendants have earned profits attributable to this unauthorized commercial use and exploitation of Plaintiffs name, image and likeness. The amount of such ill-gotten gains had yet to be ascertained. Plaintiff is entitled to recover all said unjust enrichment, including all profits earned by the Gawker Defendants as a

82. Moreover, Plaintiff is entitled to seek and hereby does seek the market value of the use of his publicity rights in the manner in which they were commercially exploited, without Plaintiffs permission and against his strenuous objections and legal demands.

83. As a direct and proximate result of the aforementioned acts by the Gawker Defendants, Plaintiff has suffered injury, damage, loss, harm, anxiety, embarrassment, humiliation, shame, and severe emotional distress in an amount subject to proof.

84. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of the Gawker Defendants were done intentionally or with a conscious and/or reckless disregard of Plaintiffs rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

SIXTH CAUSE OF ACTION

(Intentional Infliction of Emotional Distress Against All Defendants)

85. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive as though fully set forth herein.

86. At all times herein, Clem acted intentionally and unreasonably in creating the secretly-filmed video and audio footage and causing it to be disseminated to third parties when she knew or should have known that Plaintiffs emotional distress would likely result. The Gawker Defendants acted intentionally and unreasonably in acquiring, viewing, editing, publishing, distributing and disseminating the Video, and creating and publishing the Narrative, when they knew or should have known that emotional distress would likely result. Notwithstanding Plaintiffs repeated requests that Defendants cease and desist immediately from their posting and publishing of the Video and Narrative, the Gawker Defendants failed and refused to do so.

87. Defendants' conduct was intentional and malicious and done for the purpose of causing, or was known by Defendants to likely cause, Plaintiff humiliation, mental anguish and severe emotional distress and was done with the wanton and reckless disregard of the consequences to Plaintiff.

88. As such, in doing the acts alleged hereinabove, Defendants acted outrageously and beyond all reasonable bounds of decency, and intentionally inflicted severe emotional distress upon Plaintiff, to his detriment.

89. As a proximate result of the aforementioned wrongful conduct, Plaintiff has suffered substantial monetary damages, including damages to his personal and professional reputation and Career, and substantial emotional distress, anxiety and worry.

90. Plaintiff is informed and believes and thereon alleges that Defendants acted with actual malice and reckless disregard of Plaintiff' s right of privacy.

91. Unless and until enjoined and restrained by order of this Court, Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the Video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the Video and all portions and content thereof and all copies thereof, and the Narrative.

92. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has suffered substantial monetary damages, including damages to his personal and professional reputation and career, and substantial injury damage, loss, harm, anxiety, embarrassment, humiliation, shame, and severe emotional distress in an amount that has not yet been fully ascertained. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has been damaged and will be damaged, in an amount subject to proof.

93. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of Defendants were done intentionally or with a conscious and/or reckless disregard of Plaintiff's rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

SEVENTH CAUSE OF ACTION

(Negligent Infliction of Emotional Distress Against All Defendants)

94. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive as though fully set forth herein.

95. At all times herein, Defendants acted negligently and unreasonably in creating the Video and causing it to be disseminated to third parties. In doing so, Defendants acted beyond all reasonable bounds of decency, and negligently inflicted emotional distress upon Plaintiff, to his detriment.

96. Defendants' conduct was negligent and proximately caused Plaintiff to suffer substantial humiliation, mental anguish and severe emotional distress and was done with the wanton and reckless disregard of the consequences to Plaintiff.

97. As a proximate result of the aforementioned wrongful conduct, Plaintiff has suffered substantial emotional distress, anxiety and worry.

98. Plaintiff is informed and believes and thereon alleges that Defendants acted with actual malice and reckless disregard of Plaintiffs right to privacy.

99. Unless and until enjoined and restrained by order of this Court, Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the Video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the Video and all portions and content thereof and all copies thereof.

EIGHTH CAUSE OF ACTION

(Violation of section 934.10, Florida Statutes Against All Defendants)

100. Plaintiff repeats, re-alleges, adopts and incorporates each and every allegation contained in Paragraphs 1 through 36, inclusive as though fully set forth herein.

101. Plaintiff had a reasonable expectation of privacy in engaging in private consensual sexual relations in a private bedroom at all relevant times, and did not know about, nor consent to, the taping of the activity depicted in the secretly-filmed video, or its publication or dissemination.

102. Defendants violated Plaintiff s fundamental privacy rights by the conduct alleged herein, including the outrageous intrusion into Plaintiffs privacy and the publication, and dissemination of the secretly-filmed. Video in an unprivileged manner in conscious disregard of Plaintiff s rights.

103. Defendants disclosed or caused to be disclosed to third parties the contents of the secretly-filmed video depicting Plaintiff in or about 2006 engaged in private consensual sexual relations between with Clem in a private bedroom. Defendants knew, or should have known, that the Video contained private and confidential information; that Plaintiff had a reasonable expectation of privacy in engaging in the activity depicted in the Video; that the Video was taken without Plaintiff s knowledge, consent, or approval and would reveal private and personal things about Plaintiff if disclosed to third parties which Defendants had no right to disseminate or disclose; and that this publication of these private facts would be offensive and objectionable to a reasonable person of ordinary sensibilities, and would have the natural tendency of causing substantial damages to Plaintiff.

104. Defendants' actions have not served any legitimate public interest.

105. Plaintiff is informed and believes and thereon alleges that Defendants have acted with actual malice and reckless disregard of Plaintiffs rights, including his right to privacy.

106. Unless and until enjoined and restrained by order of this Court, Defendants' continued acts will cause Plaintiff severe and irreparable injury which cannot adequately be compensated by monetary damages. By reason of the foregoing, Plaintiff is entitled to preliminary and permanent injunctive relief enjoining the distribution, dissemination and use of the Video and all portions and content thereof and all copies thereof, and mandating the delivery of same to Plaintiff and transferring to Plaintiff all right, title and interest in the Video and all portions and content thereof and all copies thereof.

107. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has suffered substantial injury, damage, loss, harm, anxiety, embarrassment, humiliation, shame, and severe emotional distress. As a direct and proximate result of the aforementioned acts by Defendants, Plaintiff has been damaged and will be damaged, in an amount subject to proof.

108. Plaintiff is informed and believes and on that basis alleges that the aforementioned acts of Defendants were done intentionally or with a conscious and/or reckless disregard of Plaintiffs rights, and with the intent to vex, injure or annoy, such as to constitute oppression, fraud, or malice.

PRAYER FOR RELIEF

WHEREFORE, plaintiff Terry Gene Bollea prays for judgment against defendants Heather Clem aka Heather Cole, Gawker Media, LLC aka Gawker Media, Gawker Media Group, Inc. aka Gawker Media, Gawker Entertainment, LLC, Gawker Technology, LLC, Gawker Sales, LLC, Nick Denton, A.J. Daulerio, Kate Bennert, Blogwire Hungary Szellemi Alkotast Hasznosito KFT aka Gawker Media as follows:

1. For an award of general and special damages in an amount in excess of the minimum jurisdictional limits of this Court in accordance with proof at trial together with interest thereon at the maximum legal rate;

2. For costs of suit incurred herein;

3. For an Order and Judgment transferring to Plaintiff all of Defendants' right, title and interest in and to the secretly-recorded video and audio footage depicting Plaintiff s sexual encounter with Clem, and all portions and content thereof, and all copies and reproductions thereof contained in all media;

4. For an Order and Judgment requiring the delivery to Plaintiff of all copies of the secretly-recorded video and audio footage depicting Plaintiffs sexual encounter with Clem, and all portions and content thereof, in all formats and all forms of media, including electronic and physical media, within Defendants' possession, custody or control, including without limitation turning over to Plaintiff any and all storage devices (such as CDs, DVDs, hard drives, flash drives, tapes, and disks) containing same;

5. For preliminary and permanent injunction against Defendants and all persons acting under their control, from any and all activity that would cause the distributing, disseminating, publishing, displaying, posting for view or access on or through the Internet or any other manner or media outlet, broadcasting, transferring, licensing, selling, offering to sell or license, or otherwise using, exploiting or attempting to exploit, the secretly-recorded video and audio footage depicting Plaintiff s sexual encounter with Clem, or any portions or content thereof or any copies thereof, in any and all formats and media, including all electronic and physical media;

6. For an Order and Judgment requiring Defendants to turn over to Plaintiff all information pertaining to the secretly-recorded video and audio footage depicting Plaintiffs sexual encounter with Clem, including without limitation, all activity by all persons and entities related to the creation, storage, transportation, editing, distributing, disseminating, publishing, displaying, posting for view or access on or through the Internet or any other manner or media outlet, broadcasting, transferring, licensing, selling, offering to sell or license, or otherwise using, exploiting or attempting to exploit, such footage or any portions or content thereof or any copies thereof, in any and all formats and media, including all electronic and physical media;

7. For a constructive trust to be placed upon Defendants and all persons acting on their behalf or under their direction or control, as to all revenues and profits received by any and all such individuals, including Defendants, to be held for the benefit of Plaintiff, and to be disgorged in their entirety to Plaintiff, in connection with the secretly-recorded video and audio footage depicting Plaintiff s sexual encounter with Clem, including the publishing of the Video and Narrative;

8. For such other and further relief as to this court may deem and proper.

DEMAND FOR JURY TRIAL

Plaintiff Terry Gene Bollea hereby demands a trial by jury on all issues so triable.

Respectfully Submitted,

DATED: December 28, 2012

Kenneth G. Turkel, Esq.
Florida Bar No. 867233
kturkel@bajocuva.com
Christina K. Ramirez
Florida Bar No. 0954497
cramirez@bajocuva.com
BAJO CUV A COHEN & TURKEL, P.A.
100 N. Tampa Street, Suite 1900
Tampa, FL 33602
Telephone: (813) 443-2199
Facsimile: (813) 443-2193

DATED: December 28, 2012

Charles J. Harder, Esq.
California Bar No. 184593
(Pro Hac Vice application to be filed)
charder@HMAfinn.com
HARDER MIRELL & ABRAMS LLP
1801 Avenue of the Stars, Suite 1120
Los Angeles, CA 90067
Telephone: (424)203-1600
Facsimile: (424) 203-1601

Attorneys for Plaintiff Terry Gene Bollea
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

TERRY GENE BOLLEA, Plaintiff, vs. HEATHER CLEM et al., Defendants.

Case No.: 8:13-cv-00001-T-27AEP

ORDER

BEFORE THE COURT is Plaintiffs Motion for Remand (Dkt. 20). Defendant Gawker Media, LLC responded in opposition (Dkt. 24), and Plaintiff replied in support of the motion (Dkt. 28) after leave of court (Dkt. 27). [1] Upon consideration, the motion (Dkt. 20) is GRANTED.

I. INTRODUCTION

In 2006, Terry Gene Bollea was secretly videotaped while engaged in private sexual conduct with Heather Clem (Dkt. 2 ~ 1 ). This video was eventually leaked to third-parties and obtained by the Gawker Defendants (id ~ 27). In 2012, the Gawker Defendants published excerpts of the video and a narrative describing the taped activity on its website (id. ~ 28). Upon discovering the video, Bollea sued Clem and her ex-husband, Todd Alan Clem, in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida (Dkt. 1-1). On December 28, 2012, Bollea filed a First Amended Complaint dropping Todd Alan Clem as a defendant and adding the Gawker Defendants (Dkt. 2). Gawker Media, LLC promptly removed the case, premising jurisdiction on the fraudulent misjoinder of Heather Clem and federal questions arising under the United States Constitution and the United States Copyright Act (Dkt. 1 ). Bollea now seeks to remand the case back to state court (Dkt. 20).

II. STANDARD

Removal jurisdiction is determined "based on the plaintiffs pleadings at the time of removal." Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997). The removing party bears the burden of proof regarding the existence of federal subject matter jurisdiction, City of Vestavia Hills v. Gen. Fidelity Ins. Co., 676 F.3d 1310, 1313 n.l (11th Cir. 2012), and the plaintiffs factual allegations are taken in the light most favorable to the plaintiff. Stillwell v. Allstate Ins. Co., 663 F .3d 1329, 1333 (11th Cir. 2011 ). If removal is based on diversity of citizenship, the defendant has the burden of demonstrating complete diversity. See 28 U.S.C. § 1332(a); Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010).

"Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly." Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999). All doubts about jurisdiction are resolved in favor of remand, Miedema v. Maytag Corp., 450 F .3d 1322, 1328 (11th Cir. 2006), and any uncertainties about state substantive law are resolved in the plaintiffs favor. Stillwell, 663 F.3d at 1333.

III. DISCUSSION

A. The Court Does Not Have Diversity Jurisdiction Because Heather Clem Is Not Fraudulently Joined.


Federal district courts have original jurisdiction over all civil actions where the matter in controversy exceeds $75,000 and the case is between citizens of different states. 28 U.S.C. § 1332(a)(l). An action filed in state court meeting this criteria may be removed to federal court on the basis of diversity jurisdiction. 28 U.S.C. § 1441(a). After a diversity case is removed, it must be remanded to state court ifthere is not complete diversity of citizenship among the parties. Stillwell, 663 F.3d at 1332. However, when a plaintiff names a non-diverse defendant solely in order to defeat diversity jurisdiction, the non-diverse defendant is fraudulently joined and the district court must "ignore the presence of the non-diverse defendant and deny any motion to remand the matter back to state court." Henderson v. Wash. Nat'/ Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006).

Although Bollea and Heather Clem are both Florida citizens, Gawker removed this case based on Bollea' s allegedly fraudulent joinder of Heather Clem in this action. To establish fraudulent joinder, Gawker has the "heavy" burden of "proving by clear and convincing evidence" that ( 1) there is no possibility that Bollea can establish a cause of action against Heather Clem, (2) Bollea has fraudulently pled jurisdictional facts to bring Heather Clem into state court, or (3) Bollea's misjoinder of Heather Clem and Gawker is "so egregious as to constitute fraudulent joinder." Stillwell, 663 F.3d at 1332; Tapscott v. MS. Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996), overruled on other ground Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000).

1. Bollea States a Cause of Action Against Heather Clem.

Gawker first argues that there is no possibility that Bollea can establish a cause of action against Heather Clem because the applicable statutes of limitations bar all of Bollea's claims. If successful, this argument would establish fraudulent joinder, and the motion to remand would be denied. See Brown v. Jevic, 575 F.3d 322, 327 (3d Cir. 2009) ("[A] statute of limitations defense is properly considered in connection with a fraudulent joinder inquiry."); LeBlang Motors, Ltd. v. Subaru of Am., Inc., 148 F.3d 680, 690 (7th Cir. 1998) ("If the time to bring the cause of action had expired, then the district court was correct in dismissing Wright and Knight as fraudulently joined.").

Bollea asserts five causes of action against Heather Clem: ( 1) invasion of privacy by intrusion upon seclusion, (2) publication of private facts, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, and (5) violation of Section 934.10, Florida Statutes. [2] If one of Bollea's claims withstands the statute of limitations inquiry, then Gawker' s first argument for fraudulent joinder fails.

Gawker argues that Bollea's claims against Heather Clem "arise almost entirely out of her alleged recording of the Video and are therefore time barred" (Dkt. 24 at 3). The First Amended Complaint, however, plainly asserts a claim against Heather Clem for publication of the video, as well (see Dkt. 2 ~~ 39, 50). While the date of recording appears on the face of the First Amended Complaint, there are no allegations concerning the date of Heather Clem's alleged publication that would enable an evaluation of the statute of limitations at this stage. See Brotherhood of Locomotive Engineers & Trainmen Gen. Comm. of Adjustment CSXTransp. N. Lines v. CSX Transp., Inc., 522 F.3d 1190, 1194 (11th Cir. 2008) (dismissal based on a statute of limitations is appropriate only if it is "apparent from the face of the complaint that the claim is time-barred").

At a minimum, therefore, Bollea's publication claim against Heather Clem is not barred by the applicable statute of limitations, and Gawker's argument that Bollea cannot establish a cause of action against Heather Clem fails. See also Stillwell, 663 F.3d at 1333 ("If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court." (quotation omitted)).

2. Heather Clem Is Not Fraudulently Misjoined.

Gawker also argues that removal is appropriate and diversity jurisdiction exists because Bollea's joinder of Heather Clem is "so egregious as to constitute fraudulent joinder." Tapscott, 77 F.3d at 1360. This category of fraudulent joinder is often labeled "fraudulent misjoinder." See Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1289 (11th Cir. 1998). The doctrine of fraudulent misjoinder applies "where a diverse defendant is joined with a nondiverse defendant as to whom there is no joint, several or alternative liability and where the claim against the diverse defendant has no real connection to the claim against the nondiverse defendant." Id at 1287. In other words, if Heather Clem has no joint, several, or alternative liability with Gawker, and the claim against her has no real connection to the claim against Gawker, then she has been fraudulently misjoined and remand is improper.

Under Triggs, if a plaintiffs joinder of defendants satisfies the permissive joinder requirements of Federal Rule of Civil Procedure 20(a)(2), then the parties are not fraudulently misjoined. Id at 1289. Rule 20(a)(2) allows defendants to be joined if "any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences," and "any question of law or fact common to all defendants will arise in the action." Fed. R. Civ. P. 20(a)(2)(A)-(B). To determine whether claims arise from the same "series of transactions or occurrences" under Rule 20(a)(2), courts in the Eleventh Circuit apply the "logical relationship" test. See Smith v. Trans-Siberian Orchestra, 728 F. Supp. 2d 1315, 1319 (M.D. Fla. 2010 (citing Republic Health Corp. v. Life mark Hasps. of Fla., 755 F.2d 1453, 1455 (11th Cir. 1985)). "Under this test, a logical relationship exists if the claims rest on the same set of facts or the facts, on which one claim rests, activate additional legal rights supporting the other claim." Id (citing Republic Health, 755 F.2d at 1455). In other words, "there is a logical relationship when 'the same operative facts serve as the basis of both claims."' Republic Health, 755 F.2d at 1455 (quoting Plant v. Blazer Fin. Servs., Inc., 598 F.2d 1357, 1361 (5th Cir. 1979)). "[O]nly claims that do not arise from common operative facts are not logically related." Montgomery Ward Dev. Corp. v. Juster, 932F.2d 1378,1381 n.1 (llthCir.1991). The logical relationship standard is a "loose" one that "permits a broad realistic interpretation in the interest of avoiding a multiplicity of suits." Plant, 598 F .2d at 1361 (internal quotations omitted). Joinder rules, including Rule 20(a)(2), are construed generously towards "entertaining the broadest possible scope of action consistent with fairness of the parties." United Mine Workers v. Gibbs, 383 U.S. 715,724 (1966).

The claims against Heather Clem and Gawker are "logically related" and rest on the same set of operative facts- namely, the recording and publication of the video. To find otherwise would be to ignore the Eleventh Circuit's directive to interpret Rule 20 "broad[ly]" to "avoid[] a multiplicity of suits." Plant, 598 F.2d at 1361. Moreover, questions of law and fact common to Heather Clem and Gawker will undoubtedly arise in this case, including questions concerning the video's chain of custody, Bollea's privacy rights, the applicability and interpretation of Florida's privacy torts, and the Defendants' constitutional defenses. Because Bollea's claims against Heather Clem and Gawker are logically related, they satisfy Rule 20(a)(2), and Gawker has not shown that Bollea's joinder of the Defendants was "egregious."

B. The First Amended Complaint Does Not Give Rise to Federal Question Jurisdiction.

Unable to establish diversity jurisdiction by fraudulent joinder, Gawker must prove that federal question jurisdiction exists under 28 U.S. C. § 13 31. In its notice of removal, Gawker asserts two bases for federal question jurisdiction. First, Gawker argues that Bollea's claims of invasion of privacy by intrusion upon seclusion "aris[ e] under the United States Constitution" (Dkt. 1 ¶ 40). Second, Gawker asserts that Bollea' s request for an order "transferring to Plaintiff all of Defendants' right, title and interest in and to the" video (Dkt. 2 at 24 ¶ 3) is governed exclusively by the United States Copyright Act (Dkt. 1 ¶ 41). [3] Reading Gawker's Notice of Removal broadly, the second basis contends that Bollea' s claims are completely preempted by the Copyright Act, and that jurisdiction is proper under 28 U.S.C. §§ 1338 and 1454.

1. Federal Questions Arising Under the United States Constitution Do Not Appear on the Face of the Complaint.

Congress has authorized the federal district courts to exercise original jurisdiction in "all civil actions arising under the Constitution, laws, or treaties of the United States." § 1331. The federal question at issue "must appear on the face of the plaintiffs well-pleaded complaint." Cmty. State Bank v. Strong, 651 F.3d 1241, 1251 (11th Cir. 2011). When only state-law claims are asserted in a complaint, a claim "aris[es] under" federal law if it "necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities." Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308,314 (2005). That is, "federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and ( 4) capable of resolution in the federal court without disrupting the federal-state balance approved by Congress." Gunn v. Minton, 133 S.Ct. 1059, 1065 (2013).

a. No federal law issues are "necessarily raised" by the First Amended Complaint.

In Gunn v. Minton, the Supreme Court applied this four-factor analysis to determine whether a state-law legal malpractice claim arose under federal law for the purpose of federal question jurisdiction. Beginning with the first factor, the Court held that the federal issue was "necessarily raised" because adjudication of the affirmative claim of legal malpractice required the application of federal patent law. 133 S. Ct. at 1065. Here, however, adjudication of Bollea's privacy claims do not require the application or interpretation of federal law. A claim for publication of private facts requires proof of "1) the publication, 2) of private facts, 3) that are offensive, and 4) are not of public concern." Spilfogel v. Fox Broadcasting Co., 433 Fed. Appx. 724, 725 (11th Cir. 2011) (citing Cape Publ'ns, Inc. v. Hitchner, 549 So. 2d 1374, 1377 (Fla. 1989) ). [4] And intrusion upon seclusion requires the plaintiff to prove the defendant "physically or electronically intrud[ed] into one's private quarters." Id at 726 (quoting Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156, 162 (Fla. 2003)). [5] Neither of these torts requires the application of federal law. A federal issue is therefore not "necessarily raised" by the First Amended Complaint.

Gawker's arguments for a contrary conclusion are unpersuasive. It first cites Country Club Estates, L.L.C. v. Town of Loma Linda, 213 F.3d 1001 (8th Cir. 2000), to demonstrate that Bollea's "complaint quite clearly allege[ d] a violation of the federal Constitution at several points," giving rise to federal question jurisdiction.

In Loma Linda, landowners brought an action in quo warranto against the town, alleging that the court order establishing the town of Lorna Linda was invalid because the landowners were not given proper notice in violation of their due process rights under the federal and state constitutions. Id. at 1003. The Eighth Circuit held that federal question jurisdiction was appropriate because the plaintiffs' reference to the United States Constitution was "unequivocal." ld "If the Due Process Clause of the Fourteenth Amendment is given one construction, the claim will prevail; if it is given another, the claim will fail." Id This was, the court said, a "paradigm case for arising-under jurisdiction." ld

As opposed to the unequivocal reference to the Constitution in Loma Linda, Bollea's references to constitutional privacy are made in passing. His claims do not rise and fall on interpretations of the First, Fifth, or Fourteenth Amendments. Rather, the success of his claims depends on the application of state common law applicable to invasion of privacy torts. The First Amended Complaint, when read as a whole, makes only state law claims. Bollea' s passing references to his right to privacy do not "necessarily rais[e]" provisions of the United States Constitution. See Diaz v. Sheppard, 85 F .3d 1502, 1505 (11th Cir. 1996) (remand to state court is appropriate in a case alleging malpractice, negligence, and breach of contract, even though the plaintiff invoked Eighth Amendment standards in his complaint); Warthman v. Genoa Township Bd. of Trustees, 549 F.3d 1055, 1064 (6th Cir. 2008) ("A reference to the U.S. Constitution in a complaint should be read in the context of the entire complaint to fairly ascertain whether the reference states a federal cause of action or ... simply supports an element of a state claim."); Avitts v. Amoco Production Co., 53 F.3d 690, 694 (5th Cir. 1995) ("[S]ubject matter jurisdiction cannot be created by simple reference to federal law.").

Gawker also points to Bollea's assertions in previous litigation as evidence that Bollea's claims arise under the First, Fifth, and Fourteenth Amendments. The basis for a federal court's jurisdiction, however, must appear on the face of the complaint. Strong, 651 F .3d at 1251. Bollea' s pleadings in previous litigation and other papers in this litigation are therefore irrelevant. See Ehlen Floor Covering, Inc. v. Lamb, 660 F.3d 1283, 1287 (11th Cir. 2011) ("Jurisdiction is determined by looking to the face of the plaintiffs' well-pleaded complaint .... "). [6] Bollea's claims simply do not necessarily raise a federal question.

b. Any federal issues arising out of Bollea's state-law claims are not "substantial."

Even if the First Amended Complaint necessarily raises federal issues, federal question jurisdiction is still defeated because the federal issues referenced in the First Amended Complaint are not "substantial." Substantiality is evaluated by looking to the importance of the issue to the federal system as a whole. Gunn, 133 S. Ct. at 1067. Issues that will "change the real-world result" for future cases and future litigants are substantial. ld The two paradigmatic examples of "substantial" federal issues cited in Gunn involved the United States Government's "direct interest in the availability of a federal forum to vindicate its own administrative action," and the "constitutional validity of an act of Congress which is directly drawn in question." Grable, 545 U.S. at 315; Smith v. Kansas City Title & Trust Co., 255 U.S. 180,201 (1921); see Gunn, 133 S. Ct. at 1066. Those issues of law were "substantial" because they "could be settled once and for all and thereafter would govern numerous" cases. Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 700 (2006).

The analysis of substantiality in Gunn makes it clear that any federal issues arising from the First Amended Complaint are not "substantial." The federal issues referenced by Bollea do not impact the Government's interest in vindicating its actions or enforcing its laws. Any decision regarding the application of federal law to Bollea's claims will be backward-looking in nature and, while important to Bollea, Clem, and Gawker, will not affect the ability to vindicate crucial constitutional rights in the future or settle issues that would govern numerous cases in the future. See Gunn, 133 S. Ct. at 1066 ("Again, the relevant point was not the importance of the question to the parties alone but rather the importance more generally of a determination that the Government securities were issued under an unconstitutional law, and hence of no validity." (internal quotations omitted)). Ultimately, this case "is 'poles apart from Grable,' in which a state court's resolution of the federal question 'would be controlling in numerous other cases."' /d. at 1 067 (quoting Empire Healthchoice, 547 U.S. at 700). Even if this case raises novel First Amendment issues and claims, that fact is insufficient to confer federal question jurisdiction because another federal court will, at some point, have a chance to decide the issue. See id. Allowing Florida state courts to resolve this case will not "undermine 'the development of a uniform body of [federal] law."' /d. (quoting Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 162 (1989)).

In summary, federal issues do not appear on the face of Bollea's First Amended Complaint. Those federal issues that are implied by passing reference to the United States Constitution are not "necessarily raised" or "substantial" and therefore do not confer federal question jurisdiction. There are no federal causes of action asserted, and Bollea's state law privacy torts do not give rise to a federal question jurisdiction. See Vurimindi v. Wyeth Pharms., 447 Fed. Appx. 426 (3d Cir. 2011) (affirming dismissal of state law claims, including invasion of privacy, for lack of federal question jurisdiction). [7] Bollea is the "master of the claim" and is entitled to "avoid federal jurisdiction by exclusive reliance on state law." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).

2. Bollea 's Claims Are Not Completely Preempted by the Copyright Act.

"If a federal question does not appear on the face of the complaint, then the plaintiffs claim arises under federal law only if it 'falls within the special category of federal question jurisdiction created by the doctrine of complete preemption."' Strong, 651 F .3d at 1251 (quoting Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d 1267, 1281 (11th Cir. 2005)). The Eleventh Circuit has yet to decide whether the Copyright Act completely preempts related state law claims, although at least four other circuits have held that it does. Stuart Weitzman, LLC v. Microcomputer Resources, Inc., 542 F.3d 859,864 (11th Cir. 2008); see Santa-Rosa v. Combo Records, 471 F.3d 224,226-27 (1st Cir. 2006); Ritchie v. Williams, 395 F.3d 283,285-87 (6th Cir. 2005); Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 303-05 (2d Cir. 2004); Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 230-33 (4th Cir. 1993); see also Dunlap v. G&L Holding Group, Inc., 381 F.3d 1285, 1289-91, 1293-98 (11th Cir. 2004) (suggesting that the Copyright Act might have complete preemptive effect in some circumstances); Foley v. Luster, 249 F.3d 1281, 1287-88 (11th Cir. 2001) (same).

The cases applying the complete preemption doctrine to the Copyright Act ask "(1) whether the particular work falls within the type of works protected by the Copyright Act under 17 U.S.C. §§ 102 and 103 (the subject matter requirement); and (2) whether the claim seeks to vindicate rights that are equivalent to one of the bundle of exclusive rights of a copyright holder protected by 17 U.S.C. § 106 (the general scope requirement)." Stuart Weitzman, 542 F.3d at 864 n.5. To satisfy the general scope requirement, the state law claim must involve acts "of reproduction, adaptation, performance, distribution or display." Briarpatch, 3 73 F .3d at 305. The state law claim may not have any "extra elements that make it qualitatively different from a copyright infringement claim." !d. To determine whether a claim is qualitatively different, courts look to "what [the] plaintiff seeks to protect, the theories in which the matter is thought to be protected and the rights sought to be enforced." !d. at 306 (quoting Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693,716 (2d Cir. 1992)).

In this case, Counts I and II of the First Amended Complaint are qualitatively different than a copyright infringement claim. Even though Bollea seeks to regulate and control the distribution and display of the video, his claims for intrusion upon seclusion and publication of private facts necessarily require proof of separate elements of privacy. Intrusion upon seclusion requires proving the qualitatively different element of "intru[sion] into one's private quarters," and publication of private facts requires a plaintiff to prove the qualitatively different elements of "private facts" and "public concern." Spilfogel, 4 3 3 Fed. Appx. at 725-26. Copyright infringement actions do not require these additional inquiries, and Bollea's state law claims are therefore qualitatively different from a copyright infringement action. See Laws v. Sony Music Entm't, 448 F .3d 1134, 1145 (9th Cir. 2006) ("To be clear, we recognize that not every right of publicity claim is preempted by the Copyright Act. Our holding does not extinguish common law or statutory rights of privacy, publicity, and trade secrets ... , so long as those causes of action do not concern the subject matter of copyright and contain qualitatively different elements than those contained in a copyright infringement suit."). Cf Computer Assocs., 982 F .2d at 71 7 (claim is qualitatively different if it requires proof of a breach of fiduciary duty); Harper & Row, Publishers, Inc. v. Nation Enters., 723 F.2d 195,201 (2d Cir. 1983) (claim is qualitatively different if it requires proof of possession and control of chattels), rev 'd on other grounds 4 71 U.S. 53 9 ( 1985). Gawker' s argument for complete preemption therefore fails.

3. Removal Is Not Appropriate under 28 U.S. C. §§ 1338 and 1454.

Title 28, Section 1338(a), of the United States Code grants district courts "original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks." Section 1454 specifies that claims arising under any Act of Congress relating to copyrights may be removed "by any party." Courts interpret the phrase "arising under" in sections 13 31 and 13 3 8( a) identically and "apply the same test to determine whether a case arises under§ 1338(a) as under§ 1331." Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830 (2002); see Gunn, 133 S. Ct. at 1064. Where a well-pleaded complaint does not assert any claims under federal law, neither§ 1331 nor§ 1338(a) confers jurisdiction. See Holmes Group, 535 U.S. at 830. It has already been determined that the First Amended Complaint does not assert any claims under federal law and there is no federal question jurisdiction under§ 1331. See supra Section III(B)(l). Accordingly, jurisdiction is also lacking under§ 1338. [8]

CONCLUSION

Removal provisions are to be construed strictly and all doubts resolved in favor of remand. Miedema, 450 F.3d at 1328. Gawker has not satisfied its burden of proving that subject-matter jurisdiction exists over the First Amended Complaint, whether based on diversity or federal question jurisdiction. Under the Eleventh Circuit's "loose" joinder standards, Heather Clem is not fraudulently joined. Moreover, no federal questions appear on the face of the First Amended Complaint. Bollea's claims do not arise under the laws of the United States, and his passing references to the United States Constitution are insufficient to confer subject-matter jurisdiction. Nor are his claims preempted by the Copyright Act because they are qualitatively different than claims for copyright infringement. Accordingly,

1) Plaintiffs Motion for Remand (Dkt. 20) is GRANTED.

2) This case is REMANDED to the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida.

3) The Clerk is directed to SEND a certified copy of this order to the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida, to TERMINATE all pending motions, and to CLOSE the file.

DONE AND ORDERED this 27th day of March, 2013.

JAMES D. WHITTEMORE
United States District Judge

Copies to:
Counsel of Record

_______________

Notes:

1. Gawker's response (Dkt. 24) inexcusably contains extensive substantive footnotes in an apparent effort to circumvent the page limits prescribed by the Local Rules for the Middle District of Florida. Plaintiffs reply also contains multiple substantive footnotes (see Dkt. 28 at 2, 5, 8) in violation of the Court order that the reply "shall not contain substantive footnotes" (Dkt. 27).

2. Section 934.10(1) provides "[a]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of ss. 934.03-934.09 shall have a civil cause of action against any person or entity who intercepts, discloses, or uses, or procures any other person or entity to intercept, disclose, or use, such communications ..."

3. Any other basis for federal question jurisdiction asserted in Gawker's response (Dkt. 24) but not in the Notice of Removal may not be addressed. See Campbell v. Am. Tours Int'l, LLC, 2013 WL 894797, at* 2 (N.D. Cal. Mar. 8, 2013) (citing Willingham v. Morgan, 395 U.S. 402, 408 (1969)); Wright & Miller, Fed. Practice & Procedure: Jurisdiction § 3 733 at 358 (3d ed. )(When the basis for jurisdiction is not raised in the notice of removal, "[c]ompletely new grounds for removal jurisdiction may not be added and missing allegations may not be furnished.").

4. See Rest. (2d) Torts§ 652D (1976) ("One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public."). The Second Restatement of Tort's formulation of the tort of publication of private facts has been cited approvingly by Florida courts. See, e.g., Williams v. City of Minneola, 575 So. 2d 683, 689 n.5 (Fla. 5th DCA 1991).

5. See Rest. (2 d) Torts § 6528 ( 1976) ("One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.").

6. Gawker also argues that federal jurisdiction is supported by Bollea's previous "argument that Toffoloni establishes a federal constitutional privacy right standing on equal footing with the First Amendment" (Dkt. 24 at 14). This argument does not appear on the face of the First Amended Complaint and therefore may not be considered in removal proceedings. In any event, any such argument by Bollea would be in response to a First Amendment defense asserted by Gawker, which, as a matter of law, cannot give rise to a federal question. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 765 (11th Cir. 2010) (a defense that presents a federal question cannot create removal jurisdiction, even if that defense is valid).

7. See also Tortora v. City of Shelton Bd of Fire Comm 'rs, No. 3:12-cv-951 (SRU), 2012 WL 4854694, at *2 (D. Conn. Oct. 11, 2012) (complaint stating claims for (1) defamation; (2) intrusion upon seclusion; (3) false light publicity; (4) intentional infliction of emotional distress; (5) tortious interference with a business relationship; and (6) civil conspiracy did not present a basis for federal question jurisdiction); Santos v. Knight-Ridder, Inc., No. Civ.A.3 :04- CV-275-H, 2004 WL 3127629 (W.D. Ky. Dec. 15, 2004) (refusing to exercise federal question jurisdiction over claims for libel, invasion of privacy, and intentional infliction of emotional distress); Doev. TCF Bank Ill. FSB, No. 96 C 4146, 1997 WL 158297 (N.D. Ill. Mar. 31, 1997) (refusing to exercise pendant jurisdiction over claims for public disclosure of private facts and intrusion into seclusion); Thompson v. Johnson Cnty. Cmty. Coll., 930 F. Supp. 501, 508 (D. Kan. 1996) (refusing to exercise supplemental jurisdiction over plaintiff's pendant state Jaw claim for intrusion upon seclusion).

8. Because there is no federal question upon which to premise jurisdiction, it need not be determined whether Clem's consent to removal was necessary, and if so, whether she properly consented.
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Re: The Hulk Hogan trial that could redefine freedom of expr

Postby admin » Tue Mar 15, 2016 6:52 am

Ex-Gawker Editor Backs Off Testimony in Hulk Hogan Case
By LES NEUHAUS
MARCH 14, 2016

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Image
Albert J. Daulerio, former editor in chief of Gawker Media. Credit Pool photo by Steve Nesius

ST. PETERSBURG, Fla. — The former editor in chief of the website Gawker testified on Monday that he was not being sincere when he said in a videotaped deposition that children over the age of 4 were fair game for sex tapes to be published online.

The former editor, Albert J. Daulerio, sought to clarify his comments under questioning from Gawker’s lawyer, Michael Sullivan. The deposition was played last Wednesday, in a court where a $100 million suit brought by the former wrestler Hulk Hogan, claiming invasion of privacy, is being tried.

In that testimony, Mr. Daulerio was asked by the plaintiff’s lawyer if he could imagine a situation in which a celebrity sex tape would not be newsworthy.

“If they were a child,” Mr. Daulerio replied.

“Under what age?” the lawyer asked.

“Four.”

Gawker issued a statement later that day saying Mr. Daulerio was being flippant. On Monday, he told Gawker’s lawyer that he was not being serious when he made the comments.

In cross-examination, the legal team for Hulk Hogan, whose legal name is Terry G. Bollea, attacked Mr. Daulerio for his seeming insensitivity.

“You think that’s a funny topic to joke about?” asked Shane Vogt, one of the lawyers for the former wrestler.

“No, I don’t,” Mr. Daulerio replied.

A few exchanges later, Mr. Vogt asked Mr. Daulerio, “You were joking about child pornography, were you not?”

Mr. Daulerio deflected the question, saying that he was being sarcastic, but that he regretted the response in the video deposition.

But Mr. Vogt was dogged, showing both Mr. Daulerio’s video deposition on the subject and then introducing a piece of evidence with Mr. Daulerio’s signature, confirming his testimony in the videotaped deposition.

Mr. Vogt persisted, asking if he hadn’t changed his testimony.

Mr. Daulerio said he had not, though he could have.

Image
Nick Denton, left, founder of Gawker, and a former editor, Albert J. Daulerio, are defendants in the Hulk Hogan case. Credit Pool photo by Stephen Yang

At that point, Mr. Sullivan jumped up, asking if both sides could approach the bench of Judge Pamela M. Campbell. When the proceedings continued, the questioning by Mr. Vogt shifted gears, focusing on Mr. Daulerio’s excitement in posting the video online.

Mr. Daulerio said under questioning that he never sought the permission of Nick Denton, founder of Gawker Media, to publish the video. Mr. Denton, who was sitting in the courtroom on Monday, is a defendant in the case, along with Gawker and Mr. Daulerio. Mr. Bollea testified last week that he had been “completely humiliated” by Gawker’s posting of a video that showed him having sex with the wife of his former best friend.

Mr. Vogt then guided Mr. Daulerio into some of the more lurid details of the process in which he and others at Gawker edited the video and drafted a story to accompany it, complete with several hyperlinks to posts involving other celebrity sex tapes.

The existence of other sex tapes online was brought up by the defense in the morning as a way to show that Gawker was not alone in posting such videos. Mr. Daulerio noted in testimony that Gawker had posted the video of Mr. Bollea several months after TMZ and TheDirty.com had broken the story and posted stills from the video.

Pressed by Mr. Vogt, Mr. Daulerio admitted there was little news value to showing certain portions of the video, like lewd nudity, but that over all the newsworthiness justified posting it.

At the core of the case is whether Mr. Bollea’s celebrity, and his candid public statements about his sex life, outweigh his right to privacy, and whether Gawker’s First Amendment rights trump his claim to confidentiality. If the jury finds for Mr. Bollea and awards him substantial monetary compensation, it could damage Gawker journalistically and financially, though to what extent will not be clear until the case concludes.

Lawyers for Gawker will most likely appeal any decision against them. If Gawker wins, it could set a powerful precedent for the online publishing world.

Late Monday afternoon, the defense called Mr. Denton to the stand, as well as Emma Carmichael, the editor in chief of Jezebel, a Gawker-owned website dedicated to feminist issues.

Mr. Denton’s testimony on Monday ranged from the mundane issues of his background in journalism to his management style at Gawker. A onetime Financial Times foreign correspondent who covered the fall of communism in eastern bloc countries in the late 1980s, he later reported on the banking industry in Britain and the United States before starting Gawker.

Mr. Bollea’s legal team is set to cross-examine Mr. Denton on Tuesday.

The jury is also expected to be shown the one-minute, 41-second video that was posted on Gawker’s website in October 2012. It showed Mr. Bollea having sex with Heather Clem, the wife at the time of Mr. Bollea’s friend Todd Clem, a Florida shock-radio host now known as Bubba the Love Sponge. Mr. Clem may still be called to testify in court, according to both legal teams and the judge.

Gawker’s legal team has maintained that Mr. Bollea has consistently made his sex life a public matter, bragging about his conquests and his penis size on various radio shows, including with Howard Stern and Mr. Clem.
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Re: The Hulk Hogan trial that could redefine freedom of expr

Postby admin » Thu Mar 31, 2016 1:50 am

Hulk Hogan Gets $115M Verdict Against Gawker at Sex Tape Trial
by Eriq Gardner
MARCH 18, 2016

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Image

The outcome comes after two weeks of testimony in a first-of-its-kind case where discussions of newsworthiness and decency dominated.

Weighing free speech against privacy, a Florida jury has decided to uphold the sanctity of the latter by turning in a $115 million verdict against Gawker over its 2012 posting of a Hulk Hogan sex tape.

Hogan brought the case three years ago after Gawker, a 13-year-old digital news site founded by Nick Denton, an entrepreneur with an allergy to celebrity privacy, published a video the wrestler claimed was secretly recorded. The sex tape was sensational, showing Hogan — whose real name is Terry Bollea — engaged in sexual intercourse with Heather Cole, the then-wife of his best friend, Tampa-area radio shock jock Bubba the Love Sponge (real name: Todd Alan Clem). Gawker's posting of the Hogan sex tape was accompanied by an essay from then–editor-in-chief A.J. Daulerio about celebrity sex and a vivid play-by-play of the encounter between Hogan and Cole.

In an era when digital networks have reshaped culture, raising tough questions about sharing and prying in society, the jury got to hear two weeks of testimony in a first-of-its-kind sex tape case where discussions of newsworthiness and decency dominated.

Hogan, the first to take the witness stand, attempted to separate his public persona from his true and private self. "It's turned my world upside down," he testified about Gawker's posting. His many interviews with press outlets, some addressing his sexual boasts and endeavors, became the subject of a heated cross-examination. "The person sitting here under oath is Terry Bollea, and I don't lie under oath," said Hogan.

His attorneys also played depositions conducted with Denton and Gawker staffers, who had to explain tasteless jokes and their boundary-pushing philosophies on what's appropriate to publish. "I believe in total freedom and information transparency," said Denton. "I'm an extremist when it comes to that." Many of those same Gawker hands later took the witness stand to put their journalism in a more flattering light, although Daulerio admitted Hulk Hogan's penis isn't newsworthy.

The trial also featured less salacious elements, with experts delving into the media business through discussion of digital marketing and web analytics. One of Hogan's experts testified the benefit to Gawker from the sex tape was $15 million, while another, on behalf of the defendant, told the jury it was just $11,000.

The mysterious background of the sex tape was explored by Gawker: Who knew a taping was happening? Was it a publicity stunt? But Gawker couldn't get Clem, whom they desperately wanted, on the witness stand to address conflicting accounts of who knew about the taping. Nor could they discuss many of the racist comments that Hogan had made during his sexual encounter with Cole to set up a possible argument that Hogan had an ulterior motive for the lawsuit.

A Florida appeals court ordered the unsealing of court records — including text messages between Hogan and Bubba, Bubba's deposition testimony, what the FBI was told during its investigation, and a $5,000 settlement agreement between Hogan and Bubba — but none of that made it into the trial thanks to Florida Circuit Judge Pamela Campbell's pretrial rulings that strongly favored Hogan. No part of the actual sex tape itself — including the excerpts published by Gawker — was shown to the jurors.

Nevertheless, the trial, which resembled the Scopes trial insofar as the amount of publicity attracted by a case centered on free speech and concerns about morality, provoked a discussion of ethics and boundaries in media like no other. One journalism professor, acting as an expert for Hogan, introduced his "Cheerios test" — whether readers could digest their breakfast while reading — with Hogan's attorneys bringing up Caitlyn Jenner, Madonna, Magic Johnson and others to probe whether it mattered if a celebrity injects their personal life into the public arena. Even Thomas Jefferson's name came up, with that same witness, Mike Foley, agreeing that it was good that the media speaks in different voices. "That was the original concept by Thomas Jefferson," said Foley, referring to the First Amendment.

Ultimately, the case became a battle, at least indirectly, between the First Amendment, guaranteeing free speech and a free press, and the Fourteenth Amendment, where courts have determined that a right to privacy derives under equal protection of life, liberty and property. Like many states, Florida has enacted statutes that guard against intrusions on seclusion and privacy of communications. Hogan also won on his right of publicity claim.

"Do you think the media can do whatever they want?" asked Hogan's attorney Ken Turkel in closing arguments.

"We don't need the First Amendment to protect what's popular," responded Gawker attorney Michael Sullivan in his own closing. "We need a First Amendment to protect what's controversial."

"This is not about political speech," rebutted Turkel to the jury. "This case is unique. … You're not going to condemn someone's right to engage in speech. You're balancing the right to make the speech versus privacy rights."

In reaching its verdict, the jury tipped that scale toward privacy. Hogan sobbed, and after the outcome became clear, appeared relieved more than happy. The court will reconvene next week when the judge could decide to award punitive damages to Hogan.

A stunned-looking Nick Denton watched from the gallery and took a deep breath. Gawker already has indicated it will appeal. The focus of the coming proceedings likely will be whether the First Amendment should have precluded claims and whether Gawker got a fair trial.

Denton delivered a statement in response to the verdict. "Given key evidence and the most important witness were both improperly withheld from this jury, we all knew the appeals court will need to resolve the case," he said. "I want to thank our lawyers for their outstanding work and am confident that we would have prevailed at trial if we had been allowed to present the full case to the jury. That's why we feel very positive about the appeal that we have already begun preparing, as we expect to win this case ultimately."

Hogan's legal team hailed the outcome: "We're exceptionally happy with the verdict. We think it represents a statement as to the public's disgust with the invasion of privacy disguised as journalism. The verdict says no more."
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Re: The Hulk Hogan trial that could redefine freedom of expr

Postby admin » Thu Mar 31, 2016 1:52 am

Gawker Trial: Editor Admits Hulk Hogan's Penis Isn't Newsworthy
by Eriq Gardner
MARCH 14, 2016

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A.J. Daulerio, who wrote the story about Hogan's sex tape, testifies that he was "amused" by it, and faces a tough cross-examination.

Having been posed as the big, bad news organization that skirts privacy rights by posting scandalous material that steps over the line of human decency, Gawker is now presenting its defense in Hulk Hogan's $100 million trial in Florida.

Last week, Hogan's attorneys trotted out taped depositions from Gawker staffers faced with questions about crude jokes made and a lack of consideration about the plaintiff's feelings in the October 2012 publishing of Hogan's sex tape. That included A.J. Daulerio, the former Gawker editor-in-chief who wrote the essay that accompanied the controversial sex tape. Daulerio said during his own deposition he would only draw the line on running sex tapes for those featuring children under the age of 4. The flippant remark garnered enough media buzz that Hogan's lawyers showed it to the jury twice.

On Monday, Daulerio was the first person called to the witness stand by Gawker in a seeming effort to establish that great care was taken before posting the video. He was also asked about his young children remark. Daulerio says he wasn't being serious. "[The deposition] was a very long day," he said. "Yes, 100 percent [Hogan's attorneys knew I was being sarcastic]. That's not my view."

Facing blistering questions on cross-examination from Hogan's attorney Shane Vogt, Daulerio acknowledged that child pornography wasn't a proper subject to joke about, that he was testifying under oath, and had three lawyers present with him. "If I had the opportunity to insert that I was joking, I should have," said Daulerio, who admitted that he signed a transcript of his deposition as accurate.

Daulerio's appearance at trial became most heated toward the end of his testimony when Vogt fired off a series of rapid questions seemingly intended to get under Daulerio's skin. Vogt asked the editor about smirking during his deposition upon a discussion of the First Amendment, why his recollection of events didn't match Gawker owner Nick Denton's and whether he understood that there are kids out there who were interested in Hogan and would search for the video. After Daulerio acknowledged that he had told other Gawker staffers that Hogan's penis should be shown in the video, Vogt zeroed in on the topic.

"Mr. Bollea's penis had no news value, right?" asked Vogt.

"No," responded Daulerio.

"It wasn't newsworthy, right?"

"No."

"There was no news value to showing them having sex?"

"No, not necessarily."

Daulerio says he was making a social commentary on celebrity sex videos, and during direct examination from Gawker attorney Mike Sullivan, he defended the posting and a viewpoint that there are limitations on celebrity privacy.

"Sometimes you can come across as callous," said Daulerio. "But that's my job as a journalist. It's to put something out there that's fair and accurate. … Public figures live a different life."

"They do say," Mr. Adams said to Old Man Warner, who stood next to him, "that over in the north village they're talking of giving up the lottery."

Old Man Warner snorted. "Pack of crazy fools," he said. "Listening to the young folks, nothing's good enough for them. Next thing you know, they'll be wanting to go back to living in caves, nobody work any more, live that way for a while. Used to be a saying about 'Lottery in June, corn be heavy soon.' First thing you know, we'd all be eating stewed chickweed and acorns. There's always been a lottery," he added petulantly. "Bad enough to see young Joe Summers up there joking with everybody."

"Some places have already quit lotteries," Mrs. Adams said.

"Nothing but trouble in that," Old Man Warner said stoutly. "Pack of young fools."

-- The Lottery, by Shirley Jackson


Daulerio testified that after TMZ reported about the existence of the sex tape in March 2012, he received an email from Tony Burton, a manager representing various radio personalities, who wanted to send along the sex tape for review. Burton didn't demand money, says Daulerio. The package came when Daulerio was on vacation. When he returned to the office and took a look at what was sent to him, he saw Hogan having sex with Heather Clem, the wife of Tampa radio shock jock Bubba the Love Sponge. According to Daulerio, Bubba's voice can be heard saying, "You guys go have fun now."

"I was amused by it," says Daulerio. "I grew up watching Hulk Hogan and knew him as a character for most of his life. This was not a situation I ever expected to watch him in."

Daulerio added it was "strange" to see Hogan sleeping with his friend Bubba's wife, seemingly with Bubba's permission. He told a subordinate to take the 30-minute tape and cut it down to some excerpts. Daulerio said he wanted the more "innocuous" discussions between Hogan and Clem to be shown given what he was going to write about celebrity sex tapes as well as the sexual acts themselves. Ultimately, one-minute, 47 seconds of the sex tape — nine seconds of actual sex — was published with subtitles. "I really wanted to focus on the things being said in the sex tape," said Daulerio, who also explained why he labeled it "NSFW" (not safe for work), provided links to other celebrity sex tapes, and acted facetiously by headlining the story, "Even For A Minute, Watching Hulk Hogan Have Sex In A Canopy Bed Is Not Safe For Work But Watch It Anyway."

The former Gawker editor told the jury that a bump in traffic happened after Hogan went on a publicity tour, especially when the wrestler appeared on Howard Stern's radio show. Another traffic spike occurred when Hogan filed his lawsuit.

"It was an extremely popular story," said Daulerio. "I was pleasantly surprised by that."

Daulerio also explained why he didn't contact Hogan's camp for their opinion of the sex tape. "They had already commented on the sex tape," says Daulerio, referring to Hogan's media interviews. "I was satisfied with everything I saw on the tape. I needed no clarification."

On cross-examination, Daulerio was asked whether Nick Denton was a "rule-breaker" and whether he had a discussion with his boss about the sex tape prior to posting. Daulerio said there wasn't any such conversation, but after being shown Denton's own statements that portrayed Daulerio as being excited about the sex tape, Daulerio said, "I think [Denton] was confusing two different conversations."

Daulerio mostly kept his cool throughout his appearance on the witness stand, only flashing a tinge of sarcasm when telling the jury he showed Hogan's penis "because that’s sometimes what happens when people have sex" and, "No, I was not surprised there was more than one person who was visiting the site to see the sex tape."

Vogt read some of the things that Daulerio had written in his October 2012 post — how Hogan's penis was "the size of a thermos you'd find in a child's lunchbox" and how "because the Internet has made it easier for all of us to be shameless voyeurs and deviants, we love to watch famous people have sex."

"You could have commented without showing the tape?" Vogt asked.

"I could have," said Daulerio.

"You believed publishing the sex tape would bring traffic to the site, right?"

"Again, the whole point of publishing is to bring traffic. This is the way I chose to present the story."

"You didn't care whether it emotionally distressed him, right?"

"That's not my job."


Tina Dalgleish cobbled together a story from what had effectively been a non-event, and two days before it appeared in the paper, she phoned Mr. Lewis, as was customary, to inform him that it would be in the next edition of the paper.

That Sunday morning Arnold Lewis's body was found in his car. He had killed himself by inhaling exhaust fumes. He was 52.

At the inquest, counsel read Mr. Lewis's suicide note, and asked Dalgleish, "Does that not upset you?"

"No not really. I can see that it might upset his wife, but it doesn't upset me."

-- Suicide of Arnold Lewis: Excerpt From "News of the World?: Fake Shiekhs and Royal Trappings", by Peter Burden, Julia Dillon


"It didn't matter that it was a morbid and sensation-prying, did it?"

"No it didn't."


Ben, the chef, cried when Mazher told him his little "sexy mini-break" was being featured in the News of the World. Then he rang the editor, Patsy Chapman, to tell her that he was divorced, and that if the story were published, he would be barred from ever seeing his children again. If that happened, he would kill himself.

He pleaded with her, but hard-nosed Patsy told him if she listened to every sob-story about why she shouldn't run a story, nothing would ever get printed.

Within a fortnight the man had hanged himself in his French house.

The photographer, Steve Grayson, was horrified, and felt directly responsible for what had happened -- his big, revealing, semi-naked shot of Roxanne had been a major part of the story.

Mazher Mahmood, on the other hand, told Steve that as far as he was concerned, the man was a fool to have been so indiscreet and he'd got what was coming to him.

-- Suicide of Ben Stronge: Excerpt From "News of the World?: Fake Shiekhs and Royal Trappings", by Peter Burden, Julia Dillon
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Re: The Hulk Hogan trial that could redefine freedom of expr

Postby admin » Thu Mar 31, 2016 3:06 am

Gawker Trial: Hulk Hogan Awarded $25 Million More in Punitive Damages
by Eriq Gardner
MARCH 21, 2016

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A Florida jury awards $25 million to punish the news site for posting a sex tape (on top of an earlier $115 million verdict).
A Florida jury has awarded Hulk Hogan just over $25 million in punitive damages in his sex tape lawsuit against Gawker Media. That's $15 million from Gawker, $10 million from Gawker owner Nick Denton and $100,000 from former Gawker editor-inchief A.J. Daulerio.

The decision brings the total verdict to $140.1 million, counting the $115 million in compensatory damages that came after the end of a two-week trial from which Hogan emerged victorious on his claims of privacy intrusion, publicity rights violation and infliction of emotional distress.

The huge award is meant to punish Gawker for its October 2012 posting of a sex tape video featuring Hogan, whose real name is Terry Bollea. Gawker argued that the use of the video in its story was newsworthy and should be protected by the First Amendment, but the defendant couldn't overcome Hogan's argument that privacy outweighed free speech in this case.

The jury was instructed that they should award punitive damages to deter defendants and others similarly situated and shouldn't award an amount that would financially destroy Gawker nor make it unreasonably large in relation to compensatory damages. The parties stipulated that Gawker's pre-judgment value was $83 million, that the news company's revenue last year was $48.7 million, and that Denton's assets from his ownership in various companies was worth $276 million. As for Daulerio, both sides acknowledged that he was still in debt from student loans.

"You send a message," said Hogan attorney Ken Turkel to the jury before the punitive damages award was announced. "You make a statement. You draw a line when it comes to a recording in a private bedroom."

"$115 million is punishment enough," said Gawker attorney Mike Berry. "The amount you have rendered in your verdict is already far beyond their means … that amount is debilitating … my clients have heard your decision."

Berry added that the decision would "send a chill" through news reporters everywhere and would have "far-reaching ramifications."


Florida judge Pamela Campbell will likely be asked to trim the awards. Regardless of what she decides, Gawker has indicated that it intends to appeal the verdict.

After the announcement of punitive damages, Gawker general counsel Heather Dietrick said, "There is so much this jury deserved to know and, fortunately, that the appeals court does indeed know. So we are confident we will win this case ultimately based on not only on the law but also on the truth."

Hogan's legal team hopes the verdict sends a message.

"We are extremely happy with the verdict and Mr. Bollea feels vindicated," they said in a statement. "Our victory will also deter others from victimizing innocent people. This verdict now requires those organizations to respect privacy and if not pay the price for failing to do so."
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Re: The Hulk Hogan trial that could redefine freedom of expr

Postby admin » Thu Mar 31, 2016 9:31 am

Hulk Hogan verdict body-slams Gawker
By Paul Callan
March 22, 2016

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

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Image

(CNN) A Florida civil jury of four women and two men administered the legal version of a "pile driver," one of pro wrestling's most dangerous moves, Friday in awarding to ex-wrestler Hulk Hogan $115 million in compensatory damages against Gawker Media and its CEO Nick Denton.

The Hulk (real name Terry Bollea), clad entirely in black, cried what appeared to be real tears as the juror tag-teammates used their combined weight to symbolically drop Gawker and Denton on their conjoined heads.

And on Monday, the same jury administered a final devastating blow to the already prostrate and squirming defendants in the form of a punitive damage award of $25 million. This brings the total owed by Gawker and Denton to $140 million, which approaches the entire $200 million net worth of both Gawker and Denton's assets.

The jury specified that $10 million of the punitive damages are to be assessed to Denton and the remaining $15 million to Gawker. The purpose of punitive damages in civil cases is to punish defendants for particularly reprehensible conduct and to send a message to others that such conduct will not be tolerated in a civilized society.

Another way of looking at the astounding amount of the award is that it equates to approximately $3.4 million per second for the 41 seconds of offensive video, making this likely the most expensive video in media history.

In the unlikely event that the staggering award is upheld on appeal, it could be the equivalent of a financial death penalty for the embattled company and for other tabloid media gossip sites that feed on celebrity scandals and humiliation via videotape.

The jury awarded the damages to compensate Hogan for alleged pain and economic injuries he sustained when a secret tape of his consensual sexual encounter with a friend's wife was publicly aired by Gawker. Though on appeal the award is likely to be reduced, it is a warning shot fired across the bow of a rapacious tabloid press.

Jurors and ordinary American citizens are fed up with out-of-control media that seem to believe that once the title of "newsworthy" is arbitrarily attached to an event or a person, the First Amendment will protect the publication of even the most salacious and offensive material that can be dredged up by sifting through celebrity mud.

My name is Ian Cutler. Now in my late 60s with little remaining of my career, other than an explosive inside knowledge of the newspaper industry and the many famous names exposed by it.

In this book I reveal all about the sleazy, dirt digging and dishonest goings on within the media business. The general public would not believe how many news stories are fake, and how many sex and sleaze activities exposed by the press were regularly indulged in by the very same journalists who blew the lid on them.

Is it any wonder that journalists are now rated by the general public on the same low footing as lawyers, the police, politicians and pornographers? In this book I name and shame many of the sleazy journalists and photographers involved, of which I was one. This is no mere speculation or hearsay. I was there, I was right there in the middle of it. This is my first hand account of the despicable activities at the News of the World, Daily Mirror, The Sun and other publications for which I worked for many years. I need to get this off my chest while I still can.

-- The Camera Assassin III: Confessions of a gutter press photojournalist, by Ian Cutler (author) & Jack Cox (editor)


Members of the media would be wise to remember that the special legal protections crafted by the courts to shield them from defamation and privacy invasion lawsuits are of relatively recent vintage.

The origin of these press protection doctrines began with the U.S. Supreme Court's decision in New York Times Co. v. Sullivan in 1964. That decision protected civil rights activists and, as Supreme Court precedent, all others from being silenced by lawsuits filed on behalf of public figures and politicians. The court said a showing of "actual malice" (an act of reckless disregard for the truth or falsity of a statement rather than a simple mistake) is required before libel damages can be awarded to public figures in such circumstances.

In the years that followed, this sensible decision has somehow morphed into the concept that if an event or a person is "newsworthy," the press can publish whatever it wants without fear of lawsuits for libel, slander or invasion of privacy.

Justice William Brennan, who delivered the opinion of a unanimous Supreme Court in the Sullivan decision, would be shocked to see his interpretation of the First Amendment twisted and deformed to allow the secret taping and video publication of sexual activity between consenting adults because one of them is famous.

The Hulk Hogan verdict is a reminder that the media need to be more responsible, and the courts need to clarify that the First Amendment protects the accurate reporting of political speech and truly "newsworthy" events. But the privacy rights of all Americans must also be respected.

The sleaze merchants of the tabloid media deserve no protection from the First Amendment to sell their wares. If they invade a citizen's privacy, they must answer in court like other citizens. And if anyone thinks the Hogan verdict is an aberration, listen to the words of the Republican front-runner Donald Trump on the subject. His denunciations of the press and his threat to change libel laws seem to be resonating with a large number of his followers.

Trump would undoubtedly use a meat cleaver to solve a First Amendment issue that calls for a scalpel. A court and jury solution is preferable. The only way to preserve and protect the freedoms that the media enjoy under the First Amendment in the world's greatest democracy is to make sure that those who abuse that freedom will be accountable to jurors -- like those in Florida who have body-slammed both Gawker and Denton.

Note: This article was updated with news of the punitive damages awarded Monday and corrected information on the defendants' net worth.
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Re: The Hulk Hogan trial that could redefine freedom of expr

Postby admin » Sat Apr 02, 2016 2:53 am

So You've Been Publicly Shamed (Excerpt)
by Jon Ronson
© 2015 by Jon Ronson

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

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Two: I'm Glad I'm Not That

In the middle of the night on July 4, 2012, Michael C. Moynihan lay on his sofa. His wife, Joanne, was asleep upstairs with their young daughter. They were broke, as they always were. Everybody seemed to make more money in journalism than Michael did. "I can never turn it into money," he'd later tell me. "I don't know how to do it."

These were anxious times. He was thirty-seven and scraping by as a blogger and a freelancer in a walk-up in a not-great part of Fort Greene, Brooklyn.

But he'd just had a job offer. The Washington Post had invited him to blog for ten days. Not that the timing was so great: "It was July Fourth. Everyone was on vacation. There were no readers and there wasn't a lot of news." But still, it was a break. And it was stressing Michael out. The stress had just spoiled a vacation in Ireland visiting his wife's family, and now it was stressing him out on his sofa.

He began hunting around for story ideas. On a whim he downloaded the latest number-one New York Times nonfiction bestseller from the young, handsome, and internationally renowned pop-psychology author Jonah Lehrer. It was a book about the neurology of creativity and was called Imagine: How Creativity Works.

The first chapter, "Bob Dylan's Brain," piqued Michael's interest, as he was a keen Dylanologist. Jonah Lehrer was reconstructing a critical moment in Dylan's creative career -- the thought process that led him to write "Like a Rolling Stone."

It was May 1965 and Dylan was bored, weary from a grueling tour, "skinny from insomnia and pills," sick of his music, thinking he had nothing left to say. As Jonah Lehrer writes:

The only thing he was sure of was that this life couldn't last. Whenever Dylan read about himself in the newspaper he made the same observation: "God, I'm glad I'm not me:' he said. "I'm glad I'm not that."


So Dylan told his manager he was quitting the music business. He moved to a tiny cabin in Woodstock, New York. His plan was to perhaps write a novel.

But then, just when Dylan was most determined to stop creating music, he was overcome with a strange feeling.

"It's a hard thing to describe," Dylan would later remember. "It's just this sense that you got something to say."

It was no wonder Imagine had become such a bestseller. Who wouldn't want to read that if they're creatively blocked and feeling hopeless they're just like Bob Dylan immediately before he wrote "Like a Rolling Stone"?

Michael Moynihan, I should explain, hadn't downloaded Jonah Lehrer's book because he was blocked and needed inspirational advice about how to write a Washington Post blog. Jonah Lehrer had recently been embroiled in a minor scandal and Michael was considering blogging about it. Some columns he had written for The New Yorker had, it turned out, been recycled from columns he'd published months earlier in The Wall Street Journal. Michael was considering blogging on how "self-plagiarism" was considered less of a crime in Britain than in America and what that said about the two cultures.

But now Michael suddenly stopped reading. He went back a sentence.

"It's a hard thing to describe," Dylan would later remember. "It's just this sense that you got something to say."


Michael narrowed his eyes. When the fuck did Bob Dylan say that? he thought.

"What made you suspicious?" I asked Michael. The two of us were eating lunch at the Cookshop restaurant in Manhattan's Chelsea district. Michael was handsome and fidgety. His eyes were pale and darting like a husky's.

"It just didn't sound like Dylan," he said. "In that period, in every interview Dylan did, he was a total asshole to the interviewer. This sounded like a Dylan self-help book."

And so, on his sofa, Michael scanned back a few paragraphs.

Whenever Dylan read about himself in the newspaper, he made the same observation: "God, I'm glad I'm not me," he said. ''I'm glad I'm not that."


In D. A. Pennebaker's documentary Dont Look Back (the missing apostrophe was the director's idea), Dylan reads an article about himself: "Puffing heavily on a cigarette, he smokes 80 a day . . ." Dylan laughs, "God, I'm glad I'm not me."

How did Jonah Lehrer know that Dylan said this whenever he read about himself in the paper? Michael thought. Where did "whenever" come from? Plus, "God, I'm glad I'm not me" is verifiable, but ''I'm glad I'm not that"? When did he say, ''I'm glad I'm not that?" Where did Jonah Lehrer get ''I'm glad I'm not that"?

And so Michael Moynihan e-mailed Jonah Lehrer.

I picked up your book and as an obsessive Dylan nerd eagerly read the first chapter ... I'm pretty familiar with the Dylan canon and there were a few quotes I was slightly confused by and couldn't locate.


This was Michael's first e-mail to Jonah Lehrer. He was reading it to me back home in his Fort Greene living room. Joanne sat with us. There were toys scattered around.

By the time Michael e-mailed Jonah on July 7, he'd pinpointed six suspicious Dylan quotes, including "It's just this sense that you got something to say," ''I'm glad I'm not that," and this angry retort to prying journalists: ''I've got nothing to say about these things I write. I just write them. There's no great message. Stop asking me to explain."

Dylan did once verifiably say in Dont Look Back, ''I've got nothing to say about these things I write. I just write them. There's no great message."

But there was no "Stop asking me to explain."

Michael mentioned to Jonah his deadline -- he was blogging for The Washington Post for ten days -- and then he pressed send.

minutia: a minute or minor detail —usually used in plural

Minutia was borrowed into English in the late 18th century from the Latin plural noun minutiae, meaning "trifles" or "details" and derived from the singular noun minutia, meaning "smallness." In English, minutia is most often used in the plural as either "minutiae" or, on occasion, as simply "minutia" (as illustrated in our second example sentence). Latin minutia, incidentally, comes from minutus, an adjective meaning "small" that was created from the verb minuere, meaning "to lessen." A familiar descendant of minutus is minute.

-- Minutiae, by Merriam Webster Dictionary


Jonah e-mailed Michael back twice the next day. His e-mails sounded friendly, professional, businesslike, maybe a little superior. His air was that of a smart young academic understanding Michael's questions and promising to answer them during an appropriate moment in his schedule. Which would be in eleven days. He was on vacation in Northern California for ten days. His files were at his home, a seven-hour drive away. He didn't want to disrupt his vacation by driving fourteen hours to check his files. If Michael could wait ten days, Jonah would send him detailed notes.

Michael smiled when he read out that part of Jonah's e-mail to me, Eleven days was quite the convenient vacation length given the duration of Michael's Washington Post contract.

Still, Jonah said he'd try to answer Michael's questions off the top of his head.

"And this," Michael said, "was where it all began to unravel for him. This is where he makes his first underplayed lie. He's hesitating. 'Do I make this lie?' "

Jonah made the lie.

"I got a little bit of help," he wrote, "from one of Dylan's managers."

This manager had given Jonah access to previously unreleased original transcripts of Dylan interviews. If there were any discrepancies with common references on the Web, that was why.

Jonah's e-mails continued in this vein for several paragraphs: Dylan had told a radio interviewer to "stop asking me to explain" in 1995. The interview was transcribed within the pages of a rare multivolume anthology called The Fiddler Now Upspoke: A Collection of Bob Dylan's Interviews, Press Conferences and the Like from Throughout the Master's Career. And so on. Then Jonah thanked Michael for his interest, signed off, and at the bottom of the e-mails were the words "Sent from my iPhone."

"Sent from his iPhone," Michael said. "A rather lengthy e-mail to send from an iPhone. Slightly panicky. Sweaty thumbs, you know?"

Who knew if Jonah Lehrer really was on vacation? But Michael had to take him at his word. So they had a lull. The lull made publication in the Washington Post blog impossible, given the digging Michael would need to do. The Fiddler Now Upspoke was a nightmare source: "Eleven volumes, twelve volumes, fifteen volumes. Individual ones cost a hundred fifty, two hundred dollars."

Jonah Lehrer presumably thought Michael hadn't the wherewithal to trace, purchase, and scrutinize an anthology as epic and obscure as The Fiddler Now Upspoke. But he underestimated the nature of Michael's tenacity. There was something about Michael that reminded me of the cyborg in Terminator 2, the one that was even more dogged than Arnold Schwarzenegger, running faster than the fastest car. As Joanne told me, "Michael is the guarder of social rules." She turned to him. "You're a nice guy as long as everyone else ... "

"When I go out in the world," Michael said, "if someone throws some garbage on the street, it's the most senseless thing to me. I lose my mind. 'Why are you doing this?'''

"And it's for hours," Joanne said. "We're out on a nice walk and it's a half-an-hour rant ... "

"I see things collapsing," Michael said.


And so Michael tracked down an electronic version of The Fiddler Now Upspoke. Well, it wasn't an actual electronic version, but "a complete archive of all known Dylan interviews called Every Mind-Polluting Word," Michael told me, "basically a digital version of Fiddler that a fan put together and dumped online." It turned out that Bob Dylan had given only one radio interview in 1995 and at no time during it had he told the interviewer to "stop asking me to explain."

On July 11, Michael was in the park with his wife and daughter. It was hot. His daughter was running in and out of the fountain. Michael's phone rang. The voice said, "This is Jonah Lehrer."

I know Jonah Lehrer's voice now. If you had to describe it in a word, that word would be measured.

"We had a really nice talk," Michael said, "about Dylan, about journalism. I told him I wasn't trying to make a name for myself with this. I said I'd been grinding away at this for years and I'm just -- you know -- I do what I do and I feed my family and everything's okay."

The way Michael said the word okay made it sound like he meant "barely okay." It was the vocal equivalent of a worried head glancing down at the floor.

"I told him I'm not one of those young Gawker guys going, 'Find me a target I can burn in the public square and then people will know who I am.' And Jonah said, 'I really appreciate that.'''

Michael liked Jonah. "I got along with him. It was really nice. It was a really nice conversation." They said their goodbyes. A few minutes later, Jonah e-mailed Michael to thank him once again for being so decent and not like one of those Gawker guys who delight in humiliation. They didn't make them like Michael anymore.


After that, Michael went quiet so he could dig around on Jonah some more.

These were the good days. Michael felt like Hercule Poirot. Jonah's claim that he'd had a little bit of help from one of Dylan's managers had sounded suspiciously vague, Michael had thought. And, indeed, it turned out that Bob Dylan had only one manager. His name was Jeff Rosen. And although Jeff Rosen's e-mail address was hard to come by, Michael came by it.

Michael e-mailed him. Had Jeff Rosen ever spoken to Jonah Lehrer? Jeff Rosen replied that he never had.

So Michael e-mailed Jonah to say he had some more questions.

Jonah replied, sounding surprised. Was Michael still going to write something? He assumed Michael wasn't going to write anything.

Michael shook his head with incredulity when he recounted this part to me. Jonah had obviously convinced himself that he'd sweet-talked Michael out of investigating him. But no. "Bad liars always think they're good at it," Michael said to me. "They're always confident they're defeating you."

"I've spoken to Jeff Rosen," Michael told Jonah.

And that, Michael said, is when Jonah lost it. "He just lost it. I've never seen anyone like it."

Jonah started repeatedly telephoning Michael, pleading with him not to publish. Sometimes Michael would silence his iPhone for a while. Then he'd return to find so many missed calls from Jonah that he would take a screenshot because nobody would otherwise have believed it. 1 asked Michael at what point it stopped being fun, and he replied, "When your quarry starts panicking." He paused. "It's like being out in the woods hunting and you're, 'This feels great!' And then you shoot the animal and it's lying there twitching and wants its head to be bashed in and you're, 'I don't want to be the person to do this. This is fucking horrible.' "

Michael got a call from Jonah's agent, Andrew Wylie. He represents not just Jonah but also Bob Dylan and Salman Rushdie and David Bowie and David Byrne and David Rockefeller and V. S. Naipaul and Vanity Fair and Martin Amis and Bill Gates and King Abdullah II of Jordan and Al Gore. Actually, Andrew Wylie didn't phone Michael. "He got in touch with somebody who got in touch with me to tell me to call him," Michael told me. "Which I thought was very Tinker Tailor Soldier Spy. He's thought to be the most powerful literary agent in the United States and I'm a schlub, I'm a nobody. So I called him. I laid out the case. He said, 'If you publish this, you're going to ruin a guy's life. Do you think this is a big enough deal to ruin a guy's life?'''

"How did you reply?" I asked.

"I said, 'I'll think about it,'" Michael said. "I guess Andrew Wylie is a bazillionaire because he's very perceptive, because I got a call from Jonah, who said, 'So Andrew Wylie says you're going to go ahead and publish.'"

On the afternoon of Sunday, July 29, Michael was walking down Flatbush Avenue, on the telephone to Jonah, shouting at him, "'I need you to go on the record. You have to do it, Jonah. You have to go on the record: My arms were going crazy. I was so angry and so frustrated. All the time he was wasting. All his lies. And he was simpering." Finally something in Jonah's voice made Michael know that it was going to happen. "So I ran into Duane Reade, and I bought a fucking Hello Kitty notebook and a pen, and in twenty-five seconds, he said, 'I panicked. And I'm deeply sorry for lying.'''

"And there you go," said Michael. "It's done."

Twenty-six days, and it took Michael forty minutes to write the story. He'd still not worked out how to make money from journalism. He'd agreed to give the scoop to a small Jewish online magazine, Tablet. Knowing how lucky they were, the people at Tablet paid Michael quadruple what they usually pay, but it was quadruple of not much: $2,200 total -- which is all he'd ever make from the story.

Forty minutes to write it, and what felt to him like nine packs of cigarettes.

"If anything, Jonah Lehrer nearly killed me I smoked so many fucking cigarettes out on the fire escape. Smoking, smoking, smoking. When you have the ability to press send on something and really, really affect the outcome of the rest of that person's life. And the phone was ringing and ringing and ringing and ringing. There were twenty-odd missed calls from Jonah that Sunday night. Twenty-four missed calls, twenty-five missed calls."

"He kept phoning," Joanne said. "It was so sad. I don't understand why he thought it was a good idea to keep phoning."

"It was the worst night of his life," I said.

"Yeah, yeah, for sure, for sure," Michael said.

Finally, Michael picked up the phone. "I said, 'Jonah, you have to stop calling me. This is almost to the point of harassment.' I felt like I was talking him off the ledge. I said, 'Tell me you're not going to do anything stupid.' It was that level of panic. So much so that I thought maybe I should pull back from this. He was, 'Please, please, please,' like a child's toy breaking, droning, running out of batteries, 'Please please, please ...'''

Michael asked me if I'd ever been in that position. Had I ever stumbled on a piece of information that, if published, would destroy someone? Actually destroy them.

I thought for a while. "Destroy someone?" I said. I paused. "No. I don't think so. I'm not sure."

"Don't ever do it," he said.

Michael said he honestly considered not pressing send that night. Jonah had a young daughter the same age as Michael's young daughter. Michael said he couldn't kid himself. He understood what pressing send would mean to Jonah's life: "What we do, when we fuck up, we don't lose our job. We lose our vocation."
...

***

Three: The Wilderness

Runyon Canyon, West Hollywood. If you were a passing hiker and you didn't know that Jonah Lehrer had been totally destroyed, you wouldn't have guessed it. He looked like he did in his old author photographs -- pleasing to the eye, a little aloof, as if he were thinking higher thoughts and expressing them in a considered manner to his fellow hiker -- me. But we weren't having a considered conversation. For the last hour, Jonah had been repeatedly telling me, in a voice strained to its breaking point, "I don't belong in your book."

And I was repeatedly replying, "Yes, you do."

I didn't understand what he was talking about. I was writing a book about public shaming. He had been publicly shamed. He was ideal.

Now he suddenly stopped in the middle of the hiking trail and looked intently at me. "I am a terrible story to put in your book," he said.

"Why?" I said.

"What's that William Dean Howells line?" he said. "'Americans like a tragedy with a happy ending'?"

The actual William Dean Howells line is "What the American public wants in the theater is a tragedy with a happy ending." I think Jonah was close enough.

I was here because Jonah's shaming felt to me like a really important one -- the shape of things to come. He was a dishonest, number-one bestselling author who had been exposed by the sort of person who used to be powerless. And despite seeing Jonah's face etched in panic and misery on the hiking trail, I was sure the renaissance in public shaming was a good thing. Look at who was being laid low -- bigoted Daily Mail columnists, monolithic gym chains with pitiless cancellation policies, and. most heinous of all, horrific academic spambot creators. Jonah had written some very good things during his short career. Some of his work had been wonderful. But he had repeatedly transgressed, he had done bad things, and the uncovering of his lies was appropriate.

Still, as we walked, I felt for Jonah. Close-up, I could see he was suffering terribly. Michael had called his cover-up a "great deception that was very, very well plotted." But I think it was just chaos, and on that last day before the story broke, Jonah wasn't "icy" but wrecked.

''I'm just drenched in shame and regret," he had e-mailed me before I flew to Los Angeles to meet him. "The shaming process is fucking brutal."

Jonah was offering the same dismal prediction about his future as Michael and Andrew Wylie had offered. He was foreseeing a lifetime of ruin. Imagine being thirty-one in a country that venerates redemption and second chances, and convinced your tragedy has no happy ending. But I thought he was being too pessimistic. Surely, after paying some penance, after spending some time in the wilderness, he could convince his readers and peers that he could change his ways. He could find a way back in. I mean, we weren't monsters.
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Re: The Hulk Hogan trial that could redefine freedom of expr

Postby admin » Mon Jun 13, 2016 7:23 am

Gawker Files for Bankruptcy After Losing Hulk Hogan Privacy Case
by Tiffany Kary and Gerry Smith
June 10, 2016

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.


Call it the Chapter 11 inverted headlock.

Gawker Media has deployed a desperation move to slip out of a potentially crippling $140 million jury verdict in the invasion-of-privacy case brought by former pro wrestler Hulk Hogan and funded by tech billionaire Peter Thiel: The digital-media company filed for bankruptcy Friday to sell its assets to publisher Ziff Davis or another bidder -- free and clear of legal liabilities.

“The bankruptcy filing is clearly a litigation strategy,” said Chris Ward, vice-chair of the bankruptcy practice at the Polsinelli law firm in Delaware.

The success of that strategy is now in the hands of U.S. Bankruptcy Judge Stuart M. Bernstein in Manhattan federal court, where Gawker is disputing Hogan’s claim and asking the judge to also shield its founder and chief executive officer, Nick Denton, from the verdict.

Hogan, whose real name is Terry Bollea, sued the media- and celebrity-focused web company in 2012 for posting a tape showing him having sex with a friend’s wife. He claimed the publication cost him endorsements and inflicted emotional harm. Thiel, the venture capitalist who co-founded PayPal and sits on the board of Facebook Inc., made a financial contribution to the suit. He and Gawker have a feud that goes back almost a decade.

‘Every Intention’

“We have every intention to continue to pursue our judgment against Gawker and to hold them accountable for violating Mr. Bollea’s privacy whether it be in the bankruptcy court or any other court,” his lawyer, David Houston, said in a statement Friday.

Under U.S. law, bankruptcy courts impose what is called an automatic stay on pending claims against the debtor. That would include the Florida jury’s award to Hogan, which means the ex-wrestler will have to wait and see whether there’s anything for him to collect after the company’s assets are sold, if he doesn’t agree to a settlement before then.

Ziff Davis has agreed to buy the assets absent a better offer at a court-supervised auction, according to a joint statement from the two companies. It’s agreed to pay around $100 million, said a person familiar with the matter who asked not to be identified because the pricing isn’t public.

Gawker said proceeds from the sale will fund its appeal. It also counter-sued Hogan and five other parties who have taken Denton to court for defamation, libel, invasion of privacy or similar claims. Gawker asked the bankruptcy court to broaden the automatic stay to cover its founder, who’s jointly liable for much of the Hogan verdict.

Company Origins

Oxford University-educated Denton, who started Gawker with a single blog out of his New York apartment in 2002, is “instrumental and central to the spirit” of its business, according to the company. Without a blockade on those suits, the plan to sell Gawker’s assets could be harmed, the company said in court papers. Gawker would also have to come up with a bond while challenging the verdict.

“The bankruptcy will give Gawker the opportunity to argue that a bond does not have to be posted on appeal, which would allow them to proceed unfettered with the appeal,” Ward, the bankruptcy lawyer, said in an e-mail.

Gawker said in the statement Friday that it’s “confident it will ultimately prevail in the Hogan lawsuit, but was not able today to obtain from the trial court even a brief stay without onerous conditions to seek relief from the appeals court.”

Gawker and Thiel have a contentious history. In 2007, the website reported that he was gay -- something Thiel has since publicly acknowledged. He called Gawker’s now-defunct blog Valleywag the “Silicon Valley equivalent of al-Qaeda.” In May, Denton challenged Thiel to a debate about free speech and journalistic ethics.

New York-based Ziff Davis is an 89-year-old publishing house known for chronicling the rise of the computing industry with technology-focused titles like PC Magazine. The closely held company has expanded into websites such as AskMen.com and Geek.com as publishers face steep declines in print advertising sales. In 2012, it was sold to internet-services provider J2 Global Inc. for $167 million.

‘Consumer Tech’

In an internal memo to employees, Ziff Davis CEO Vivek Shah said acquiring the Gawker websites Gizmodo, Lifehacker and Kotaku “would fortify our position in consumer tech and gaming.” Shah’s memo didn’t mention the Gawker.com flagship site.

Ziff Davis is focused on the brands in the tech, gaming and lifestyle categories, which contribute the vast majority of Gawker Media’s revenue, according to the person familiar with the matter. Ziff Davis hasn’t decided what it would do with Gawker.com if it buys the company, the person said.

According to court filings, Gawker’s six other brands make up 85 percent of its revenue, which totaled $49.9 million in 2015 and primarily came from selling ad space. The company went from making $6,000 a month at the end of its second year to generating more than $4 million in monthly revenue in 2015, according to court papers.

The bankruptcy is In re Gawker Media LLC, 16-11700, U.S. Bankruptcy Court, Southern District of New York (Manhattan).
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