How does a TV network respond to a reality TV show participant who files a bombshell lawsuit that claims a series is fixed and that the network has "committed a fraud on the public"?
If it's A&E, confronting "Storage Wars'" David Hester, the answer is admitting there's a bit of dress-up happening but that it's emanating from the other side.
"In a transparent attempt to distract from the issues -- and maximize any potential recovery -- Plaintiff's Complaint tries to convert a garden-variety breach of contract claim into a tabloid-worthy drama, in which Hester portrays himself as a crusading whistleblower," the cable network says in legal papers filed last week in L.A. Superior Court.
A&E continues, "But setting aside the notable inconsistencies in his exaggerated self-portrait, the law does not permit such sophistry."
In his lawsuit filed in December, Hester discussed "Storage Wars," a series featuring the auctioning of storage-unit contents based on a few minutes of inspection by buyers like himself. He alleged that A&E has planted items of memorabilia, that interviews with castmembers were scripted in advance and that producers have shot footage when no real auctions are taking place.
Hester further claimed that he was fired after complaining to producers that A&E's "fraudulent conduct of salting and staging the storage lockers was possibly illegal." He based his allegations of illegality on the Communications Act of 1934, which makes it illegal for broadcasters to rig a contest of intellectual skill with the intent to deceive the viewing public.
A&E presents a different picture of what happened.
According to the network, A&E complained first -- about Hester's "improper use of AETN's trademarks." (The two sides have been fighting at the U.S. Trademark Office over marks like "Storage Warrior.")
Hester also demanded to renegotiate his agreement for "Storage Wars," says A&E. Only then did Hester raise concerns about authenticity, it adds.
But now that he has, A&E spells out in a footnote in its legal papers why Hester is not the crusading whistleblower he claims to be: "Among other things, Plaintiff says that he participated in the very conduct he simultaneously claims was 'fraudulent' and 'illegal,' namely, the purported 'salting' of storage lockers with valuable items and the 'scripting' of some portions of the reality television program."
The legal papers come in the form or an anti-SLAPP challenge to Hester's lawsuit. The network seeks to strike certain causes of action made by Hester as an impingement of its own First Amendment free speech rights.
A&E believes "Storage Wars" qualifies for the California law that protects against litigation being used as a sword to interfere with those rights. And as such, the network says the burden should shift to Hester to demonstrate why he has a likelihood of succeeding before it goes any further.
The network says that Hester can't do that.
Among the reasons given by A&E:
- Hester's claim for "unfair business practices" fails because courts have only applied it to commercial speech, not expressive works like television programs.
- Hester can't claim standing on behalf of the "general public" because he doesn't bring the lawsuit as a class action nor does he demonstrate the prerequisites to be a class representative. He hasn't alleged any "actual injury," and the only statute that he's identified -- the Communications Act of 1934 -- "does not apply to cable television."
- Hester doesn't provide a basis for recovery of damages. He can't use an unfair competition claim for the "disgorgement of profits," can't plead "restitution" since nothing was taken from him and can't obtain injunctive relief since it would constitute a First Amendment prior restraint of speech violation.
Here's A&E's motion to strike, written by Kelli Sager at Davis Wright Tremaine, who among other things, describes "Storage Wars" as a matter of public interest because it "has captured the public's interest by combining elements of competition and business strategy with the mystery of discovering what surprises may be found in an abandoned storage unit."
Replace "abandoned storage unit" with "courtroom," and the description is an apt summary of this dispute too.
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