Five years after journalist Moira Donegan created a Google spreadsheet titled “Shitty Media Men,” wherein women could anonymously list allegations of sexual misconduct by men in the teleco and publishing industries, she’s facing the growing likelihood of having to defend herself at trial. On Thursday, a federal judge in Brooklyn rejected Donegan’s attempt to block a lawsuit brought by Stephen Elliott, the author of The Adderall Babies and About Cherry, who claims that he was defamed from a spreadsheet entry that stated he faced “rape accusations, sexual harassment, [and] coercion.” Elliott is seeking $1.5 million in damages for the alleged emotional distress.
It was not supposed to be this way at all. The spreadsheet, as Donegan once wrote in an essay, was created in Oct. 2017 to empower women to share stories of harassment or an assault without fear of retaliation. Created just weeks after the Harvey Weinstein scandal had exploded, and #MeToo was the hashtag du jour, the “Shitty Media Men” whisper network was intended to be a safe space for long-suffering, muzzled victims of horrific workplace misbehavior. “No one could be fired, harassed, or publicly smeared for telling her story when that story was not attached to her name,” Donegan believed.
But #MeToo, at least legally speaking, is as much a speech movement as a sexual misconduct reckoning—and unfortunately for Donegan, even anonymous statements can instigate lawsuits. Ask Justin Bieber, who recently settled a case he originally filed against Jane Does. In fact, it’s becoming more and more common to see libel suits follow accusations of sexual assault. This past week, Los Angeles Dodgers pitcher Trevor Bauer filed suit against The Athletic over a story alleging he fractured a woman’s skull during a violent sexual encounter. The week before, Marilyn Manson sued his ex-partner Evan Rachel Wood and her friend Ilma Gore over a campaign to tar him as a sexual abuser.
Elliott brought one of the first libel cases in the post-Weinstein era, but his litigation remains unusual, and legally noteworthy, because Donegan didn’t write anything about Elliott herself. Rather, she created and oversaw an ad hoc online community that enabled others to speak out. At least that’s the argument made by Donegan’s legal team, which is led by a pair of big names in the legal community: Time’s Up co-founder Roberta Kaplan, who successfully argued the Supreme Court case that led to federal recognition of same-sex marriages; and Joshua Matz, who advised House Democrats on Donald Trump’s impeachment. In attempting to get the case thrown out, Kaplan pointed to Section 230 of the Communications Decency Act—a statute that is most typically known as the legal shield enjoyed by the likes of Facebook and Twitter when hosting third-party content. Section 230 states that no provider or user of an interactive service should be treated as the publisher or speaker of content. By this logic, Donegan was the provider of an interactive service, not a publisher of a rape accusation.
U.S. District Court Judge LaShann DeArcy Hall didn’t buy that. While the big tech companies are very good at dodging this sort of trouble, every once in a while, some case comes along—an online matchmaking service for roommates that violates housing antidiscrimination laws, say, or a deceptive marketing scheme for weight-loss products—where Section 230 immunity fails. Judge Hall was particularly attentive to these odd-duck cases in reaching her conclusion that digital services can still get into trouble when encouraging unlawful content.
Hall’s analysis here is ripe for future attack, if the exceptionally slow-moving Elliott v. Donegan ever reaches appeal. (I wouldn’t be surprised to see tech companies and public advocates offering supportive briefs.) Donegan explicitly attested, during depositions, that she “did not solicit or encourage anyone to add false statements or false misconduct allegations about any person who appeared on the Google Spreadsheet.”
Perhaps true, but that wasn’t good enough to win the case on summary judgment. In her conclusion, (read here), Judge Hall suggested that Donegan’s attestation was unreliable and presented without evidence. She specifically cited Donegan’s inability to recall exactly what she had told women who were given, or obtained, the Google link. In a seemingly important footnote, the judge added that Donegan bears the burden of proving an affirmative defense—and noted that the defendant “deleted the majority of the communications she sent or received regarding the Spreadsheet.”
Hall’s decision potentially means that Elliott v. Donegan will go to trial, although discovery is still open for another couple of weeks in this case, and this ruling may not reflect the last attempt by Donegan to score a pre-trial win. If the case does go before a jury, there are plenty of open questions ranging from how the judge will handle document destruction (Elliott’s attorney will likely want jurors to draw adverse inferences) to the issue of actual malice. In early court papers, Elliott’s attorney, Andrew Miltenberg, suggested that his client’s known sexual proclivities (as a submissive male in BDSM) should have given the “Shitty Media Men” creator a good reason to doubt the rumor about him. Yeah, it could be that kind of trial.
Nike v. NFTs: It’s Got to Be the Shoe Tokens…
Some people collect NFTs; I collect lawsuits about NFTs. Indeed, I’ve made it a personal mission to keep tabs on the evolving legal framework surrounding the world of crypto—everything from “smart contracts” in DeFi to digital tokens and DAOs—and, of course, all the fascinating ways these blockchain experiments can go wrong. One of the cases I’ve now got in my “wallet” that seems primed to mint new law is Nike Inc. v. StockX LLC, which is being fought in the Southern District of New York.
StockX, for the uninitiated, is an online sneaker marketplace that facilitates auctions between sellers and buyers, not unlike an actual stock market. Not surprisingly, perhaps, StockX has also gotten into the business of selling NFTs (non-fungible tokens) that, in theory, represent real shoes. So in February, Nike filed a lawsuit, alleging that StockX diluted and infringed upon its trademark by establishing, without authorization, a marketplace for “100% Authentic” Nike-branded “Vault NFTs.” As Nike’s complaint rather amazingly points out, some of the NFTs are being sold at many multiples above the price of the corresponding Nike shoes.
What makes this case an absolute must-watch is exactly how StockX is using the underlying technology. We’re not selling digital representations of sneakers, says StockX. We’re re-selling real Nike shoes and using the NFTs to track and authenticate the physical product. As StockX lawyers argue in their rebuttal, “The Vault NFT itself has no intrinsic value—it is effectively a claim ticket, or a ‘key’ to access the underlying Stored Item.” Thus, whereas Nike sees a straightforward case of intellectual property infringement from an usurper coming along to capitalize on its brand and create confusion in the marketplace, StockX sees a “baseless and misleading attempt to interfere with the application of a new technology to the increasingly popular and lawful secondary market for the sale of sneakers and other goods.”
A federal judge will soon have to address the potential application of old I.P. principles, namely nominative fair use, which allows certain lawful references to trademarks, and the first-sale doctrine, which allows the owner of a particular copy of a work to sell that copy. Think, for instance, of used books and second-hand records. Can NFTs essentially function as record-keeping of such items?
Expect a big decision, and soon: StockX has bypassed its opportunity to bring a Rule 12 motion to dismiss, meaning the defendant isn’t challenging that Nike’s complaint properly states a legal claim. Instead, as the parties laid out in a letter to the court on Friday, the two sides will engage in a few months of fact discovery. Then, if this case hasn’t settled, they’ll head into the summary judgment phase where the judge will crown a winner or authorize a trial.
Also on the Docket…
It was an unusually rollicking week for Hollywood Accounting cases, one of my favorite genres of litigation. That’s where profit participants in a film or television project, seeking fair compensation, claim that studios are cooking the books or engaging in sly self-dealing to renege on a contract. These cases are not uncommon in the entertainment industry, but they can get nasty. Below, my notes on two big decisions and a key hearing that could prove consequential.
— Five years ago, CBS put out a press release announcing that it had acquired the massive Judge Judy library for $95 million. But when a pair of female producers who had worked on the early days of the show, and had a profit stake, came to collect their portion (almost $5 million), they learned there was actually no “sale.” Instead, they were informed that Judith Sheindlin had never re-acquired the rights to sell to CBS and so their own deal hadn’t kicked in. That led to a lawsuit accusing CBS and Sheindlin of a conspiracy to deny them what they said was owed. A March 28 ruling—which turns on which entity is deemed the “producer” upon transaction—gives CBS the victory here. See the ruling for full details.
— Remember Columbo, the 1970s detective show broadcast on NBC and ABC? Would you believe that the series grossed $600 million during its run? Well, William Link and the heirs of Richard Levinson—the co-creators—alleged that it took 45 years to get a profit participation check, and then they were only paid $2.3 million each. That led to a court battle over Universal’s deduction of distribution fees—$160 million in total—and three years ago, the creators thought they were headed for a $70 million jury trial win. But the judge wiped out what an accounting referee had concluded at trial after deciding that a contractual interpretation was his domain. He also gave Universal its preferred contractual reading.That led to an appeal, and on March 30, the appellate judges ruled the $70 million wipe-out was proper. A new trial may commence. Here’s the latest opinion.
— As the final episodes of Walking Dead are filmed, the long, long, long legal fight over the profits from the AMC zombie show will eventually reach a conclusion as well. The television series, based on a Robert Kirkman graphic novel, was the first that AMC produced in-house before airing on its cable network. The focus of various suits stretching back nearly a decade was the amount of money that AMC was booking in revenue, since it was essentially self-licensing. AMC argued that it had bargained for the right to set the rate, as long as certain conditions were met. Meanwhile, attorneys for executive producers, including Kirkman, eventually landed on the claim that AMC breached an obligation to fairly deal by ensuring this lucrative show would never turn a good profit. On April 1, the Los Angeles judge heard summary judgment arguments and indicated in a tentative ruling that he’s leaning towards AMC’s position. But the matter has been taken under advisement and, in any event, seems destined for an appeal.