- [Devin] Thanks to Indochino
for keeping Legal Eagle
in the air and helping me look fly.
(eagle cries out)
- The whole point
is to put the defendant
through a difficult, painful experience,
and even if cases fail in lower courts,
as they often do,
the plaintiffs can find
ways to extend them
through intensive discovery
requests, depositions,
and appeals that drain the
target's time and resources.
- John Oliver did an entire episode
about some arcane procedural law?
You better believe I'm gonna respond.
(orchestral music)
Hey, legal eagles, it's
time to think like a lawyer,
because John Oliver
spent an entire episode
talking about a lawsuit filed against him
by Murray Energy and its CEO, Bob Murray,
and all of the implications that stem
from these kind of
speech-stifling lawsuits.
So, let's dig in deep to
this episode of John Oliver
and see if it actually holds water or not.
The background here is that in 2017,
John Oliver did an episode
about a few coal companies
owned by a man named Bob Murray.
Before that episode aired,
Murray and his company
sent John Oliver a
cease and desist letter.
And after the episode aired,
Bob Murray filed suit for defamation.
Mr. Murray alleged that John Oliver
and his show had defamed him.
- Comedian John Oliver is
the target of a lawsuit
by one of the country's largest
privately-owned coal companies.
Oliver strongly criticized
Murray Energy Corporation
and CEO, Robert Murray,
Sunday on his HBO show.
- Bob had apparently never
heard of the Streisand Effect.
Murray sued John Oliver and HBO
in West Virginia State Court.
Which is important for reasons
that we'll discuss in just a moment.
The case was in litigation for two years,
but at the trial court level,
it was decided in Oliver and HBO's favor,
at the motion to dismiss stage,
meaning that no evidence was necessary.
The court could look
at the complaint itself
and determine that Bob
Murray's claims held no water.
- It was no surprise when
the case was dismissed
by the West Virginia judge
who heard it last February.
Now at that point we figured
this whole saga was over, right?
Well, wrong!
- After the motion to dismiss was granted,
Bob Murray appealed,
and the case was waiting
for a decision from the Court of Appeal.
In the interim, Murray
Energy declared bankruptcy
and apparently dropped the appeal,
effectively handing the
overall win to John Oliver.
So effectively, John Oliver won at both
the trial level and at the appellate level
because Bob Murray gave up the appeal.
The thing is, this was
sort of a Pyrrhic victory,
because John Oliver claims that HBO spent
over $200,000 on their legal defense,
some of that was paid for by insurance.
And now his insurance premiums
have effectively tripled despite the fact
that HBO was effectively
victorious in this suit.
- To reiterate, we (bleep) won this case.
- Now of course, this is
just one side of this debate.
This is coming from John Oliver directly.
But the story definitely rings true.
There would have been extensive
litigation costs here.
Initially, the case was filed
in West Virginia State Court.
- That is actually where
Bob Murray sued us,
despite the fact that
neither he nor I live there.
- Then HBO and John Oliver
did was called a removal,
where the case is transferred
from the State Court
to the Federal Court in West Virginia.
For technical reasons,
that was remanded back
to the State Court case,
where the State Court judge held
in John Oliver's favor on all
counts as a matter of law.
That's a perfectly reasonable thing to do.
Effectively, one of the reasons
Federal Courts exists in the first place
is to be able to adjudicate matters
between people that are not residents
of the state where the
court case was filed.
And it also makes sense that
certain types of insurance
would cover some but perhaps
not all of the attorneys fees
that were raised during the
course of that litigation,
and really, $200,000 for
this kind of litigation
might even be on the low end, frankly.
- We did wonder, what was the point of him
putting us through all of
this in the first place?
What I would argue is
because winning the case
was never really his goal.
- But what is especially
interesting from my perspective
is that this most recent
John Oliver episode
hinges on something called a SLAPP suit,
and a law that is in response to those
called an Anti-SLAPP law.
So what is a SLAPP suit and
why do Anti-SLAPP laws exist?
And is John Oliver right that
we need a federal Anti-SLAPP law?
Well I'm so glad you asked.
First, a little background
about the American legal system.
I'm gonna let you in on
a secret about lawsuits.
So, come in close.
No, a little bit closer.
lawsuits are really expensive,
and lawyers are also really expensive.
One of the things about the
American judicial system
is that we have what's
called the American rule,
where you pay for your own attorney,
whether you win or lose.
The British rule, in contrast,
is where the winner of the lawsuit
gets their attorneys fees back,
effectively as damages,
against the party that lost the lawsuit.
So under the British system,
if you're the plaintiff
and you win your lawsuit,
then you get to recover your
attorneys fees that you paid.
And if you're a defendant,
that effectively defends against
an unmeritorious plaintiff suit,
then you get your attorneys
fees from the plaintiff.
Now I actually don't particularly
like the American rule.
If I could change one thing
about the American system,
it might be the fact that you have to pay,
generally speaking, for your
own attorney, win or lose.
It leads to plaintiffs
who should file suit,
but don't because they're worried about
even if they win the lawsuit,
they won't get enough to pay
for their attorney's fees,
which can be very very expensive.
And it also leads to defendants
who settle cases when
they really shouldn't,
because they're worried about
how much they're gonna have
to pay in attorneys fees,
even if they successfully
defend against the plaintiff.
And often, this leads to what
I call, nuisance value suits.
Where defendants just simply settle
to avoid having to pay
their own attorneys.
Legislators know that
lawsuits are really expensive.
Legislators are often made up
of lots and lots of attorneys.
So they know in particular
how expensive lawsuits can be.
So both SLAPP suits and Anti-SLAPP laws
are intertwined with the fact that
sometimes lawsuits can
be very very expensive.
A SLAPP suit is a strategic lawsuit
against public participation.
In other words, it's a
lawsuit that is filed
to try to stifle someone's
public participation.
Generally speaking, their ability
to freely discuss things in the world.
Because the First
Amendment gives you a right
to make certain kinds of speech.
And it prevents the
government from intervening
in that kind of speech.
And the judicial system is effectively
a branch of the government.
So a SLAPP suit is where
someone files a lawsuit,
to try and stifle someone to force them
to incur a huge amount of attorneys fees,
just having to defend a lawsuit
that doesn't have any merit to it.
The quintessential example of a SLAPP suit
is filing a defamation
case against someone
where they have just simply given
their opinion about something.
Someone leaves a Yelp review
and you sue them for defamation
when what they said is true
or it's just a matter of opinion,
which it can't be the
basis for defamation.
So at base, a SLAPP suit is a lawsuit
that is meant to punish someone
for exercising their free speech right.
An Anti-SLAPP law generally
allows the defendant
to fight back against
an unmeritorious lawsuit
that's just trying to
stifle their free speech.
By, number one, allowing them
to dismiss the lawsuit very early,
and number two, recouping their fees
that they incurred from their attorneys
in fighting back against that suit.
Now the way that an
Anti-SLAPP law does this
is particularly interesting
from my perspective
as a litigator and trial lawyer.
An Anti-SLAPP allows the
defendant to shift the burden
to the plaintiff early on in the case
to provide some evidence.
This is called requiring the plaintiff
to prove a prima facie case.
Now what happens normally in a lawsuit
is that the plaintiff starts the lawsuit
by filing something called a complaint.
The complaint is a pretty
bare bone document.
The standard is what's
called notice pleading.
You just have to put
the defendant on notice
of the general thing
that you are alleging.
The court will assume that
all of the allegations
in that complaint are absolutely true.
Whatever the plaintiff said is true.
And contrary to what you see on TV,
we don't want judges or the court system
to get rid of all lawsuits
at this very early stage
for lack of evidence.
I see that on TV all the time.
"Oh there's no evidence in this complaint.
"Therefore, it has to be dismissed."
That's not how it works.
The court will assume everything
that the plaintiff said
is true at the time of filing.
Because sometimes, you
need to gather evidence
during the course of a lawsuit.
You might not have all of the evidence
when you start your particular lawsuit.
But by the same token,
the plaintiff's complaint
which contains a bunch of allegations,
it's effectively the plaintiff's
own story, isn't evidence.
Contrary to what you might
have heard on the internet,
plaintiff's complaint is not something
that they can introduce into evidence.
Now sometimes you can attach
evidence to the complaints,
like a contract, for example.
That might be an exhibit to the complaint.
But the complaint itself
and the allegations
that it contains aren't evidence.
So when a defendant files
what's called an Anti-SLAPP motion,
it puts a small burden on the plaintiff.
It requires the plaintiff to
present evidence to the court,
just the bare minimum
of evidence necessary
to raise the inference that
the plaintiff could be right.
This is called the prima facie case.
If the plaintiff can't
put forth that evidence,
then the suit is dismissed
and the defendant gets to
recover their attorneys fees
that they incurred in defending that suit.
So procedurally, here's how
most Anti-SLAPP laws work.
First, the defendant makes the motion.
And the defendant bears the burden.
They have to prove that the allegations
that the plaintiff has made
relate to free speech
and that the suit itself
might be hindering of the
defendant's free speech rights.
If the defendant meets that burden,
then the burden shifts.
Then the plaintiff must
make their prima facie case
by putting forward competent evidence.
Remember, they can get
away with filing a lawsuit
at the pleading stage without
any evidence whatsoever.
And generally, that'll
take you all the way
through to discovery.
But if an Anti-SLAPP is implicated,
then at that point, the
plaintiff must put forward
just a little bit of evidence
to prove their prima facie case.
Now detractors of Anti-SLAPP laws argue
that this is unfair for some plaintiffs.
That it creates a burden on plaintiffs
that doesn't really exist
in other situations.
And why are speech related suits
worthy of an exception to the general rule
that everyone just pays
their own attorneys fees?
Why not, either make that
the rule in all cases
or get rid of that particular requirement
when it comes to SLAPP suits?
- And Murray is not alone
in seemingly using lawsuits
to punish and intimidate his critics.
In fact, one of his good friends
has openly called for changes
that would make it easier to file them.
- I'm gonna open up our libel laws
so when they write purposely negative
and horrible and false articles,
we can sue them and win lots of money.
So we're gonna open up
those libel laws, folks,
and we're gonna have people sue you
like you never get sued before.
- Now I have covered Anti-SLAPP
laws on this channel before.
This is actually an issue
that I have litigated
many times in real life.
And it's interesting
that John Oliver argued
that President Trump, who
is a friend of Bob Murray,
has filed SLAPP suits in the past.
Which is arguably true.
But it's also the case
that President Trump
has greatly benefited from
Anti-SLAPP laws as well.
In fact, President Trump used
an Anti-SLAPP law recently,
to his advantage when he recovered
a huge amount of attorneys fees.
You might recall that Stormy Daniels
filed suit against the
president for defamation.
And in that suit, Stormy Daniels alleged
that she had an affair with the president.
The president tweeted in response,
"A total con job, playing the
Fake News Media for Fools,
"but they know it!" exclamation point.
Now according to Stormy Daniels,
she claimed that President
Trump meant to convey
that she was a liar, that
she could not be trusted,
and she was falsely complaining
about crimes that never happened.
And on the basis of
President Trump's tweets,
Stormy Daniels claimed that that was false
and defamatory and defamation per se.
Stormy Daniels lost that lawsuit
because of an Anti-SLAPP motion
by President Trump's legal team,
and she ended up being on the hook
for 100s of 1,000s of
dollars of attorneys fees
that President Trump incurred
in defending that suit.
Similarly, another defamation suit
that has raised some eyebrows
for SLAPP and Anti-SLAPP issues
is Devin Nunes' suit
against the Twitter handle
of the person that's claiming
to be the cow of Davin Nunes
claiming that that Twitter account
was being defamatory
and mean to Mr. Nunes.
Some have speculated that
Nunes filed suit in Virginia
specifically to avoid California's
very robust Anti-SLAPP laws.
- Pretty much everyone, from
judges to legal scholars,
agree that SLAPP suits are a scourge.
That is why 30 states have
some form of Anti-SLAPP laws.
- John Oliver is absolutely right
that only 30 states have adopted
some form of Anti-SLAPP laws.
This can be a big issue
where videos and TV
broadcasts are national
and often multiple
states have jurisdiction
over the particular claim.
So what we see often is a clever plaintiff
can venue shop or jurisdiction shop
to get a jurisdiction
that is more favorable
to that particular plaintiff.
It's an open question
whether Federal Courts
will even apply a
state-based Anti-SLAPP law,
even if the state has an Anti-SLAPP law.
- When we reached out to Murray last week
to review the details that we planned
to include in this piece,
he wrote a letter back saying
we were falsely vilifying him,
launching scurrilous attacks,
and arguing that none of his
lawsuits are SLAPP suits,
which they absolutely are.
- So was John Oliver right
that Bob Murray's suit
was a meritless suit?
Well, probably.
The trial judge threw out Murray's case,
and the Court of Appeal probably
would have done the same thing.
But John Oliver
understandably doesn't exactly
put Murray's argument in
the best light possible.
John Oliver implies that
Murray's entire claim
was predicated on calling
him a geriatric Dr. Evil,
and that they had a
staff member dressed up
as a squirrel and tell Bob to (bleeping).
- I actually don't even
remember that happening.
Can we just, quickly can
we just for a moment,
check the tape?
- It's made out to
(audience laughing)
Eat (bleeping) Bob!
(audience cheering)
- Fair enough, my mistake, we did it.
It's funny the things you forget.
- And while it's absolutely true
and that did form part of the allegations,
that's not everything that Murray
actually complained about
in the lawsuit itself.
Murray also claimed
that John Oliver, quote
"deliberately omitted the
facts plaintiffs provided
"regarding the Crandall
Canyon Mine incident,"
"intentionally, falsely
and outrageously conveyed
"that Mr. Murray has
no evidence to support
"his statements that an
earthquake caused the tragedy,"
"reinforced the impression
he gave his audience
"that Mr. Murray lied about
the cause of the mine collapse
"and had no evidence to
support his position,
"with other thinly veiled implications
"that Mr. Murray is a liar in general,"
and quote, "falsely
insinuated that plaintiffs
"and Mr. Murray disregarded the well-being
"of their employees."
Those are direct quotes
from Bob Murray's complaint.
So it's perhaps not as cut and dry
as John Oliver made it out to seem,
but this is not exactly a close case here.
In West Virginia, the essential
elements for defamation
are one, defamatory statements;
two, non-privileged
communication to a third-party;
three, falsity; four,
reference to the plaintiff;
five, fault; and six, resulting injury.
These are pretty standard
requirements for defamation.
And under West Virginia law,
defamation requires a provably
false assertion of fact.
The Fourth Circuit has said that,
where it is clear that a
speaker is expressing only,
quote, "a subjective
view, an interpretation,
"a theory, conjecture or surmise,
"rather than a claim to be in possession
"of objectively verifiable false facts,"
then that speech receives full
constitutional protection.
In other words, opinion
and rhetorical hyperbole
do not qualify as defamation.
And courts have used this principle
to shelter things like vigorous epithets,
rhetorical hyperboles and other, quote,
"loose figurative language
that cannot reasonably
"be understood to convey
facts about someone."
- To fully discuss Bob Murray in a way
no reasonable person
could construe as factual,
we can say whatever
the (bleeping) we like.
- So as the West Virginia
court recognized,
John Oliver was, one, making an argument;
two, making jokes; and
three, actually reporting
on various things that actually happened.
And, of course, generally
jokes and satirical references
are not considered false
statements or fact.
And on top of that, because
Murray was a public figure,
he would have had to prove
that John Oliver made
the statement showing
that John Oliver knew they were false.
This is sometimes called
the Actual Malice Standard.
But that's a really
misleading term of art.
Basically, it's just the
mental state required
to prove defamation when you're dealing
with a public figure.
And additionally, John Oliver relied
on the West Virginia
Fair Report Privilege,
which shields the media from
liability for their coverage
of any official government
action or proceeding,
provided the report is accurate, complete,
and/or a fair abridgement
of the occurrence that was reported.
Murray's mine collapse was the subject
of a governmental investigation,
and John Oliver was reporting
on that governmental investigation.
Now of course, there is a hilarious coda
to this whole affair.
And John Oliver kind of
gets the last laugh here.
- I actually have some bad news
and some good news for you.
The bad news is, the last two years
have honestly been too exhausting,
so I'm afraid, I'm not
going to say anything more
about Bob Murray tonight.
(audience groaning)
The good news is, why would I,
when I can simply sing it instead?
♪ Even though he'll
threaten legal Armageddon, ♪
♪ We have just one tiny thing to say ♪
- For the last third
of the entire episode,
John Oliver does a song and dance
about all of these terrible things
that they accuse Bob Murray of doing.
Oliver spends roughly 10 minutes
saying every possible horrible thing
that they could against Bob Murray.
And I get a ton of questions
from all of the legal eagles out there
who were wondering if John Oliver
was going to subject
himself to a lawsuit again
for saying false things about Bob Murray.
Well, what you might not have caught
is that at the beginning of
that song and dance routine,
Oliver says that if they say things
that are so ridiculous that
no one could believe them,
that it won't qualify as defamation.
And that is absolutely right.
Hyperbole can't really be the
subject of a defamation suit.
And so that's the reason that Oliver says
all of these insanely ridiculous things
about Bob Murray, and
sings and dances about it.
- Hey, what's the big idea?
- We're using protected
speech to tell Bob Murray
to eat (bleeping)!
- Bob Murray?
- But the thing is, Murray
could always sue again.
Because there is no
national Anti-SLAPP law.
- We badly need effective
Anti-SLAPP laws nationwide,
to deter powerful people like Bob Murray,
from using the courts to shut down
people's legitimate dissent.
- He could file suit
in West Virginia again.
And Oliver could be subjected
to another defamation suit.
Because, as Oliver probably
rightly points out,
Murray never wanted to win the lawsuit.
He just wanted to inflict pain
against John Oliver and HBO.
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So, do you agree with my analysis?
Do you think we should have
nationwide Anti-SLAPP laws
or we should just scrap them altogether?
Leave your objections in the comments.
And check out this playlist
of all of my other real law reviews,
including things like
the impeachment hearings,
where I will see you in court.
