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David Hester has taken a step forward in his lawsuit that alleges the highly rated cable TV series Storage Wars is rigged. On Tuesday, a Los Angeles judge decided to allow the former castmember’s claim that he was wrongfully terminated from the show by A&E Television and producer Original Productions.
Last December, Hester revealed that Storage Wars producers had salted storage lockers before they were auctioned off to buyers and predetermined outcomes by telling participants which lockers to bid on, how much to bid, and occasionally financing the bids of weaker cast members. After complaining about the alleged fixing to producers, Hester said that he was let go from the successful cable series, for which he was scheduled to make $25,000 per episode for each of the 26 episodes of the fourth season of the show.
That’s when Hester went to court with a lawsuit that claimed he couldn’t be fired for objecting to activity that he saw as possibly illegal under the Communications Act of 1934, which prevents broadcasters from rigging a contest of intellectual skill with the intent to deceive the viewing public.
In reaction to the lawsuit, A&E said that Hester was attempting to “convert a garden-variety breach of contract claim into a tabloid-worthy drama, in which Hester portrays himself as a crusading whistleblower,” and that the First Amendment protected its show. The defendant’s argument successfully knocked out Hester’s unfair business practices claim, but wasn’t enough to throw out the claim where Hester says he is due money after being fired.
A&E argued in an anti-SLAPP motion that Hester’s lawsuit interfered with their creative decisions about who should appear on the Storage Wars program.
“It does not,” responds Judge Michael Johnson in a tentative ruling that was issued in advance of the court hearing on Tuesday. The judge concludes that Hester’s wrongful termination claim doesn’t arise from the defendants’ First Amendment rights, and as such, won’t be dismissed. “Plaintiff’s contract expressly states that Defendants had no obligation to use Plaintiff on the program during the term of their agreement. Plaintiff is suing to recover money, and not to inject himself into the program.”
The judge emphasizes that this is an “employment dispute,” and what’s not at issue is the defendants’ “exercise of free speech.” Further, Hester’s attorneys backed down from the original lawsuit’s demand for an injunction to end certain practices on Storage Wars. “Granting that relief would have made the Court the producer of the program instead of Defendants,” notes the judge, seemingly satisfied with an amended complaint that focuses on Hester’s compensation and whether producers could terminate his agreement after he complained about allegedly illegal conduct.
A&E and Original Productions also attempted to defeat the claim on the basis that Hester couldn’t allege his termination violated a specific public policy. The defendants believe that neither the federal Communications Act nor California’s Unfair Competition Law apply to activity on Storage Wars.
But Judge Johnson says the argument ignores the fact that Hester doesn’t need to “prove” an actual violation to prevail on his wrongful termination claim, only that he was fired for reporting his “reasonably based suspicions.” The judge writes, “Whether Plaintiff’s suspicions were reasonably based and made in good faith are factual questions that cannot be decided on demurrer.”
Hester is suing for $750,000 in general damages, but he also wants more in punitive damages. And the judge isn’t ruling it out, refusing to strike Hester’s references to the federal Communications Act and the state’s Unfair Competition Law.
“The allegations concerning federal and state law and the practices are necessary components of Plaintiff’s claims,” writes the judge. “Without them one could not understand Plaintiff’s causes of action. Plaintiff’s claim for punitive damages contains sufficient factual allegations. Whether or not Plaintiff can prove his allegations is not the function of a motion to strike.”
Hester is represented by Martin Singer and Allison Hart at Lavely & Singer while the defendants are being represented by Kelli Sager at Davis Wright Tremaine. Singer says, “We are looking forward to taking this case to a trial.”
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