OAN Loses All But Most Insignificant Sliver Of Breach Of Contract Case Against AT&T In CA, Refiles It In DC As Tort Suit
Well, they already had it drafted. Don't want to waste a pleading.
One America News Network played an outsized role in spreading misinformation about the 2020 election. Under the guidance of owner Robert Herring and his sons Charles and Robert Jr., the conservative media outlet breathlessly hyped lies about Dominion Voting Systems’ machines stealing votes from Donald Trump as part of an elaborate scheme orchestrated by China. Or possibly Venezuela. Maybe Ukraine, in a pinch!
Its hosts’ creative monologues, as well as their penchant for inviting on every pillow pumping, hair dye leaking, crazy talking weirdo to shout Big Lies put OAN on the pointy end of a $1.6 billion dollar defamation suit filed by Dominion in federal court in DC in August of 2021. In response, the Herring family and OAN did what they did best — they spewed absolutely insane nonsense.
First they filed a breach of contract lawsuit in California state court against AT&T, DirecTV, and William Kennard, AT&T’s board chairman. (Wait for it …)
DirecTV, which is majority-owned by AT&T, had just revealed that it wasn’t going to renew OAN’s carriage agreement, a virtual death-knell for the network, which relied on AT&T for up to 90 percent of its revenue. Kennard, the former ambassador to the European Union under Barack Obama, is also on the board of Staple Street Capital, a hedge fund which bought Dominion Voting Systems in 2018. So the theory of OAN’s case was that Kennard improperly persuaded DirecTV to drop OAN from the lineup as a means to starve Herring of funds to fend off the Dominion lawsuit.
As an Executive Board member of Dominion’s majority owner, Staple Street, Kennard is invested in helping to make Dominion succeed and become as profitable as possible. This includes ensuring Dominion defeats its opponents such as Herring in Dominion’s defamation litigation. And one way to hasten Herring’s defeat is by cutting off Herring’s ability to earn revenue to help fund its defense.
Kennard’s role as Chairman of AT&T’s Board gives Kennard significant influence over AT&T and its subsidiaries. Given AT&T’s sole ownership of AT&T Services and AT&T’s majority ownership in DIRECTV, it is obvious that AT&T — through Kennard — induced DIRECTV to discontinue its relationship with Herring without legally adequate justification.
Well, it’s obvious.
Here on Planet Earth, DirecTV didn’t need “legally adequate justification” to drop OAN — it was perfectly entitled to decline to renew the Affiliation Agreement. And indeed the complaint itself highlighted an alternative justification, pointing to the intense blowback from an October 2021 Reuters article laying out AT&T’s partnership with Herring to increase its conservative offerings by subsidizing the creation of OAN.
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Nevertheless, the network accused AT&T of breaching its non-disparagement clause by allowing commenters like Brian Stelter, then of CNN, to criticize OAN on air. See, AT&T owns Time Warner, which owns CNN and also HBO. So when John Oliver says on Last Week Tonight, that “The whole selling point for OAN is that they are Fox News with even less shame and even fewer scruples,” he’s an AT&T employee shit-talking OAN in violation of the DirecTV Affiliation Agreement. Which is not an argument that a first year law student should be making, much less experienced counsel from Vedder Price. And yet!
This case went exactly nowhere — well, almost exactly. As of January 12, 2023, San Diego Superior Court Judge John Meyer had granted defendants’ anti-SLAPP motions and dismissed all but one count of the complaint, noting that the alleged conduct involved DirecTV’s right of free speech.
In striking the breach of contract claim, the court wrote: “This claim therefore arises from protected activity because DIRECTV is a media company that carries news stations with coverage of nationwide politics, and its decisions as to what specific stations it will or will not contract with for carriage is conduct in furtherance of its constitutional right of free speech in connection with issues of public interest.”
The only remaining issue in the state case is AT&T’s breach of confidentiality by revealing to Bloomberg that it wasn’t renewing the agreement, something which the court suggest might result in “nominal damages.”
But the Herrings are not deterred! They’re continuing this uphill swim in DC, where last week they filed a counterclaim, dragging AT&T, DirecTV, and Kennard into the Dominion defamation suit. In fact, they filed more or less the exact same lawsuit they filed in California, with the same whining about John Oliver and Brian Stelter, only this time they allege tortious interference with business expectancy instead of breach of contract.
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How could DirecTV and AT&T tortiously interfere in their own business relationship with OAN?
Look, that’s the least of the problems here! None of this is “law,” although it is taking place in federal and state courts. This is craziness on par with the time OAN host Chanel Rion claimed that octogenarian philanthropist George Soros was personally tailing her and Rudy Giuliani as they shambled around Eastern Europe digging up dirt on Joe Biden. Yet here it is, another insultingly stupid complaint, vomited up onto the federal docket with the aid of lawyers from a prominent, coat factory law firm.
This is no way to run a railroad! And it’s certainly no way to run a legal profession.
US Dominion Inc. v. Herring Networks, Inc. [Docket via Court Listener]
Elizabeth Dye lives in Baltimore where she writes about law and politics.
