Part I of this three-part series explored the history of the relationship between Keith Olbermann and Current TV, a television station owned by Current Media (collectively, “Current”). That relationship began in 2011 when Keith Olbermann joined Current TV as its Chief News Officer, and the relationship unceremoniously ended in March 2012 when Current notified Olbermann that it was terminating his contract. About a week later, Olbermann sued Current TV for breach of contract, as detailed in Part I of this series.
But what has Current done in response to Olbermann’s lawsuit? While the answer to that question is simple (Current countersued), the reality is that Current’s response is no less explosive than the bombshells launched by Olbermann in his initial complaint.
Current’s response to Olbermann’s Complaint actually includes two court filings. The first is Current’s Answerto the Complaint. The Answer is noticeably short – only four pages. In its Answer, Current “generally denies each and every allegation of the Complaint and further denies that Plaintiffs are entitled to relief whatsoever.” This denial is interesting in that it technically denies all facts alleged in the Complaint, including some basic, indisputable facts (such as that Olbermann and Current were parties to an employment agreement). Following the general denial, Current raises thirteen affirmative defenses, which Current submits will relieve it of liability even if everything that Olbermann alleges in the Complaint is proven true. Affirmative defenses raised by Current include: (1) Olbermann breached the contract first; (2) Olbermann prevented Current from performing on the contract; and (3) Olbermann failed to mitigate his damages.
Some of Current’s affirmative defenses dovetail with Current’s Cross-Complaint,which is the more detailed of the two responses to Olbermann’s Complaint. The twenty-eight-page Cross-Complaint, which Current filed simultaneously with its Answer, broadly alleges that Current justifiably and legally terminated Olbermann’s contract. In support of this broad claim, Current begins the Cross-Complaint with a bold statement: “Current had every right to terminate Mr. Olbermann’s services, rather than continuing to pay a princely sum while receiving a pauper’s performance in return.”
From there, the Cross-Complaint attempts to paint the picture of what truly transpired between Current and Olbermann, or at least Current’s version of the truth. Current first details its process of hiring Olbermann and its reasons for doing so. Then Current claims Olbermann “failed to deliver on his contractual promises” and “waged a campaign to breach, undermine, frustrate, and ultimately strip Current completely of the benefit of its bargain.” Current supports these statements with four specific examples: (1) Olbermann “intentionally leaked the financial terms” of his contract to the media; (2) Olbermann “failed to work with Current to promote the network, despite a contractual obligation to do so”; (3) Olbermann “repeatedly absented himself from the show by taking unauthorized days off”; and (4) Olbermann “refused to participate in Current’s 2012 caucus and primary election coverage specials.” Current concludes its introductory allegations by stating that it had complied with all its obligations under the parties’ contract.
Following its initial claims of misconduct against Olbermann, Current’s Cross-Complaint lays out more specific details about the relationship between the parties and how it went south. For example, Current alleges that Olbermann focused solely on his “Countdown” show at the expense of other projects;communicated with Current employees in an inappropriate manner;refused to promote his “Countdown” show and the Current TV network;and disparaged Current through public statements. While not nearly as long as Olbermann’s Complaint, the Cross-Complaint is nonetheless very detailed in its own right.
After articulating its factual allegations, Current requests various forms of relief: first, that the court declare that Current no longer has any obligations to Olbermann under the contract; second, that the court award monetary damages for Olbermann’s breach of contract; and third, that the court award monetary damages for Olbermann’s breach of the implied covenant of good faith and fair dealing that is implied in every contract. Finally, Current attaches to its Cross-Complaint the termination notice it sent to Olbermann (which is largely similar to the allegations in the Cross-Complaint).
So now that the parties have filed their initial pleadings, where do they go from here? As in any lawsuit, the parties have begun the discovery (i.e., the mandatory exchange of relevant information) phase of the case. During this stage, the parties exchange information that relates to the case and they will do this through various litigation discovery tools available, including depositions, document demands, and interrogatories. In fact, Olbermann’s attorney has already served a notice to take the deposition of Current Media co-founder Al Gore.
Look for other key witnesses to also be deposed, including Olbermann and Joel Hyatt, the executive vice chairman and other co-founder of Current Media. At the end of the discovery process, either party could move to have the case dismissed entirely; however, that time is far off into the future.
For now, we are left to prognosticate on what will happen. To find out more about that, check back with us soon for Part III, where we take a look at where this case may go as it careens towards trial.
This article’s primary purpose is to educate and inform readers and provide them with a general overview of the topics discussed. The information it contains should not be construed as providing legal advice or relied on for legal advice. If you have specific legal questions, the authors suggest seeking the advice of a qualified attorney.
Fernando M. Pinguelo, a Partner at Norris, McLaughlin & Marcus, P.A. and Chair of its Entertainment Law and Cyber Security & Data Protection groups, is a trial lawyer who devotes his practice to complex business lawsuits and employment matters. Fernando represents TV news anchors, reporters, meteorologists, and sportscasters, including Emmy Award-winning talent, concerning employment and agency agreements, contract disputes, and cyber security/privacy issues concerning talent’s Internet reputation. His representative clients include on-air talent who broadcast out of local and affiliate TV stations across the U.S., including in Boston, Chicago, Los Angeles, New York, and Philadelphia. To learn more about Fernando, visit www.NYLocalLaw.com or email him at info@NYLocalLaw.com. To receive timely articles about how technology impacts lawsuits, subscribeto Fernando’s ABA Journal-award winning blog, eLessons Learned – Where Law, Technology & Human Error Collide.®
Timothy D. Cedroneis an associate with the law firm of Apruzzese, McDermott, Mastro & Murphy, P.C., where his practice focuses on all areas of labor and employment law. Tim is the Secretary of the Entertainment, Arts & Sports Law Section of the New Jersey State Bar Association, as well as Co-Chair of the ADR Committee of the Labor & Employment Law Section. Tim is also an Adjunct Professor at Seton Hall University, where he teaches Sports Law. Tim has authored or co-authored three full-length, published law review articles in the areas of sports and entertainment law, and he previously was a law clerk for the National Football League and New Jersey Sports & Exposition Authority. He is admitted to practice in New York and New Jersey.
Answer by Defendant Current TV, LLC, Olbermann Broadcasting Empire v. Current TV, LLC, No. BC-482335 (Cal. Sup. Ct. Apr. 5, 2012), available at http://ellblog.com/wp-content/uploads/2012/05/Answer-Copy14.6.12.pdf.
Cross-Complaint by Defendant Current TV, LLC, Olbermann Broadcasting Empire v. Current TV, LLC, No. BC-482335 (Cal. Sup. Ct. Apr. 5, 2012), available athttp://ellblog.com/wp-content/uploads/2012/05/Cross-Complaint-Copy14.6.12.pdf.