February 18, 2013 10:50am PT by Eriq Gardner
'Storage Wars' Rigging Lawsuit: David Hester Says A&E Can't Plead First Amendment
In December, David Hester filed a lawsuit against A&E Television Networks alleging that producers of Storage Wars rigged the reality-television series by salting storage lockers before they were auctioned off to buyers.
It's a bold salvo, which -- if Hester is successful -- could present serious implications for others in reality TV.
That is evident from a new court brief (read in full here) filed by Hester's attorneys late last week in the case. The papers attempt to explain why the First Amendment doesn't protect A&E and why 47 U.S.C. § 509, enacted following the TV quiz-show scandals of the 1950s, does apply. What's more, the plaintiff is drawing the court's attention to a prior lawsuit against Survivor and a law-review article that argues why it might be time that legal scrutiny is paid to unscripted television.
Among the claims that Hester is bringing in his lawsuit against A&E is that the network has engaged in unfair business practices. Hester says his claims arise from producers' conduct in alleged violation of Section 509, which prohibits "influencing, prearranging, or predetermining outcomes" in "contests of knowledge, skill, or chance."
Hester says that the defendants' alleged violation of this law has harmed him.
For 26 years, Hester has been a professional buyer of abandoned storage lockers. He says producers began salting lockers during the first season, and that after he complained, the producers stopped salting the storage units that he acquired but continued salting the storage units acquired by other cast members. As a result of alleged "interference and manipulation of the outcomes of the auctions shown" on Storage Wars, he says that producers have made it appear that he is less skillful than his competition. He now says that others have stopped doing business with his shops, and that because of all this, he's been forced to close his storefronts.
Last month, A&E responded to Hester's claims, saying that the reality TV star was not a crusading whistleblower but rather someone who was being vindictive after contract negotiations for his future participation on the show didn't go his way.
The network, represented by Kelli Sager at Davis Wright Tremaine, is looking to defeat this unfair business claim at the early stage by pointing to its own free-speech rights and making the argument that Hester is unlikely to prevail. In its anti-SLAPP in January, A&E said that it "cannot be seriously disputed" that Storage Wars is "an expressive work entitled to full First Amendment protection."
Hester, represented by Marty Singer and Allison Hart at Lavely & Singer, responds:
"It does not automatically follow that the illegal and fraudulent practices employed by Defendants in connection with the Series are also protected by the First Amendment. Hester's UCL claim does not arise from the content of the Series. Rather, Hester has alleged that Defendants have secretly assisted certain participants, staged and predetermined the outcome of the auctions portrayed in the series in violation [of] 47 U.S.C. section 509, and made false statements in a press release, denying that A&E engaged in this conduct."
The plaintiff makes this argument in an effort to show that the lawsuit doesn't fit the first prong of California's SLAPP statute that A&E's conduct is constitutionally protected. Hester's lawyers argue that A&E's "failure to deny or refute" that it has violated Section 509 should be deemed "a tacit admission that Hester's claims in this regard are true," and that illegal conduct isn't entitled to invoke the provisions of the anti-SLAPP statute.
But even if the judge sees it differently -- that whatever A&E and Original Productions did, it arose from free speech activities like producing reality TV series -- Hester also argues that he has a likelihood of prevailing in the case. According to the latest court papers:
"A&E glibly asserts that the Series 'does not even arguably' fall within 47 U.S.C. section 509 since the auctions portrayed on the Series are not contests of chance, intellectual knowledge or intellectual skill. Perhaps A&E does not watch its own programs or minor its own website. A&E's website describes the auctions featured on the Series as contests. In a bonus clip available on A&E's website entitled 'Who Has the Best Strategy,' each of the 'Contestants,' as they are identified in the clip, discusses his or her strategy and the strategies employed by the competition..."
Hester's legal papers go on to admit there is "no published decision involving a claim that a staging the results of a reality program constitutes a violation of 47 U.S.C.."
Perhaps this is what makes this lawsuit a critical one to follow. Is reality television subject to the same law that was used to clean up TV quiz shows in the 1950s?
A&E's assertion that it's not even arguable is attacked by Hester's lawyers. Among the evidence presented is a 2003 lawsuit brought by a former cast member of Survivor who alleged rigging, as well as a 2007 article by Kimberlianne Podlas in the Cardozo Arts and Entertainment Law Journal entitled "Primetime Crimes? Are Reality Television Programs 'Illegal Contests' In Violation of Federal Law?"
That law review article (which is included in Hester's court papers as Exhibit H) includes a chart of reality TV shows that require intellectual skill or knowledge, including Survivor, Amazing Race, Project Runway, Top Model, American Idol and The Bachelor. The article does note, "Today's viewers are more sophisticated than those of the quiz show era and understand some of the artificiality and contrivance inherent in reality programs."
Whether or not "fake reality" -- our term -- adds up to what Podlas calls "artifice or scheme" is one aspect of this provocative lawsuit. But the "quiz show law" also is being used to go beyond the mere gullibility of the viewer. Is A&E really culpable for the closing of Hester's stores? For an answer on how fake reality may or may not be liable for influencing real reality, stay tuned.
E-mail: email@example.com; Twitter: @eriqgardner