The Marshall County Coal Company et al v. Oliver et al
MOTION for Preliminary Injunction, MOTION for Temporary Restraining Order by Robert E. Murray, Murray Energy Corporation, The Harrison County Coal Company, The Marion County Coal Company, The Marshall County Coal Company, The Monongalia County Coal Company, The Ohio County Coal Company. (Attachments: # 1 Memorandum of Law in Support, # 2 Affidavit - Heather Santini, # 3 Affidavit - John Klayko, # 4 Affidavit - Robert E. Murray)(kac) (Motion was filed in Marshall County Circuit Court on 6/28/2017) (Judge Bailey's Chambers Notified)
Case 5:17-cv-00099-JPB Document 21-1 Filed 06/30/17 Page 1 of 26 PageID #: 875
IN THE CIRCUIT COURT OF MARSHALL COUNTY, WEST VIRGINIA
THE MARSHALL COUNTY COAL COMPANY,
THE MARION COUNTY COAL COMPANY,
THE MONONGALL& COUNTY COAL COMPANY,
THE HARRISON COUNTY COAL COMPANY,
THE OfflO COUNTY COAL COMPANY,
MURRAY ENERGY CORPORATION, and
ROBERT E. MURRAY,
Civil Action No. 17-C-124
Judge Jeffrey Cramer
JOHN OLIVER, CHARLES WILSON,
PARTIALLY IMPORTANT PRODUCTIONS, LLC,
HOME BOX OFFICE, INC., TIME WARNER, INC.,
and DOES 1 through 10.
MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND
The above-captioned Plaintiffs hereby submit this Memorandum of Law in Support of
Plain1ffs’ Motion for a Temporary Restraining Order and Preliminary Injunction and, for the
reasons set forth herein, respectfully request that this Court enter a temporary restraining order,
preliminary injunction, and “gag order” to restrain Defendants, during the pendency of this
litigation, from (i) re-broadcasting the Defamatory Statements that are the subject of Plaintiffs’
Complaint,’ and (ii) publicly discussing the substance of this litigation. This relief is necessary
to prevent further irreparable harm to Plaintiffs and their employees, and to preserve Plaintiffs’
ability to obtain justice from a jury of impartial peers in this Court., The relevant facts and
authorities are set forth below. Due to the imminent and irreparable injury, loss, and damage that
the Motion seeks to prevent, Plaintiffs respectfully request an expedited hearing on the Motion.
Capitalized terms used but not defined herein are defined in the. Complaint.
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Plaintiffs are quickly learning firsthand about the phenomenon that Time and Fortune
magazines have dubbed the “John Oliver Effect.”
When Plaintiffs filed their Complaint, they
did not appreciate the extent of the destructive aftennath that Defendants’ malicious and false
broadcast would cause. Mr. Murray and his employees and family have been inundated with an
onslaught of threats, harassment, and intimidation by people that are simply following
Defendants’ lead as they view and re-view the Defamatory Statements,
website has been overrun with messages of “Eat Shit, Bob.” Employees who once enjoyed
coming to work now spend their days receiving countless phone calls and e-mails telling them
they are “a worthless piece of shit,” and worse.
Mr. Murray’s family members have even
received death threats. None of this would have occurred but for Defendants’ broadcast of the
Defamatory Statements. Worse yet, Defendants knew that fans of the show would react in this
manner. Continued publication and public access to the Defamatory Statements will only enlist
additional people to Defendants’ perverse “call to action,” with additional grave consequences.
Moreover, the Joim Oliver Effect has already spilled over to directly affect this litigation:
numerous media outlets are commenting on their views of this action in a biased fashion that
often times provides viewers with access to the entire June 18 broadcast. Additionally, the
broadcast’s YouTubc video has been viewed 1.9 million times more since the Complaint was
The pervasiveness of the Defamatory Statements is unfairly tilting public opinion in
Defendants’ favor so much so that third parties have specifically directed threats and harassment
at Plaintiffs’ counsel regarding the perceived merits of Plaintiffs’ claims. Plaintiffs’ ability to
assemble a fair and impartial jury diminishes every day that the Defamatory Statements are
available to prejudice the individuals that might be called upon to serve justice in this matter.
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Plaintiffs therefore seek narrow relief to protect the wellbeing and property of those
affected by this lawsuit and the potential pool of West Virginian jurors.
intervention in this manner comes as a last resort following Plaintiffs’ request for a voluntary
agreement from Defendants, which defense counsel refused, notwithstanding Defendants
awareness of these facts and, significantly, Mr. Murray’s serious health condition and the
harassment resulting from the show that is specified in the Complaint.
To prevent further imminent and irreparable harm, Plaintiffs request an Order enjoining
the rebroadcast of the program at issue in this litigation and prohibiting Defendants from using
their unique powers, through their access to millions of West Virginians, to bias the potential
jurors who will determine their fate. Plaintiffs’ request for limited relief will mitigate further
irreparable injury to Mr. Murray and his companies, as well as protect untold numbers of
innocent Murray Energy employees from the consequences of the John Oliver Effect. Plaintiffs
also believe fairness dictates reciprocity, and will similarly be bound to refrain from utilizing the
press, which they have attempted to modestly employ in a futile endeavor to level the
disproportionate media playing field that Defendants enjoy.
Defendants’ Assault on Mr. Murray and his Companies.
On June 18, 2017, before HBO’s approximately 134 million subscribers, Defendants
executed a meticulously planned attempt to assassinate the character and reputation of Mr.
Robert E. Murray and his companies, including Murray Energy Corporation and those in West
Virginia, on a world stage. In carrying out their attack on Mr. Murray and his companies,
however, Defendants ignored facts in their possession that directly contradicted the false and
defamatory statements about Mr. Murray and his companies that they improperly passed off as
truths to the nation and throughout the world.
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When Defendants made Mr. Murray and the other Plaintiffs aware that they intended to
advance their anti-coal agenda by, among other things, broadcasting injurious, false, and
defamatory statements to millions of people, Mr. Murray and the other Plaintiffs, at Defendants’
invitation (believed to have been extended under the guise of responsible and ethical journalism),
transmitted—prior to the June 18, 2017 broadcast—information and facts directly contrary to the
injurious, false, and defamatory statements that Defendants threatened to broadcast. But instead
of reporting on the facts, including those facts which Defendants secured through their (what
turned out to be) disingenuous outreach to Mr. Murray and his companies, Defendants ignored
them and “doubled-down” on their character assassination of Mr. Murray and the business
reputation of his companies, ending their recorded broadcast with the phrases “Eat Shit, Bob”
and “Kiss my ass, Bob.”
Defendants’ initial broadcast of the Defamatory Statements has subsequently been
viewed over 6.1 million times on YouTube (an increase of 1.9 million since Plaintiffs filed their
Complaint), over 1.5 million times on Facebook (with over 32,000 likes) (an increase of 300,000
and 3,000, respectively, since the Complaint was filed), and an unknown number of additional
times by people who have viewed the broadcast on streaming applications.
The number of
people who have viewed the Defamatory Statements will only continue to rise throughout this
The “John Oliver Effect”: Defendants’ Audience Joins in the Assault on Mr.
Murray and his Companies.
Defendants have broadcasted the show “Last Week Tonight with John Oliver” since
April 27, 2014. In that time, the show has developed a loyal fan base, averaging millions of
viewers each week. Defendants regularly take advantage of that fact to advance their agendas.
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As has been the subject of wide-spread reports, including by Time and Fortune
magazines, Defendants incite viewers of Defendant Oliver’s show to attack, harass, and injure
the show’s subjects. Known as “The John Oliver Effect,” Defendants are well aware of the
injury the show’s fans inflict upon Mr. Oliver’s targets, and they encourage it. As reported by
With his signature humor, Oliver convinces his audience that they should care
about these complex topics and often signs off with a call to action. The result is
what Time has called the “John Oliver Effect,” in which the British comedian
helps—in ways both big and small—to create very real change. This level of
influence is what landed Oliver, who in addition to the show’s host is also an
executive producer, on Fortune’s 2015 40 Under 40 list.
Beth Kowltt, The John Oliver Effect: Why the British Comedian ‘s Impact is no Joke,
Fortune.com (Sept. 29, 2015).
Time magazine similarly recounted how Defendants incite vigilantism. Time’s article
reported how Defendant Oliver called upon his viewers to inflict damage upon governmental
property: “seize your moment, my lovely trolls,’ he said. ‘Turn on caps lock, and fly, my
pretties!’ He got his wish. Following the show, a flood of new comments led to major glitches
for the FCC website.” See Victor Luckerson, How the ‘John Oliver Effect’ is Having Real-Lf
Impact, Time Magazine (Jan. 20, 2015) (Updated July 10, 2015).
Other instances of the John Oliver Effect causing significant damage have been reported.
In 2015, Defendants aired a segment discussing alleged exploitation of chicken farmers by
chicken production companies.
of the House
Appropriations Committee, who declined to pass a bill that, in his view, would have protected
the farmers. Defendant Oliver then encouraged viewers to harass congresspersons by editing
their Wikipedia pages to label them as “chicken f***ers.” According to one source, at least
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thirty-six Wikipedia articles were vandalized. See https://blog.wikimedia.org/2015/05/27/darkside-of-comedy/.
Plaintiffs have similarly experienced the John Oliver Effect, to disturbing and dangerous
proportions. In the days following the June 18, 2017 broadcast of Last Week Tonight with John
Oliver, in which the Defamatory Statements were first broadcast to millions of viewers, Murray
Energy’s website twice received over 30,000 spam messages within a 20-minute window in an
effort to “crash” the site.
See Affidavit of John Klayko (the “Klayko Aff.”)
potentially more damaging attack, received from multiple sources, forced Murray Energy to take
its website down on the morning of June 20, 2017, to implement new, increased security
Threats of physical harm and property damage have only increased since the
Complaint was filed. Id.
Plaintiffs also have been continuously harassed by numerous telephone calls that have
subjected Plaintiffs’ employees to threats and vulgarities and tied up Plaintiffs’ telephone lines,
preventing timely communications with Plaintiffs’ customers and vendors. Klayko Aff.
Affidavit of Heather Santini (the “Santini Aff.”)
4. These attacks caught Plaintiffs’ innocent
employees in the crossfire—employees who, by any measure of descent humanity, should not be
subject to the vulgarities asserted by Defendants’ viewership. Some of the harassing calls incited
by the Defamatory Statements can be summarized as follows:
Multiple callers exclaiming “Tell Bob Murray to eat shit!” or “Eat shit, Bob!”;
One caller stating that “your owner is a pussy and he’s fat!”;
Another caller asked an employee if she liked working for a company that was
destroying the planet;
One stated that “Murray Energy is a lying piece of shit”;
One person congratulated Mr. Murray on being probably one of the most heartless
people alive to watch so many of his employees die;
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A group called on speaker phone demanding Plaintiffs’ employee to “justify to
the whole room why you like working at Murray Energy” and then demanded that
she repeat her positive answer “to all the miners, that Bob Murray took all the
black lung insurance from”;
One stated his desire to “tell Bob Murray to eat shit and kiss my ass!”;
One condemned an employee, explaining that “you should be ashamed of yourself
for working for a company like Murray Energy”
Multiple callers asked “Is Dr. Evil in?”;
One stated “you’re a worthless piece of shit”
Others demanded that Plaintiffs “stop with their bulishit lawsuits” or asked “Why
are you suing John Oliver?”
One threatened employees “to watch their back”;
One stated “hope your CEO goes to Hell”;
One explained “this is a squirrel, F@@@ you Bob, F@@@ you Bob!”;
Another called a receptionist “a Fing Bitch,” among other derogatory
Santini Aff. ¶4.
If the foregoing were not enough, employees are also in fear from hearing that Mr.
son, who is not a party to this action, received a phone call on his mobile phone from a
caller that wished him death. Santini Aff.
These telephone calls represent a fraction of what
Plaintiffs have endured since the initial broadcast, which only intensified after Plaintiffs
commenced this action to vindicate the wrongs they have suffered, including demands to “Drop
the lawsuit.” Id.
Plaintiffs’ emails servers have also been subjected to malicious attacks and harassing
communications since the June 18 broadcast of “Last Week Tonight with John Oliver,” and
increasingly following the commencement of this action. Klayko Aff.
¶J 5, 7.
In addition to the
attempts to crash Murray Energy’s website described above and in the Complaint, Plaintiffs have
Case 5:17-cv-00099-JPB Document 21-1 Filed 06/30/17 Page 8 of 26 PageID #: 882
received numerous disparaging e-mails echoing Defendant Oliver’s comments on the show. The
following emails are examples of the John Oliver Effect:
From: kmartl 131 kmartH31@yahoo,comBate: June 22,2017 at 6:36:21 PM EDT
Subject: EAT SifiT BOB!!!
From: Chris McNair
From: Chris Ryan
Date: June 22, 2017 at 7:44:55 PM EDT
Subject: Eat shit bob!
I)ate: June 22, 2017 at 5:12:08 PM EDT
Subject: liA.T SHIT BOB!
Reply-To: Mike Waite
You tuckln0 slime ball!
From: Christopher Campbell
Date: June 22, 2017 at 7:47:24 PM EDT
Subjert: Eat Shit, Rub. You fat runt.
From: Bruno Seabra
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