Biglaw

Oh, Look At The Biglaw Firm Representing OAN...

This is not a great look for a Biglaw firm.

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on

Woman Covering Face With Hands Against White Background face palm, d’oh, sad, embarrass, diverse, stressEarlier this month, Herring Networks — the parent company of One America News Network (OAN) — filed suit against AT&T, its chairman William Kennard, and DirecTV over the decision not to renew its carriage contract with the controversial network, as well as another Herring-owned network, AWE, on DirecTV’s lineup. The suit, filed in California Superior Court, alleges the nonrenewal “will result in damage to Herring exceeding $1 billion” and says, “As a result of the conduct of AT&T, AT&T Services, DirecTV, and Kennard, OAN and AWE might be forced off the air because Herring will no longer be able to broadcast OAN and AWE via DirecTV and Herring presently has limited alternative carriage options.”

What? That’s not me giving dreamy looks over the possibility of a world without OAN.

But, before we dig further into the allegations in the case — and we will, as this is a legal industry website — the question of which lawyers threw in their lot with the far right of the broadcasting world lords over the whole matter. Well, it’s Eric R. McDonough, Marie E. Christiansen, Blaine C. Kimrey, Jeanah Park and Bryan K. Clark of Vedder Price. That’s… certainly *a* look for a Biglaw firm.

Listen, decisions on what kind of clients and cases to take have repercussions for a Biglaw firm. Jones Day faced boycotts, attack ads, and more for their election representations. King & Spalding saw protests on their front door over election work. While firms like Snell & Wilmer and Porter Wright withdrew from controversial cases rather than deal with the blowback. And Foley & Lardner, Fox Rothschild, and Barnes & Thornburg quickly parted ways with partners who took on problematic representations.

Plus, there’s the whole recruitment aspect — law firms flourish or wither based on their ability to recruit and retain the best and brightest minds. Remember, lawyers tend to skew more liberal than the average population. And OAN has veered well off the mainstream for, pretty much its entire existence. So, laterals and law students — unless you actually want to be involved in a case like this (in which case you probably have your heart set on working for Jones Day) — keep these cases in mind when you’re interviewing with Vedder Price.

But, let’s get back to the instant case, because that’s not all that’s in there. The complaint further alleges claims for breach of the covenant of good faith and fair dealing because, though AT&T is merely not renewing their carriage contract with OAN, a separate advertising deal with AT&T subsidiary Xandr runs until July 2024. And the complaint alleges that was proof that the carriage contract would be renewed:

Herring reasonably believed that the Advertising Agreement was proof of a commitment to a long-term carriage relationship by AT&T, AT&T Services, and DirecTV. This belief was solidified by the fact that the Advertising Agreement was set to expire more than two years after the Affiliation Agreement was set to expire. Herring did not take issue with the term of the Advertising Agreement because Herring had a reasonable belief that the Affiliation Agreement would be renewed.

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There’s also an allegation that the confidentiality provision of the contract was violated when the coming nonrenewal was disclosed to the press.

The lawsuit further alleges that AT&T disparaged OAN because of things said by on-air talent, as reported by Law360:

According to Herring, the on-air talent of any AT&T-owned outlet is bound by the non-disparagement agreement, meaning AT&T was improperly disparaging OAN through HBO’s John Oliver when the “Last Week Tonight with John Oliver” host called OAN “Fox News with even less shame and even fewer scruples” and a “ragtag band of fascists,” and when he said OAN is “happy to give a platform to batshit election fraud theories from America’s most out-of-breath pillow fetishist” Mike Lindell, the CEO of My Pillow Inc. known for pushing pro-Trump election conspiracies.

The suit further alleges that AT&T disparaged Herring in violation of their affiliation agreement when CNN host Jake Tapper said OAN is “a major source of lies masquerading as facts,” CNN host Don Lemon stated that OAN is “corrosive to our democracy” and CNN media reporter Oliver Darcy called OAN a “far right-wing conspiracy channel” that “promotes all sorts of nonsense.”

CNN chief media correspondent Brian Stelter on Jan. 17, 2021, continued “promoting disparagement of OAN” by inviting former Facebook Chief Security Officer Alex Stamos on-air to criticize OAN, Herring argued.

If you want to know why the decision to part ways with OAN was made by AT&T, well, the lawsuit has a theory. And it supposedly has everything to do with that $1.6 billion defamation lawsuit Dominion filed against OAN (plus a hefty dose of leftist pressure, natch).

Herring argues that AT&T Board Chairman William Kennard also serves as a member of the executive board of directors of Staple Street, which is the majority owner of Dominion. Kennard is a Democrat who previously served as chairman of the FCC under former President Bill Clinton and U.S. Ambassador to the European Union under President Barack Obama, Herring said.

Kennard’s role at Staple Street “includes ensuring Dominion defeats its opponents such as Herring in Dominion’s defamation litigation,” Herring said. “And one way to hasten Herring’s defeat is by cutting off Herring’s ability to earn revenue to help fund its defense.”

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I’m not sure that case needs an assist, but that’s *a* theory. And oh look, it’s Vedder Price that’s doing the heavy lifting on behalf of OAN in its defense of that defamation suit filed by Dominion. No surprise there.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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