Have we reached peak celebrity lawsuit? As the Diddy, Jay-Z and Blake Lively/Justin Baldoni cases roll into another week atop the news headlines, they are joined by scores of others, from not just A-listers but from B and C and on down the alphabet.
Not only are major headline-grabbers like Diddy’s woes and the Amber Heard/Johnny Depp saga popping up with increasing frequency but there is a massive surge in smaller cases that merit only a smattering of media coverage.
In January alone, we have seen a misconduct case against Skip Bayless and Fox Sports; Alec Baldwin suing for malicious prosecution and civil rights violations; Sunny Hostin’s husband named in a RICO suit; Nicki Minaj accused of assaulting a former manager; and Netflix’s Love Is Blind settling a class-action suit with former contestants. That is far from an exhaustive list. The media and the public find welcome distraction from wars, disasters and politics.
With celebrity litigation becoming a spectator sport the whole world seems to enjoy (a betting market is surely coming?), the tactics and techniques used in such cases are now squarely in the spotlight. And they do take some explaining, especially in cases as byzantine as the Lively/Baldoni affair or, like Jay-Z’s, involving attorneys who box with their gloves off.
First up, the demand letter. A common tactic by plaintiffs’ attorneys is to send a letter asserting their claims and demanding a settlement payment. There is nothing improper in this, unless it can be shown that the letter and the attorney have crossed a line—from asserting claims and demanding relief to committing extortion by threatening damaging public disclosures of salacious allegations that can destroy a celebrity’s livelihood. And threatening a criminal complaint.
This is what Jay-Z’s team says occurred in the initial demand letter from attorney Tony Buzbee, one of the most successful trial lawyers in Texas, with a high-profile nationwide reputation.
Photo by Eric Charbonneau/Getty Images for Sony Pictures
In case you’ve somehow missed the story, Sean “Diddy” Combs and Shawn “Jay-Z” Carter are facing serious allegations of sexual misconduct, with Combs at the center of numerous lawsuits and federal charges. Combs is accused of various offenses, including rape, sexual assault and sex trafficking. Team Jay-Z says that attorney Buzbee’s demand, combined with his many press interviews about the Diddy case, gave rise to the allegations against Jay-Z.
Buzbee is also being sued by another, unnamed celebrity for using the same practice on behalf of 120 alleged victims of Diddy. According to the star, known only as John Doe, Buzbee wrote demand letters in which he made “wildly false horrific allegations.”
Even a New York judge got involved, warning the lawyer about using “inflammatory language and ad hominem attacks.”
While demand letters are normally protected from being actionable by what is known as the litigation privilege, that usually applies to defamation cases but not extortion cases and especially with activities outside of the courtroom, which has occurred in the cases arising from the Diddy lawsuits.
The consequences can be serious. At the very least, the Rules of Professional Conduct governing attorneys in many states preclude the use of threats of criminal complaints or negative publicity.
Of course, it is just as common for defense attorneys in these situations to allege extortionate practices by their opponents as it is for these practices to actually occur. Indeed, most lay people who receive a demand letter they believe has no merit assert that it is extortion to send such a letter.
Another common tactic is using publicity to frame your version of events. This is the tactic that is being employed by both sides in the Lively/Baldoni case that has led to Baldoni suing The New York Times for $250 million.
The allegation against Baldoni of engaging in a covert smear campaign against Lively before litigation was filed is not illegal itself. Rather, it is being used to impugn Baldoni’s character and demonstrate malicious intent on his part. This is used to raise a question in people’s minds: If Lively’s allegations were false, why would Baldoni engage in a covert smear campaign?
Another litigation tactic on display in the Baldoni/Lively case is suing third parties, which can offer several advantages. The Times, for example, may well be forced to reveal communications it may otherwise keep secret as it tries to defend itself. In the case of Baldoni’s allegations against the Times, there is an added benefit of chilling biased press stories about the case.
A final two tactics are on display in the Baldoni/Lively case: demonizing the defendant and shaming the plaintiff, often referred to as victim shaming in sexual harassment cases. Lively’s complaint is filled with invective about Baldoni’s misconduct and his smear campaign in the press, while Baldoni has responded with the allegation that Lively concocted this entire sexual harassment claim as a way to take over the creative aspects of their film It Ends With Us. It is common for high-profile cases to get the public on your side, which may pressure the other side if the public is against it.
So just like in the gladiator fights in the Colosseum, the tactics can be rough, coarse, brutal and even ugly. But as long as some of us keep watching, the show will go on.
