Toffoloni v. LFP Publishing Group, LLC

Filing 68

TRANSCRIPT of Motions Hearing Proceedings held on October 2, 2009, before Judge Thomas W. Thrash, Jr. Court Reporter/Transcriber Susan C. Baker, Telephone number 404-215-1558. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/4/2010. Redacted Transcript Deadline set for 1/14/2010. Release of Transcript Restriction set for 3/15/2010. (Attachments: # 1 Notice of Filing Transcript) (kac)

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 On behalf of the Plaintiff: 17 18 19 20 21 22 23 24 25 SUSAN C. BAKER, RMR, CRR 2194 U.S. COURTHOUSE 75 SPRING STREET, S.W. ATLANTA, GA 30303 [phone] Proceedings recorded by mechanical stenography and computer-aided transcript produced by On behalf of the Defendant: Richard P. Decker Decker, Hallman, Barber & Briggs S. Derek Bauer McKenna, Long & Aldridge APPEARANCES OF COUNSEL: TRANSCRIPT OF THE MOTIONS HEARING BEFORE THE HONORABLE THOMAS W. THRASH, JR., U.S. DISTRICT COURT JUDGE MAUREEN TOFFOLONI, as Administrator and Personal Representative of the Estate of Nancy E. Benoit, ) ) ) ) ) Plaintiff, ) ) -vs) ) LFP PUBLISHING GROUP, LLC, ) Doing business as Hustler ) Magazine, ) ) Defendant. ) ______________________________ ) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

Docket No. 1:08-CV-421-TWT October 2, 2009 Atlanta, Georgia 10:00 a.m.

2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 first. MR. BAUER: Well, thank you, Judge. I think our (Proceedings held in Atlanta, Georgia, October 2, 2009, 10:00 a.m., in chambers.) THE COURT: All right. This is the case of Toffoloni

versus LFP Publishing Group, Case Number 08-CV-421. First let me ask counsel for the parties to identify yourselves for the record and the parties you represent beginning with the Plaintiff. MR. DECKER: MR. BAUER: THE COURT: Richard Decker for Maureen Toffoloni. And Derek Bauer for LFP Publishing. All right. This is a hearing on the

Defendant's motion to stay proceedings in this case pending a petition to the Supreme Court for a writ of certiorari. Mr. Bauer, it's your motion. I'll hear from you

motion's pretty straightforward. simple.

We tried to keep it pretty

We were obviously surprised by the 11th Circuit's

panel decision reversing your 12(b)(6) order dismissing the case. With, you know, all due respect to Mr. Decker, I think

the 11th Circuit went its own way and didn't really follow the arguments the Plaintiff made but just decided that it didn't like this particular case; and I don't blame them on the facts. This is a tough one. But I think they disregarded some pretty

clear Georgia precedent on the scope of the Georgia common law right of publicity and certainly disregarded a lot of federal

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 jurisprudence on the application of the First Amendment to this type of expression of the free press. And we did ask for petition for rehearing as the Court, I think, is aware. it. And the 11th Circuit didn't touch

But we do think that the way that the 11th Circuit ruled

presents a very compelling case for U.S. Supreme Court review. This is an area of the law that the Supreme Court does have a propensity to wade into when there is some disagreement or a potential chilling effect from circuit court decisions on matters of First Amendment jurisprudence. Specifically, in this case what's really troubling to our client but I think to the media bar in general is that the 11th Circuit decided that it was perfectly constitutional and subject to the newsworthy exception to the right of publicity under the First Amendment for LFP Publishing to write an article about the nude photos of Ms. Benoit but -- and the public was certainly entitled as a matter of constitutional right to learn about the existence of the photos through an editorial, but the public then couldn't view them. We do

believe that that is an untenable position of law under the Constitution and that the U.S. Supreme Court is very likely to address this question on a petition for cert. That said, there are a whole lot of factual issues that the Plaintiff's going to have to prove, all of her allegations in her complaint. We do expect if the case

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 proceeds through trial court proceedings there's going to be a lot of discovery required. It will be costly to both parties.

We expect there will be summary judgment motions that the Defendant brings. There will be lots of expert testimony, I

believe, on the issue of damages if this case continues to proceed through a civil discovery to a dispositive motions phase. And we think it makes logical sense given the

importance of the issues that are raised by the 11th Circuit's decision in the way they decided the case for all parties to give the U.S. Supreme Court an opportunity to review the case before incurring those substantial expenses which again would be incurred by both parties. I can assure you that Defendant's goal here is not to unnecessarily delay proceedings. dragging it out. They have nothing to gain by

This truly is a case in which there's an

important constitutional principle of law at issue, and it ought to be decided before all parties incur substantial expense litigating the merits of a case that after Supreme Court review may not be required. THE COURT: MR. DECKER: Mr. Decker? Judge, no way, no how. The 11th Circuit

opinion couldn't have been clearer that they have violated her right of publicity. Liability has been established by the 11th I need to do

Circuit, and the only question now is damages.

some discovery on the damage issue, how much money they made

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 publishing these 20-year-old nude photographs worldwide. need to do some discovery on Hustler's net worth for the purpose of punitive damages, and then I'm ready. The petitioner for cert has to show three things: First, that there is a substantial likelihood that the Supreme Court will take the case; secondly, that there is a substantial likelihood that the Supreme Court will reverse; and, thirdly, that if there is no stay then irreparable harm will occur. They haven't even gotten close to any of them. First I

of all, the Supreme Court takes less than one percent of cases on cert; so it's highly unlikely and nowhere near probable that the Supreme Court just on a statistical basis would take this case which has the full weight of the 11th Circuit behind it. Rehearing en banc was denied. There is no probability that the Supreme Court will reverse the 11th Circuit because they've already decided the newsworthiness issue in the Zacchini case. the same case. It wasn't nude photographs. It's almost exactly It was a guy being

shot out of a cannon.

The local TV station portrayed -People didn't have to pay for it, And the Supreme The

publicized his act on TV.

therefore, under the guise of newsworthiness.

Court, you know, ten years ago said that's not newsworthy.

fact of his act may be newsworthy, but publishing his entire act is violating his right of publicity. for a living. That's what he does

So there's no likelihood that the Supreme Court

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 father. will reverse. And then, finally, even if the first two elements were complied with which they're not, nowhere near, the third one, they're not even close on the third irreparable harm. Incurring some litigation costs with their two teams of lawyers in doing discovery in this case is not the kind of irreparable harm that the Supreme Court talks about when staying a case in the lower court. We have two elderly people here, her mother and Her mother is the administrator. She is elderly. They're

Nobody knows how long they're going to be around. entitled to their day in court.

You know, a year's delay in

seeing whether the Supreme Court will even take this case is just not fair. And they're entitled to go forward. They're

entitled to do their discovery. You know, it's my decision if I want to roll the dice and try the case and get a judgment and collect it and then have to give it back to Hustler if they got the thing reversed which I don't think they would. It's my decision whether to do

discovery, wait 'til the petition is denied and then try the case according to the Court's calendar. delay. But this is just pure I've seen it a

It's trying to run out the clock.

thousand times.

They're just trying to drag their feet on and

on with litigation costs. And the reason I filed the motion for attorneys' fees

7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in response to this motion after telling Derek that I was going to do that is because I see this as a harbinger of the future. I think everything that we do in this case is going to be pulling teeth. I think everything that I ask for, every move

that I make is going to be met by two teams of lawyers who are going to just try to run out the clock. And I think this is

the first step in that direction, and I had to fire a shot to let them know that I wasn't going to sit there and let them be a punching bag when the 11th Circuit has already told them that they violated this lady's rights. and the issue is now damages. court is damages. And we need to do a little discovery on how much money they made, what their net worth is, and then we are ready. And I just think a stay while they go or don't go to They violated her rights,

That's the only issue in this

the Supreme Court would just be devastating to these elderly people. Thank you. THE COURT: you the last word. MR. BAUER: I appreciate that, Judge. Mr. Bauer, it's your motion. I'll give

Well, first of all, the case law is clear this is not Mr. Decker's decision. This is yours. This Court has the And

discretion to enter a stay if the equities demand it.

there is guidance when parties are seeking a stay during a

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 petition for cert pending of what factors that you should look at, and Mr. Decker did accurately represent what those are. I disagree with him about whether those factors are met here, and I think the cases that we cited in support of our motion show that this is the type of compelling constitutional issue that the courts do find are likely to be granted cert. The statistics that he cites are absolutely consistent with my understanding of how hard it is to get the Supreme Court to grant cert. But, you know, we cited some statistics in our

motion that show that in this type of case the Supreme Court's much more likely to do so. I take significant issue with Mr. Decker's assessment of the 11th Circuit's decision. This was the 11th Circuit's The 11th Circuit

review of our 12(b)(6) motion as you know.

assumed as it had to much like this Court did in response to our motion to dismiss that the facts that Mr. Decker's client alleged in her complaint were true for purposes of deciding that motion. The 11th Circuit's decision is based on fact allegations that have not been proven -- and, frankly, my client is not convinced that they can be proven -- not the least of which is the assertion that the 11th Circuit was very, very concerned about that Ms. Benoit had insisted that the photos be destroyed and never see the light of day. instrumental to the 11th Circuit's decision. That was

That's an

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 unproven fact, and it's going to be key to liability. And, you

know, I don't have the authority to broadcast our entire defense strategy should the case go to trial; but there's no possibility that an 11th Circuit decision on a Rule 12(b)(6) motion can be construed as a decision on liability leaving only damages left. Now, Mr. Decker still has the obligation to prove the factual elements of his claim; and we are going to require that he do that. As to his assertion that our motion to stay is

some harbinger of things to come, you know, I've never had the pleasure of litigating with Mr. Decker before. lot more gray hair than I do. He has got a

I hope to have a long career in

this court in front of you and others here in the Northern District; and, you know, I'm going to be accountable for the type of lawyer that I am. And I don't think there's any basis

for Mr. Decker's allegations in the motion for attorney's fees or in this hearing to suggest that, you know, counsel for the Defendants is going to engage in any kind of misconduct. We're accountable to you and intend to be and understand that and intend to act accordingly throughout this case, and that is not a basis in my opinion for this Court to deny a motion to stay that's otherwise sound. Mr. Decker's allegations about no probability of success, he has a fundamental misunderstanding of how this case and the U.S. Supreme Court's precedent in right of publicity

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cases, specifically the Zacchini case that he references, operates. This case is not Zacchini. Zacchini is informative

to the legal issue in this case only insofar as it contains the U.S. Supreme Court's pronouncements about the newsworthiness boundaries of the right of publicity. Zacchini is an entire act case. But on the facts

That case applies only where

the Defendant is -- has appropriated the complete act from start to finish of a performer, and that's not the case we have here. And, frankly, it's not informative of what the U.S.

Supreme Court's going to do with this case. And, finally, irreparable harm. There is a dearth of

cases that address -- where courts have addressed this type of motion to stay. They just don't come up all that often. And

in each of the cases that we've cited it's pretty clear that the cost of litigation is the type of irreparable harm that the U.S. Supreme Court considers that the parties will incur when deciding whether there's a harm that justifies the entry of a stay. And I respect the Plaintiff's desire to move this case through to trial. And, you know, we're hopeful that the

U.S. Supreme Court prohibits them from doing that by reversing the 11th Circuit's decision. But our client shouldn't be

forced to incur what will be substantial litigation expense if that can be avoided simply by giving the U.S. Supreme Court a brief window of opportunity to determine whether it wants to

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 review the case. Our petition for certs are due November 25th. We

filed a notice of our intent to file that petition so that there wouldn't be any question about the motives of the Defendant to actually do so. They're going to seek cert. It's not a stalling tactic. Mr. Decker's opportunity -- and

there will be amicus support is my understanding for that petition as well. Mr. Decker will have an opportunity to respond and tell the Supreme Court why they shouldn't take it. That will

happen relatively quickly within 30 or 45 days, I believe, of November 25th; and we will have a decision by spring. And

discovery in this case right now on the track it's on would be closed by mid-February, I believe. And we won't have a And it's simply

decision by the U.S. Supreme Court by then.

our suggestion that efficiency, fairness to the parties, logic and sensibility dictates that we ought to give that brief window of time to the U.S. Supreme Court to decide what it wants to do. March. And if they say no, we're right back here come

And Mr. Decker and I can spend some quality time

together seeing if he can prove the facts of his case next summer. THE COURT: All right. I'm going to deny the motion

for a stay for these reasons.

The Defendant has the burden of

showing that there's a reasonable probability that certiorari

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 will be granted, second, a significant possibility that the judgment below will be reversed and a likelihood of irreparable harm if the judgment is not stayed. I really don't know what the chances are that cert will be granted in this case. I think the chances are probably

greater than the run-of-the-mill case because there are First Amendment implications. If they take the case, I think there's

a reasonable likelihood that they would reverse the 11th Circuit. Otherwise, I wouldn't have granted the motion to

dismiss in the first place since it was my opinion that publication of the photographs in connection with the story about her life fell within the newsworthiness exception to the right of publicity. But I don't have to decide either of the first two questions because I think the third question is dispositive, and that is whether there's a likelihood of irreparable injury. And my reading of the cases is that generally speaking costs of litigation are not considered to be the type of irreparable injury that would justify a stay while a party is seeking a certiorari to the Supreme Court. I'll be available to manage the discovery. If the

Supreme Court takes certiorari, I can reconsider the decision I made today. But for now I'm going to deny the motion to stay. And if the situation

The case can take its normal course. changes, we can revisit the issue.

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 motion. MR. DECKER: MR. BAUER: motion yesterday. Yes, I did. Okay. Mr. Decker, if you want to prepare a written order, get Mr. Bauer's approval as to form denying the motion, I'll be glad to sign it. MR. DECKER: THE COURT: Attorneys' fees, Judge? I didn't even know you had filed a

And, Judge, we did file a response to his

And with respect if the Court decides

there's any issue in Mr. Decker's motion that warrants consideration by the Court, we would ask to be heard on that before the Court rules. THE COURT: I'll take a look at it, and if I think I

need to hear further from either side I'll let you know. MR. BAUER: THE COURT: MR. BAUER: THE COURT: MR. BAUER: Thank you. All right. We have. You have. We filed an answer and our certificate of There's Have you filed an answer?

interested persons and corporate disclosure statement. a couple of deadlines coming up.

We've got to get together and

have a planning conference and present you a scheduling order, I think; and some initial disclosures will be coming up soon. THE COURT: MR. BAUER: Okay. Everything then --

We're on track.

14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: All right. -- is on track. Thank you very much, gentlemen.

(Proceedings adjourned at 10:19 a.m.)

15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Susan C. Baker, RMR, CRR Official Court Reporter United States District Court I hereby certify that the foregoing pages, 1 through 14, are a true and correct copy of the proceedings in the case aforesaid. This the 14th day of December, 2009. UNITED STATES DISTRICT COURT: NORTHERN DISTRICT OF GEORGIA: CERTIFICATE