The Marshall County Coal Company et al v. Oliver et al

Filing 13

Memorandum in Opposition re 3 MOTION to Remand to State Court filed by Home Box Office, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Fitzsimmons, Robert)

Case 5:17-cv-00099-JPB Document 13-3 Filed 07/21/17 Page 1 of 14 PageID #: 198

Exhibit 3

Case 5:17-cv-00099-JPB Document 13-3 Filed 07/21/17 Page 2 of 14 PageID #: 199

PHONE: [phone]
FAX: [phone]
www.murrayenergycorp.com

June 12, 2017
VIA EMAIL AND OVERNIGHT MAIL
Mr. Richard Plepler
Chairman and Chief Executive Officer
Home Box Office, Inc.
1100 Avenue of the Americas
New York, New York 10036

Ms. Viviane Eisenberg
Executive Vice President Legal Affairs
Home Box Office, Inc.
1100 Avenue of the Americas
New York, New York 10036

Mr. Charles Wilson
Senior News Producer
Last Week Tonight with John Oliver
1100 Avenue of the Americas
New York, New York 10036
RE:

Cease and Desist Making False and Defamatory Statements Against
Mr. Robert E. Murray and Murray Energy Corporation

Dear Mr. Plepler, Ms. Eisenberg and Mr. Wilson:
We are absolutely shocked and dismayed by the false and defamatory nature
of the material which Mr. Charles Wilson has threatened to include about Murray
Energy Corporation (“Murray Energy”) and Mr. Robert E. Murray, Murray Energy’s
Founder, Chairman, President, and Chief Executive Officer, in a June 18, 2017
segment for the “Last Week Tonight with John Oliver” television program. We hereby
demand that you cease and desist from any effort to defame, harass, or otherwise
injure Mr. Murray or Murray Energy. Failure to do so will result in immediate
litigation, as we have done in recently suing The New York Times for making certain
of the same false and defamatory statements.
Mr. Wilson’s communications, enclosed as Exhibit A, make it is clear that you
are planning to regurgitate previously published malicious drivel, which is false, in a
blatant effort to attack and harm Murray Energy and Mr. Murray, personally.

Case 5:17-cv-00099-JPB Document 13-3 Filed 07/21/17 Page 3 of 14 PageID #: 200
Cease and Desist Letter
June 12, 2017
Page 2

The statements which Mr. Wilson references are outdated, and were false and
defamatory when they were made, and remain so. You recklessly rely exclusively on
previously discredited media reports.
Broadcast of this material will severely harm the reputation of Mr. Murray
and Murray Energy, and cast them in a false light before the public. In the interest
of promulgating the truth, the following examines each topic in more detail:
I.

Supposed Workforce Reductions in 2012

There is absolutely no connection between the reelection of Mr. Barack H.
Obama and the layoffs of 2012, many of which were announced by the Company, but
did not materialize. The pending layoffs announced in 2012 were due to the
disastrous, anti-coal policies, and the express effort to destroy the United States coal
industry, of the Obama Administration.
Unfortunately, President Obama
accomplished must of the destruction he sought, which is to the detriment of coal
mining families, citizens on fixed incomes who are not able to pay their electric bills,
and manufacturers whose products must compete in the global marketplace.
Indeed, before the election of Mr. Barack H. Obama as President, the United
States mined 1.2 billion tons of coal per year. The policies of the Obama
Administration, together with low natural gas prices, reduced this to approximately
650 million tons of steam coal per year. Additionally, prior to the election of Mr.
Obama, fifty-two percent (52%) of America’s electricity was generated from coal.
Today, the percentage is thirty percent (30%). As stated in press releases at the time,
Mr. Murray and Murray Energy were forced, based on economic realities, to reduce
the workforce in a manner commensurate with this destruction. Once again, Mr.
Wilson ignores these facts.
II.

The Accident at Crandall Canyon

Joking about this accident is simply cruel and heartless. Miners lost their lives
and others were injured in this horrible tragedy. This accident has a lasting impact
on many families, our employees, and our Company. When Mr. Murray first learned
of the tragic collapse, he rushed to the Mine, arrived within four (4) hours, and then
spent the next twenty-eight (28) days on that mountain. He personally attended to
some of the dying miners and their families. It was an incredibly difficult time for
the families, our employees, and Mr. Murray, personally. We insist that you refrain
from making any of the events of August 2007 the butt of your jokes.

Case 5:17-cv-00099-JPB Document 13-3 Filed 07/21/17 Page 4 of 14 PageID #: 201
Cease and Desist Letter
June 12, 2017
Page 3

Addressing the merits of what Mr. Wilson included, it is obvious that he has
not taken the time to read and understand the Federal Mine Safety and Health
Administration’s entire report and addenda. Those conducting that analysis
conceded that a sudden change in stresses due to a “slip along a joint” or “joint slip in
the overburden,” similar to the United States Geological Survey’s definition of an
“earthquake,” could have been a factor in triggering the collapse seen on August 6,
2007. Those experts chose not to analyze the seismic data of the triggering event and
focused on the secondary collapse, which is a disservice to those miners, their
families, and the truth.
In addition, recent studies, which Mr. Wilson ignores, show that the mine
collapse was a seismic event originating in the Joe’s Valley Fault Zone. More
specifically, these studies indicate that the triggering event for the Crandall Canyon
seismic disturbance occurred on a subsidiary fault parallel to the Joe’s Valley Fault.
This is not consistent with normal mining-induced seismicity, and it is a technical
way of saying the collapse was caused by what many would characterize as an
earthquake. Accordingly, Mr. Murray was correct in his assessment.
III.

Complaints of Messrs. Harrison and Stolzenfels

Murray American Energy, Inc. won both of these cases at arbitration, and then
amicably resolved these complaints. Murray American Energy, Inc. deeply values
the rights and opinions of its employees. Murray Energy Corporation prides itself on
running the safest coal mines in the country.
We understand that you may choose to parody the decline of jobs in the United
States coal industry, the regulatory reforms of President Donald J. Trump, and the
hope of our workers have for a revival of coal jobs. However, ignoring the facts,
twisting the truth, and maliciously seeking to injure Mr. Murray and Murray Energy,
is inexcusable, particularly at the expense of grieving families.
If you insist on repeating falsehoods pertaining to specific issues relating to
Mr. Murray and Murray Energy Corporation, as outlined in Mr. Wilson’s
communications, we will be forced to seek legal relief, including compensatory and
punitive damages, and recovery of attorneys’ fees, in order to protect their
reputations, and remedy the harm that would be caused by your broadcast.
You have dredged up many of the same blatantly false media statements which
we sued The New York Times for publishing. It is clearly your intent to recycle these
blatantly false and extremely damaging statements, at a great detriment to Murray

Case 5:17-cv-00099-JPB Document 13-3 Filed 07/21/17 Page 5 of 14 PageID #: 202
Cease and Desist Letter
June 12, 2017
Page 4

Energy and Mr. Murray, personally. If you do so, we will pursue our damages to the
fullest extent of the law, including to the level of the Supreme Court of the United
States, if we must.
Please advise as to what course of action you will take.
Sincerely,
MURRAY ENERGY CORPORATION

Gary M. Broadbent
Senior Corporate Counsel and
Director of Investor and Media Relations
Enclosure

Case 5:17-cv-00099-JPB Document 13-3 Filed 07/21/17 Page 6 of 14 PageID #: 203

Exhibit A
Email Message and Attachment from Mr. Charles Wilson
‐‐‐‐‐‐‐‐ Original message ‐‐‐‐‐‐‐‐ 
From: Charles Wilson 

Date: 6/9/17 10:38 PM (GMT‐05:00)  
To: "Broadbent, Gary" 

Subject: Re: Murray Energy/"Last Week Tonight with John Oliver"  

Gary, 

I have attached an email that covers the material we might include in our segment for “Last Week 
Tonight.” The piece will not focus on Murray Energy but may include some details that are specific to 
Murray. (In my document, I have quoted the sourcing I was drawing from just so you can see if you felt 
there were any inaccuracies or omissions in the sourcing itself.) 

I am glad to treat any responses as on background or off‐the‐record. I wouldn’t need any responses until 
Tuesday night or Wednesday morning; I’ll be in the office over the weekend and back on Tuesday 
afternoon if you want to chat on the phone, or if you have any questions of me.  

I appreciate your time, and I hope you’re well. 

My best, 

Charles Wilson 

Charles Wilson 
Senior News Producer 
Last Week Tonight with John Oliver 

(212) 

 From: Charles Wilson 
Date: Thursday, June 8, 2017 at 6:55 PM 
To: "Broadbent, Gary" 

Subject: Re: Murray Energy/"Last Week Tonight with John Oliver" 

Thank you, Gary.  

I do understand the sensitivity of it. I’ll aim to have an email together for you by tomorrow; I wouldn’t 
need any response until maybe Tuesday evening of next week. I’m also glad to talk just on 
background/off‐the‐record after you’ve seen the email if you have any questions of me.  

(I’m a native of W.Va. and my grandfather was a miner and later chief of the state department of 
mines.) 

Case 5:17-cv-00099-JPB Document 13-3 Filed 07/21/17 Page 7 of 14 PageID #: 204

My best, 
Charles 
From: "Broadbent, Gary" 

Date: Thursday, June 8, 2017 at 6:51 PM 
To: Charles Wilson 

Subject: Re: Murray Energy/"Last Week Tonight with John Oliver" 
Charles,
Please send me whatever information you plan to use and we'll review. This is obviously a very sensitive
matter. Thanks for reaching out.  
Gary Broadbent 
-------- Original message -------- 
From: Charles Wilson

Date: 6/8/17 6:37 PM (GMT-05:00)  
To: "[e-mail]" <[e-mail]>  
Subject: Murray Energy/"Last Week Tonight with John Oliver"
Dear Mr. Broadbent (or to whom it may concern), 
I am a senior news producer at “Last Week Tonight with John Oliver,” a comedy news show on HBO. We 
are preparing a segment for our June 18th show about the coal industry. 
We intended to include some material that is specific to Mr. Bob Murray and Murray Energy, and I 
wanted to run the relevant material by your office for any clarifications or context you may offer. (We 
may touch briefly upon the Crandall Canyon mine accident, and the issue of whether there was a 
naturally‐occurring earthquake; I particularly wanted to get Murray’s perspective on any details we may 
include there.) I’d be glad to share the material we may include by email, and I’d welcome any response 
just on background/off‐the‐record. 
I’m reachable in New York at (212) 
; I’d also be glad to try to answer any questions you may 
have of me. I appreciate your time and hope you’re well. 
My best, 
Charles Wilson 
Charles Wilson 
Senior News Producer 
Last Week Tonight with John Oliver 

(212) 

Case 5:17-cv-00099-JPB Document 13-3 Filed 07/21/17 Page 8 of 14 PageID #: 205

Last Week Tonight Season 4
Gary,
I wanted to share below the material we might include about Murray
Energy in our piece about the coal industry for “Last Week Tonight with
John Oliver.”
In broad strokes, we intend to discuss the decline of jobs in the coal
industry, the political criticism of President Obama’s “war on coal,” the
recent regulatory rollback by the Trump administration, and the prospect
going forward of a revival of coal jobs. In that context, we will address
the “war on coal” narrative and mention other pressures on coal jobs
outside of regulation—including the competition the coal industry has
faced from cheap natural gas and renewable energy, the displacement of
mining jobs through mechanization and surface mining, and the
competition that Appalachian coal has faced from the Powder River basin
coal.
I have included the specific details we might include below that
pertain to Murray Energy, particularly where we may be critical of the
company. I have also included links to my sourcing so you’ll know where I
was drawing any material.
I am glad to receive any clarification and context just on background
or off-the-record, as well as any other perspective you might have.
Written responses are helpful but if easier I’m also glad to talk by phone.
I’m reachable at (212)
. I appreciate your time. If you could get
back to me by Tuesday evening, June 13th, I’d be most grateful. I will
be out of the office on Monday but should be around Tuesday afternoon
and throughout the rest of next week. We will refine the piece on
Wednesday and Thursday of next week.
My best,

1

Case 5:17-cv-00099-JPB Document 13-3 Filed 07/21/17 Page 9 of 14 PageID #: 206

Last Week Tonight Season 4
Charles Wilson

*The impact of Obama-era regulations, and Murray Energy’s
November 2012 layoffs:
*We intend to say that Murray Energy Corporation is the largest
privately-owned coal company in the United States.
http://www.murrayenergycorp.com/about/
*We intend to say Bob Murray, CEO of Murray Energy Corporation, has
been clear about his opinions about President Obama’s impact on the coal
industry. In this context, we might include a video clip in this spirit of
this clip of an appearance on Maria Bartiromo’s show:
*Mr. Murray: “It's a tragedy as to what's happening in the coal fields
with the destruction of lives by Barack Obama who is the greatest
destroyer America has had.”
https://archive.org/details/FBC_20161004_100000_Mornings_With_Maria
Bartiromo/start/7320/end/7380
*We might include that Murray was so upset by President Obama’s
reelection in 2012, that he laid off 156 of his own workers the following
day, placing the blame on President Obama’s coal policies. In that
context, we may use a clip from Bret Baier’s show here:
*Fox News Network November 9, 2012: Mr. BAIER: “Murray Energy
CEO, Robert Murray, read the prayer to a group of company staff
members, quote, "Lord, please forgive me and anyone with me in Murray
Energy Corporation for the decisions that we're now forced to make to
preserve the very existence of any of the enterprises that you have
2

Case 5:17-cv-00099-JPB Document 13-3 Filed 07/21/17 Page 10 of 14 PageID #: 207

Last Week Tonight Season 4
helped us build." Wednesday, Murray laid off more than 150 people at its
company and subsidiaries blaming the Obama administration's, quote,
"war on coal."
https://archive.org/details/FOXNEWS 20121109 230000 Special Repo
rt With Bret Baier/start/1680/end/1740
*Crandall Canyon mine accident:
*We might briefly mention the Crandall Canyon accident. I had read the
company’s recent legal complaint against the New York Times in relation
to their editorial coverage.
*I understood from the complaint that the Times didn’t contact you
before publishing the editorial. I think the Times editorial board might
have been drawing on its own reporting on August 24, 2007:
*NY Times: “As recently as Wednesday night, Mr. Murray, chief
executive of the Murray Energy Corporation, continued to insist that
the collapse had been caused by a 3.9 magnitude earthquake. He
shouted down two reporters who tried to remind him that seismic
scientists at the University of Utah and elsewhere were just as certain
that the opposite occurred — that coal veins already thinned by a risky
form of deep mining had buckled, setting off the collapse that sent
seismograph needles spiking.”
http://www.nytimes.com/2007/08/24/us/24murray.html
*This AP video from August 7, 2007, has Mr. Murray making the
apparent argument that it was a naturally-occurring earthquake that had
caused the collapse:
*Mr. Murray: (Around 1:40): “Now the Lord has already decided
whether they are alive or dead and whether they were killed from the
percussion from the earthquake, but it's up to Bob Murray and my
management to get the access to them as quickly as we can."
https://www.youtube.com/watch?v=zUtHxhGDjx0

3

Case 5:17-cv-00099-JPB Document 13-3 Filed 07/21/17 Page 11 of 14 PageID #: 208

Last Week Tonight Season 4

*And this AP article from that same day (August 7, 2007) says that
there was a dispute at the time between the company and seismologists
over whether it was a natural earthquake—or was a tremor induced by a
cave-in:
*Associated Press: “A fierce dispute erupted over that question
Tuesday, with a top mine executive declaring on national television
that he has the science to prove a quake caused the collapse. But
seismologists said their instruments recorded shaking from the cave-in
and not a natural temblor. Scientists believe the seismic waves in the
area of the Crandall Canyon mine were "the signature of the collapse and
that the collapse was not caused by an earthquake," said James W.
Dewey, a seismologist at the National Earthquake Information Center in
Golden, Colo. Scientists have not ruled out a natural earthquake since the
region surrounding the mine is seismically active, and they do not know
the exact time the mine collapsed. But, Dewey said, "the data we have
seen seem more consistent with the collapse being the cause of the
'earthquake' rather than the other way around." On Monday, University
of Utah seismographs recorded seismic waves of 3.9 magnitude near the
mine. At least 10 aftershocks were felt more than 24 hours after the
collapse, with the strongest registering 2.2 magnitude. Scientists say
quakes caused by mine collapses tend to occur at shallower depths and at
different frequencies than natural earthquakes. The first motions of the
Utah disturbance indicated a downward movement consistent with a
collapse, scientists said. If it was a natural quake, it would have produced
up and down motions on the seismograms. The quake occurred anywhere
from 2,000 to 8,500 feet underground. Mine officials insisted Monday's
accident was caused by a natural disaster. "This was caused by an
earthquake, not something that Murray Energy ... did or our
employees did or our management did," Robert E. Murray, chairman of
Murray Energy Corp. of Cleveland, a part owner of the Crandall Canyon
4

Case 5:17-cv-00099-JPB Document 13-3 Filed 07/21/17 Page 12 of 14 PageID #: 209

Last Week Tonight Season 4
Mine, said at a televised news conference, his voice rising in anger. "It
was a natural disaster. An earthquake. And I'm going to prove it to
you." The company released a statement saying the depth of the
earthquake occurred in a region that was 3,500 feet deeper than where
the miners were.”
http://www.washingtonpost.com/wpdyn/content/article/2007/08/07/AR2007080701425 pf.html
*I just wanted to see if you felt it would be inaccurate to say that
the seismic scientists at the time maintained the tremor was related to
mining practices even as Mr. Murray insisted the cause of the collapse was
a natural earthquake. [I wasn’t sure what was meant in the complaint
against the Times where it says: “The statement is false because the
triggering event of the collapse was what is commonly understood as
an earthquake.”]
*My understanding from MSHA’s ultimate investigation was that they
ultimately backed the opinion that the collapse was not a ‘natural’
earthquake:
*MSHA report: “The August 6 collapse was not a “natural”
earthquake, but rather was caused by a flawed mine design … Three
separate methods of analysis employed as part of MSHA’s investigation
confirmed that the mining plan was destined to fail. Results of the first
method, Analysis of Retreat Mining Pillar Stability (ARMPS), were well
below NIOSH recommendations. The second method, a finite element
analysis of the mining plan, indicated a decidedly unsafe, unstable
situation in the making even without pillar recovery. Similarly, the third
method, boundary element analysis, demonstrated that the area was
primed for a massive pillar collapse. Seismic analyses and subsidence
information employed in the investigation provided clarification that
the collapse was most likely initiated by the mining activity.”
5

Case 5:17-cv-00099-JPB Document 13-3 Filed 07/21/17 Page 13 of 14 PageID #: 210

Last Week Tonight Season 4
https://arlweb.msha.gov/Fatals/2007/CrandallCanyon/FTL07CrandallCa
nyon.pdf

*Marion County mine production-based bonus program
*I wanted to check if Murray had any context or clarification for the
International Business Times’ reporting surrounding the Marion County
mine production-based bonus program, particularly the portions included
below. (I see that they had been in touch before the publication of the
article, and had included a response from Mr. Murray. I just wondered if
there was any additional context from Murray’s point of view on that
story, or anything you felt was misreported):
*International Business Times: “Under the program, workers
received bonuses based on the amount of coal they extracted. Many
opposed it on safety grounds, including Stolzenfels and Harrison,
according to court filings. The latter, in particular, had a history of a
speaking out over safety. Meanwhile, the company told miners who
disagreed with the plan that they could opt out of it by writing “void” on
their checks and returning them. In February 2015, Harrison and
Stolzenfels took this route — but not before adding some profanity-laced
flair. Harrison’s check, for $11.58, read, “Void Void Kiss My Ass Bob.”
Stolzenfels’ check, for $3.22, read “Void Eat S--- Bob.” The company
responded by suspending both of them with “intent to discharge,” citing
the employee handbook’s policy against profanity. Murray Energy CEO
Bob Murray told International Business Times he never saw the checks,
and that his staff took action on their own. “My management has enough
respect for me and my company and my people that they said, ‘We’re not
going to have somebody insulting Mr. Murray like that,’ ” Murray said.

6

Case 5:17-cv-00099-JPB Document 13-3 Filed 07/21/17 Page 14 of 14 PageID #: 211

Last Week Tonight Season 4
“‘We respect him too much, he works too hard for us, too hard for our
safety, too hard for keeping our jobs, and they fired ’em.’”
http://www.ibtimes.com/cussing-coal-miners-face-against-murrayenergy-help-feds-2263919
That’s all. Many thanks.

7