CBS May Have A Real Fight On It's Hands

Wednesday, September 19, 2007
Dan Rather's suit is a serious effort. It is a detailed, narrative, advocacy pleading. It is not just a shot over CBS's bow. It is interesting and in my view, well written.

Rather's attorneys are established and respected. The New York Office of Sonnenschein Nath & Rosenthal (Scott Turow's firm, and a major national firm). The Complaint is signed by a senior partner, Martin R. Gold, who is a distinguished litigator with 47 years of experience, a mid-level partner, Edward J. Reich who has practiced since 1991, and a junior associate, Rebecca Hughes Parker a Harvard Columbia lawyer who has been out of law school for three years. The case appears to me to be appropriately staffed for a long battle, difficult battle along the lines of Westmoreland v. CBS.

I would take this matter seriously were I CBS's General Counsel. I believe eventually, all of the Defendants should have separate counsel. That will be expensive.

Aggregate attorneys fees and expenses for all parties in this case could easily exceed $10 Million. This not a WAG, but is based on my experience litigating this kind of case in New York City.

At the turn of this century (that sounds funny, doesn't it?), I had a case there somewhat less complex than this one but without the emotional baggage. Our firm had run up $1.0mm worth of time and $.5mm expenses by the time it settled. We staffed with two lawyers, not three. As part of the excellent settlement, we recovered all of our fees and expenses. That is partially because, I am confident, our opponent, (defended by a national firm comparable to Sonnenschein which staffed with three attorneys, not two) spent nearly twice what we spent. Another factor was that their lawyers' rates were at NYC prices which are significantly higher than those in Atlanta.

It would be interesting to know whether Sonnenschein has it on a contingent fee or a modified contingent fee based on result. That would tell us more about their view of the chances of successs than the pleadings.

8 comments:

MeaninglessHotAir said...

Well, I have no opinions on the legal merits but I thank you for you analysis.

On the moral side, this tells me that Dan Rather is a creature who has long hence lost all moral bearings.

And it's a simple shakedown. Why not grab as much loot as possible from CBS before his fame is completely dissipated?

vnjagvet said...

MHA:

If the complaint has any truth to it, Dan got the short end of the stick as the major fall guy for CBS. He wants to make it right by making the corporate gang defend themselves.

That is what lawsuits are for. Otherwise, Dan might have hired the Godfather.

Seneca the Younger said...

I look forward to discovery. CBS's best defense is almost certainly to show that Rather was negligent, and in fact culpable, in the fraud and forgery.

Rick Ballard said...

I'm amazed that he didn't name Kinkos and Lucy Ramirez. The blogs are going to have some fun shredding the complaint as it relates to the documents.

I wonder if CBS will call Buckhead and Charles Johnson?

vnjagvet said...

Who benefits most from Buckhead and Johnson's expertise? Rather or CBS?

Hope someone figured out.

Beldar said...

Thanks for the link to the complaint. I agree that the complaint is well written, but it's well-written garbage. Sonnenschein should get sanctioned for at least a couple of the claims. (Examples: As a matter of law, an employer renegotiating a contract with its employee is not a fiduciary, no matter how chummy they've been or how stupid the employee is in relying on oral understandings between them. Acts taken by corporate officers within the course and scope of their employment, even if resulting in a breach of contract by the corporation, can not form a basis for tortious interference with contract claims.)

There are potential conflicts among multiple defendants in almost any multi-defendant lawsuit, but the ones here are almost entirely theoretical and unlikely to ripen into actual conflicts. The potential conclicts ought to be disclosed, but then will almost certainly be knowingly waived so that common counsel can represent both CBS and the individual defendants. (They can get stand-by counsel at their own expense if they want.)

My more extended take is on my own blog.

vnjagvet said...

I don't disagree with anything in your comment, Beldar. And I also agree with the points you made in your updated post.

But I have a bad feeling some of these counts may survive a motion to dismiss.

The factual basis alleged for the creation of a fiduciary duty (Paragraphs 32 and 33) look to me to be creative but weak. Whether the pleaded factual basis is sufficient to get the litigation to the discovery stage on that issue depends on the trial judge's attitude towards motions to dismiss.

Knucklehead said...

Will we never be rid of this tedious man?