1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June brasso from Bloomberg radio. 2 00:00:09,400 --> 00:00:12,600 Speaker 1: Her name is Anna Delvin or Anna Saurkan. No one's sure. 3 00:00:12,680 --> 00:00:15,680 Speaker 1: She's either a mega rich German heiress or she's flat broke, 4 00:00:15,840 --> 00:00:19,079 Speaker 1: and maybe she's Russian. That's the point. No one knows, 5 00:00:19,120 --> 00:00:22,360 Speaker 1: but everyone knows her now. Anna Saurkan was a con 6 00:00:22,480 --> 00:00:26,599 Speaker 1: artist with an extravagant lifestyle who convinced New York's elite 7 00:00:26,640 --> 00:00:31,320 Speaker 1: that she was a German heiress, conning acquaintances banks and realtors. 8 00:00:32,520 --> 00:00:36,120 Speaker 1: So the Anna Dulvey Foundation is a private club, but 9 00:00:36,400 --> 00:00:40,080 Speaker 1: it's also a dynamic visual ontsector. I wanted to be 10 00:00:40,159 --> 00:00:44,360 Speaker 1: a place for people with taste. The drama series inventing 11 00:00:44,400 --> 00:00:47,920 Speaker 1: Anna was an instant hit for Netflix, but now it's 12 00:00:47,920 --> 00:00:51,080 Speaker 1: turned into a legal headache. One of Anna's former friends 13 00:00:51,159 --> 00:00:55,640 Speaker 1: is suing Netflix for portraying her as a backstabbing freeloader. 14 00:00:56,080 --> 00:01:01,800 Speaker 1: Pick out I was I can see living of this life. 15 00:01:01,960 --> 00:01:05,600 Speaker 1: I see you, rich Williams. My guest is intellectual property 16 00:01:05,640 --> 00:01:10,440 Speaker 1: litigator Terence Ross, a partner Captain Nuchen, Rosenman Terry. This 17 00:01:10,520 --> 00:01:14,240 Speaker 1: was not a documentary. Netflix called it a drama inspired 18 00:01:14,280 --> 00:01:16,880 Speaker 1: by a true story and at the start of every 19 00:01:16,959 --> 00:01:21,399 Speaker 1: episode there was this disclaimer this story is completely true, 20 00:01:21,720 --> 00:01:24,520 Speaker 1: except for the parts that are totally made up. Does 21 00:01:24,560 --> 00:01:28,720 Speaker 1: that protect Netflix in any way here? Not necessarily. June. 22 00:01:28,840 --> 00:01:33,400 Speaker 1: In fact, I can't imagine a worst disclaimer being used. 23 00:01:33,600 --> 00:01:36,520 Speaker 1: I really wonder about who came up with this. The 24 00:01:36,600 --> 00:01:38,960 Speaker 1: story is completely true except for the parts that are 25 00:01:39,120 --> 00:01:41,440 Speaker 1: totally made up, but we don't tell you which parts 26 00:01:41,440 --> 00:01:44,240 Speaker 1: those are. I mean, it's just bizarre indeed, I think 27 00:01:44,280 --> 00:01:46,520 Speaker 1: to a certain extent, by saying at the start of 28 00:01:46,560 --> 00:01:49,559 Speaker 1: the disclaimer, this story is completely true, you were sort 29 00:01:49,560 --> 00:01:53,160 Speaker 1: of reinforcing the view that people have that this is 30 00:01:53,240 --> 00:01:56,880 Speaker 1: just a recitation of the actual events as they occurred. 31 00:01:57,560 --> 00:02:00,240 Speaker 1: So the complaints says that it's going to show that 32 00:02:00,320 --> 00:02:04,320 Speaker 1: Netflix made a deliberate decision for dramatic purposes, basically to 33 00:02:04,640 --> 00:02:07,960 Speaker 1: tell a better story, to show Williams doing. We're saying 34 00:02:08,040 --> 00:02:12,560 Speaker 1: things that portray her as greedy, snobbish, disloyal, dishonest, cowardly, 35 00:02:12,639 --> 00:02:18,920 Speaker 1: manipulative and opportunistic. So is this false light, invasion of privacy? 36 00:02:19,040 --> 00:02:23,919 Speaker 1: or it might be it's certainly not as clear cut 37 00:02:24,200 --> 00:02:27,639 Speaker 1: as the plaintiff seems to present it in the complaint. 38 00:02:27,840 --> 00:02:31,760 Speaker 1: The core of false light invasion of privacy, which has 39 00:02:31,840 --> 00:02:34,880 Speaker 1: elements very similar to defamation. So you've got to show 40 00:02:35,000 --> 00:02:38,200 Speaker 1: a false statement that somehow places the plaintiff and a 41 00:02:38,200 --> 00:02:41,040 Speaker 1: false light. You have to show by clear and convincing evidence, 42 00:02:41,160 --> 00:02:44,320 Speaker 1: actual malice and then you have to show that it 43 00:02:44,440 --> 00:02:48,680 Speaker 1: was highly offensive. The portrayal was highly offensive to a 44 00:02:48,680 --> 00:02:53,440 Speaker 1: reasonable person. Some of these factual claims, even if accepted 45 00:02:53,560 --> 00:02:56,680 Speaker 1: is true, I'm not sure that in this day and 46 00:02:56,720 --> 00:03:01,359 Speaker 1: age that a jury would find them highly offensive. Now 47 00:03:01,400 --> 00:03:04,760 Speaker 1: I will set aside the parts about the purported false 48 00:03:04,800 --> 00:03:08,480 Speaker 1: billing on her credit card back to her employer. But 49 00:03:08,600 --> 00:03:13,720 Speaker 1: these comments greedy, snobbish, manipulative, disloyal, even if true, they 50 00:03:13,760 --> 00:03:17,120 Speaker 1: don't really shock the conscious given what goes hot in 51 00:03:17,160 --> 00:03:19,680 Speaker 1: the world nowadays, and so I think that's a big 52 00:03:19,720 --> 00:03:22,040 Speaker 1: problem for the plaint of here as to whether a 53 00:03:22,200 --> 00:03:24,359 Speaker 1: jury in this day and age would find this to be, 54 00:03:24,440 --> 00:03:28,680 Speaker 1: quot unquote, highly offensive. And a lot of those traits 55 00:03:28,720 --> 00:03:33,840 Speaker 1: like disloyal, dishonest, cowardly, manipulative, opportunistic. Williams did work with 56 00:03:33,919 --> 00:03:38,040 Speaker 1: police to get sorkin arrested and testified against her and 57 00:03:38,240 --> 00:03:41,680 Speaker 1: some people might view her in that way. So that 58 00:03:41,840 --> 00:03:45,600 Speaker 1: goes to the first part of the showing. Under a 59 00:03:45,600 --> 00:03:48,640 Speaker 1: false light invasion privacy lawsuit, it's gotta be a false 60 00:03:48,680 --> 00:03:52,360 Speaker 1: statement and if the statement is true, and in this 61 00:03:52,400 --> 00:03:55,600 Speaker 1: case it sounds literally true in some cases, then you 62 00:03:55,640 --> 00:03:58,000 Speaker 1: don't have a cause of action. I mean, as you say, 63 00:03:58,120 --> 00:04:01,080 Speaker 1: she claims people will perceive her as being disloyal to 64 00:04:01,320 --> 00:04:04,640 Speaker 1: friends or manipulative friends. And yet what did she do? 65 00:04:04,680 --> 00:04:08,240 Speaker 1: She dropped the dime on her friend and turned her 66 00:04:08,280 --> 00:04:11,000 Speaker 1: into the police and set her up in the cirtain way. 67 00:04:11,120 --> 00:04:14,640 Speaker 1: That's sort of exactly the definition of disloyalty your friends, 68 00:04:14,680 --> 00:04:17,360 Speaker 1: isn't it? I think so. In an interview with the 69 00:04:17,400 --> 00:04:21,960 Speaker 1: Hollywood reporter Shanda rhimes, the executive producer and creator of 70 00:04:22,000 --> 00:04:25,320 Speaker 1: this did say there was stuff that we invented because 71 00:04:25,320 --> 00:04:28,360 Speaker 1: it needed to be invented to make the story really 72 00:04:28,480 --> 00:04:31,680 Speaker 1: sing and be what it should be. So there's definitely 73 00:04:31,760 --> 00:04:36,360 Speaker 1: fiction mixed in with truth. Is that an admission? Well, 74 00:04:36,360 --> 00:04:40,080 Speaker 1: this is very typical of docu dramas. If all you 75 00:04:40,160 --> 00:04:44,680 Speaker 1: do is recite the same story that the news cycle 76 00:04:44,800 --> 00:04:49,520 Speaker 1: has already inundated our homes with for months, people aren't 77 00:04:49,560 --> 00:04:51,720 Speaker 1: going to tune in, or if they tune in, were 78 00:04:51,800 --> 00:04:55,280 Speaker 1: tune out before episode two comes up. So you've got 79 00:04:55,279 --> 00:04:58,440 Speaker 1: to tweak the story in most Docu dramas to make 80 00:04:58,480 --> 00:05:01,400 Speaker 1: it more interesting. And, quite frankly, although the facts are 81 00:05:01,400 --> 00:05:05,600 Speaker 1: often's fascinating, the characters often boring as heck, and so 82 00:05:05,640 --> 00:05:07,840 Speaker 1: you've got to sort of tweak the characters to make 83 00:05:07,880 --> 00:05:10,280 Speaker 1: them a little bit more interesting. So I'm not surprised 84 00:05:10,360 --> 00:05:14,479 Speaker 1: that the executive producer said those things. What's interesting here 85 00:05:14,480 --> 00:05:16,760 Speaker 1: in terms of the lawsuit is the way that the 86 00:05:16,800 --> 00:05:20,159 Speaker 1: plaintiff is attempting, almost in sort of a Jiu Jitsu move, 87 00:05:20,440 --> 00:05:24,680 Speaker 1: to use that against Netflix by saying this is evidence 88 00:05:24,800 --> 00:05:29,760 Speaker 1: of malice. They may deliberate decision to change the facts. 89 00:05:29,960 --> 00:05:33,520 Speaker 1: They confess in effect, that there's fiction embedded in here, 90 00:05:33,760 --> 00:05:37,080 Speaker 1: and that means that we've met our standard of showing malice, 91 00:05:37,080 --> 00:05:39,680 Speaker 1: which is required under either these causes of action, either 92 00:05:39,760 --> 00:05:42,440 Speaker 1: under the defamation count of action or the false light 93 00:05:42,560 --> 00:05:45,799 Speaker 1: cause facts. What I do find odd is that William's 94 00:05:45,960 --> 00:05:49,120 Speaker 1: character is the only one in the show who's given 95 00:05:49,120 --> 00:05:52,320 Speaker 1: a real person's name and who has the same employer 96 00:05:52,880 --> 00:05:56,640 Speaker 1: and Alma Mater and home neighborhood as the real person. 97 00:05:56,960 --> 00:06:00,279 Speaker 1: That struck me as odd. Would that show malice. It's 98 00:06:00,320 --> 00:06:02,800 Speaker 1: certainly one of the elements that the plane is trying 99 00:06:02,800 --> 00:06:05,360 Speaker 1: to use. So let's be clear here. Both false flight, 100 00:06:05,400 --> 00:06:08,440 Speaker 1: invasion privacy and definition, as required by the Supreme Court 101 00:06:08,560 --> 00:06:12,160 Speaker 1: United States with respect to public figures, is that in 102 00:06:12,279 --> 00:06:15,839 Speaker 1: order to not create a situation where your chill free speech, 103 00:06:16,240 --> 00:06:18,960 Speaker 1: you have to show actual malice and you have to 104 00:06:18,960 --> 00:06:22,160 Speaker 1: show it by clear and convincing Evans much higher evidentiary 105 00:06:22,320 --> 00:06:25,080 Speaker 1: standard than and for most elements, causes action in a 106 00:06:25,120 --> 00:06:29,400 Speaker 1: civil lawsuit. Here the plaintive points to four really specific things. 107 00:06:29,560 --> 00:06:32,520 Speaker 1: The first one is, they say malice is established by 108 00:06:32,520 --> 00:06:36,120 Speaker 1: the fact that the production company hired a researcher to 109 00:06:36,200 --> 00:06:39,520 Speaker 1: go look at what the facts actually were. Second, that 110 00:06:39,680 --> 00:06:42,960 Speaker 1: the executive producer gave this interview indicating that they had 111 00:06:42,960 --> 00:06:47,480 Speaker 1: fictionalized certain elements. Third, the actress who played Rachel Williams 112 00:06:47,520 --> 00:06:51,200 Speaker 1: also gave an interview in which she sort of explained 113 00:06:51,240 --> 00:06:54,640 Speaker 1: her character, motivation and the plane of its saying that 114 00:06:54,680 --> 00:06:58,480 Speaker 1: shows that there was a deliberate intent to malign her. 115 00:06:58,839 --> 00:07:02,000 Speaker 1: And then the more thing they used to try to 116 00:07:02,080 --> 00:07:06,120 Speaker 1: establish malice here is Williams lawyers apparently sent two letters 117 00:07:06,160 --> 00:07:09,440 Speaker 1: to either Netflix or the production company a pre airing 118 00:07:09,920 --> 00:07:13,200 Speaker 1: of the first episode, saying you've got a bunch of 119 00:07:13,200 --> 00:07:15,920 Speaker 1: factual mistakes here, we want you to correct them before 120 00:07:15,960 --> 00:07:19,360 Speaker 1: you air these episodes, and therefore they were unnoticed that 121 00:07:19,440 --> 00:07:21,200 Speaker 1: there was something false and they went ahead and did 122 00:07:21,240 --> 00:07:24,160 Speaker 1: in any way. Now, is that sufficient? That's going to 123 00:07:24,200 --> 00:07:26,960 Speaker 1: be up to the jury. In these defamation cases we 124 00:07:27,040 --> 00:07:31,880 Speaker 1: allow malice to be inferred from circumstantial evidence. You don't 125 00:07:31,960 --> 00:07:35,080 Speaker 1: need to show that there was a meeting between Netflix 126 00:07:35,160 --> 00:07:38,600 Speaker 1: and executive producers and writers at which they discussed, oh, 127 00:07:38,840 --> 00:07:41,880 Speaker 1: we have to malign this woman by saying things that 128 00:07:41,920 --> 00:07:45,400 Speaker 1: are false about her. That would be direct evidence of malice, 129 00:07:45,640 --> 00:07:48,400 Speaker 1: but the law does not required here. The law allows 130 00:07:48,440 --> 00:07:51,960 Speaker 1: you to infer from circumstantial evidence and I think there's 131 00:07:51,960 --> 00:07:54,920 Speaker 1: a reasonable argument on the playoffs part that they've shown 132 00:07:55,120 --> 00:07:59,960 Speaker 1: enough circumstantial evidence that reasonable jury could infer malice. Whether 133 00:08:00,080 --> 00:08:02,920 Speaker 1: or not the jury will or won't, I don't know, 134 00:08:03,400 --> 00:08:06,160 Speaker 1: but it may be good enough to get the case 135 00:08:06,320 --> 00:08:10,360 Speaker 1: to an actual trial. I haven't seen any explanation of 136 00:08:10,440 --> 00:08:14,880 Speaker 1: why they used her name. I haven't seen one either. June, 137 00:08:14,960 --> 00:08:17,320 Speaker 1: and I have to tell you, when I first read 138 00:08:17,360 --> 00:08:21,680 Speaker 1: the lawsuit, my immediate thought was who the heck engaged 139 00:08:21,720 --> 00:08:24,280 Speaker 1: in the clearance process here, and I think, as you know, 140 00:08:24,760 --> 00:08:29,679 Speaker 1: on Docu dramas like this or documentary, straight up documentaries, um, 141 00:08:29,720 --> 00:08:33,760 Speaker 1: there is a clearance process by which lawyers or a 142 00:08:33,840 --> 00:08:37,080 Speaker 1: legal team is brought in and they review the script, 143 00:08:37,240 --> 00:08:40,840 Speaker 1: typically pre production. They review the script, visa vi the 144 00:08:40,880 --> 00:08:45,920 Speaker 1: actual facts and make recommendations or or clear it outright. 145 00:08:46,559 --> 00:08:51,520 Speaker 1: And in this case what you just identified, you're using 146 00:08:51,559 --> 00:08:54,960 Speaker 1: her real name, her real employer, her real college, the 147 00:08:55,040 --> 00:08:57,800 Speaker 1: real neighborhood she lived in. You know, you can't help 148 00:08:57,840 --> 00:09:00,480 Speaker 1: but wonder how that did not get flagged during the 149 00:09:00,480 --> 00:09:05,480 Speaker 1: clearance process. There's a number of these issues that are 150 00:09:05,520 --> 00:09:09,920 Speaker 1: identified in the complaint. That just caused a lawyer who's 151 00:09:09,960 --> 00:09:12,079 Speaker 1: involved in this sort of thing, as I am, to 152 00:09:12,240 --> 00:09:14,840 Speaker 1: just scratch your head and go what the heck happened here? 153 00:09:15,080 --> 00:09:19,040 Speaker 1: Now there is one possible explanation. It may not be 154 00:09:19,280 --> 00:09:22,400 Speaker 1: that the in house or outside counsel who did this 155 00:09:22,679 --> 00:09:25,559 Speaker 1: messed up the clearance process. It may be that they 156 00:09:25,600 --> 00:09:29,640 Speaker 1: flagged these issues and there was a decision made by 157 00:09:29,960 --> 00:09:34,800 Speaker 1: the producers, by Netflix, to go ahead anyway. Because, having 158 00:09:34,840 --> 00:09:38,240 Speaker 1: engaged in this before, I sometimes will make recommendations to 159 00:09:38,280 --> 00:09:41,160 Speaker 1: people and they'll say, well, that's nice, thanks for calling 160 00:09:41,160 --> 00:09:45,440 Speaker 1: our attention, but the talent really wants that, and that's 161 00:09:45,480 --> 00:09:48,800 Speaker 1: the quote you always hear. The talent really wants it 162 00:09:48,880 --> 00:09:51,840 Speaker 1: that way, because we think the talent things that's more 163 00:09:51,920 --> 00:09:54,840 Speaker 1: interesting or the talent things that I can get behind 164 00:09:54,880 --> 00:09:58,360 Speaker 1: that character piece set Um. You hear these things all 165 00:09:58,360 --> 00:10:02,280 Speaker 1: the time and you know, elevation, the movies, music, the 166 00:10:02,400 --> 00:10:07,560 Speaker 1: entertainment industry is heavily driven by what talent wants, uh, 167 00:10:07,880 --> 00:10:10,680 Speaker 1: you know, down to do. They want no green m 168 00:10:10,679 --> 00:10:15,000 Speaker 1: and M's in their dressing room. So often the producers, 169 00:10:15,559 --> 00:10:20,880 Speaker 1: distributors here Netflix, are handicapped. They get the suggestions from 170 00:10:20,920 --> 00:10:25,480 Speaker 1: the lawyers and they take them very seriously and then 171 00:10:25,800 --> 00:10:28,800 Speaker 1: are forced to do it anyway because that's what the 172 00:10:28,840 --> 00:10:33,280 Speaker 1: talent wants. And in those circumstances it is very much 173 00:10:33,320 --> 00:10:36,600 Speaker 1: a calculated risk that's being taken and they have to 174 00:10:37,120 --> 00:10:40,439 Speaker 1: weigh the risk versus the risk being the lawsuit, versus 175 00:10:40,480 --> 00:10:43,200 Speaker 1: the rewards, which is getting the talent to actually do 176 00:10:43,320 --> 00:10:48,199 Speaker 1: the part or to release the script or whatever it 177 00:10:48,400 --> 00:10:51,200 Speaker 1: is that they're that the talent is thinking about. And 178 00:10:51,360 --> 00:10:54,439 Speaker 1: that's one of the problems in the experience processes. It 179 00:10:54,640 --> 00:10:58,000 Speaker 1: is often the source of these lawsuits in connection with 180 00:10:58,040 --> 00:11:03,560 Speaker 1: docu droppings. So is it odd they're suing Netflix but 181 00:11:03,760 --> 00:11:10,840 Speaker 1: not Shonda rhymes or Shonda Len? I did find it unusual. 182 00:11:11,440 --> 00:11:16,160 Speaker 1: Typically the PLANISTS will sue everybody under the Sun who 183 00:11:16,240 --> 00:11:23,160 Speaker 1: might have some colorable responsibility or liability, just to be safe. 184 00:11:23,720 --> 00:11:25,760 Speaker 1: I'm not saying that that there's anything wrong about that. 185 00:11:26,679 --> 00:11:32,080 Speaker 1: Often you don't know in advance the exact locus of 186 00:11:32,480 --> 00:11:37,320 Speaker 1: liability and it may not be with Netflix that maybe 187 00:11:37,360 --> 00:11:41,199 Speaker 1: with the production company. The safest thing to do would 188 00:11:41,200 --> 00:11:43,520 Speaker 1: be here to suite Netflix, because they actually are the 189 00:11:43,520 --> 00:11:46,720 Speaker 1: ones who, quote unquote, published it. With respect to defamation, 190 00:11:47,240 --> 00:11:52,439 Speaker 1: you have to show public publication of the defamatory statements 191 00:11:52,559 --> 00:11:55,040 Speaker 1: in order to have cause action, because if it's not 192 00:11:55,120 --> 00:11:57,920 Speaker 1: published to the public, then you have been harmed, because 193 00:11:58,080 --> 00:12:01,880 Speaker 1: the harm that the planet sufferges from Um, a bad 194 00:12:01,960 --> 00:12:04,199 Speaker 1: reputation or, in this case, being shown in a bad light. 195 00:12:04,440 --> 00:12:09,040 Speaker 1: And so in that sense, clearly netflix was a proper defendant. 196 00:12:10,320 --> 00:12:14,600 Speaker 1: Williams option the rights to her Vanity Fair article and 197 00:12:14,880 --> 00:12:19,640 Speaker 1: unwritten book to HBO. Does that play in anywhere here? 198 00:12:20,640 --> 00:12:23,920 Speaker 1: Mutra plays in as a legal matter? It depends on 199 00:12:24,240 --> 00:12:27,720 Speaker 1: what got options. If it's just a very broad license 200 00:12:28,000 --> 00:12:32,240 Speaker 1: to prepare a work about her experience here, it probably 201 00:12:32,280 --> 00:12:35,400 Speaker 1: does not factor in in a legal sense. I think 202 00:12:35,400 --> 00:12:38,640 Speaker 1: it has to have some bearing on wide lawsuit got 203 00:12:38,640 --> 00:12:41,480 Speaker 1: brought in the first place. The netflix paid on a 204 00:12:41,600 --> 00:12:46,320 Speaker 1: swork in dollars for the right to her story and 205 00:12:46,840 --> 00:12:51,560 Speaker 1: made this Docu drama. Clearly Rachel Wilson was hoping HBO 206 00:12:52,000 --> 00:12:55,960 Speaker 1: would do the same, but now that Netflix has come 207 00:12:56,000 --> 00:12:58,320 Speaker 1: to the market so quickly, there may not be no 208 00:12:58,520 --> 00:13:03,880 Speaker 1: value to HBO in pursuing a project like this. and Um, 209 00:13:04,000 --> 00:13:07,480 Speaker 1: that may have had a financial impact. I don't know. 210 00:13:07,640 --> 00:13:11,120 Speaker 1: I don't know the details of her option agreement, but 211 00:13:11,160 --> 00:13:14,160 Speaker 1: one wonders if that might have been part of the 212 00:13:14,200 --> 00:13:18,600 Speaker 1: motivation for filing lawsuit here. These things don't normally go 213 00:13:18,640 --> 00:13:22,040 Speaker 1: to trial, do they now? Very seldom that. They are 214 00:13:22,320 --> 00:13:26,920 Speaker 1: typically settled. Um, and I can think of at least 215 00:13:27,200 --> 00:13:32,520 Speaker 1: one other dismissal of a lawsuit against Netflix that was 216 00:13:32,559 --> 00:13:36,439 Speaker 1: probably the result of settlement similar situation. Is this involving 217 00:13:36,440 --> 00:13:41,280 Speaker 1: a docu drama? Um, it just makes no sense to 218 00:13:41,320 --> 00:13:46,319 Speaker 1: take these that far. The plaintiff is really just looking 219 00:13:46,559 --> 00:13:53,000 Speaker 1: for damages in the form of money and usually um 220 00:13:53,080 --> 00:13:57,600 Speaker 1: the amounts aren't super large because it's very hard to 221 00:13:57,679 --> 00:14:01,960 Speaker 1: show economic harm at trial. There is a presumption of 222 00:14:02,000 --> 00:14:05,400 Speaker 1: harm if if Netflix was found liabel on the defamation 223 00:14:05,440 --> 00:14:08,720 Speaker 1: per se, but that's just the presumption that there was harm. 224 00:14:08,760 --> 00:14:11,600 Speaker 1: It's not a presumptionist to the quantum of harm, which 225 00:14:11,640 --> 00:14:14,440 Speaker 1: still has to be proved up with relative certainty. So 226 00:14:14,640 --> 00:14:17,280 Speaker 1: that makes it very tricky because most juries on something 227 00:14:17,360 --> 00:14:19,840 Speaker 1: like this are not going toward millions of dollars. So 228 00:14:20,080 --> 00:14:23,800 Speaker 1: the dynamics are there to really lead to a settlement 229 00:14:23,800 --> 00:14:27,320 Speaker 1: in these types of cases and sometimes you get well 230 00:14:27,360 --> 00:14:32,640 Speaker 1: into discovery, but settlement usually happens relatively quickly in these 231 00:14:32,680 --> 00:14:36,440 Speaker 1: types of lossuits. In the complaint there are, I think, 232 00:14:36,560 --> 00:14:41,160 Speaker 1: sixteen sets of facts that Williams claims are untrue. What 233 00:14:41,320 --> 00:14:46,000 Speaker 1: caught your eye there? One set of those sixteen revolves 234 00:14:46,040 --> 00:14:49,560 Speaker 1: around the depiction of how she used her corporate Amex 235 00:14:49,640 --> 00:14:52,880 Speaker 1: Card and you know, as a lawyer practices in this area, 236 00:14:53,200 --> 00:14:55,840 Speaker 1: that was the one that grabbed me, that really stood 237 00:14:55,840 --> 00:14:58,880 Speaker 1: out and said, Oh boy, if she's right about this, 238 00:14:58,880 --> 00:15:01,560 Speaker 1: this is a real problem for Netflix. Her second cause 239 00:15:01,600 --> 00:15:04,880 Speaker 1: of action is for defamation per se and under regular 240 00:15:04,960 --> 00:15:07,800 Speaker 1: defamation you have to show that you somehow actually got 241 00:15:07,840 --> 00:15:11,239 Speaker 1: harmed by this false statement. But there are certain categories 242 00:15:11,280 --> 00:15:14,840 Speaker 1: that historically, Anglo Saxon Law said we're so serious a 243 00:15:14,920 --> 00:15:17,720 Speaker 1: false statement that we presume as a matter of law 244 00:15:17,960 --> 00:15:21,480 Speaker 1: that the person who was defamed was harmed and therefore 245 00:15:21,520 --> 00:15:23,680 Speaker 1: they don't have to prove up actual harm. And here 246 00:15:23,920 --> 00:15:28,560 Speaker 1: there's one category. Commission of a crime is arguably directly 247 00:15:28,600 --> 00:15:33,280 Speaker 1: implicated by the allegations of how the plaintiff used her 248 00:15:33,320 --> 00:15:37,360 Speaker 1: corporate Amex credit card, and if her allegation are correct, 249 00:15:37,680 --> 00:15:40,920 Speaker 1: it seems like that's a really strong case of deformation 250 00:15:40,960 --> 00:15:43,640 Speaker 1: per se and could be one of the more serious 251 00:15:43,760 --> 00:15:48,000 Speaker 1: charges against Netflix and also again, in my mind, raises 252 00:15:48,080 --> 00:15:50,640 Speaker 1: questions what were the lawyers thinking here? It clearly was 253 00:15:50,680 --> 00:15:53,160 Speaker 1: implying that she'd committed a crime of some sort of 254 00:15:53,160 --> 00:15:56,480 Speaker 1: fraught against her employer, which is pretty serious charge to 255 00:15:56,520 --> 00:16:00,080 Speaker 1: make nowadays, and I think a jury would consider that 256 00:16:00,320 --> 00:16:04,360 Speaker 1: to be exactly a sort of highly offensive allegation which, 257 00:16:04,360 --> 00:16:06,640 Speaker 1: a false they would be willing to return verdict on. 258 00:16:07,400 --> 00:16:09,840 Speaker 1: As you know, this isn't the first time Netflix has 259 00:16:09,880 --> 00:16:14,000 Speaker 1: been sued over projects based on real life. Alan Dershowitz 260 00:16:14,040 --> 00:16:18,240 Speaker 1: has sued over his portrayal in an Epstein docuseries, apparent 261 00:16:18,320 --> 00:16:22,160 Speaker 1: involved in the college admission scandal. Suit over documentary, and 262 00:16:22,200 --> 00:16:25,960 Speaker 1: a former Soviet chess grand master suit over her portrayal 263 00:16:26,400 --> 00:16:30,240 Speaker 1: in the Queen's Gambit. That's been settled and interestingly, the 264 00:16:30,320 --> 00:16:35,040 Speaker 1: lawyer who represents Williams represented the grand master. So I 265 00:16:35,080 --> 00:16:39,080 Speaker 1: tell clients all the time that you have to develop 266 00:16:39,280 --> 00:16:44,400 Speaker 1: a reputation as being willing to take questionable lawsuits to 267 00:16:45,000 --> 00:16:47,840 Speaker 1: verdict go all the way, millions for defense. Not a 268 00:16:47,920 --> 00:16:51,000 Speaker 1: dime and tribute was said about the war of eighteen twelve. 269 00:16:51,440 --> 00:16:55,280 Speaker 1: And where you have a corporate defendant like Netflix with 270 00:16:55,440 --> 00:16:59,280 Speaker 1: large pockets that seems to regularly settle these things, it 271 00:16:59,440 --> 00:17:02,680 Speaker 1: just invite more lawsuits of this sort. If this is 272 00:17:02,680 --> 00:17:05,919 Speaker 1: not limited to this field or to the entertainment field. 273 00:17:06,280 --> 00:17:08,960 Speaker 1: This is true cross all civil litigation. If you set 274 00:17:09,000 --> 00:17:11,720 Speaker 1: yourself up, if you hang a target on your back 275 00:17:12,000 --> 00:17:15,240 Speaker 1: as an easy mark, Plainis, attorneys will come after you. 276 00:17:15,600 --> 00:17:19,160 Speaker 1: Now you could also draw the inference that perhaps there's 277 00:17:19,200 --> 00:17:23,160 Speaker 1: something wrong with the clearance process at Netflix, and certainly 278 00:17:23,280 --> 00:17:25,639 Speaker 1: if I were the general counsel there I'd want to 279 00:17:25,680 --> 00:17:28,119 Speaker 1: look harder at that to see if there is an 280 00:17:28,119 --> 00:17:30,840 Speaker 1: issue with the clearance process or whether these were just 281 00:17:31,040 --> 00:17:35,000 Speaker 1: known calculated risks being taken and they've sort of lost 282 00:17:35,040 --> 00:17:37,760 Speaker 1: the bet that someone wouldn't sue over it. So it 283 00:17:37,880 --> 00:17:41,159 Speaker 1: is perplexing that they keep cropping up. With respect to Netflix, 284 00:17:41,280 --> 00:17:43,600 Speaker 1: Netflix does do a lot of docu dramas, and Docu 285 00:17:43,720 --> 00:17:46,040 Speaker 1: dramas are worth the greater risk is than a purely 286 00:17:46,040 --> 00:17:49,440 Speaker 1: fictional work, so maybe it's also the line of business 287 00:17:49,480 --> 00:17:53,240 Speaker 1: content that they're pursuing here. It is troublesome though, troublesome 288 00:17:53,280 --> 00:17:56,480 Speaker 1: but interesting. Thanks so much, Terry. That's Terence Ross of 289 00:17:56,600 --> 00:18:00,320 Speaker 1: Captain Uten Roman. I'm June Grosso and this is Bloom Berg.