The Smartmatic v. Fox News Edition

Episode Notes

Transcript

@the Bar

The Smartmatic v. Fox News Edition

02/18/2021

[Music]

 

Intro: Hello everyone and welcome to CBA’s At The Bar, a podcast where we have unscripted conversations with our guests about legal news, topic, stories and whatever else strikes our fancy.

 

John Amerio: I’m your host John Amerio of Taft Law and joining me today as my co-host is Trish Rich of Holland and Knight and lately NYU Law School where I think you’re finally finishing up that JD, right Trish?

 

Trish Rich: Yeah, I’m excited, I’m spending a lot of time in New York this semester I’m teaching at NYU Law, Ethics and Professional Responsibility. It’s a weird teaching experience right now, I’m in the classroom —

 

John Amerio: That’s great we’re not here to talk about that so before we begin today, quick programming notes —

 

Trish Rich: Thanks John.

 

John Amerio: Yeah, yeah —  I know many of you have been patiently awaiting the release of our three-part interview series on the Trial of the Chicago Seven and I’m happy to report that we have those interviews in the can. We were set to release them this month but the opportunity to speak with today’s guest arose and it gives us just such a timely conversation that we didn’t think we could pass it up. So we decided to release this episode immediately and we’ll release a Chicago Seven Series shortly, and with that, our guest today is J. Erik Connolly of Benesch Law. Erik has a distinguished practice but has perhaps best made a national name for himself, handling high profile defamation lawsuits. Indeed you may have heard his name recently on the New York Times Podcast the Daily, discussing his most recent action, a 2.7 billion dollar case against Fox News, Rudy Giuliani, Sydney Powell and a cast of other deplorables on behalf of his client Smartmatics, an election technology company.  Erik thank you for joining us and welcome to At The Bar.

 

1. Erik Connolly:Oh my pleasure thank you for having me I really appreciate it.

 

John Amerio: So Erik I like to start most interviews out with a hard ball, it’s a two-part question, why do you hate America and why do you hate fair and balanced election news coverage?

 

1. Erik Connolly: That’s how I was raised, I was told not to believe in America or a fair and balanced news coverage, it was kind of ingrained in me by my parents and so I’m trying to pass that along to the next generation as well hopefully I’m doing my best at it.

 

John Amerio: Well said. So we’re here today to talk about defamation you know, I think it probably would behoove us for audience in particular those who are not lawyers to just sort of define what defamation is I think there’s a popular conception that it’s something mean and something false that someone said about you but could you be a little bit more exact for our audience?

 

1. Erik Connolly: I’m hoping somebody can actually explain it to me as well. The best I’ve got is defamation comes into play when you’ve got a factually inaccurate statement that is being published about you. If it is a factually inaccurate statement about your person or your company that’s going to be defamation, if it’s factually inaccurate about your product or the services that would fall into the category of disparagement and a lot of times you have both in the same sentence.

 

John Amerio: That is absolutely perfect. So let’s start with your lawsuit against Fox News, who’s your client why are you suing Fox News, give us the basics.

 

1. Erik Connolly: The basics in the simplest sense is Smartmatic is an election technology company and in the 2020 election they were the election technology company for LA County in California, that’s it that was the only place that they provided any services or any technology for. After the election as I think you probably know from the lawsuit Fox News Rudy Giuliani and Sydney Powell started what we’ve characterized as a disinformation campaign, essentially telling people that Smartmatic was responsible for stealing the 2020 U.S. Election and rigging the vote in favor of Joe Biden and Kamala Harris since Smartmatic was only in LA County in 2020 that is an absolute mathematical impassibility and since they weren’t in any of the contested jurisdictions it becomes even more of a factual impassibility. So after those defendants repeated that accusation against Smartmatics night after night and caused real damage to the company I was retained and we looked into the idea of bringing a defamation and a disparagement suit against them.

 

Trish Rich: Now Erik did you just get this as and I want to talk about —  I understand this is your second defamation case, right?

 

1. Erik Connolly: This is not my second defamation case I had a rather significant one that the team and I worked on several years ago out in South Dakota for a beef producing company and that was my first defamation case and so it’s kind of interesting to jump off with that one but since then I have been retained to take on some other defamation matters. I had a large one that we filed early in 2020 on behalf of Smile Direct Club as well, but then this isn’t my second rodeo, I’ve had more than that’s just two.

 

Trish Rich: Okay, I’m excellent, and so I think I thought that because I had read in connection with your first one that it was your first one and so —

 

(00:05:07)

 

John Amerio: I think Trish is implying that you don’t know what you’re doing Erik.

 

1. Erik Connolly: You know what that’s —

 

Trish Rich: I’m going to explain to you.

 

1. Erik Connolly: That’s fair, that’s fair many people don’t think I know what I’m doing and so I appreciate that.

 

Trish Rich: So your first major case in this area was the largest defamation verdict ever, right?

 

1. Erik Connolly: Yes.

 

Trish Rich: And that is the famous pink slime case, can you talk just for a minute about that?

 

1. Erik Connolly: So I never call it that word, it is —

 

Trish Rich: I assume that you don’t but I think that’s how our listeners might know it

 

1. Erik Connolly: So my client in that case and we had a great, great team and some amazing lawyers worked on that case but the client was a beef producer, they made a lean beef essentially taking a product and making it almost all muscle meat, so it was an amazing product that people used and people were using it all over the country for ground beef and other utilizations. But then ABC started a campaign where they kept calling it the word you used and telling people that it wasn’t safe, that it wasn’t beef and that it wasn’t nutritious and as a result of that ABC campaign that lasted about a month, this company lost almost all of its business, it had shut down three of their manufacturing facilities, they lost almost every contract that they had and so you take a family owned business that had spent 20 years building it up from the ground up and it got decimated in 30 days. So that was our first case that we worked on and a lot of people that worked on that case are working on this case too, so really lucky to open a lot of the same team.

 

Trish Rich: That’s excellent I think some of our listeners and John know I grew up on a farm and so when I read about that case that was a real gut punch to think about all those jobs lost and the damages that company must have suffered.

 

1. Erik Connolly: It was really heartbreaking when you talked to the family that started it you could just see how much of their life they put into this company that it was everything to them and it was getting ripped away from them by disinformation something that just wasn’t true and it was really hard, it was really hard and I think that the lawsuit obviously helped them a lot it gave them a chance to kind of defend their brand, defend their reputation again and it was obviously a monetary recovery for them at the at the end of the day as well but when I met that family I was blown away by that family and I was heartbroken over the story for them.

 

Trish Rich: So that went to verdict, right?

 

1. Erik Connolly: No we settled that four weeks into the jury trial. So we were (00:07:47) our damages people, so our damage witnesses were about to hit the stand and that’s when we reached the settlement.

 

Trish Rich: Excellent and how did they find you?

 

1. Erik Connolly: So how did that case start with us? We were — a group of us was down in Atlanta, we were wrapping up what was a two-year long arbitration and we were on our final legs of that and we were contacted and given the opportunity to do a pitch for the case and so a group of us including Dan Webb who I think is one of the most brilliant lawyers in the world.

 

Trish Rich: Yeah we’ve heard of him.

 

1. Erik Connolly: Yeah some people have heard of him, some people have heard of him, he’s pretty darn good, he’s pretty darn good, but a group of four of us went down and we met with the family and we pitched it and they picked us and then we spent five years working that case.

 

Trish Rich: And so you were still at Winston when you did that case and you’ve since moved over to Benesch, right?

 

1. Erik Connolly: Yes, yes I did.

 

Trish Rich: Yeah, excellent so then for this case, did you just get a cold call on it is that how it worked?

 

1. Erik Connolly: I did get a cold call for this, it was right after Thanksgiving and I got a phone call from the company, their general counsel actually and asked me to take a look at it.

 

Trish Rich: And so that probably ruined your Thanksgiving, right?

 

1. Erik Connolly: Well it was already after Thanksgiving and I think all of us had much smaller Thanksgivings than we normally do this year and so I spoke to him for about an hour and then I went and watched some TV to see what he was talking about in terms of more details because I had heard about it slightly before that and after talking to him for an hour and then watching TV for about an hour jumped on another call with them, and so that was the start of it.

 

Trish Rich: So I heard you in another interview describe exactly that process as well that you talked to him for an hour and then you watched Fox News for an hour so is that the longest consecutive amount of time you’ve ever watched Fox News at that point in your life?

 

1. Erik Connolly: I don’t know if I’m allowed to give away — if I’m a Fox News watcher or not but I will tell you that is the longest consecutive watching of Fox News that I had ever had.

 

John Amerio: So let’s go there what were you seeing on Fox News when you turned that on about your client.

 

1. Erik Connolly: So I watched a series of the broadcasts that they had done and by doing that I was able to see how many different people in terms of their anchors that they had covering this and then I got to see the terms and the language that they were using not just their guests but also the Fox anchors themselves.

 

(00:10:18)

 

Describing Smartmatics as being this company that masterminded a plot to steal the 2020 U.S. Election and the characterizations went from them being a foreign-owned company to be in a foreign company to being designed to rig elections to being corrupt and so it was pretty intense in terms of what they were saying about the company.

 

John Amerio: If I remember correctly they even accused the company of being started by long dead Venezuelan President Hugo Chavez right?

 

1. Erik Connolly: Yes, they did say that Hugo Chavez was one of the individuals that founded the company, which is not true by the way.

 

John Amerio: Right and just to be clear all the accusations about your company that you addressed before, those are all false, right?

 

1. Erik Connolly: Yes.

 

John Amerio: Okay.

 

Trish Rich: I just have to say I haven’t quite made it through your entire complaint because it’s very long, it is what (00:11:13) 754 paragraphs over 276 pages but I have to tell you it’s one of the most interesting pieces of legal writing that I have read in a long time, it’s just really great it’s exactly the sort of thing that for my students it’s clear and it’s easy for and I can see that you wrote it so anybody could pick it up and read it and understand it and I think that was very brilliant but one of the things that really struck me as I was reading it and I’ll just give you one example is it —  and I will start by saying I am not a Fox News viewer and so I didn’t think I had really consumed much of this rhetoric that was in the marketplace but there were things that I thought that I understood about the situation that when I read your complaint I found out were false like for example I thought that I understood that dominion made voting machines and Smartmatics made the software that goes on that voting machine and that is something that it very clearly originated in Fox News that permeated all the way out to somebody like me who doesn’t even watch Fox News and I only understood that that was false by reading the complaint and that was really interesting to me like how pervasive these misstatements have become in popular culture, is that —  how have you found that?

 

1. Erik Connolly: So I think you’re picking up on a very good point and one of the reasons why defamation cases like this are really important. Once a false statement is made it spreads, it gets republished and the more it gets republished the more it gets widely adopted by people as just being the way it is and so one of the things that you see here is the false statements being made about Smartmatics, it became gassfull to people because they heard it and they heard it over and over again and what our complaint is alleging obviously is that facts news with a very significant microphone and a very significant platform was the voice that was really making that that accusation spread everywhere and so, that’s one of the reasons why you have to have a lawsuit like this it’s one of the only ways that a company like Smartmatics which is a small company I mean compare Smartmatics to Fox News you know it’s not an even fight when you’re talking about who’s got a larger microphone here. So you have to be able to bring a lawsuit like this, so Smartmatics can get their story out there and try to fight back.

 

John Amerio: Let’s drill down on that a little bit Erik because it —  when I generally think of defamation suits and I know this is at least a popular opinion in legal circles it they’re generally seen by lawyers as losing propositions not only because they can be hard to prove but because they can actually draw more attention to the lie right or the fact that one might seek to hide in the case of for instance Donald Trump is very famous for bringing these kinds of suits in order to intimidate and gain leverage on people. The fact that Trish just referred to your prior case as the Pink Slime case would seem to indicate to me that even if you’re successful in these lawsuits you can’t really put the genie back in the bottle, right?

 

1. Erik Connolly: Yeah I think that’s a challenge that you always come up with. One of the hopes that you have with the lawsuits is that you get a microphone to have somebody spread the accurate information and that you can kind of combat it to the best of your ability but notwithstanding that you can still have that lingering impact that the false statements continue to permeate. So even if the lawsuit helps you move the needle somewhat you still have this stigma that can be attached to you. So when you have some companies that have been successful the defamation does have a stigma that can last for years and years and years that continues to do damage to you, so you do your best to mitigate it but you can’t eliminate it.

 

(00:15:13)

 

John Amerio: And to that point we are already seeing I think a real life impact of your lawsuit on the way Fox News and even Newsmax and OANN are behaving, right. We saw Lou Dobbs was recently let go from Fox News I don’t know the background to that but I know it in the press it was largely attributed to these defamation lawsuits that have been brought against Fox. I think everyone saw that that Newsmax news anchor walk off the set —

 

Trish Rich: That was incredible, that was the first opportunity I’d ever had to see anything on Newsmax and I loved that he’s just pulled up the statement from his from the company’s lawyer and started reading it on TV and then just got up and walked off I mean Erik, how did you feel when you saw that clip? You mean you did that right?

 

1. Erik Connolly: So somebody did send me that clip obviously and I did watch it.

 

Trish Rich: I’m sure a thousand people sent you that clip first of all.

 

1. Erik Connolly: I saw it, I saw that clip for certain time but what I certainly saw was a news organization that had their lawyers tell them don’t let somebody say this again and that was the reaction that we saw, I don’t think of that as stifling speech I look at that as a news organization trying to take a preemptive measure not to do more damage.

 

Trish Rich: So with the firing of Lou Dobbs so, first of all do you think that the reason he —  I don’t know do we know for sure it was a firing or is it —  I think we just understand it to be a separation, right?

 

1. Erik Connolly: Yeah I have no idea, I have no idea, I saw that announcement but I don’t know why it happened and I don’t know how it’s being done.

 

Trish Rich: It doesn’t makes sense to me and again I’m no defamation expert but there is or isn’t connected to your lawsuit because they can’t mitigate anything now by you know, getting rid of the people that said it, right?

 

1. Erik Connolly: Yeah the damage has been done in terms of the false information has been making its way around the world and so there’s not much you can do once that genie’s out of the bottle.

 

Trish Rich: How’s your client doing? How are they holding up?

 

1. Erik Connolly: They’re doing as well as they can, they are focused on working their business every day and they’re focused on trying to mitigate the damage as best they can, this was a — I mean this shook everybody up over there — I mean you’re talking about a company that has tried to do the right thing, I was very proud of what they had done in LA County and it was almost a celebratory mood for them that this was a very significant contract for them, doing well in LA was a big deal because LA County is a big county for people to use election technology and so you essentially have —  imagine you’ve just you’ve completed your Super Bowl like that big target that you’ve had forever and you think you’re going to go to Disney World you think, you’re in a high five and everything is going to be fantastic and then all of a sudden somebody pulls you into this claim that you stole an election that you barely played a role in. It’s absolutely devastating.

 

Trish Rich: I think I read in your complaint, did it say that LA County is the largest voting county in the United States?

 

1. Erik Connolly: Yes that’s correct.

 

Trish Rich: So in their participation, your client’s participation in the election was limited only to LA County, correct?

 

1. Erik Connolly: Yep LA County only, they only provide technology and services there nowhere else and nobody was using their software anywhere else.

 

Trish Rich: Yeah, it’s so interesting to me because you know John and I were talking about this beforehand you know, you’re not going to be taking discovery on the marginal difference of whether or not the Smartmatics machines in Detroit flipped votes, right? You’re just going to be able to show up and say we weren’t there.

 

1. Erik Connolly: Yeah it’s a pretty straightforward fact pattern with respect to whether or not we had any role in the election you know Smartmatics was in LA, nowhere else, so Georgia, Pennsylvania, Nevada, Arizona, Michigan, Wisconsin all the states that people may have been talking about all I have to say is that we weren’t there, so we could not have had a role in anything.

 

John Amerio: And if someone would were to decide to try to steal republican votes, LA County probably wouldn’t be the first place for them to start, right?

 

1. Erik Connolly: I don’t think anybody really questioned where LA County was going to turn up in the 2020 Election, I think it went 71% for the democrats this year and I think it was 72% for the democrats back in the previous election. So I don’t think there was a huge margin shift in LA County.

 

John Amerio: That’s probably a good place for us to take a break we’ll be right back.

 

[Music]

 

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[Music]

 

John Amerio: And we’re back so Erik one of the themes that we were touching on in the first half of our conversation was accountability, we were kind of dancing around that issue a little bit and I appreciate the fact that because of the nature of your clients business you need to stay a political but one of the things that I think many people in this country have been bemoaning for the last quarter of a century is the lack of accountability in the news media especially lately from the right, I’ll go ahead and make a partisan statement, I think Fox News and other right-wing media have been spreading lies and damaging the political discourse for some time which has led to some pretty severe consequences if we’ve seen and you know if money and viewership are any measure they’re actually rewarded for that kind of behavior not punished for it. So that is a long lead-in to this question, are defamation suits like yours potentially part of the solution to that problem?

 

1. Erik Connolly: I hope so, I think maybe that’s the clearest answer I can give on that, I hope so. There is a significant amount of disinformation that’s being published now from media that you wouldn’t typically expect it to be I mean news organizations do play a very important role, the first amendment is an important part of our constitution obviously I love the first amendment and part of that is the great responsibility that news organizations have in our society but we’re starting to see and we’ve seen it now as you’ve said growing in intensity just a proliferation of factually inaccurate information coming out of the organizations that we as people trust the most to give us accurate information so that we can make the right decisions. So how do you fix, that you can obviously hope that they do the right thing you can obviously hope that there are codes of ethics that news organizations follow and a lot of them do that they try to get it right every single time. But what do you do about the people who don’t get it right? This type of lawsuit and these types of defamation claims that’s one of the things you can do, it doesn’t come along very often where you think you can have a case that can make a real difference like that and this one could and obviously my first responsibility is to my client and to do the very best I can for my client but if there is the benefit of correcting the trajectory that we’re on in terms of disinformation I’m all for that too.

 

John Amerio: So you know you mentioned the first amendment and political speech is generally afforded more protection than other types of speech you know in our jurisprudence, is there a limit though, does that principle cover false political facts or only opinions?

 

1. Erik Connolly: So I think there are different privileges that the law has developed around different types of speech but at its core I still don’t think there’s any room for the straightforward factually inaccurate information being published time and time again you know if you if you do it once you can say well that was a slip up, right? I didn’t have time to hit the pause button or I was on a live show and I didn’t know what they were going to say, maybe you can try to say that that was just an innocent mistake that we let that get out on the air. But if you do it time and time again and if you join in the chorus in terms of the statements being made by the people on your show, I think you’ve crossed the line away from saying that all I’m doing here is providing a vehicle for a political person to express their statements and you’re endorsing those, you’re adapting those and that makes you liable for them.

 

Trish Rich: now I read in the last couple of days that you’ve received at least, is it two motions to dismiss on the complaint is that right?

 

1. Erik Connolly: We’ve received four, so the Fox News entities filed their motions to dismiss and then the Fox anchors also filed their motions to dismiss.

 

Trish Rich: Okay so first of all I would love it if you could tell me if Rudy Giuliani or Sydney Powell are pro se in this lawsuit, I didn’t look up the docket sheet but I would love for them to be representing themselves in this matter.

 

(00:25:09)

 

1. Erik Connolly: You could probably tell if there’s like black sweat marks on the paper that might be a giveaway, I do not think either one of them will represent themselves in this case.

 

Trish Rich: That’s right, that’s sad for my ongoing sources of entertainment. So what are the —  you know, broadly what are the basis for those motions to dismiss.

 

1. Erik Connolly: So the broad basis would be invoking privilege over their communications most likely the neutral reporting privilege, which some states recognize allowing people to publish information simply because an important person or a famous person said it and then they’ve argued that we insufficiently alleged actual malice.

 

Trish Rich: In a 285 page complaint they’re arguing that the allegations are insufficient?

 

1. Erik Connolly: I feel pretty good about the thoroughness of our allegations in the 285 page complaint with I don’t know 100 exhibits or so.

 

John Amerio: Why don’t we break that down for the audience a little bit Erik, what’s the importance of actual malice in a claim like this?

 

1. Erik Connolly: So actual malice is the heightened threshold of intent that we have to be able to establish. It’s an open question of whether or not the court will require you to prove it but actual malice starting from the New York Times versus Sullivan decision essentially says that the speaker knew what they were saying is false or they acted with reckless disregard for the truth of their statements, and so the category speech that is most protected that is the burden of proof that the plaintiff has.

 

Trish Rich: So actually Erik when I was researching and reading to prepare to come here today I saw a clip on CNN the other day of first amendment expert I didn’t know her name it was Lynn Overlander, and she said something about —  I wrote this down so I’m reading off my screen here “political speech is really our most important speech and it deserves an awful lot of protection”, what would you say to people who hold that position and in the interest of fairness I will also say she followed it up by saying that your lawsuit is very strong.

 

1. Erik Connolly: I’m glad she thinks our lawsuit’s strong that makes me feel better than reading that people think the lawsuit is weak. I think everything is different shades of gray I mean, I think there is a there’s a difference between what is being said by somebody on the floor of the house of representatives and what somebody says on an evening news program, those are two separate categories in my mind.

 

John Amerio: Or in front of landscaping.

 

1. Erik Connolly: Or in front of landscaping, yeah right. So any of those any of those venues do not have the same esteem as the White House Lawn or the Halls of Congress, so I certainly appreciate and understand the nuances that we’ll have in terms of political speech and the different degrees of protection that they get, what happened here in this situation doesn’t fall into that category.

 

Trish Rich: So as an aside when we had this recent large snowstorms, I was happen to be driving from New Orleans to New York and was stranded in Pennsylvania for a couple of days and went to Four Seasons landscaping because I just thought it would be interesting to check out and as absolutely ridiculous as it looks on TV, the neighborhood looks you know way more ridiculous in-person and it really was interesting to imagine all of these news trucks pulling up to this like very industrial like armpit of a neighborhood and so I recommend checking that out if you ever find yourself in the greater Philadelphia area.

 

1. Erik Connolly: I’ll get a cheesesteak when I’m there so it’s going to be perfect.

 

Trish Rich: And I also hope that you do defamation defense because by the end of this podcast I think john and I are both going to need you know defamation defense lawyers.

 

John Amerio: Hold on, hold on, to be clear everything that I have stated during this podcast has been pure opinion.

 

Trish Rich: You said Fox News tells lies so.

 

John Amerio: Well that’s a fact yeah.

 

Trish Rich: What about Erik, so —  you know, I’m just speculating here but what about if Lou Dobbs or any imperial or one of these defendant broadcasters gets up and says that was my opinion I mean I think we understand that having an opinion is defensible and we kind of I think know that most of Fox News’ opinion shows now right isn’t that a decent defense for them?

 

1. Erik Connolly: So actually that idea is not correct, a lot of people think that as long as you couch something as an opinion or if you characterize it as just you know, I’m giving my opinion that means you are immune from defamation or disparagement, that’s not true.

 

Trish Rich: Yes I do believe that by the way.

 

(00:30:00)

 

1. Erik Connolly: So but that’s wrong, that’s wrong. And the standard is actually whether or not a reasonable person is going to think that you have a factual basis for what you are saying and so as long as people are giving something that even if they say it’s my opinion, if the context in which they’re giving it leads to the belief that there must be a factual predicate for it or basis for it in fact, you can still be sued under defamation law for making that statement, that’s why when you listen to certain broadcasts and they’ll say what I’m telling you is based upon my thorough investigation or this is based on all this evidence I’ve collected or all these witnesses that I’ve spoken to. Even if somebody could hear your statement and say, that kind of sounds like an opinion you can still get sued for it because you’ve created this impression the minds of readers and viewers that you must have a factual basis for it, so there’s a big line that is drawn between pure opinions such as you know I like this type of cheese and saying this cheese is contaminated based upon my investigation.

 

John Amerio: So couching it in terms of an opinion is not enough to necessarily win protection, what about in terms of a question because I always think of you know Fox News is —  we’re not saying that Barack Obama is half Kenyan, half alien but we’re just asking the question that’s like a technique they often use right what about, when they do that?

 

Trish Rich: Our viewers deserve to know, yeah.

 

John Amerio: Yeah.

 

1. Erik Connolly: So if the viewers are looking for ways to try to defame somebody by simply framing it as a question that will not work either and I’m not giving any legal advice or recommendations here I don’t want to get in trouble for this but no, I don’t think the use of clever questions gets you out of jail either.

 

Trish Rich: Well Erik, I’m not saying it’s my opinion but don’t you think we deserve to know if John’s the worst lawyer in Chicago, don’t you think we deserve to know that?

 

1. Erik Connolly: He seems incredibly pleasant to me so far.

 

Trish Rich: So that reasonable person thing I am kind of remembering something I read on the great legal resource of twitter recently about Tucker Carlson, is wasn’t that an issue in a case that he was involved in recently where they decided that a judge somewhere decided that no reasonable person would believe what he was saying was fact am I remembering that correctly?

 

1. Erik Connolly: I read something along those lines as well, I have not read that opinion but I think I read that on twitter too, that actually that’s not true, I’m never on twitter. So somebody must have shown me a tweet on that.

 

Trish Rich: Yeah I think I saw it on twitter but I’ve done no independent research on that but I thought that was interesting at the time and it makes sense given what you’re telling us here.

 

1. Erik Connolly: Yeah I mean I think that argument is made by defendants and there may be situations where that defense is applicable and there are certainly occasions where it absolutely is not applicable.

 

John Amerio: Although there’s probably 75 million people at least who would disagree with that from their own news viewership right?

 

1. Erik Connolly: Yeah and that’s very interesting because if you look at what is the reasonable person standard you clearly have a very large portion of viewership that does believe that the information is factually based and factually accurate.

 

Trish Rich: But assume if you’re going for the reasonable person we start by excluding Fox News viewers, right?

 

1. Erik Connolly: I’ll never going to say that, I’ll never going to say that.

 

Trish Rich: So are you going to just —  to be completely honest with me and John, we’re all friends here are you going to own Fox News by the end of this, is that the goal?

 

1. Erik Connolly: Oh not me, I’m just a humble lawyer, I’m just a humble lawyer, I just try to get a paycheck every once in a while and that’s all I do.

 

Trish Rich: But in terms of damages can you talk a bit about the equitable relief you ask for in the complaint as well because you’re asking for —  is it a formal retraction or what would that look like?

 

1. Erik Connolly: So part of what you ask for in defamation lawsuits is some type of publication designed to fully correct the damage that is done and so whenever you actually issue a retraction demand, what you’re asking for is whatever you did and how often you did it and whatever vehicles you used you must publish the correct information that many times on that many platforms through those same devices because you’re trying to saturate the marketplace with the truthful information just like you saturated the marketplace with the false information. So one of the things we obviously ask for is what is a full and wholesome retraction, now it’s obviously something that is a lot easier if somebody published one news article, one time with one sentence that was wrong and then news organizations will retract it by publishing a correction that says, hey we got this one fact wrong, we’re sorry that’s easy, it’s much more difficult in a situation where you’ve got multiple false statements published multiple times by multiple people disseminated on multiple platforms. So that gets back to what we talked about earlier which is you know when I’m going to go with another metaphor here, when the bell is wrong like that, you really can’t unring it.

 

(00:35:08)

 

Trish Rich: That’s really interesting, I didn’t realize that would be the corrective action required. So basically Fox News would have to run corrective stories 24/7 for it while, right?

 

John Amerio: For two months.

 

1. Erik Connolly: Right, it would be a challenge.

 

Trish Rich: Now as far as the monetary relief saw in your complaint would that be joint and several liability amongst the defendants?

 

1. Erik Connolly: Yes.

 

Trish Rich: Okay, and so 2.7 billion dollars in perspective is that a lot of money to even tell Fox I think of them as being untouchable almost.

 

1. Erik Connolly: You know I have not read Fox’s financial statements and so I don’t know the answer to that, that was how we calculated the lost business value for the company as a result of this and whether or not that is a large amount for facts or small amounts of facts I do not know.

 

Trish Rich: Well I hope it’s a large amount for Fox.

 

John Amerio: Well to Trisha’s point, can you recover punitive damages in a case like this?

 

1. Erik Connolly: Yes you can, you typically prove actual malice and that entitles you to punitive damages, there are additional things you have to prove to get punitive damages in terms of ill will.

 

John Amerio: Right.

 

1. Erik Connolly: But yes punitive damages are available in defamation cases.

 

John Amerio: And that would be on top of the 2.7 billion?

 

1. Erik Connolly: Yes.

 

John Amerio: There you go Trish.

 

Trish Rich: Yeah that’s a lot of money, but your client you know, has sustained significant damages, right?

 

1. Erik Connolly: Yeah I mean, you have a story where they have spent a long time trying to build their brand internationally and their brand’s been significantly injured at least that’s what we’re alleging in the complaint and so that’s what they need.

 

Trish Rich: Yeah I’ve read a lot about their election work overseas and it seems like they were really on an upward trajectory.

 

1. Erik Connolly: They have spent a lot of time and a lot of their energy making a very secure and audible election technology, I mean that’s what they’ve built their company on making sure that you know it’s secure, making sure that you know there’s a paper trail that can go back and be checked and they’ve been successful with it and this obviously has thrown them off.

 

John Amerio: Well speaking of brands, I think that probably the good news is if this goes to trial and Fox News decides to stand on its brand and the standards of journalism for which it’s known that’s probably going to be more of an admission than a defense right?

 

1. Erik Connolly: I don’t want to comment on that.

 

John Amerio: That’s probably a good place for us to take a break we’ll be right back with Stranger than Legal Fiction.

 

[Music]

 

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[Music]

 

John Amerio: And we’re back with Stranger than Legal Fiction our audience knows the rules, they’re pretty straightforward. Trish and I have done some research on the interwebs, we’ve found one law that is real but probably shouldn’t be, we’ve made another one up and we’re going to quiz each other and our guest Erik to see who can distinguish strange legal fact from fiction. Erik, are you ready to play?

 

1. Erik Connolly: I’m really not ready to play I feel like this is only set up to make me feel like I don’t know the law or I have to go back to law school, which I don’t think I would do well in?

 

John Amerio: You’ve read that perfectly.

 

Trish Rich: Yeah I feel bad that we’ve sandbagged you with this but it’s going to be a good laugh for us so too many into the pot.

 

1. Erik Connolly: Excellent, excellent.

 

John Amerio: Trish why don’t you lead us off.

 

Trish Rich: Sure so I as we enter almost one entire year of working from homes, I’ve been thinking a lot about where I want to go for my first trip and so both of my laws are Australia inspired, so again one is true and one is not true. So in Australia if you have to use a restroom and cannot locate one after a diligent search you can publicly urinate on the rear left tire of your vehicle or in Australia and Western Australia, it is illegal to possess more than 50 kilograms of potatoes unless you have a license to do so. John I’m going to make you go first so Erik feels comfortable answering.

 

John Amerio: All right well, I know the first one is playing on shameless stereotypes of Australians so I’m going to guess that’s the real one.

 

(00:40:00)

 

1. Erik Connolly: So you think the public urination is the real one?

 

John Amerio: I’ve known some Aussies and that makes sense to me.

 

1. Erik Connolly: Okay so —

 

John Amerio: In my opinion, in my opinion.

 

1. Erik Connolly: I know some Aussies too, I feel like they would hold it, I think the potato is a true law maybe I’m just thinking about this for being from Ireland and we love our potatoes so much because I like potatoes so much I would think that I would have to have a restriction on how many potatoes people can have so they don’t hoard them.

 

Trish Rich: Wow, I didn’t realize we were going to have a mold for big potato here.

 

1. Erik Connolly: No I’m just telling you potatoes are the best thing I mean, russet potatoes, yellow potatoes, golden potatoes, they’re all fantastic.

 

Trish Rich: How did I run into a potato expert?

 

1. Erik Connolly: Listen potatoes every week.

 

Trish Rich: So Erik is right, yes Erik is right nice work. John the law about urinating on the rear left tire of your vehicle is a very common urban legend in Australia but it’s not actually true so.

 

John Amerio: Okay so not a law but a common practice.

 

Trish Rich: Correct and you can do it from what I can tell so long as you don’t get caught so.

 

John Amerio: Okay so I’m going to take that as a win, we both win.

 

Trish Rich: Yeah.

 

1. Erik Connolly: I feel like you got — I think you guys are defaming Australians right now, so.

 

Trish Rich: We said we’re going to need a defense lawyer —

 

John Amerio: I don’t know anyone who could help them with that, yeah.

 

1. Erik Connolly: If anyone from the Australian council is listening give me a ring.

 

John Amerio: We actually have a surprisingly robust international audience so that’s a possibility, that is a concerning possibility, okay let’s move on. Option number one in 1930s Nazi Germany, gluttony was a crime punishable by up to five years imprisonment and penal servitude and 200, 000 marks. So that’s option one being fat in Germany in the 30s. Option two, in Little Rock, Arkansas it’s illegal to honk a car horn near any place, sandwiches and cold drinks are sold after 9 p.m., Trish you put me on the spot first, so I’m returning the favor.

 

Trish Rich: Yeah, I was just trying to be nice to our guests, but I think that number two is probably a real law.

 

John Amerio: Why?

 

Trish Rich: Because it just seems like a noise ordinance you know, in a gathering place after nine o’clock that said it would not —  it wouldn’t shock me if I was wrong about this Nazi Germany seem to have some pretty strict standards about you know, —

 

John Amerio: Don’t hedge stand by your opinion —

 

Trish Rich: But I’m going with number two, I think number two is the actual law.

 

John Amerio: Erik?

 

1. Erik Connolly: You know so I was a history major and I feel like I should know if the there was a law in the books in Germany back in 1930s regarding gluttony I think I missed that in my class when I was in school so since I haven’t heard of that law not that I know all German law and not that I know all German law from the 1930s starting in 1935 I know most of the German law but just pre-1935 I’m really handicapped there. So I’m going to say that that’s not a real law, I’m going to go with the noise ordinance in Little Rock, I agree with Trish I think that’s a real law.

 

John Amerio: Okay before I reveal the answer let’s just rewind a little bit and talk about that masterful humble brag about how —  oh I know I know German law in like 1936, right, how many toothpicks are on the ground right now?

 

Trish Rich: This is very impressive that we happen to just randomly pick two categories in which you have an impressive amount of knowledge.

 

1. Erik Connolly: Yeah and I just made that up about Germany I don’t know anything about

Germany.

 

John Amerio: Oh look at that, look at that.

 

Trish Rich: And the student becomes the teacher.

 

John Amerio: Chapter 18 section 18-54 of the Little Rock, Arkansas Municipal Code says it is illegal to honk a car horn near any place that sells sandwiches and cold drinks after 9 pm but Trish to reward your hedging, the gluttony law in Germany was a bill it just never became law which you know probably explains Hermann Goring’s weight at the end of the war he was just eating his genocidal feelings.

 

Trish Rich: Yeah but gory his last name so he had to be a big dude.

 

John Amerio: And there’s some jokes there but let’s skip over them and that’s going to be our show for today, I want to thank our guest Erik Connolly for this important and informative conversation good luck to you sir.

 

1. Erik Connolly: Thank you very much I really appreciate you taking the time and I enjoyed talking with you.

 

John Amerio: Thank you.

 

Trish Rich: It’s our pleasure thank you so much for coming on.

 

John Amerio: I also want to thank our co-host Trish Rich the spider penchant for interrupting our executive producer Jen Byrne, Adam Lockwood on sound and everyone the Legal Talk Network family remember, you can follow us and send us comments, questions, episode ideas or just troll us on Facebook, Instagram, Twitter at CBA At The Bar all one word.

 

(00:45:03)

 

Please also rate and review us on Apple Podcast, Google Play, Spotify, Stitch or wherever you download your podcast it helps us get the word out.

 

Outro: Until next time for everyone here at the CBA thank you for joining us and we’ll see you soon At The Bar

 

[Music]

 

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