O.J. Regulation, Again in Courtroom

[16.] There are solely few factual disputes. Plaintiff [Malcolm Lavergne] is a Nevada legal professional who has represented O.J. Simpson since 2009 concerning his robbery-related convictions, attraction, and Mr. Simpson’s 2017 parole listening to. Plaintiff was not concerned within the notorious O.J. Simpson 1995 felony homicide trial in California or the 1997 wrongful dying civil trial in California. Defendant Kimberly Goldman is the sister of late Ronald Goldman, one of many victims in Mr. Simpson’s felony and civil trials, and she or he produced and co-hosted a podcast entitled “Confronting: O.J. Simpson.” … Defendants Glass Leisure Group, LLC and SQRL Media, LLC are the media manufacturing corporations that produce the podcast. Defendant Nancy Glass is a producer, the principal of Glass Leisure Group and SQRL Media, and co-host of the podcast. Defendant Wondery, Inc. is the podcast distributor.

[17.] Since late 2018, Defendants requested O.J. Simpson’s participation in a documentary, which O.J. Simpson rejected. On June 17, 2019, after the podcast was launched, Ms. Glass straight contacted Plaintiff to solicit O.J. Simpson and Plaintiff to look on the podcast, which Plaintiff additionally rejected. Ms. Glass recorded their telephone dialog, and Plaintiff purportedly did in order properly. The very starting of the recorded name contains the next forwards and backwards between Plaintiff and Ms. Glass:

Nancy Glass: “Hello Malcolm, that is Nancy Glass, I am the Government Producer of Kim Goldman’s podcast… I am questioning in case you can be keen to look on the podcast, to name into the podcast… properly, initially, can I file this name?

Plaintiff: “Yeah, I’ll file it too.”

Though Plaintiff has steered that he didn’t consent to the recording of the phone name, this allegation is contradicted by the proof offered, and Plaintiff didn’t cogently problem the authenticity of the recording.

[18.] On July 10, 2019, Defendants launched a podcast that contained virtually everything of the recorded telephone dialog, excluding Ms. Glass’ dialog with the Plaintiff’s receptionist and the interval whereas Ms. Glass was on maintain. The title of the podcast was “Get Over It.” The podcast was downloaded virtually 500,000 instances. Defendants don’t dispute that Plaintiff by no means used the phrase “Get Over It” in the course of the telephone dialog concerning Ms. Goldman and her household. Plaintiff claims that the title of the podcast positioned him in false mild and that the podcast continues to be being distributed with out his consent by Defendants. He additionally claims that he by no means referred to as Ms. Goldman a “piece of shit.”

[19.] Plaintiff doesn’t dispute that he publicly criticized Ms. Goldman and her household earlier than, and after, the discharge of the podcast episode. In a Newsweek article, printed November 24, 2017, the article quoted Plaintiff’s public tweets, whereby Plaintiff referred to as Ms. Goldman and her household “skilled, public determine, victims” and “bullies” and referred to as Ms. Goldman’s father a “Plantation Grasp.” Plaintiff once more publicly tweeted on June 16, 2019 that Ms. Goldman is a “skilled sufferer,” “POS” (a typical abbreviation for the phrase “piece of shit”), “disturbed,” that Ms. Goldman’s household are “grasping,” “skilled victims,” solely looking for “publicity and revenue,” and “hypocrites.” On June 17, 2019, the Each day Mail printed an article citing these tweets by Plaintiff. The article additionally famous that Plaintiff wrote a number of Twitter posts urging Ms. Goldman to “Transfer On.” On July 17, 2019, Plaintiff appeared on one other podcast, The Kirk Minihane Present, and said that Ms. Goldman and her household must “transfer on.” On August 18, 2019, Plaintiff once more publicly tweeted, describing Goldman and her household as “grasping,” “hypocrites,” and that they should “transfer on.” …

The courtroom concluded that plaintiff’s libel, false mild, and proper of publicity lawsuit had been meritless and thus ought to be dismissed below Nevada’s anti-SLAPP statute (and later ordered plaintiff to pay $100K in defendants’ legal professional charges and prices):

[21.] Defendants confirmed by a preponderance of the proof that Plaintiff’s claims are based mostly upon religion communication in furtherance of free speech in reference to a difficulty of public concern….

[22.] At a minimal, Plaintiff is a restricted objective public determine. Plaintiff voluntarily injected or thrusted himself into a selected controversy or public concern and thereby turned a public determine for a restricted vary of points. Plaintiff selected to make public tweets posting disparaging remarks and ideas about Ms. Goldman and her household and gave interviews in varied media shops earlier than, and after, the topic podcast episode aired. This additional reinforces the truth that the phone recording was on a matter of public curiosity.

[23.] The principle argument that Plaintiff makes on this case is that the title of the podcast episode, “Get Over It,” is deceptive. Nonetheless, the determinative query is whether or not the gist or sting of the assertion is true below Rosen. There isn’t any dispute that Plaintiff publicly urged Ms. Goldman and her household to “transfer on” earlier than and after the podcast episode was launched. Though the phrases might convey a barely completely different concept, the phrase “recover from it” positively meets the gist or sting take a look at as set forth in Rosen and Taylor. Likewise, POS is each synonymous and a typical abbreviation for the phrase, “piece of shit,” and thus the podcast’s recommend that Plaintiff referred to as Ms. Goldman a “piece of shit” meets the identical gist or sting take a look at. Additional, regardless of claiming to haven’t referred to as Ms. Goldman a “piece of shit,” Plaintiff didn’t dispute that in his look on The Kirk Minihane Present, the next colloquy passed off:

Kirk Minihane: “You referred to as her [Ms. Goldman] a ‘piece of shit’ within the Each day Mail, right?”

Plaintiff: “I stated ‘POS,’ however yeah, that was on Twitter.

Moreover, any opinions that Ms. Goldman and/or Ms. Glass might have expressed in the course of the phone calls and/or podcast episode can’t be deemed false as there isn’t a such factor as a false concept below Abrams….

[25.] Plaintiff undoubtedly has a statutory proper of publicity below NRS 597.790(1). Nonetheless, the exception set forth below NRS 597.790(2)(c) is relevant because the podcast’s use of the phone dialog between Plaintiff and Ms. Glass clearly constitutes a use “in reference to information, public affairs or sports activities broadcast or publication.” Plaintiff’s authorization was not required for using his identify, picture, voice or likeness in such circumstances. Thus, Plaintiff can’t make a prima facie case for a declare for violation of Nevada’s Proper of Publicity statute….

Congratulations to Colleen E. McCarty, Michael Ok. Twersky & Michael Beylkin of Fox Rothschild LLP, who represented defendants.