Archive for the 'Personal Injury' Category

Narcos: Pablo Escobar’s Brother Threatening to Sue Netflix for $1B

The brother of infamous drug kingpin Pablo Escobar–the 71-year-old Roberto de Jesus Escobar–has been in an ongoing legal battle with Netflix for almost a year now. Roberto Escobar took issue with Netflix’s semi-biographical show about his brother’s operations Narcos and claimed unspecified intellectual property violations to the tune of an incredible $1B. What’s more, Mr. Escobar demanded that Netflix allow him to review all future episodes of Narcos for accuracy and give a yes or no on the episode. Since the initial demands, Mr. Escobar’s claims have been refined a bit to mostly cover copyright and trademark issues.

This dispute has been catapulted back into the public eye in the last few weeks for two reasons. First, the lawyers for Narcos Productions, LLC–part of Netflix in charge of the show–have challenged a number of trademarks filed by Mr. Escobar on both “Narcos” and “Cartel Wars.” These challenges aren’t particularly surprising given the success of the show and the spin-off mobile game “Cartel Wars;” as well as how weak Mr. Escobar’s claims are. Second, the murder of a location scout for Narcos while in Mexico a few weeks back.

Escobar has been extremely critical of the Narcos show, saying that the show is apparently riddled with inaccuracies and lies. He expressed extreme anger over the show, saying “They are playing me without paying. I am not a monkey in a circus, I don’t work for pennies.” Since the murder of the Narco’s location scout Carlos Portal, Escobar has been coy about the topic. He described filming without authorization of Escobar, Inc. as “very dangerous…especially without our blessing. This is my country.” He has also said that he will “close their little show” if Netflix does not pay him the money he asked for. However, despite these veiled threats, when Escobar’s attorneys were asked about the situation they only said that they had no comment except “Escobar Inc. cooperates with all law enforcement.”

While Escobar’s approach to the situation might be a bit intimidating, it has not cause lawyers for Narcos Productions, LLC to back down much at all. After his initial $1B demands, Escobar went out and applied for trademarks on “Narcos” and “Cartel Wars” on a laundry list of goods and services. Downloadable ringtones, sunglasses, temporary tattoos, sheet music, sunglasses, yoyos, websites, video games (online and offline), board games, Christmas tree ornaments, snow globes, protective pads for skateboarding, basically everything under the sun. This list just scratches the surface of the immense list of uses Escobar claims to have made on the phrases “Narcos” and “Cartel Wars” prior to the show coming out. Netflix has responded in a letter and they are not impressed.

narcosA few months back, Netflix sent a letter to Escobar demanding that he cease use of and abandon his trademark applications for “Narcos” and “Cartel Wars.” This letter has been more recently accompanied by filing an objection to Escobar’s trademark applications a few weeks back, part of an official process of opposing trademark applications going through the U.S. Patent and Trademark Office. While the opposition is not currently readily available to read, one must imagine that it mirrors at least some of the objections they raised in their original letter to Escobar–primarily fraud. With so many goods and services claimed Netflix argues that many of them are simply untrue, fabrications by Escobar. For example, Escobar claims that he first began operating Narcos websites and offering online game services on January 31st of 1986–before the internet was readily available for consumer use and long before online gaming existed in any shape or form. The letter also points out that the specimen used in Escobar’s registration (a word used for the example of the mark provided with a trademark application) is nearly identical to the logo Netflix uses for its show–so much so as to imply copying.

Escobar himself seems to believe that he will still come out on top in his fight with Netflix. His attorneys have indicated that Netflix may be able to reach some settlement and Escobar himself has said that this means that they accept that he rightfully owns the trademarks he has filed for. This is simply not the case, settlements can come for any number of reasons, including simply avoiding the costs of challenging Escobar’s marks. This is especially true because almost no case in law is a guaranteed slam dunk victory. Let’s take a look at how copyright and trademark law would apply to Mr. Escobar’s claims and see just what kind of case he is likely to have against Netflix

Understanding Escobar’s Copyright and Trademark Cases

To start with, let’s look at the copyright claims here because they are by far the weaker of two weak cases. In order to be valid, a would-be copyright must be original and fixed in a tangible medium.  Originality is fairly low standard, requiring only minimum creativity.  For example, a creative arrangement of phone numbers in a telephone book would be enough to qualify. Fixation only requires you to store your work in a medium that can be perceived, reproduced, or otherwise communicated.

Today, copyright protection attaches as soon as you place an original work in a fixed medium—allowing you to stop people from using your work without permission and sue them for actual lost profits based on their actions. Registration provides you with a presumption of validity for your copyright and the ability to sue for statutory damages—which nearly always exceed your actual loss.  However, there is no copyright available for facts. This is for the obvious reason that it would be an absolute mess if one party could own the rights to publish the truth.

With this in mind, Escobar has very nearly no claim for copyright. Not only has he presented absolutely no work which Narcos might have infringed. Narcos is ostensibly a biopic based on the factual life of Pablo Escobar.

Escobar’s trademark claims have slightly more potential. Trademark law is designed to protect the public from confusion as to the source of a good by providing a protected indicator of the source of a good. While trademarking the name of a show with only a few seasons based only on the show is often not available, you better believe merchandise and paraphernalia can be protected by trademark. Generally, trademark protection is gained through registration. However, if somebody used a mark in commerce before you registered your mark, they’ll still have superior rights to yours in the geographic locations they can prove they used their mark prior to you. This will also be limited to the types of goods and services they actually used in commerce prior to your registration. Damages in a trademark infringement case can include profits attributable to infringement (in particularly bad cases of infringement), actual loss of sales or goodwill due to the infringement, and the reasonable rate for a license to the plaintiffs trademark (calculated via the value of the mark when infringement began and presuming both parties agreed the defendant was infringing). These damages can be tripled in cases of willful infringement-situations where the infringer knew of the mark and still violated it.

It’s unlikely Escobar has really used the phrase in all the ways he says he has. However, if he has used them and can establish that use he will have some rights as a prior user–rights he could assert against Netflix.

What are Escobar’s Chances?

Is Escobar going to get a billion dollars from Netflix? No, he’s not, that’s silly. Frankly the number seems pulled from the air and has essentially no basis besides being a nice round number. However, a settlement is far from out of the question. It’s very common for companies to cheaply settle a lawsuit that has even a small chance of success instead of dealing with the risk and expense of pursuing the suit to its completion. However, it might be a little early to expect a settlement at this point.

While Escobar’s trademark applications are still live for now, Netflix is still in the process of an initial challenge to the marks. The opposition itself is quite recent and is unlikely to be resolved for a month or two at the least and a year or more at the most. Until this gets resolved, it seems unlikely there will be a settlement unless it is quite favorable to Netflix. Any copyright claim from Escobar is essentially D.O.A. and even his trademark applications, while not completely without potential, seem riddled with issues that would prevent his registration.

While it hasn’t been brought up by either side, if brought in the right place a right of publicity claim may have some traction for Mr. Escobar if brought on behalf of his brother’s estate. Right of publicity is the right to your own name and image. However, it would have to be the right place because almost everywhere except for California offers no right of publicity after death.

No matter the cause of action, Escobar’s claims here are very thin despite his threats and bravado. While Netflix may yet settle, it won’t be because Escobar has a strong chance of winning any lawsuit against them.

Death Wish Coffee Initiates FDA Recall Over Potential for Toxin in Brew

In a twist of irony, a manufacturer of cold-brew coffee by the name of “Death Wish Coffee” (named such for how strong their coffee is) has discovered that its manufacturing process has the potential to lead to growth of a toxin known as botulinum-a poison that can cause botulism. While there have been no reported cases of anybody actually getting sick, Death Wish has notified the FDA that it will still being moving forward with a product recall of all their 11 ounce cans. Those who’ve bought their coffee in stores–most places that sold the coffee were on the East Coast of the U.S.–can return the cans for a full refund with a proof of purchase. If you bought any cans online, you can throw them out and Death Wish will provide a full refund if you request one in the month and a half or so.

Death Wish has described the recall as a proactive step in the interest of protecting their customers. This is an admirable stance to take. However, there is also an element of protecting their company from liability. U.S. law requires companies to initiate recalls in certain situations. What’s more, a recall can potentially protect a company from future liability when a real defect exists. Let’s take a look at how product recalls are handled in the U.S and how they relate to how you might sue if you’ve been heard by a recalled product or a product that is eventually recalled.

death wishProduct Recall Law

If you make, import, distribute, or sell goods to the public, U.S. law can legally obligate you to report potential issues with your product and potentially issue a recall. If you don’t do so, or don’t do so in a timely enough manner, it can result in criminal or civil penalties for you and your company. As you might imagine, it’s incredibly important to know these reporting requirements to protect your business.

In the U.S. recalls are generally handled by one of six agencies–the Consumer Product Safety Commission (CPSC), the Food and Drug Administration (FDA), the Environmental Protection Agency, Food Safety and Inspection Services, the National Highway Traffic Safety Administration, and the Coast Guard. Each agency has its own set of rules that need to be followed for reporting potential safety issues with products. In Death Wish’s case, the FDA is handling the process as they tend to handle food products.

Exactly when and how your company needs to report an issue for a potential recall varies a fair bit depending on what your product is and which agency you need to report to. However, as a rule, you’ll to report any defect in your products that could create a substantial risk of injury to customers or an unreasonable risk of serious injury or death. There are also a number of regulatory and statutory situations where you may need to report, such as where a kid is seriously hurt playing with a toy you produce.

When you become aware of an issue with your product, you’re required to report it immediately. The exact meaning of “immediately” can vary. However, you basically need to report within 24 hours of discovering information which reasonably indicates a reportable matter such as those discussed above. This doesn’t mean you can’t investigate such an issue to make sure, but don’t take your time with it. Taking longer than a week or so to investigate can land you in hot water. You’re considered to have been made aware of an issue as soon as it is received by you or somebody who works for you who should reasonably be able to recognize the significance of the information before them. After that point, agencies give you less than a week-the CPSC gives you five days tops-to get that information to the an officer of your company.

It should be noted that being potentially dangerous doesn’t require a recall in and of itself. Many products-like pocket knives-present a certain amount of danger by their very nature. Being sharp wouldn’t require a recall, being likely to shatter into many sharp pieces when used as intended likely would-a recall report generally takes into account the nature of the product to be recalled.

Most agencies recommend a policy of reporting if you’re in doubt. However, this is a bit of an oversimplification of the issue. Obviously, if you might face criminal charges for not reporting then you should report. However, there is the middle ground such as Death Wish’s recall. Their manufacturing process has the potential for danger to their consumers but there is no evidence their existing products have any issue. Recalling is probably a good idea, however there is certainly a serious publicity hit to announcing a recall. Death Wish may have a death wish because many companies have seen a recall effectively end their business. That being said, announcing a recall can protect a company from liability to some extent. If you make the recall public then a member of the public who ignores the warning may lose their case against you. Depending on how a company handles their recall it can be viewed as a subsequent remedial measure-steps taken to make an earlier injury or harm less likely to occur in the future. When this is the case, a plaintiff often can’t use these steps (the recall) as evidence of negligence of a defective product. However, this doesn’t mean that these companies are shielded from liability completely. It’s quite often to see a recall give rise to a class action lawsuit of people hurt by the defective product before the recall was announced. These lawsuits come in a number of forms, but are generally negligence or product defect lawsuits. It’s important to understand how these work if you’ve been hurt by a product that is later recalled.

Product Defects

Product defect cases exist in a few types of situations. Where there is a defect in the way a product is designed that is known as a design defect. Where there is a problem in the manufacturing process-as it was with Death Wish Coffee-that is known as a manufacturing defect. Finally, where a product fails to include clear warnings of dangers associated with normal use that is known as a labeling defect. In all these situations, a company that is any part of a distribution chain for a product may be held liable for injuries caused by a defective product.

Product defects are generally a standalone cause of action against a company. However, depending on where you live the strength of the laws may vary. Even where product defect liability isn’t available, there may be a negligence case if the company has not followed the standard safety practices of their industry.

Death Wish has taken steps to make sure nobody ever gets hurt by their product. This is both an admirable decision and potentially a preemptive step to avoid liability which could end a fledgling company such as theirs. However, while no issue with botulism has been reported, they may still face lawsuits from those who were injured but did not make the connection. That being said, they’ve protected themselves from liability if somebody gets sick after not choosing to simply chuck out their coffee. Understanding this balance–as well as you are required to report–is crucial to running a business. At the same time, understanding your rights a consumer is important when a recall such as this is issued. If you’ve been hurt by a product, you may well be able to recover for your injury or the economic losses from purchasing the product.

Sarah Palin’s Defamation Suit Against NYT Tossed: What is the Line Between Biased and Fake News?

Sarah Palin’s defamation lawsuit against The New York Times has failed. U.S. District Judge Jed S. Rakoff dismissed Palin’s suit late August. Palin’s suit focused on an editorial the New York Times published shortly after a Congressional Baseball Shooting in mid-June.

In its opinion column, the editorial board alleged that the 2011 shooting of Rep. Gabrielle Giffords and several others was connected to a map passed around by Palin’s political action committee in 2010. The map showed several electoral districts — including Giffords’ — under illustrated crosshairs. The newspaper issued a correction two days later, clarifying that “in fact, no such link was established.” Shortly after, Sarah Palin filed her suit, seeking damages for the alleged defamation.

Judge Rakoff ruled that Palin’s legal team had failed to put forth plausible evidence of malice, a required element in a defamation suit by a public figure. Malice means that news outlets must knowingly publish false information or acted with reckless disregard for the truth towards public officials. Given the speed of events and the New York Times swift retraction after they discovered their error, it was very unlikely that the newspaper acted out of malice.

Fake vs. Biased News

Judge Rakoff’s ruling might also end threats of future suits by other prominent Republicans to sue “fake news” that print or publish unfavorable stories. The New York Times editorial linking Sarah Palin to the shooting of Representatives Gabrielle Giffors and Steve Scalise was poorly written, since it gave the impression that Palin’s campaign ads were an indirect causation of the Congress Persons’ injuries.

sarah palinThe reaction by many Republicans was to cast New York Times as fake news. Although the editorial lead to conclusions that were outrageous, it should not implicate the newspaper as a whole since the editorial was quickly retracted and the rest of the newspaper maintains an investigative team that has often uncovered real information that is in the public interest.

However, many people, including politicians in office, have confused biased news with fake news. Biased and fake news are not the same. Bias news means that the author has is writing or speaking in a manner that casts his or her “side” in a favorable light. The author is usually making an argument designed to advance some sort of agenda.

However, just because the author is making an argument favorable to his or her objective, doesn’t mean that the facts the author is using are fake. In fact, it’s often to an author’s advantage to use facts that are proven true so that the listener or reader trusts the author. All lawyers write bias legal briefs to advance the interests of their clients. Of course, lawyer’s pleadings are expected to be factually accurate; if a lawyer is discovered lying to the court, there will be consequences.

Fake news, on the other hand, is factually false and/or there is almost no evidence to support the claims. Fake news can be committed intentionally or unintentionally. If it’s the latter, it means the author made a mistake. If a child is taking a math test and answers “2+2” with “five,” the child is wrong, but he isn’t doing it intentionally. It might be reckless if the kid is just guessing what the answers are, but if he honestly believes two and two make five, then it isn’t reckless either. However, if the information is false and the author knows the information is false, then the author is intentionally spreading fake news.

Defamation against a public figure is not just fake news or incorrect news, but intentional or reckless fake news.  Defamation means that the author was spreading fake news intentionally or that the author was just widely speculating without regard to the truth, like the child randomly guessing on a math test.

Of course, there is some overlap. Biased news can be fake. However, non-biased news can also be fake and not all biased news is fake. If this is confusing, here it is broken down:

Non-Biased and Not Fake News is:

  1. Confirmed and collaborated news reports by several respectable news agencies
  2. Basic and easily confirmed facts presented by credible and authentic evidence, such as photographs and sworn testimony
  3. Exhibits entered into legal evidence by a court of law

Non-Biased and Fake News:

  1. Factual errors in news reports
  2. Factual errors in editorials

Biased and Not Fake News:

  1. Most editorials and opinion columns
  2. Legal briefs
  3. Polls with transparent methodology

Biased and Fake News:

  1. Unconfirmed reports which draws conclusions based on inferences and assumptions
  2. Polls with hidden methodology and/or completely one-sided questions
  3. Some editorials and opinion columns

How Does This Work for Real Political/Legal Issues?

Similarly, we could apply this model to address most political and legal issues:

Non-Biased and Not Fake News:

  • Obamacare is the nickname for the Affordable Care Act passed in 2010.

Non-Biased and Fake News:

Biased and Not Fake News:

  • Obamacare will raise premiums for some Americans.
  • Obamacare will expand healthcare coverage for some Americans.

Biased and Fake News:

Obviously separating biased and fake news will not always be easy. However, if we can learn to better examine our public rhetoric, perhaps we will be able to overcome our present political divide. And hopefully, after that, we can avoid any more shootings over political differences.

Are Tenants Displaced by a Hurricane Still Stuck with Rent?

The U.S has suffered two serious hurricanes in two weeks-Hurricane Harvey in Texas and Hurricane Irma in Florida. There have been deaths and injuries. Many have lost all they own, over 200,000 homes were destroyed in Texas alone. The victims of these hurricanes are in the thoughts of people around the country as they take steps towards rebuilding what they have lost. However, at least one victim of Hurricane Harvey, Rocio Fuentes, has faced another type of problem–late rent on her uninhabitable home.

Rocio Fuentes has reported to the media that her landlord has been seeking both rent and late fees on the rent for her home. This is coming at a time when Fuentes is struggling to find alternative accommodation and replace lost furniture and belongings. In speaking to the media, she has said that she and her family simply cannot afford this rent-they have nothing left.

The very idea that a landlord might demand rent could seem ludicrous at first glance. However, there are some legal situations where a landlord maintains the right to rent-however heartless this situation is-even where the property is seriously damaged. Let’s look at the rights of tenants and landlords in these sorts of situations. If you yourself are in a similar situation, or even facing a smaller issue than a hurricane flooding your house, knowing your rights as a tenant is extremely important.

hurricaneThe Rights of a Tenant

First and foremost, your rights are largely governed by you lease agreement. As you might imagine, when you sign a contract you are bound to its terms and a lease is no different. Make sure you read through any agreement before signing. Obviously, a tenant often has little to no negotiating power on the terms of a lease agreement. This means that many lease agreements are extremely unfavorable to tenants in terms of rights. However, you should know the terms of your own lease to know exactly what you may be on the hook for. What’s more, depending on where you live. There are often laws which expand or guarantee rights to a tenant regardless of the terms of a lease agreement.

For instance, in Texas where Ms. Fuentes lives, a landlord or tenant can terminate a lease immediately with a written notice where the property has been made totally unusable. Unfortunately for Ms. Fuentes, this doesn’t help much with rent she is already considered to owe under her lease. The truth is, if somebody is bound under a lease, then they are required to pay rent. Even in a circumstance as terrible as Ms. Fuentes. What’s more, Texas law only reduces rent where a disaster renders a property partially unusable. Determining whether a property is partially or totally unusable is not the simplest of determinations, and one a determined landlord could often bring to court.

There is one other legal doctrine which can be of use to those struck by these recent hurricanes, or even those with smaller issues rendering their property unlivable-the implied warranty of habitability. The implied warrant of habitability is a bit different depending on the state. However, it is essentially what it sounds like. No matter the lease agreement-verbal or written-courts will imply into the agreement a term assuring the tenant that the property they are going to live in is habitable. Where you let your landlord know a property isn’t habitable (often best done by an email with photo evidence), have evidence they know, and they do not fix the property within a reasonable time frame (often 30 days but the time varies depending on the problem), you have a number of options opened to you. First, you can simply move out and terminate the lease without punishment. If you make the repairs yourself, you can deduct the cost of the repairs-although usually not in an amount more than one month’s rent. You can also often, depending on where you live, withhold rent in an amount equal to the reduction in value caused by the issue effecting However, this last option is often quite risky. It is generally safer to pay rent, then sue for either the return of your rent or demanding your landlord make repairs. If you’re suing, it’s worth knowing that courts are much happier refunding rent than ordering repairs that they will have to supervise.

These options hinge on the fact that a court would consider the place you live to actually be inhabitable. If you withheld rent and a court thought differently, you’d be up a creek and likely facing down an eviction. So, what exactly constitutes inhabitable? This varies depending on where you live. Some states simply say that a building must be up to building codes to satisfy the requirement. Some use more nebulous terms such as “fit for human habitation” or “conditions which would be dangerous, hazardous, or detrimental, to life health or safety.” Some states, like California, have a number of specific requirements such as water and weather proofing, working plumbing, gas, heating, electrics, clean and sanitary grounds, a working shower, sink and toilet, etc. Each state has its own approach and the consequences of acting too soon can be great, so it’s always worth consulting a lawyer on issues such as this.

The Rights of the Hurricane Victims

A lot of this information may simply have come too late to be useful to those such as Ms. Fuentes. While state law may be able to help if her home is considered uninhabitable, both this and the warranty of habitability will be of little use for rent already owed. However, depending on the extent of the damages, she may be able to sue for an abatement in rent. From a practical standpoint, if the matter ends up in court the landlord certainly won’t look favorable before either a judge or a jury.

This is the tip of the iceberg when it comes to the legal issues that will spring out of a disaster like Hurricanes Harvey and Irma, even when it comes to landlord tenant law. Just think about all the security deposits on apartments that have been flooded. Will the tenants get those deposits back? What about situations where somebody breaks a lease by letting hurricane victims stay at their place? There’s a lot of rebuilding to be done here, but along with that will come a lot of legal conflict. Hopefully, this advice will be helpful to some facing these sorts of legal challenges. However, for now, the best we can do is keep these victims in our thoughts and reach out with support however we can.

John Oliver is Staring Down the Barrel of a Defamation Lawsuit

John Oliver is a funny guy, he frames serious issues in silly-oftentimes hilarious ways. However, if you happen to be a coal mining tycoon by the name of Robert Murray, you may be a bit less enthused about Oliver’s style of humorous reporting. After Oliver broadcast a piece targeting both President Trump’s favorable treatment of the coal industry and  Murray’s business practices- specifically raising questions about whether Murray’s practices regarding safety cost the lives of some of his employees. Murray took his anger over the piece to the courts and sued Oliver, HBO, and Time Warner.

Murray is no stranger to bringing defamation lawsuits-or to losing them. In Ohio he’s brought and lost seven separate defamation suits. He’s also currently suing the New York Times over publishing an article suggesting his actions exacerbated the deaths in a mine collapse. He’s also no stranger to the spotlight. For instance, he was in the news after he publically announced the firing of 156 people in response to the election of Former-President Obama.

The lawsuit alleges that John Oliver, HBO, and Time Warner are Hillary Clinton supporters-targeting the coal industry and Mr. Murray personal with defamatory lies. The charges Murray brings against Mr. Oliver include defamation, false light invasion of privacy, and intentional infliction of emotional distress. Murray asserts that Oliver’s statements represent defamation per se by suggesting that he has behaved in a manner incompatible with the proper conduct of his trade by implying that Mr. Murray did not pay attention to safety issues. It also takes issue with Mr. Oliver’s jabs at Murray’s appearance, health, and age.

Recently, Oliver lost the first true battle in the lawsuit-whether or not it would take place in federal court. Federal court is likely a more favorable place for Oliver in this suit as opposed to the West Virginia courts who are currently hearing the case. Federal courts tend to be more favorable to defamation defendants, and West Virginia in particular has had some history of judiciary taking money from coal companies to fund elections for state judges. Many have hailed this as the beginning of the end for not only the case, but Oliver himself. They look to Gawker’s famous bankruptcy after losing its own defamation case and wonder if Oliver and HBO are next. This is not likely to be the case, the statistics certainly are better in Federal Court, but the case will turn on the facts at hand and the law. With that in mind, let’s take a look at the lawsuit itself.

John OliverUnderstanding the Lawsuit

Each of the charges against Oliver are serious. However, the defamation is not only the big ticket item here, it is the most likely of the charges to succeed.  The intentional infliction of emotional distress charges cite harassment from fans. However, these actions are likely too far removed from Oliver’s statements to be predictably caused by them. False light charges require Oliver to have known his statements were false or to have disregarded a very high likelihood of falsehood. This is not only incredibly hard to prove, but Murray has provided no real evidence to this effect. Nor does it seem particularly likely. This being said, we’ll focus on how defamation works in general and in this case.

Defamation is a general term for a situation where somebody makes a false statement that damages your reputation. Slander can be generally understood as spoken defamation while libel can be understood as written defamation. A general claim of defamation requires the plaintiff to establish that a statement was made which: 1) negatively impacted the plaintiff’s reputation; 2) clearly referenced the party suing; 3) was communicated to at least one person who is not the plaintiff; 4) at least one person communicated the statement understood what the statement meant and who it referred to; 5) damaged the plaintiff’s reputation; and 6) wasn’t true.

Sometimes, as alleged in this case, some of these elements can be skipped over by showing something which is defamation per se.  Where this is the case, a plaintiff just needs to show damages. The usual situations where this applies are for statements which either: 1) imply criminal activity; 2) imply a serious, infectious disease; 3) implies unchaste activity or sexual misconduct; or 4) implies a person behaved in a way outside the acceptable behavior of their profession. Accusing Murray of ignoring safety issues likely falls into the fourth of these categories, as his lawyers have alleged. This means that much of this case will come down to the exceptions to defamation rules.

In order to be defamatory, a statement must be made as if it were factual as opposed to a opinion. This is because the truthfulness of an opinion is irrelevant if it is clearly the subjective opinion of just one person. However, where somebody says they have an opinion based on specific facts then the facts supporting their opinion can themselves be defamatory. This is arguable in this case. Oliver certainly presents the report as an opinion piece supported by facts. It seems unlikely that this will be of much use to the comedian.

The next defamation defense that Oliver will likely turn to is satire-true satire cannot be defamatory as a matter of law. While defining satire is a tricky matter, it is generally agreed that satire is a work targeting an entity or entities—often but not always a government figure—for exaggerated commentary blurring the line between truth and the ridiculous.  A true satire, for legal purposes, must blur the lines between truth and the outrageous in such a way as to make a reasonable person recognize that the satire does not express actual facts.

Whether or not Oliver’s critiques are satire is up for debate. Just from the way it is presented, the report could be interpreted as not an outrageous representation of the truth but rather a humorous critique that presents facts as true but in such a manner as to highlight their ridiculousness. That being said, the flip side to the argument is that the report is exaggerated with the purpose of exposing Murray’s business practices. The ultimate issue is whether a reasonable person would see the work as satire or as factual news-due to the presentation of Oliver’s show as a news program (it essentially is) providing a defense of satire is likely an uphill battle for Oliver and HBO.

There are two other elements that could enhance the evidentiary burden on Murray-public figure rules and public interest rules. Public officials and public figures, celebrities, politicians, well-known businessmen and the like, can only sue if a person knew or should have known their statements were false. The statements must have been made with actual malice–purposefully made to harm the plaintiff’s reputation. Whether somebody is a public figure is generally based on their fame and notoriety. Murray is well-known. However, whether or not he is so well known as to be a public figure is in question. He’s certainly seen his share of media scrutiny but could hardly be called a public figure. You can also make yourself a public figure on a specific issue through actions such as a lawsuit-like the one Murray has brought against the New York Times over a similar issue to what Oliver brought up in his report. This defense may help Oliver, but it will take some serious facts to show how famous Murray is.

Public interest refers to a defense against defamation for statements reported to public with an honest belief in their truthfulness where the public has an interest in learning about an issue.  This is a very common one for news outlets who are sued-as they often are-for defamation. It also has a lot of potential for Oliver. If Oliver truly believed his statements, and Murray has offered essentially no evidence that he didn’t, the public definitely has an interest in ensuring businessmen take steps to ensure the safety of their employees. There is still wiggle room here for Murray. However, this seems like it will be a very strong defense for Oliver.

Finally, there is one more absolute defense to defamation we haven’t addressed-the truth. A defamatory statement has to be false. The ACLU’s amicus brief on the issue entertainingly uses this to highlight the similarities in appearance between Murray and Dr. Evil from Austin Powers-mocking his claims over the comparison as defeated by their truth. However, in seriousness, if there is sufficient truth to what Oliver has said–or with one of the above exceptions he at least believes their truth–then there can be no claim of defamation.

With all this aside, let’s address a few of the claims of defamation from Murray. Specifically those regarding insults against him. Insults are almost always a statement of opinion. Calling somebody evil, ugly, or worse can be cruel. However, unless they are very rarely properly targeted with a defamation lawsuit.

Will This be the End of John Oliver?

No. Absolutely not. That’s ridiculous. The case is far from ironclad on either side but it is essentially certain that a company like HBO is not going to bankrupt itself on a defamation ruling like Gawker. Even were the lawsuit to succeed, a questionable assumption, the case itself has made itself victim of one of the oddities of such a lawsuit-by bringing a defamation claim Murray has brought far more free publicity to the topic and the show than HBO and John Oliver could have hoped for in their wildest dreams. They say there is no such thing as bad publicity, Gawker says otherwise. However, despite some saying the contrary, it’s very unlikely this is the end of the road for John Oliver. The next real battle will be over Murray’s attempts to place a gag order on Oliver-barring him from rebroadcasting his report or talking about the lawsuit. We’ll have to see how that turns out-this sort of injunction requires the court to believe that Murray has a strong chance of success. How they rule on it may be a good indicator of where the case stands.