Jackson Walker partner Charles L. "Chip" Babcock is in the news again, representing another television talk show host. This time it’s Dr. Phil.
Babcock, who offices in Houston and Dallas, successfully defended Oprah Winfrey against Texas cattlemen’s lawsuits filed in the 1990s. Those lawsuits involved allegations that an episode of Winfrey’s show on mad-cow disease had violated Texas’ so-called "veggie libel law" and caused beef prices to drop. The veggie libel law — formally known as the Texas False Disparagement of Perishable Foods Act — is designed to protect agricultural products from false or disparaging remarks.
Now, Babcock is representing Peteski Productions Inc., owned by Phil McGraw, host of TV’s Dr. Phil Show, in a copyright-infringement suit. Peteski Productions Inc. v. Gawker Media LLL was filed May 6 in the U.S. District Court for the Eastern District of Texas in Texarkana.
In its original complaint,Peteski alleges that Gawker posted on its website Deadspin some audio-video excerpts of episode No. 2 of Dr. Phil’s exclusive interview with Ronaiah Tuiasosopo, the man who reportedly created a fictitious female persona and had telephone conversations with Notre Dame football star Manti Te’o, leading to a high-profile girlfriend hoax. The two-part interview aired Jan. 31 and Feb. 1.
Peteski alleges in the complaint that on Jan. 31, Deadspin recapped portions of episode No. 1 of the Tuiasosopo interview, which ended with a "cliffhanger" as to whether Tuiasosopo would speak in the fictitious girlfriend’s voice on the air. But, Peteski alleges, Gawker obtained a copy of episode No. 2 and embedded a video of the episode in the blog posted on its website in the early morning hours of Feb. 1.
"Gawker deliberately set out to get ‘the jump’ on the rest of the country and ‘scoop’ Dr. Phil with his own content. They did not earn that right; they stole it," Peteski alleges in the complaint.
Peteski further alleges that episode No. 2 was expected to exceed the ratings numbers of episode No. 1 but, in fact, saw a decline in ratings because the cliffhanger was no longer in doubt.
"Indeed, Gawker’s theft of the core of Episode 2 gave those viewers no reason to ‘tune in’ to watch that episode," Peteski alleges.
Babcock says Gawker’s airing of episode No. 2 before it appeared on the Dr. Phil Show affected the episode’s ratings "big time."
"Certainly it was more than half a rating point," he says.
While an analysis of the economic impact of the drop in ratings is not complete. Babcock says, "We just know from the industry it’s going to be many tens of millions of dollars."
According to the complaint, Peteski is seeking actual damages and disgorgement of profits and/or enhanced statutory damages "in an amount according to proof at the time of trial." Peteski also is seeking punitive damages.
Gawker’s attorney, Cameron Stracher, of counsel at Levine Sullivan Koch & Schulz in New York City, declines comment on the case.
"I haven’t really seen or analyzed the complaint yet," Stracher says. "Because I haven’t seen it, I can’t comment."
As noted on the Levine Sullivan website, Stracher previously was in-house counsel at CBS and currently is general counsel at Hybrid Films, producer of the series "Dog the Bounty Hunter," and deputy general counsel at America Media, publisher of Star, National Enquirer and OK! magazines.
U.S. District Judge Michael Schneider has referred the case to Magistrate Judge Caroline Craven.