Peter Thiel vs Gawker

[Capetan Mihali]

This is perfect timing, as I bone up on the common-law tort of defamation, and how it has been warped by the First Amendment, in preparation for yet another bar exam, since state bars just don't like reciprocating.

Hulk Hogan, unlike fellow pro wrestler Jesse "The Body" Ventura, is not a public official, but he probably qualifies as a public figure, for the "actual malice" standard, which has already been brought up but I'll give the Bluebook cite for my own good. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 

The tort of invasion of privacy, specifically public disclosure of private facts, i.e. the widespread dissemination of accurate information that would normally be confidential done in a way that would be highly offensive to a reasonable person. 

But the First Amendment requires an exception for "newsworthy" information, which has come to encompass virtually anything done by a celebrity, hence the continued existence of tabloids that publish nothing but Gawkeresque information in print, at the checkout stand.

EDIT:  I see the Hulk also sued for IIED (intentional infliction of emotional distress), good move to include the "fallback tort."  Defamation is clearly peripheral to this, but invasion of privacy was one of the claims; I don't know about the infringement of personality rights angle.

$55 mil to compensate him, $60 mil for his emotional distress, and another $25 mil in punitive damages.  Wow.  That 6-person Florida jury sure did not like Gawker.  And it's sure an expensive proposition to put the Hulk through emotional distress.

[LaCroix]

But then that's a discussion barely connected to any of this. That's just a discussion about our jury award system.

The novel part of this situation is that someone - someone rich - is wielding the jury award system as a weapon to destroy a business they have taken a disliking to, and that they are close to success and that they're openly admitting to it.

is this novel?

ultimately, this case won't change anything. billionaires/millionaires won't be backing victims to achieve personal vendettas against others. maybe a few might here and there, but the majority won't. why? because it looks bad, and, generally, people don't want to look bad. also, the argument that this will chill media reporting is silly--anyone with a blog can report news, and there are enough people who'd love to throw shit back at an obsessed rich guy. media industry has a lot of arrogant, prideful people

[LaCroix]

in preparation for yet another bar exam

same here. haven't started yet or even bought themis 

[The Minsky Moment]

EDIT:  I see the Hulk also sued for IIED (intentional infliction of emotional distress), good move to include the "fallback tort."  Defamation is clearly peripheral to this, but invasion of privacy was one of the claims; I don't know about the infringement of personality rights angle.

There's another interesting wrinkle here.  HH also initially sued for negligent infliction for emotional distress, but withdrew that claim before trial.  There is no way to know for certain why he did.  But it had a significant impact that HH's side could anticipate would happen - it removed what would have been a insured claim from the dispute at a time when there was an open insurance coverage dispute between gawker and its liability insurer.

Now why would a plaintiff do something to make it less likely that insurance proceeds would be available to satisfy the judgment?  The answer is no rational plaintiff would: unless the purpose of the suit was not to obtain maximum recoverable compensation but rather to inflict maximum financial plain on the defendant.

[LaCroix]

Now why would a plaintiff do something to make it less likely that insurance proceeds would be available to satisfy the judgment?  The answer is no rational plaintiff would: unless the purpose of the suit was not to obtain maximum recoverable compensation but rather to inflict maximum financial plain on the defendant.

many plaintiffs, for many reasons, choose strategies that obtain less than maximum recoverable compensation

[The Minsky Moment]

Never heard of a plaintiff trying to decrease the availability of insurance proceed before   . . .

[LaCroix]

I'm more responding to the implication there, re: whether HH was following orders from thiel. ultimately, who cares? plaintiffs can do whatever they want that's within the rules of civil procedure/law

[Barrister]

Never heard of a plaintiff trying to decrease the availability of insurance proceed before   . . .

I'll give you that one - it's pretty much the opposite of what plaintiff's counsel ever does.

[Capetan Mihali]

I'm more responding to the implication there, re: whether HH was following orders from thiel. ultimately, who cares? plaintiffs can do whatever they want that's within the rules of civil procedure/law

Goes to intent.

[LaCroix]

Goes to intent.

does the law really care about the intent behind a plaintiff's suit, provided there's some non-frivolous ground to the suit?

[Capetan Mihali]

It's more whether we as a society care, not whether it's legally permissible.

[The Minsky Moment]

The state provides civil justice as a public good because there is a perceived social value in providing an effective system to receive redress and compensation for civil wrongs.  That rationale is weakened when the system is used not for the purpose of compensation but to destroy.

[Martinus]

But then that's a discussion barely connected to any of this. That's just a discussion about our jury award system.

The novel part of this situation is that someone - someone rich - is wielding the jury award system as a weapon to destroy a business they have taken a disliking to, and that they are close to success and that they're openly admitting to it. The other aspect involved is ease with which many people can agree that Gawker is terrible and ought to be destroyed.

But isn't the alternative even worse? If you can only finance your own lawsuits, then media outlets like gawker know that the uber rich are untouchable - because they can destroy them - but everyone else is a fair game.

The problem in your scenario is whether a single lawsuit could be used to destroy a business if enough cash is put into it - who bankrolls it is really irrelevant.

[Martinus]

Goes to intent.

does the law really care about the intent behind a plaintiff's suit, provided there's some non-frivolous ground to the suit?

I don't know about too many other cases, but at least in antitrust law there is case law supporting the claim that excessively aggressive litigation may amount to abuse of a dominant position when exercised by a dominant business against its competitors.

[The Minsky Moment]

But isn't the alternative even worse? If you can only finance your own lawsuits, then media outlets like gawker know that the uber rich are untouchable - because they can destroy them - but everyone else is a fair game.

I don't have a big problem with private litigation finance but that's why I think the insurance gambit is interesting - because it runs 180 degrees to the contrary of what a real litigation finance outfit would do.  It's the distinction from using "maintenance" to help improve access to the court system for the purposes it was designed for, as opposed to using it to pursue some alternate agenda.