Wednesday, September 19, 2007
Just tell me when I can get in line for tickets to attend the trial: Rather v. CBS
Dan Rather filed a $70 million lawsuit Wednesday against CBS, alleging that the network made him a "scapegoat" for a discredited story about President Bush's National Guard service.
The 75-year-old Rather, whose final months were clouded by controversy over the report, says the complaint stems from "CBS' intentional mishandling" of the aftermath of the story.
The lawsuit, filed in State Supreme Court in Manhattan, also names CBS President and CEO Leslie Moonves, Viacom Inc., Viacom Chairman Sumner Redstone and former CBS News President Andrew Heyward. (At the time Viacom Inc. owned CBS. But Viacom and CBS Corp. split into two different companies in January 2006.)
Rather, the former anchorman of the "CBS Evening News," is seeking $20 million in compensatory damages and $50 million in punitive damages.
My first reaction upon reading this was to wonder whether the appropriate statute of limitations had already run. But I can't answer that question, because I can't tell from this story what type of claim Rather's purporting to make. I don't recall studying the tort of "intentional mishandling of a news story aftermath" in law school, but maybe I was sick that day.
My glee is tempered by my realization that this case is almost certainly going to go away before it gets to any good stuff. But oh! it would be fun to watch CBS be forced to justify its putting of Rather out to pasture in a not-quite-firing by showing all of the grounds it had. Usually in a good juicy family court spat, you find yourself in sympathy with at least one litigant. But here's a case in which I can just cut loose and enjoy the misery and embarrassment of all concerned! (I continue to take pride in the high ranking of this post of mine from 2004 in search engine responses to the words "Dan Rather fired.")
UPDATE (Wed Sep 19 @ 10:40pm): One of my regular readers and commenters provided a link to the complaint in a comment below, for which I'm grateful.
The law firm that Rather has retained, Chicago-based Sonnenschein Nath & Rosenthal, is indeed a good firm. The complaint that Sonnenschein's New York office has filed on Dan Rather's behalf, however, is a nicely buffed and polished piece of garbage. The lawyers who wrote it appear to have been infected with Rather's own delusions, as becomes clear when one gets to numbered paragraph 3 on the second page:
The Broadcast incorporated copies of documents written by Mr. Bush's commanding officer, Lt. Col. Jerry B. Killian ("Documents"), corroborating important aspects of the story.
Not "purportedly written" or "allegedly written," mind you, but just "written." Later in the complaint (at pp. 19-21), while not quite affirmatively asserting that the "Documents" are indeed genuine, Rather's lawyers come very close to that by alleging that Erik Rigler, a private investigator hired by CBS, had reported to a CBS executive that "he was of the opinion that the Killian Documents were most likely authentic," but that Rigler's conclusion was covered up in the report of the CBS Investigatory Panel, and that CBS then prevented Rather from having any further contact with Rigler.
This is too funny to be believed, coming from the news anchor who actively participated in the suppression and ignoring of CBS' own experts' reservations about the authenticity of the Killian Documents before the broadcast ever aired.
But put aside the fact that his lawyers have apparently bought into Rather's paranoid schizophrenia on the facts. Let me tell you in a single paragraph why "garbage" is about the nicest term that can be applied to this pleading.
Rather's lawyers allege a claim for breach of contract based on an oral understanding for a contract extension that, by their own admission, was never consummated and never reduced to writing. They ignore what I'm quite sure will be a devastating waiver/estoppel counter-argument by CBS that Rather kept cashing his paychecks for many months until he finally left the network a few months before the scheduled expiration of his written contract. [See revision note below.] They allege that CBS was Rather's "fiduciary" — and I'm sorry, but that's so badly wrong as a matter of law that every one of the Sonnenschien lawyers whose name appears on this complaint ought to be sanctioned for making it (because when it comes to negotiating extensions of your employment contract, your employer is not your fiduciary but your adversary). Their tort claims against the CBS execs in their individual capacity don't even attempt to allege facts to show that they were acting outside their corporate employment capacities — making those another set of claims that are, in my judgment, so wrong as a matter of law as to be sanctionable. And the fraud claims consist of all the other claims repackaged along with an allegation that the defendants' bad acts were deliberate, and that the defendants fooled poor ol' Dan about their true and truly evil intentions for a really long time.
Do not misunderstand me to be saying that CBS did everything, or much of anything, even mostly right or in an even approximately timely fashion. They covered for Rather and his team for far too long, and the Thornburgh-Boccardi Panel was far too timid and equivocal in its findings. Rather and everyone else should have been publicly exposed, condemned, and fired for cause by CBS no later than September 15, 2004. And for trying to paper over Rather and his cohorts' fraud instead of simply calling it what it actually was, and for keeping Rather on the payroll instead of putting him on the street with all his "literally dozens of Emmy Awards" in a stack of cardboard boxes, CBS does, in a sense, very much "deserve" this lawsuit.
But if CBS has the guts to fight it — and that is an open question — CBS will win it. You can bet the ranch on it.
[Martin] Gold, Rather's lawyer, maintained that "nobody's proved the documents were forgeries. The way we look at it, it's more than likely the documents are authentic."
Let me give you another indication from the complaint just how entirely out of touch these lawyers are with how this all developed. From paragraph 8 (at page 3), during the introduction to the complaint (emphasis mine):
Central to the defendants' plan to pacify the White House was to offer Mr. Rather as the public face of the story, and as a scapegoat for CBS management's bungling of the entire episode — which, as a direct result, became known publicly as "Rathergate."
But it wasn't "Rathergate"; it was, most emphatically, "Rathergate." (On September 10, 2004, as the new name was sweeping across the blogosphere (and doing so with absolutely no prompting from CBS management), I posted instructions for "the html-challenged" on how to do the superscript.) And if Martin Gold knew even that simple fact, and why it's important, he couldn't possibly be quoted in the New York Times as saying "it's more than likely the documents are authentic."
Other weblog posts, if any, whose authors have linked to Just tell me when I can get in line for tickets to attend the trial: Rather v. CBS and sent a trackback ping are listed here:
» http://instapundit.com/archives2/009548.php from Instapundit.com (v.2)
Tracked on Sep 19, 2007 7:00:54 PM
» The Road Less Graveled from Old War Dogs
Tracked on Sep 19, 2007 8:04:23 PM
» http://instapundit.com/archives2/009584.php from Instapundit.com (v.2)
Tracked on Sep 20, 2007 7:11:28 AM
» Dan Rather Strikes Back from Stop The ACLU
Tracked on Sep 20, 2007 10:14:21 AM
» Too bad they'll settle out of court... from Random Jottings
Tracked on Sep 20, 2007 2:51:37 PM
» Dan Rather sues CBS and Viacom from Overlawyered
Tracked on Sep 20, 2007 7:32:28 PM
» Rathers Firm: Burketts Docs Were Authentic from damnum absque injuria
Tracked on Sep 20, 2007 8:49:14 PM
» The Return of Rathergate! from Foolippic
Tracked on Sep 21, 2007 1:14:49 PM
» Madman Dan from Free Will
Tracked on Sep 21, 2007 11:21:45 PM
Tracked on Sep 22, 2007 2:15:40 AM
» Cavuto whacks Rather, nicely from JunkYardBlog
Tracked on Sep 22, 2007 9:21:35 AM
(1) clarice feldman made the following comment | Sep 19, 2007 7:04:55 PM | Permalink
Heh--Although this blog practically writes itself, Beldar.
I wondered about the S of L myself. Maybe he's claiming he just found out what CBS did to him. *wink*
(2) JayC made the following comment | Sep 19, 2007 7:06:45 PM | Permalink
This trial could be the gift that keeps on giving. I can't wait for discovery ...
(3) Ridolph made the following comment | Sep 19, 2007 7:37:10 PM | Permalink
Recently I was at a truck stop and a Lucy Hernandez gave me an incriminating letter signed by Leslie Moonves' secretary that proves that Dan Rather was set up. I will pass on to Keith Oberlin in an airport bathroom.
(4) Ric Locke made the following comment | Sep 19, 2007 7:53:58 PM | Permalink
Does the Texas Air National Guard have standing to file as amicus curiae on the ground that its reputation is also impugned by the matter? If so, you could get a ringside seat if you want.
"Lucy Ramirez," wasn't it? Whatever happened to that ol' gal? Oh, that's right, she doesn't exist.
(6) Barbara Skolaut made the following comment | Sep 19, 2007 8:14:44 PM | Permalink
"I will pass on to Keith Oberlin in an airport bathroom."
Just as long as you don't try to pass it on to Larry Craig in an airport bathroom, Ridolph.... ;-p
It links the Complaint. I gave my impressions as well.
Let me know what your think.
It certainly does have the makings of good theater!
And I certainly wouldn't mind seeing Rather smacked about some more.
OT: Hey Barb! Good to see you out and about...come see us over t' GCP at the link below!
(9) DRJ made the following comment | Sep 20, 2007 12:43:19 AM | Permalink
Instead of a fiduciary relationship, Dan Rather should have claimed he was so overwhelmed by events that he and CBS/Viacom were in a guardian-ward relationship - with Rather as the ward. At least that relationship fits the facts if not the law.
(10) BC made the following comment | Sep 20, 2007 1:54:33 AM | Permalink
It seems to me that the contract claim will hit the skids before it even gets to CBS's waiver/estoppel argument. Virtually every term employment contract in the modern world contains, one, a provision specifying the manner (if any) in which the contract may be extended, and, two, a merger clause. "We had this oral understanding to extend the contract, despite its express written terms," is exactly the kind of thing that's precluded by the parol evidence rule.
BC, CBS will probably need the waiver/estoppel arguments in addition to the parol evidence/merger arguments. The statements regarding the "summer 2004 negotiations" in paragraphs 34-37 (at pp. 10-11) appear to me to be the basis for the broad allegation in paragraph 89 (at page 24) that CBS "substantially and materially breached the Agreement" and the basis for the claimed $20 million in compensatory damages; otherwise paragraphs 34-37 have no arguable relation to any of the causes pleaded. But the complaint also alleges, in paragraph 90 (at page 24) that in connection with Rather's assignment to lesser duties after he left the nightly news anchor chair, CBS breached specific paragraphs of their most recent fully-executed written agreement from April 2002. And my hunch is that it's those specific allegations as to which CBS may be obliged to show that Rather acquiesced and kept cashing that paycheck.
On the other hand, the complaint is also filled with references to CBS having damaged Rather's reputation. But there's no separate cause of action pleaded for libel or slander, probably because New York has a one-year statute of limitations for those torts. So maybe the allegations about the "summer 2004 negotiations" are equally gratuitous, sort of like the recitals about Abu Ghraib in paragraphs 38-41 (at pp. 11-12). The entire factual recital of the complaint reads like it was taken from a rambling rant session by Rather about all his disagreements and irritations with CBS management, rather than being tied specifically to any particular causes of action. And this lack of clarity in what facts supposedly support which claims — despite otherwise serviceable prose, in the sense of having complete and grammatical sentences, decent paragraph structure, not too many typos and the like — is another reason I would characterize this complaint as "garbage."
Revision note: In the first update to the original post, I had written: "Rather kept cashing his paychecks and conspicuously acquiesced in his demotion until his actual written contract finally expired and he left the network." I've revised that, having been reminded by the LA Times story today that Rather left with several months still pending on his original contract:
It was no secret that Rather was unhappy with CBS when he left in June 2006, five months before his contract was set to expire. He said at the time that "after a protracted struggle," CBS officials "had not lived up to their obligation to allow me to do substantive work there."
I still think his acquiescence in his removal from the anchor slot and his continuing performance, including many appearances on "60 Minutes," gives him huge waiver/estoppel problems. But CBS should have fired him for cause, as I've been writing for three years now. And if they're now facing any risk whatsoever for allegedly failing to keep him in "regular" appearances on "60 minutes," as Sullivan & Cromwell's Theodore O. Rogers suggests in the NYT, it's certainly something CBS brought onto itself.
As a former printer and typesetter, please oh please, call me to the witness stand!
There's no way that the Texas ANG used a back-then $20,000 typesetting machine to typeset a memo. And the ubiquitous Selectric could not have managed it, either.
(14) dilys made the following comment | Sep 20, 2007 7:36:48 AM | Permalink
Does this remind any Eng-lit-background lawyers of the Oscar Wilde fiasco, when he sued for libel and opened a can of worms, of which he repented at [confined&wretched] leisure?
(15) Patrick made the following comment | Sep 20, 2007 7:39:01 AM | Permalink
God, I would love to see Rather cross examined about the TANG story. "Lucy Ramirez, Burkett, are these really the standards you set during your 46 million years at ABC?" I also love how he throws Mapes under the bus in the complaint, stating that he was "largely in a supervisory capacity," and any mistakes were "mistakes by others." Heh.
I look forward to iowahawk's take on this. I mean, if these are anything to go by:
(17) speculator made the following comment | Sep 20, 2007 8:07:25 AM | Permalink
Do you think it is possible that Rather's motive is simply to "prove" that the documents were genuine by having a jury (of non-experts who may be sympathetic or swayed by Rather) decide the question?
(18) Matt Knowles made the following comment | Sep 20, 2007 8:15:04 AM | Permalink
Seems to me Rather is just trying to bend CBS over a barrel and extort some extra severance pay. Surely he and his lawyers are smart enough to know CBS will never let this get to court where all sorts of nasty truths will come out.
I can't help but think of the Al Dura trial in France, too.
(19) CatoRenasci made the following comment | Sep 20, 2007 8:31:59 AM | Permalink
I notice that the complaint is not a verified complaint, so there's no attestation under oath to the truth of the facts alleged....
(20) made the following comment | Sep 20, 2007 8:43:27 AM | Permalink
At least in Maryland, an employer may have the equivalent to a fiduciary duty (or at least some amorphous duty of care) to a prospective employee arising out of employment negotiations.
See Martens Chevrolet,
Inc. v. Seny , 292 Md. 328, 429 A.2d 534 (1982); Weisman v. Conners , 312 Md. 428, 540 A.2d 783 (1988).
They've delayed the verification because they want to line up Marcel Matley, Richard Katz and Bill Glennon to authenticate Rather's signature in case there's any dispute.
Oh, MUST we revisit all this again? Yes, we must!
Bad law, anonymous commenter, and I dunno if it's still good in Maryland, but what you've cited was typical of misguided courts in the 1980s. The emphatic trend among more modern state courts is to recognize that "fiduciary relationships" — which by definition impose a duty to put the beneficiary's interests ahead of the fiduciary's own interests — don't arise just on the basis of the parties having been really good chums who trusted each other a lot.
(23) lgf reader made the following comment | Sep 20, 2007 8:59:37 AM | Permalink
Unfortunately, neither side will have an incentive to use the subpoena power to uncover the real facts leading to the forgery. We need the court to appoint a "best friend" to represent the public's interest in learning the truth!
(24) Greyhawk made the following comment | Sep 20, 2007 9:07:40 AM | Permalink
1. CBS settles, providing a spot o' cash to Rather et al and
2. more imaginary fuel to the "the documents were real" claim. (People who really, really hate Bush and consider 'fake but accurate' a worthwhile argument will feel good about themselves for a day.)
OBTW, even though I know the docs were fake I'm not voting for Bush next year.
(25) JorgXMcKie made the following comment | Sep 20, 2007 9:09:05 AM | Permalink
If all this does is give cause to have some new Rather cartoons and an Iowahawk entry it's well worth it in my book.
(26) Martin Edward made the following comment | Sep 20, 2007 9:11:37 AM | Permalink
A point I've not seen any where else. In John Kerry's military file, there were Commendations that accompanied two of his medals that were signed by Secretary of the Navy Lehman, a guy who did not hold that position 'til many years after the end of the war. These Commendations were forgeries.
The Kerry forgeries and the Rather forgeries appeared at about the same time. It is impossible that they are not connected in some manner and I hope Dan's trial helps surface the truth.
Would CBS risk offended a left wing icon to make Dan's case look weak? To save 50 to 100 million I think they would.
You all seem to have forgotten that Rather had more than just the memos to back up the Texas National Guard story.
(28) Fat Man made the following comment | Sep 20, 2007 10:19:01 AM | Permalink
I wonder if Sonnenschein took this on a contingency? My guess is that it is straight hourly, with a large retainer and a success bonus.
(29) ZF made the following comment | Sep 20, 2007 10:38:44 AM | Permalink
It's surely not hard to understand why Dan Rather is doing this:
(a) In his insane world, he imagines that somebody influential is desperately afraid of having the issue of the memos' authenticity examined in court. It's funny I know, but that's how he thinks.
(b) Probably more important, no matter how summarily his lawsuit is thrown out, he gets to burnish his absurd reputation among the wild-eyed liberals he hangs out with for sticking to his guns. In other words, his lawsuit doesn't have to make sense to win applause from the Barbra Streisands of this world.
Against these, the costs to him are de minimis.
His lawyers' participation is presumably driven by an unknown mix of pandering to his delusions for the fees and a shared belief in this nonsense.
(30) Shelby made the following comment | Sep 20, 2007 11:29:45 AM | Permalink
No doubt he's got other "evidence". But when you steadfastly insist that blatantly manufactured "evidence" is the core of your argument, it kinda undercuts your credibility regarding the other "evidence". If you're clearly lying about A, why should I believe you about B, C, and D?
(31) clarice made the following comment | Sep 20, 2007 11:30:43 AM | Permalink
As to his having been simply the reader of copy produced by others , a CBS colleague says he's being wayyyyy too modest.
If you click on the hyperlinked text in my comment, you'll see I was being facetious.
(33) LarryD made the following comment | Sep 20, 2007 1:30:47 PM | Permalink
Heh, CBS can call in all the experts in the blogosphere who debunked the TANG documents the first time around, to establish preponderance of evidence that they are forgeries. I'd love to see that established in a court of law.
That will sink his core argument, if not his entire suit.
(34) BC made the following comment | Sep 20, 2007 2:12:34 PM | Permalink
Ah, yes, Beldar -- I'd missed the nonsense on p. 24, sorry.
I kind of have to feel for CBS's lawyers on this one. Defending against a complaint this meandering and goofy has got to be painful.
(35) sherlock made the following comment | Sep 20, 2007 2:23:40 PM | Permalink
The link back to the Beldar blog at the time shows how this has been trivialized into a spat between an employer and employee, from the major political and journalistic scandal it really was.
ANY of the hints of impropriety that exist with respect to the Kerry campaign's complicity in this, had they existed around a BUSH involvement with phony documents, would have sunk his campaign.
The media is utterly dishonest, hypocritical, and corrupt... fitting partners in crime for the Democrats.
Beldar has said earlier, BC, the Complaint is well-drafted garbage.
Unfortunately, sometimes that makes a case difficult to kill before the expensive discovery stage.
The publicity from depositions (sworn testimony in front of a court reporter) and produced documents will probably not help either side in the court of public opinion, but I think CBS could be gunshy about risking further damage to the "Tiffany Network". This case will not be pretty if it gets beyond the pleading stage.
I wonder how Sunny Katie will play it.
(37) kcom made the following comment | Sep 20, 2007 4:14:36 PM | Permalink
"But when you steadfastly insist that blatantly manufactured 'evidence' is the core of your argument, it kinda undercuts your credibility regarding the other 'evidence'."
Actually, he didn't exactly do that. When he presented the story it was all about the damning documents but when they were brought into question, although he still defended them as genuine, he made pains to point out that they were only "a part" of the evidence from the report. He was trying to have it both ways. Basically his position was "Look, these documents prove my case. And if they happen to be forgeries, they're not important anyway. Everything I've said is still true. I just know it." Unfortunately I can't find links to that aspect of the story but I definitely remember him playing down the documents' importance after the fact.
If he had just used his head when the initial questions arose and taken an objective look at the situation, he would have pulled the story by that Friday (two days later) for further investigation. Instead, on that day, during the CBS Evening News no less, he embarrassed himself by defending the story and claiming that "partisan political operatives" were questioning the story, without any acknowledgement that there were legitimate concerns about the story being raised by people all along the political spectrum, and by people of no particular political bent whatsoever. His mindless and partisan defense of the story without the facts to back it up is what got him in trouble and what ultimately cost him his job. Being tired or being a supervisor who allegedly didn't contribute to the report was a lame excuse. When it came to the documents, he was either a technical incompetent who was in way over his head (and whose news judgment could therefore not be trusted) or he was flat out lying. I think it was the former but either way it spelled doom for his career when he insisted on sticking to his guns against all the evidence.
And if Martin Gold knew even that simple fact, and why it's important, he couldn't possibly be quoted in the New York Times as saying "it's more than likely the documents are authentic."
True, but then again, you never know what the local court's rules are. Maybe they don't allow superscripts, and maybe he really meant to tell the NYT that the documents are authentic.
Or maybe he just tried to post it as a comment on a blog which, like this one, does not allow superscript. The "th" in "authentic" at the end of my prior comment was supposed to be superscript, as well.
The Complaint reminds me of the one filed by the Wilsons against Libby et al.
It is designed accomplish two objectives:
Get maximum publicity with its self-serving statement of the facts; and
Defeat a Motion To Dismiss so that discovery can proceed against CBS.
If the Rather team accomplishes the second objective, they hope they will strike it rich by finding the smoking gun.
(41) SteveMG made the following comment | Sep 20, 2007 9:48:36 PM | Permalink
This is mostly about, for Rather, "proving" that there was a rightwing conspiracy to oust him from CBS and that the executives at the network joined with this group for their own (non-political) reasons.
The rightwing wanted him out for ideological reasons; the executives wanted him out for personal and professional ones.
So, among other things, that famous rightwing figure - Dick Thornburgh (!!) - was selected to coordinate the act.
This suit, Rather thinks, will force the truth to emerge and set us free.
Crazy? You bet. But Rather believes it.
So does, to a lesser extent, Mary Mapes.
(42) Bingo made the following comment | Sep 21, 2007 1:01:07 PM | Permalink
Beldar, is it plausible that Rather is using this lawsuit as a means to subpoena direct testimony from George W. Bush during the discovery process.
Bingo, Rather himself is sufficiently foamy-mouthed that there's no telling what he may think he can do through pretrial discovery. I can't conceive of any topic legitimately part of his lawsuit, even if you presume that it has some sort of merit, on which Dubya's testimony would be reasonably calculated to lead to the discovery of admissible evidence, though. Dubya, for example, can no more authenticate or refute the documents than his staffer, poor Dan Bartlett, could when shown them just before the broadcast. Unless Dan can swindle some judge into going along with the "fake but accurate" meme in a big, big way, I'm reasonably sure that the courts would quash a subpoena directed to the president (probably even after his term is over).
In Rather's public comments about the lawsuit, including his appearance last night on "Larry King Live," he repeatedly and eagerly mentions "getting people under oath." But I think he has in mind people in the upstream chain of management at CBS and Viacom. Ironically, there almost certainly is a great deal of productive cross-examination potential among such witnesses, but it would all be in the direction of establishing that they were complicit with Rather and Mapes in their original fraud, and then that they effectively whitewashed (not scapegoated!) Rather in particular so that they could avoid having to fire him too. It's very likely, in other words, that pretrial discovery proceedings are going to make the defendants look bad — but they aren't likely to make Rather look like an innocent victim, either.
If I represented CBS, I'd be convening what trial lawyers call a "Come to Jesus meeting" with their top executives. I'd say, "Look, the reason you're exposed to this lawsuit is because you failed to root out all of the cancer when it was first discovered. You took half-measures. Now you're likely to get whipsawed. The documents are forgeries; the broadcast was indefensible; and your very best argument in this present lawsuit is that you had no contractual duties whatsoever to Rather because by virtue of his fraud, he'd given you ample, indeed compelling, grounds to fire him for cause. Tell the whole truth now. Admit that you kept him around in a misguided attempt to pretend to the world that Rather wasn't also to blame along with the people you did fire."
And then CBS would fire me, because their top executives have already proven themselves gutless fools, and they don't want to hear, much less follow, that sound strategic advice.
My guess is that instead, they're already taste-testing various versions of crow sandwich, trying to figure out which version of an "apology to our dear corporate legend Dan Rather" will suffice to satisfy his ego and whether a mere seven figure payment will help grease the skids for that.
(44) Kevin made the following comment | Sep 22, 2007 12:33:25 PM | Permalink
Hey I live in Austin, I'll swing by the first dumpster I see at Camp Mabry and see if I can't find some additional authentic documents to clear all this up once and for all.
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