Counterclaims Dismissed

The United States District Court for the District of Columbia (Judge Nichols) dismissed counterclaims brought by a defamation defendant

Plaintiffs Dominion and Staple Street sued Defendant Herring (the operator of One America News Network) for defamation in connection with the 2020 presidential election. Herring thereafter filed a third-party complaint against AT&T Services, claiming that AT&T Services must cover Herring’s defense and indemnify it for any damages resulting from Dominion’s suit. Herring also asserted counterclaims against Dominion and Staple Street, alleging that they tortiously interfered with its business relationships and contracts. AT&T Services, Dominion, and Staple Street all move to dismiss Herring’s claims against them. For the reasons that follow, the Court grants the motions.

William Kennard was appointed as Chairman of AT&T’s Board of Directors in November 2020

Trouble regarding AT&T’s connection with OAN surfaced about a year into Kennard’s tenure on AT&T’s Board. In October 2021, Reuters published an article titled “How AT&T helped build far-right One America News.” Countercl. ¶ 101. “Immediately upon release of the Reuters article, liberal organizations began publicly criticizing AT&T for its relationship with OAN.” Countercl. ¶ 104. The NAACP, for example, “accused AT&T of causing ‘irreparable damage to our democracy’” and “demanded that AT&T de-platform OAN from DIRECTV.” Countercl. ¶¶ 105, 114. Ultimately, DIRECTV “decided not to renew the Affiliation Agreement” with Herring, dropping OAN. Countercl. ¶ 120.

Indemnification was sought under a contractual agreement

Herring’s claim against AT&T Services centers on the Affiliation Agreement. Herring alleges that AT&T Services is contractually obligated to indemnify Herring because AT&T Services “proximately caused” Dominion’s defamation suit against Herring when it breached the contract’s non-disparagement provision. Countercl. ¶¶ 185–191. The breaches, Herring says, occurred when Kennard and on-air personalities at CNN and HBO (then-owned by AT&T) criticized Herring.

Not established

For starters, many of the disparaging statements to which Herring alludes were made after Dominion sued Herring, undercutting Herring’s theory of causation. Dominion sued Herring in August 2021. See ECF No. 1. But all of Kennard’s disparaging statements came several months later, in October 2021, see Countercl. ¶¶ 68-71, and the same is true of many of the statements by HBO’s and CNN’s on-air personalities, see Countercl. ¶¶ 62-65. The counterclaim identifies only four instances of allegedly disparaging HBO- or CNN-affiliated comments that predate Dominion’s suit against Herring. See Countercl. ¶¶ 57-59, 61. And some of those comments came so far in advance that it is hard to believe they precipitated Dominion’s suit—for example, John Oliver’s April 2020 statements on HBO about OAN’s “dirt stupid reporting,” Countercl. ¶ 61.

More fundamentally, Herring has not pleaded a single fact plausibly linking the disparaging statements and Dominion’s lawsuit.

Tort claims

Herring’s tortious interference clams against Dominion and Staple Street do not survive either. Even assuming that Herring was the victim of tortious interference, Herring must establish that Dominion or Staple Street (the two relevant counterclaim defendants) is legally responsible for it. Herring’s theory is that Kennard tortiously interfered with Herring’s relationship with DIRECTV and AT&T while “at times, acting on behalf of” Dominion and Staple Street—i.e., acting as their agent—making Dominion and Staple Street liable for his actions. Herring Br. at 5. But Herring’s well-pleaded facts do not plausibly support this Kennard-as-agent theory.

(Mike Frisch)