Paul Alan Levy, an attorney at Public Citizen, bloger, and general free speech badass is familiar to Popehat's readers for his legal exploits. We're happy to have a guest post from him today.
The generally accepted narrative about the sudden settlement of Karen McDougal’s lawsuit against the National Enquirer (through its parent company, American Media, Inc.) for its “catch and kill” treatment of her account of her affair with Donald Trump is that the FBI’s April 9 execution of a search warrant at Michael Cohen’s office was what made the difference, coupled with the possibility that had the case continued, McDougal’s very able counsel, my friend Peter Stris would be able to start taking discovery that might prove very embarrassing to all concerned.
I believe that narrative to be mistaken. Certainly the prospect for discovery might have been a concern for some in the long run, but the narrative misses two points.
First, on April 2, a week before the search warrant execution, AMI moved to dismiss the complaint under the California anti-SLAPP statute; two weeks before that, the company had issued a statement about the lawsuit attacking Stris’s statements abut the situation. In both documents, the company said that it had already released McDougal from many of the restrictions on her communicating with the media about her experiences (the account that had been subjected to the catch and kill), allowing her to respond to legitimate press inquiries by talking about her situation. The company claimed that the only limit was on McDougal selling her story to another media outlet. The motion to dismiss went a bit further: it said that, in fact, the company had no desire to prevent McDougal from telling her story going forward (it pointed out, for example, that McDougal had given an extensive interview to Anderson Cooper). It argued that the lawsuit was really over the company’s having made editorial decisions not to carry in other of its publications various material about McDougal or written by McDougal, and it argued that suing it for the exercise of its editorial discretion implicated the company’s free speech in a way that warranted coverage under the anti-SLAPP statute.
My immediate reaction to this filing was that AMI was signaling its desire to drop the restrictions on McDougal’s speaking publicly, and that assuming that AMI’s position was sincere, the case was likely headed for a prompt settlement. And that is what has happened.
Moreover, at that point, McDougal faced a serious incentive to settle rather than litigate. I don’t say that AMI’s argument about SLAPP coverage was sound, but it was not a ludicrous argument (some of it depended on claimed facts of whose veracity I have no knowledge). But if the anti-SLAPP motion was granted, McDougal faced a serious award of attorney fees.
The second major point is that, in California, an anti-SLAPP motion generally puts a hold on discovery, and if the anti-SLAPP motion is denied, the denial can be appealed. So it was fairly unlikely that McDougal was going to be able to take discovery anytime in the next year or so, thus embarrassing the criminal law defense for Cohen or others, another prospect said to have produced the settlement.
Moreover, down the road, the very same discovery might go forward in the event either Keith Davidson or Cohen gets sued, as Stris has publicly threatened to do. And the settlement does not release McDouga’s possible claims against them. So the notion that AMI was buying itself protection against embarrassing discovery seems weakened for that reason as well.
Rather, it is my assumption that AMI responded to the terrible publicity that it was receiving for the alleged “catch and kill” situation by giving up its right to kill the story. But that surrender was already effective on the day the search warrant was executed.
None of this takes away from the excellent lawyering by Peter Stris to achieve this result for his client. But I think he deserves full credit for what he achieved, and need not share any credit with the authors of that FBI warrant.
Copyright 2017 by the named Popehat author. https://www.popehat.com/2018/04/23/guest-post-paul-alan-levy-on-the-karen-mcdougal-v-national-enquirer-settlement/
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