Olbermann Broadcasting Empire v. Current TV, LLC – A Three-Part Series Uncovering the Legal Battle Between Two Media Titans

Olbermann Broadcasting Empire v. Current TV, LLC – A Three-Part Series Uncovering the Legal Battle Between Two Media Titans

 

By Fernando M. Pinguelo and Timothy Cedrone

 

Part I:  The History and the Histrionics

 

When Keith Olbermann joined Current TV in 2011 as its Chief News Officer and newest broadcaster, former Vice President Al Gore, now the chairman and co-founder of Current TV-owner Current Media (collectively, “Current”), proclaimed, “Keith Olbermann is a gifted thinker, an amazing talent and a powerful communicator, and having him tap Current as his new home is exciting and very much in line with the core vision we founded this network on: To engage viewers with smart, provocative and timely programming.”[1]  Joel Hyatt, the executive vice chairman and other co-founder of Current Media, was similarly effusive in his praise for Olbermann, saying, “Keith Olbermann is one of our society’s most courageous talents.  He speaks truth to power.  He calls them as he sees them.  He speaks his mind. Our society needs his kind of thoughtful analysis and commentary.  Keith Olbermann is not afraid of dissenters.”[2]  Despite this promising beginning, it now seems that Olbermann’s willingness to speak his mind ultimately resulted in Current terminating his contract and hurtled the parties down a litigious path from which there will be no return. 

 

The lawsuit between Olbermann and Current technically began on April 5, 2012, when Olbermann filed a civil complaint in the California Superior Court shortly after Current terminated his contract.  In his complaint, Olbermann alleges eight claims against Current, including a breach-of-contract claim and various claims for declaratory relief (i.e., a determination of rights without a damages award).  Before examining these claims in more detail, it is worthwhile to examine the history between the two litigants so that the current lawsuit can be viewed in the proper context. 

 

Current is a television and online network founded in 2005 by Al Gore and Joel Hyatt.[3]  According to its website, Current “features the very best in political commentary, news analysis, and thought provoking programming. . . . Current shines a light where other networks won’t dare and boldly explores provocative subjects – opening minds, sparking conversations and forming deep connections with its viewers.”[4]  Current TV is Current Media’s television broadcast network.[5]  A significant amount of Current’s programming is dedicated to political commentary, which, for most of 2011, included “Countdown with Keith Olbermann.”[6]

 

Olbermann, who has been described as an “outspoken liberal news anchor,”[7] has had a wide-ranging career in broadcasting.  His stops have included television stations in Boston and Los Angeles, ESPN Radio, ESPN SportsCenter, Fox Sports Net, ABC Radio, and MSNBC.[8]  While at MSNBC, he hosted “Countdown with Keith Olbermann,” which became one of the station’s highest-rated shows.[9]  This success drew Current to Olbermann, and in early 2011, Olbermann left MSNBC to join the fledgling channel.[10]  However, the honeymoon ended quickly for the two, and the relationship abruptly ended on March 29, 2012, when Current terminated Olbermann’s contract.[11]

 

After his contract was terminated, Olbermann did what many do when they think they are wrongly terminated:  He sued.  Specifically, six days after being terminated, Olbermann filed an eight-count, 137-paragraph, 43-page complaint.[12]  Counts One and Two, respectively, allege breach of contract and breach of the implied covenant of good faith and fair dealing.[13]  Counts Three through Eight seek declaratory relief related to claims involving failure to promote, disparagement, unauthorized absences, an unauthorized guest host, refusal to consult, and disclosure of confidential terms.[14]  Claiming that Al Gore, Joel Hyatt, and Current management “are no more than dilettantes portraying entertainment industry executives,” Olbermann alleged that the complaint was “necessary” because Current had “repeatedly and willfully breached its written agreement with Olbermann.”[15]  The complaint cites a litany of breaches of the employment contract by Current, ranging from sweeping accusations such as “broadcasting advertisements containing Olbermann’s likeness without his consent” to detailed claims such as “incorrect settings for DVRs that precluded such devices from finding and recording” Olbermann’s show.[16]

 

The most salacious allegations are contained in paragraphs one through ten of the complaint.  After that, the majority of the complaint describes Current’s failures and misdeeds in excruciating detail.  Despite the interminable nature of the complaint, Olbermann’s breach-of-contract claim boils down to nine specific claims:  Current (1) terminated Olbermann “without basis”; (2) disparaged Olbermann; (3) publicly disclosed confidential terms of Olbermann’s contract; (4) used Olbermann’s likeness in promotions without permission; (5) used Olbermann’s name and goodwill in endorsements without consent; (6) refused to grant Olbermann editorial control over certain programs; (7) refused to permit Olbermann to stream his show on the show’s website; (8) used an unapproved guest host on Olbermann’s show without his consent; and (9) failed to consult with Olbermann on the “lead out” to his show.[17]  The remaining counts essentially flow from and replicate the breach-of-contract count. 

 

So what does Olbermann have to prove to prevail over Current?  From a legal standpoint, Olbermann must establish four things:  (1) he and Current had a contract; (2) he performed his contractual obligations or his performance was excused; (3) Current breached the contract; and (4) he suffered damages.[18]  The key to Olbermann’s case will be elements two and three:  whether Olbermann performed as obligated under the contract and whether Current failed to perform its obligations or prevented Olbermann from performing his.  These are the elements on which Olbermann’s attorneys will likely focus during the discovery phase of the lawsuit, when the parties are in the process of exchanging and disclosing all relevant facts.  More specifically, their discovery strategy will likely first involve attempting to document Current’s failures as alleged in the complaint.  The second part of the strategy will include deposing all the key witnesses involved in the conduct allegedly constituting the breach, with Al Gore and Joel Hyatt being likely witnesses. 

 

If Current is to be believed, Olbermann will have an uphill battle in establishing his claims.  But if he can, he could be in line for a large payday, if his claimed damages of $50 to $70 million are even close to being accurate.  Check back with us soon for Part II, where we discuss Current’s answer to Olbermann’s Complaint and its counter-suit against Olbermann.

 

This article’s primary purpose is to educate and inform readers and provide them with a general overview of the topics discussed.  The information it contains should not be construed as providing legal advice and should not be relied on for that purpose.  If you have specific legal questions, the authors suggest seeking the advice of a qualified attorney.
  

Fernando M. Pinguelo, a Partner at Norris, McLaughlin & Marcus, P.A. and Chair of its Entertainment Law and Cyber Security & Data Protection groups, is a trial lawyer who devotes his practice to complex business lawsuits and employment matters.  Fernando represents TV news anchors, reporters, meteorologists, and sports casters, including Emmy Award-winning talent, concerning employment and agency agreements, contract disputes, and cyber security/privacy issues concerning talent’s Internet reputation.  His representative clients include on-air talent who broadcast out of local and affiliate TV stations across the U.S., including in Boston, Chicago, Los Angeles, New York, and Philadelphia. To learn more about Mr. Pinguelo, visit www.NYLocalLaw.com or email him at info@NYLocalLaw.com.  To receive timely articles about how technology impacts lawsuits, subscribeto Fernando’s ABA Journal-award winning blog, eLessons Learned – Where Law, Technology & Human Error Collide.® 

 

Timothy D. Cedrone is an associate with the law firm of Apruzzese, McDermott, Mastro & Murphy, P.C., where his practice focuses on all areas of labor and employment law.  Tim is the Secretary of the Entertainment, Arts & Sports Law Section of the New Jersey State Bar Association, as well as Co-Chair of the ADR Committee of the Labor & Employment Law Section.  Tim is also an Adjunct Professor at Seton Hall University, where he teaches Sports Law.  Tim has authored or co-authored three full-length, published law review articles in the areas of sports and entertainment law, and he previously was a law clerk for the National Football League and New Jersey Sports & Exposition Authority.  He is admitted to practice in New York and New Jersey. 

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