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After a review of the stunning verdict in March in Hulk Hogan’s lawsuit against Gawker over the publishing of an excerpt of a sex tape, Florida Circuit Judge Pamela Campbell on Wednesday decided not to order a new trial nor touch the $140 million verdict.
The decision comes as the case has gained renewed attention thanks to a report that PayPal co-founder and early Facebook investor Peter Thiel provided financial backing to Hogan as the former professional wrestler pursued claims of having his privacy violated and his publicity rights infringed through an October 2012 post viewed by an estimated 7 million people. Campbell’s decision will soon allow this dispute to proceed to a Florida appeals court.
Hogan — whose real name is Terry Bollea — pursued Gawker for showing him in sexual intercourse with Heather Cole, the then-wife of his best friend, Tampa-area radio shock jock Bubba the Love Sponge. The existence of the sex tape was reported by TMZ and The Dirty by the time that Gawker had published it alongside an A.J. Daulerio essay about celebrity sex tapes. Gawker attempted to argue that it was within its First Amendment right to decide what was newsworthy, but after a two-week trial that ended in May, a jury decided that Hogan’s privacy outweighed this. The jury handed down $115 million in compensatory damages and $25 million more in punitive damages.
At the hearing Wednesday, Gawker’s attorney Seth Berlin urged a remittitur (a reducing or throwing out a jury verdict) and compared the jury’s damages determination to awards against tobacco companies in trials over smoking deaths. He commented that it would be “one of the largest in Florida’s history and grossly excessive compared to the conduct at issue.”
In response, Hogan’s attorney Shane Vogt argued that Gawker was stopped from making these arguments and said there’s no evidence that the jury acted with passion or prejudice. He said the $25 million punitive damages verdict was “low,” but also “proof” that the jury followed the judge’s instruction not to bankrupt Gawker. He also said this “is a first-impression case. You can throw all those other cases out the window.”
Explaining further, Vogt said, “For the first time, the jury has put a value on privacy. This is not like the tobacco cases. We live in a world where privacy is much more important. Everyone has a cellphone camera. There are drones out there.”
Now that the judge has determined what Gawker must pay, the case moves to the appellate stage where the Nick Denton-owned company is set to rally behind free speech and free press under the First Amendment plus further argue that it didn’t get a fair trial thanks to Campbell’s jury instructions and evidence that the judge precluded from being heard. Hogan’s battle with Gawker has certainly sent a loud message, but the lessons being drawn from this case are still being shaped.
As for Thiel, Gawker asked the judge for the opportunity to conduct discovery about who is funding Hogan.
“In last 24 hours hours, news reports have come out about Silicon Valley billionaire Peter Thiel,” said Berlin. “We believe this potentially relates to our efforts to get relief. We would like a limited amount of leave to get to the bottom of it.”
Judge Campbell shrugged off the news reports, not ruling definitively until Gawker formally brings a motion, but seeming to not pay it much heed. “I don’t like looking at all the stuff that’s published out there,” she said. “It’s not healthy.”
Vogt responded that litigation funding “happens all the time” and is governed by the Florida code of ethics for attorneys. He added, “Whatever they file, knowing what I know about litigation funding, we are going to look at this with an eye towards sanctions.”
Before an appeal formally gets filed, a judge still needs to decide whether Gawker needs to post a $50 million bond to stay the judgment pending the appeal and whether Hogan can in the meantime conduct his own discovery about Gawker’s finances to advance his collection efforts. There’s also a pending Gawker motion arguing for dismissal on the basis of fraud upon the court. The next hearing is scheduled for June 10.
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