Recently, long-time ESPN columnist and TV personality Bill Simmons, speaking of NFL Commissioner Roger Goodell, said that “[Goodell] is lying. I think that dude is lying. If you put him up on a lie detector test, that guy would fail.” Simmons was criticizing Goodell for his insistence that, prior to the NFL’s suspending Baltimore Ravens running back Ray Rice for only two games, the NFL had not viewed a video tape of Rice punching his then-fiancée, Janay Palmer. Simmons’s sharp criticisms of Goodell drew a stern response from ESPN; the sports-media giant slapped Simmons with a three week suspension for failing to live up to ESPN’s journalistic standards. Some have suggested that, in addition to undermining ESPN’s standards, Simmons could also be civilly liable for defaming Roger Goodell. Should Goodell file suit? Probably not, but I sure hope that he does.
We all should welcome a Goodell-initiated lawsuit against Simmons because, as the old adage goes, “The truth shall set you free.” A common defense to defamation claims is that the defendant was telling the truth. For Simmons, that means that—regardless of the merits of his defamation lawsuit, which are not discussed here—he would be able to assert that Goodell’s claim fails because Goodell did, in fact, lie. In other words, if Goodell lied about his knowledge of the Ray Rice video tape, then Bill Simmons would not liable for defamation.
To prove that Goodell is a liar, Simmons would be entitled to discovery, including the opportunity to pore over NFL documents, emails, and records. Simmons would have the right to depose Goodell and other NFL personnel with knowledge of the Ray Rice situation. Simmons would also be able to serve interrogatories, requests for admission, and subpoenas to third parties. The courts employ liberal rules regarding discovery and the open exchange of information, and surely, Simmons would push these liberal rules to their limits.
Most importantly, though, Simmons would be able to reveal to the public what he uncovered in discovery. In court filings and dispositive motions, which are presumptively open to the public, Simmons would be able to argue his version of the truth. It’s also safe to assume that Simmons would not present his evidence in an NFL-friendly PR statement, similar to those Goodell has already released. Thus, for the first time, the public would have access to the other side of the Goodell story, and thanks to the adversarial process, the public would be able to determine whether Roger Goodell lied (and as an aside, whether Bill Simmons is liable for defamation).
As Simmons’s comments about Goodell illustrate, much more than a few hurtful statements play into the decision to bring a defamation lawsuit. A Plaintiff who asserts a defamation claim should be prepared to open up his filing cabinets and email inboxes. Not only can the truth set the defendant free, but the evidence uncovered during discovery may be, and often is, less flattering than the initial defamatory statement. In Goodell’s case, that means he might want to keep his complaints about Simmons out of a courtroom, which unfortunately for us, means that we’ll never know if Goodell is, in fact, a liar.
October 9, 2014
More and more people today identify as “cord-cutters”—people who watch their favorite TV shows through services like Hulu, iTunes, or Netflix, instead of through traditional cable television. Major League Baseball offers a service to cord-cutters called MLB.tv, which allows subscribers to stream live baseball games directly on their smart phones, tablets, phablets, or (for people like me who have not moved into the 2010s) their “laptop computers.” MLB.tv., however, does not show a geographic market’s local games, which are blacked out online and broadcast through a regional station, such as Fox Sports Ohio. The regional station, of course, is limited to a defined geographic area assigned to each baseball team.
A recent case in the United States District Court for the Southern District of New York indicates, however, that baseball might have to change how it broadcasts baseball games. Laumann v. National Hockey League, Case No. 12-CV-1817 (S.D.N.Y. Aug. 8, 2014). In that case (which also involved the National Hockey League, which has similar broadcasting policies), the judge decided that baseball’s antitrust exemption does not protect its television broadcasting deals.
September 25, 2014
Hitching a Ride: The Competition in the Vehicle-for-Hire Marketplace Stretches from City Streets to Federal Court as Uber Confronts Lanham Act Challenges
Uber Technologies Inc. (“Uber”) announced recently its expansion into 22 new U.S. cities, now bringing its app service to over 100 cities nationwide. The rapid expansion of Uber’s mobile phone app technology connecting consumers needing a ride (typically in-city, short-haul trips) with private cars, rideshares, and select taxi services, has roiled the taxicab marketplace. Cab owners and drivers are unhappy with the dramatic impact Uber has made, particularly in the nation’s large metropolitan areas; their complaints are multi-faceted: alleged advertising misrepresentations, safety, insurance, hyper-competitive pricing, absent or insufficient background checks on Uber operators and other licensing and regulatory considerations.
While the uproar and skirmishes are playing out in cities and courts across the country, it is occurring perhaps most dramatically in and around Chicago, where several taxicab and limousine companies have brought suit challenging Uber alleging violations of the Federal Lanham Act, as well as state law violations of Illinois’ Deceptive Trade Practices Act and Consumer Fraud Act. Yellow Group LLC v. Uber Technologies Inc., No. 12C7967 (N.D. Illinois). The high-stakes case is pending before U.S. District Judge Sara Ellis. Uber challenged the multi-count complaint on motion to dismiss grounds. In July, the Court granted in part and denied in part Uber’s motion, narrowing the case, but allowed to stand plaintiffs’ claims that Uber violated the Lanham Act (15 U.S.C. § 1125(a)), by its representation of rates and its representation that drivers and automobiles have proper licensing. Uber’s motion to dismiss arguments were several, and other legal blogs have examined the Court’s recent decision in depth.
Given Uber’s rapid growth and expansion, the question now is what’s next? With the tortious interference claims dismissed, the advertising claims are now at the heart of the case, underscoring the import of Judge Ellis’s nod to the U.S. Supreme Court’s recent decision in Lexmark Int’l , Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1392 (2014). Lexmark makes plain that the Lanham Act does not protect only the alleged “false-advertiser’s direct competitors” and “a plaintiff suing for false advertising pursuant to the Lanham Act need not directly compete with the defendant, but must allege an injury to a commercial interest in reputation or sales, and that the injury must flow directly from the deception wrought by the defendants’ advertising, such that the false advertising directly caused consumers to divert their business from the plaintiff.” July 10, 2014 decision at pp. 5-6 (citing Lexmark at 1391). The “taxi affiliation” and “your Private Limousine” plaintiffs convinced Judge Ellis in Chicago federal court that their Lanham Act claims, measured against the Lexmark standard, remain plausible, but those plaintiffs now face a lot of work to demonstrate facts, undoubtedly accompanied by extensive expert testimony, to show the direct causal link required under the Lexmark test. (For a nice summary of Lexmark, see my colleague Steve Weigand’s May 6, 2014 blog entry at www.businesslitigationinfo.com entitled: “Supreme Court of the United States Establishes New Standard for Standing in False Advertising Cases Under the Lanham Act.”)
Uber and its app-based vehicle-for-hire competitor, Lyft, remain darlings of young, hip consumers ranging from college students to young baby boomers, but the popularity of these web-based services have many hurdles ahead as the legacy taxi/limousine vehicle-for-hire companies are fighting on multiple fronts in an effort to preserve (or perhaps, achieve) some competitive balance in the marketplace. The case will be watched carefully not only because of people’s practical interest in how they get from point A to B after a late night out in the Windy City and elsewhere, but also because of the application of the false advertising test announced by the Supremes in Lexmark. The Yellow Group case is yet another example of the tension between old (or perhaps, traditional or legacy) business models and new, technology-driven, web-based services.
September 8, 2014