Our colleague Stuart Gerson authored an article in Bloomberg Law, titled “No-Poaching Agreements, Wage Fixing & Antitrust Prosecution.”

The following is an excerpt (see below to download the full version in PDF format):

Especially in difficult economic times, companies look for stability and predictability. Hence, while intent upon avoiding litigation charging wage fixing or its close cousin, no-poach agreements, experience suggests that there are companies that might be considering various ways to exchange information related to employment that can be used for “bench marking.”

Such efforts are intended to be lawful means to create and share data that are updated from time to time and that reflect prevailing levels and standards by which companies might be able to intuit what their competitors are doing and therefore can establish market rates and practices which presumably the individual members of the group might adopt.

Although such companies might be concerned only about information exchanges, and not agreements to fix wages or avoid poaching of competitors’ employees, the potential enforcement stance of the Department of Justice simply does not allow for this simplification.

Download the full article in PDF format.

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: “A Unanimous Court Applies Unambiguous Statutory Requirements in Two New Decisions“.

The following is an excerpt:

The Court is in full-majority mode today, again focusing on text rather than more abstract notions of policy.

In Territory of Guam v. United States, a unanimous Court, in an opinion written by Justice Thomas, reversed the D.C. Circuit and revived Guam’s suit against the U.S. Navy, seeking $160 million because of pollution at a waste deposit site on the island. A decade after settling certain claims by the Environmental Protection Agency under the Clean Water Act, Guam sued the United States under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), alleging that the United States’ use of the dump exposed it to two possible actions under CERCLA, including recovery of the costs of a “removal or remedial action,” and also a “contribution” action under CERCLA §113(f), which provides that a party that “has resolved its liability to the United States … for some or all of a response action or for some or all of the costs of such action in [a] settlement may seek contribution from any person who is not [already] party to a [qualifying] settlement.” The D. C. Circuit rejected Guam’s CERCLA claims, holding that while Guam had once possessed a CERCLA contribution claim based on the 2004 consent decree, that claim was time-barred, and that Guam couldn’t assert a cost-recovery claim either. Reversing that holding, the Court agreed that Guam’s 2004 consent decree did not give rise to a viable CERCLA contribution claim, leaving Guam free to pursue a cost-recovery action.

Click here to read the full post and more on SCOTUS Today.

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: “Court Grants Certiorari in Abortion Case, Issues Several Decisions, and Continues to Demonstrate an Essential Commitment to Textualism“.

The following is an excerpt:

The most widely reported action that the Supreme Court took this past Monday is its grant of cert. to review an en banc decision of the Fifth Circuit that, if reversed, would substantially undercut Roe v. Wade. That case won’t be argued until next fall and, for now, the readers of this blog will be more immediately interested in the actual decisions that were rendered by the Court yesterday. One of them, involving criminal verdicts delivered by non-unanimous juries, is the product of a strong philosophical division between the Court’s six conservatives (themselves having varied views) and its three liberals. However, two were unanimous decisions. What explains this is a point that I have been making repeatedly over the last several terms. While especially in procedural cases, and while there is not always unanimity in the outcome, there is an essential commitment across the Court to textualism and a recognition that it is Congress that makes federal law while the Court interprets the outcomes of that law in terms of what the Congress did, rather than what various Justices might prefer. This thesis isn’t always true, but I suggest that it is true enough. Indeed, it is at the core of the frequent agreement between the Chief Justice and Justice Kagan, whom I believe to be the most important of the liberal Justices. But, my general opinion aside, let’s turn to three cases actually decided.

Click here to read the full post and more on SCOTUS Today.

“Cowboy” Joe West is the best-known, longest-serving, and (to some) most reviled umpire currently active in Major League Baseball. For example, in 2010 he was named the second-worst MLB umpire, barely losing to CB Bucknor in a call at the plate that today could only be decided by the replay umpires in New York. At least he has his part-time country music career to fall back on. But West recently hit a home run in court, winning a $500,000 defamation verdict against a former player who accused him of trading a generous strike zone for personal favors. The court’s decision illustrates an important, but seldom-used way to prove damages in a defamation case.

The case arose in 2019 when Paul Lo Duca, a retired catcher, appeared on a sports podcast and told a story about a conversation he supposedly had about West with former Mets pitcher Billy Wagner. According to Lo Duca:

He [i.e., Wagner] literally throws 10 pitches and strikes out three guys; Joe rings up all three guys; eight out of the nine pitches were at least 3 to 4 inches inside, not even close. Guys were throwing bats and everything, Joe walks off the field. We get back into the clubhouse, and I’m like, “What the f—k just happened just right now?” And Wagner just winks at me, I’m like, “What’s the secret?” He’s like, “Eh, Joe loves antique cars, so every time he comes in town, I lend him my ‘57 Chevy so he can drive it around, so then he opens up the strike zone for me.”

West sued Lo Duca for defamation, arguing that the story was false and would hurt his chances of being inducted into the Hall of Fame. As noted in the court’s decision, “[a]s of the end of the 2020 season, [West] had umpired in 5,345 Major League Baseball games, surpassed only by the legendary umpire Bill Klem, who umpired in 5,375 games, and was the first umpire to be inducted into the Baseball Hall of Fame in Cooperstown.” West is “on track to break Klem’s record during the 2021 season.” But, West feared, with a cloud hanging over his “integrity and character” because of Lo Duca’s podcast, “he might not be elected for induction into the Hall of Fame for the same reasons as otherwise excellent players ‘Shoeless’ Joe Jackson, Pete Rose, and Barry Bonds had or have not been elected.”

Lo Duca defaulted when the case was filed and thus lost the ability to defend his remarks on the merits. West nonetheless offered compelling proof that the story was false. According to the record books, for example, he had never called three straight strikes in any game in which Wagner pitched to Lo Duca. And according to West, “during 2006 and 2007, the two years that Lo Duca played for the New York Mets with Billy Wagner, Joe West was the home plate umpire for a game between the Philadelphia Phillies and the Mets only once, Billy Wagner did not pitch at all, and the game ended on a home run, not on called strikes.”

Because of the default, the only issue left to decide was damages, and the court held a full evidentiary hearing on that issue. West argued that in addition to damages for mental anguish and emotional distress, he should be awarded damages for money that he plans to spend, but has not yet spent, on “expenses related to advertising and public relations that are meant to repair” his reputation in the eyes of Hall of Fame voters.

Courts are usually reluctant to award damages for future expenses to mitigate a defamatory publication for two reasons. First, future expenses are inherently speculative. Second, if the reputational harm really needs mitigation, why haven’t the mitigation efforts already taken place? But West had compelling responses to these objections that he presented with highly detailed expert testimony. He retained experts in digital forensics, reputation management, and public relations to show the extent to which Lo Duca’s claims were still present on the internet today, as well as to give a highly detailed plan to “push down” those negative stories and “overwhelm” the information market with positive stories about him. And, significantly, the public relations expert also testified that those efforts would be “ramped up at various times” in the future, such as when West “breaks the record for the most games as an umpire and when he retires.” The Court was convinced by this testimony and awarded West $250,000 for “past mental anguish and emotional distress” as well as an additional $250,000 to fund the public relations campaign the expert described.

Future mitigation damages may be recovered in a defamation action. But, as Cowboy Joe’s case illustrates, there must be compelling evidence, preferably from credible experts, to explain why the mitigation efforts have not yet taken place.

Should I click “Reply All”?  Did I accidentally click “Reply All”? These thoughts have run through almost every person’s head when responding to an email that contained numerous other individuals besides the sender. The Reply All option on emails has always been a source of questions surrounding work-place etiquette and embarrassment. On top of that, lawyers should think about one more thing before selecting Reply All: ethics.

A recent opinion by the New Jersey Advisory Committee on Professional Ethics considered the implications of an attorney clicking Reply All on an email to adverse counsel when the adverse counsel’s client was also on the email.

The issue was brought to the Committee by an attorney who stated that he copies his client on emails to opposing attorneys, and that opposing attorneys often respond by selecting Reply All and include his client on those responses.  The attorney queried the Committee as to whether this type of response violated N.J. Rule of Professional Conduct 4.2, which prohibits an attorney from communicating directly with an individual represented by counsel.

The Committee disagreed that using Reply All in this setting amounted to a violation of the Rules of Professional Conduct. In so doing, the Committee relied on the fact that email is “an informal mode of communication” that often have a “conversational element with frequent back-and-forth responses.” The email conversation in this situation is primarily between the two attorneys and the clients are “mere bystanders.”

A lawyer who includes his client on the initial email to opposing counsel cannot have a “one way street” wherein opposing counsel cannot respond and include his client. The Committee found that attorneys who send an initial email to opposing counsel including their client “have impliedly consented” to having the adverse counsel Reply All to the group, including the first attorney’s client.

Other states, however, take a different approach. For example, Illinois, Alaska, South Carolina, and Kentucky, as the Committee noted, have rejected the approach that the attorney’s initial email acts as implied consent for the opposing counsel to respond to his client. In those states, an attorney who replies all to the group may be in violation of those states’ rules prohibiting communication with a represented individual.

In the end, the New Jersey Committee stressed that: “‘Reply All’ in a group email should not be an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel.”  It is thus incumbent on the sending attorney to not include his client if he does not want opposing counsel to include his client in reply. That makes one less thing (at least for New Jersey attorneys) to worry about before clicking Reply All in response to an email.

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: “The Court at Peace“.

The following is an excerpt:

Given that there was a good deal of media interest in Justice Sotomayor’s somewhat vituperative dissenting criticism of Justice Kavanaugh in last week’s decision in the criminal sentencing case of Jones v. Mississippi¸ today’s per curiam GVR (Grant, Vacate, and Remand) order in Alaska v. Wright is worthy of at least passing mention.

Once again, the Ninth Circuit is reversed, this time by the whole Court in a case that, like Jones, involves a criminal sentence. In vacating the decision below, the Court held that Mr. Wright was Mr. Wrong, as was the Ninth Circuit.

Click here to read the full post and more on SCOTUS Today.

We blogged last October (here) about the Third Circuit’s decision in FTC v. AbbieVie Inc., holding that Section 13(b) of the Federal Trade Commission Act, which expressly gives the FTC authority to obtain injunctive relief, does not allow a district court to order disgorgement or restitution. We also noted that the Supreme Court had granted certiorari to hear an appeal of the 9th Circuit’s decision in AMG Capital Management, LLC v. FTC, where the 9th Circuit upheld the Commission’s right to seek equitable monetary remedies pursuant to Section 13(b) of the FTC Act, while the 3rd and 7th Circuit’s had ruled otherwise. We predicted that with the passing of Justice Ginsberg, the appointment of Amy Cooney Barret, and the Court’s general rightward drift, it was likely that the FTC would be relieved of that particular arrow in its quiver.

Our prediction was prescient, and last week, the Supreme Court, in a unanimous opinion authored by Justice Breyer, overruled the 9th Circuit and held that Section 13(b) of the FTC act does not authorize the Commission to seek, or a court to award, equitable monetary relief such as restitution or disgorgement. A copy of the Supreme Court’s decision can be found (here). Not surprisingly, the Court took a purely textualist approach. As Justice Breyer put it, “the question presented is whether [Section 13(b) of the FTC Act] authorizes the Commission to seek, and a court to award, equitable monetary relief such as restitution or disgorgement. We conclude that it does not.”

This is a tremendous reversal of fortune for the FTC. The Commission’s Bureau of Consumer Protection has recovered billions of dollars in restitution and disgorgement over the last thirty years. In that regard, between 2016 and 2020 alone, the FTC collected $11.2 billion dollars. In AMG Capital Management, the case the Supreme Court just overturned, the Commission obtained an award of $1.27 billion dollars. Before the Supreme Court’s reversal, it was the largest litigated judgment ever recovered by the FTC.

For more than 30 years, Federal Circuit Courts had upheld the FTC’s ability to seek restitution and disgorgement under Section 13(b). Indeed, David Vladeck, a former Director of the FTC’s Bureau of Consumer Protection, and a current Professor at Georgetown University Law Center, published an article in the Fall 2016 edition of ANTITRUST that concluded that the argument that the FTC lacks authority to obtain monetary relief pursuant to Section 13(b) “has been repeatedly and uniformly rejected by every court to address it” and “this is not going to change.”

Professor Vladeck was right about the former, but not the latter. So what happens now that disgorgement and restitution are off the table? A look at new civil penalty authority recently provided to the FTC relative to COVID-19 related advertising provides a clue. Buried in the 2124 pages of the 2021 Appropriations Bill was the authority for the FTC to seek civil penalties for deceptive COVID-related advertising. (Titled the COVID-19 Consumer Protection Act, a copy of the Act can be found here on page 2094). The civil penalty authority is granted through the duration of the current public health emergency. The current maximum civil penalty amount per violation is $43,280.

This is significant because the FTC did not previously have the authority to seek civil penalties for a first violation of the FTC Act. That is the reason, consequently, why the FTC previously would seek restitution and disgorgement under Section 13 (b)). Penalties were only available where a company or individual was already subject to an order, and violated that order. With the authority granted in the COVID-19 Consumer Protection Act, the FTC can identify false or misleading advertising related to COVID-19 and seek civil penalties for that violation. A logical “fix” for the FTC would be to ask Congress for an extension of this authority to apply to all misleading advertising.

The law does not specify how penalties for each violation will be calculated, but a representative of the FTC suggested at a recent webinar that “Every ad is a separate violation and every day that ad runs or is disseminated to the public is a separate violation.”

Given the Supreme Court’s ruling in AMG Capital Management, it would not be surprising to see the FTC lobby Congress to amend the FTC Act to either expressly grant the Commission the authority to obtain monetary relief in Federal Court or expand its ability to obtain civil penalties under the Act to include not just COVID-19 related advertising, but any advertising the agency considers deceptive per Section 5 of the FTC Act and seek civil penalties for that violation.

Our colleagues Gregory Keating and Francesco DeLuca of Epstein Becker Green have a new post on Workforce Bulletin that will be of interest to our readers: “Massachusetts Case Highlights Importance of Clear Communication in Compensation Plans.”

The following is an excerpt:

Preparing the terms of employee compensation can be a resource-intensive task requiring input from stakeholders across numerous departments, including human resources, finance, and legal. However, as the Massachusetts Appeals Court’s recent decision in Alfieri v. Merrimack Pharmaceuticals, Inc. demonstrates, investing those resources to complete the task will pay dividends when an employer is faced with a potentially costly claim for unpaid wages.

Background

In May 2014, Merrimack Pharmaceuticals, Inc. sent Michael Alfieri a letter offering him the position of corporate controller. In its offer letter, Merrimack explained that it would compensate Alfieri using a “total target cash compensation (‘TTCC’)” method under which it would pay him a percentage of his total compensation in biweekly salary payments and would retain a percentage to be paid in the first quarter of the following year. The offer letter set out three conditions that had to be met for Alfieri to receive the retained portion of his TTCC: “(i) the employee is an active employee of the Company on the date that the retention is paid, (ii) the employee is continuing to meet expectations and (iii) the Company is performing adequately, as determined by the Company’s Board of Directors (the ‘Board’).” After explaining Alfieri’s proposed compensation, the letter expressly stated that it “superseded ‘all prior understandings, whether written or oral, relating to the terms of [Alfieri’s] employment.’” Alfieri accepted the offer by signing the letter and began working for Merrimack in July 2014.

Click here to read the full post and more on Workforce Bulletin.

As we have written here previously, businesses across the country have brought lawsuits against their insurers seeking coverage for losses related to COVID-19. According to the COVID Coverage Litigation Tracker at the University of Pennsylvania Carey Law School, over 1,500 suits have been filed since March 2020 in state and federal court. Some interesting statistics based on that information:

  • Over one third of the cases have been filed by food services establishments.
  • Almost one quarter of the cases were brought as class actions.
  • Approximately one third of the cases involved insurance policies that did not contain a virus exclusion.
  • Insureds have been much more successful in state court than federal court. Insurers have obtained a dismissal in 93% of the 241 cases decided in federal court, but only 54% of the 58 cases decided in state court.
  • Appeals have been filed in 107 cases and, surprisingly, almost all have been filed by insureds who had their cases dismissed. Insurance companies have only filed appeals in four cases.
  • Certain jurisdictions have been more favorable for insureds. We have written previously about Studio 417, Inc. v. Cincinnati Insurance Company, No. 6:20-cv-03127-SRB (W.D. Mo. Aug. 12, 2020), in which a federal district court in the Western District of Missouri denied the insurer’s motion to dismiss because the insureds had adequately alleged that they suffered a physical loss. That court has reached a similar ruling in two additional cases. See Blue Springs Dental Care v. Owners Ins. Co.; K.C. Hopps, Ltd. v. The Cincinnati Ins. Co. The most favorable jurisdiction for insureds appears to be Ohio state court where motions to dismiss have been denied in 11 of the 13 cases with reported decisions. Other favorable jurisdictions include state court in Washington (insurers have lost both cases with reported decisions) and state court in Oklahoma (granting two policy holders’ motions for summary judgment).

Although Ohio state court judges have been most favorable to insureds’ attempts to secure coverage, every COVID-19 related business interruption case is fact specific and the outcome of a motion will be based on the allegations in the complaint and the language of the insurance policies involved, including whether they include a virus exclusion and how that provision is drafted.  For example, a recent case in Ohio state court, McKinley Development Leasing co. Ltd., et al v. Westfield Insurance Co., determined that a virus exclusion did not apply after analyzing the specific wording of the exclusion. The exclusion at issue precluded coverage for “loss or damage caused by or resulting from any virus, bacterium, or other microorganism that induces or is incapable of inducing physical distress, illness or disease,” but did not specifically include pandemics. In finding that the exclusion did not apply to the insured’s claims, the court stated:

It is obvious to this Court that a virus is not the same as a pandemic. The insurer, being the one who selects the language in the contract, must be specific in its use; an exclusion from liability must be clear and exact in order to be given effect. . . .  More importantly, this Court questions if Westfield intended for a “pandemic” to be excluded from coverage, why didn’t it explicitly exclude it? After all, Westfield had control and wrote the policy.

Also, the landscape in Ohio will likely be impacted by the court’s decision in Neuro-Communication Services, Inc. v. Cincinnati Insurance Company, No. 4:20-CV-1275 (N.D. Ohio filed June 10, 2020), to certify to the Ohio Supreme Court the following question:

Does the general presence in the community, or on surfaces at a premises, of the novel coronavirus known as SARS-CoV-2, constitute direct physical loss or damage to property; or does the presence on a premises of a person infected with COVID-19 constitute direct physical loss or damage to property at that premises?

This is a question that has arisen in many other cases, but no appellate level court has yet ruled on the question. Thus, that decision will be not only an important milestone for COVID-19 business interruption lawsuits in Ohio, but in other jurisdictions too.

Only one case has gone to trial so far. That case, Cajun Conti LLC v Certain Underwriters at Lloyds, was the first COVID-19 business interruption case filed in March 2020 and a bench trial took place December 14-16, 2020 in state court in New Orleans. Despite the fact that the policy at issue in Cajun Conti contained no virus exclusion, the trial resulted in a judgment in the insurer’s favor. While the court did not include a written legal opinion along with its February 10, 2021 judgment, the outcome suggests that the court agreed with the insurer’s main argument that the virus itself causes no property damage within the meaning of relevant policy provisions.

Despite the trend favoring insurers, especially in federal court, insureds have continued to file business interruption lawsuits, but at a lower rate than in spring and summer of 2020. Although there have been fewer suits filed, within the last month, several major business such as the Los Angeles Lakers, Sacramento Downtown Arena (including the Sacramento Kings), Ceasars Entertainment, Madison Square Garden (including the Knicks and Rangers), Hooters and Planet Hollywood have filed suits seeking coverage for sizeable losses caused by COVID-19. Only the Madison Square Garden and Ceasars cases were filed in state court. It will be interesting to see whether the insurers seek to remove those cases to federal court.

Thus, it appears that we are still in the early stages of what will likely be a multi-year process to resolve the COVID-19 business interruption insurance cases throughout the country. Stay tuned for additional developments, especially as appellate courts begin to address these issues.

I was reminiscing the other day about how I missed my favorite, snarky website Gawker when I saw that the District of New Jersey has proposed an amendment to the local rules (Local Rule 7.1.1) that would require disclosure of third-party litigation funding. Under the proposed new rule, all parties would be required to file statements setting forth information about any non-party person or entity that is “providing funding for some or all of the attorneys’ fees and expenses for the litigation of a non-recourse basis” in exchange for either “a contingent financial interest based upon” the litigation’s results or a “non-monetary result that is not in the nature of a personal or bank loan, or insurance.”

The statement would need to be filed within 30 days of the filing of an initial pleading or removal and would need to include: (i) the identity of the funder(s), including name, address, and place of formation (if a legal entity); (2) whether the funder’s approval is “necessary for litigation decisions or settlement decisions,” and if so, “the nature of the terms and conditions relating to that approval”; and (3) a description of the nature of the financial interest involved. The proposed new rule further provides that a party may seek discovery “of the terms of any such agreement upon a showing of good cause that the non-party has authority to make material litigation decisions or settlement decisions, the interests of the parties or the class (if applicable) are not being promoted or protected, or conflicts of interest exist, or such other disclosure is necessary to any issue in the case. If adopted, Local Civil Rule 7.1.1 would take effect immediately “and apply to all pending cases upon its effective date, with the filing mandated in Paragraph 1 to be made within 45 days of the effective date of this Rule.”

The proposed rule is likely in response to recent decisions, most notably Judge Schneider’s in In re Valsartan NDMA Contamination Products Liability Litig., addressing whether litigation funding information is discoverable. In re Valsartan is a multi-district litigation concerning the FDA’s voluntary recalls of the generic prescription medication Valsartan. The defendants made a motion to compel the Plaintiffs to disclose their “litigation funding.” Plaintiffs objected on the grounds that the information was irrelevant to their claims and defenses and that the defendants had no legitimate need for the requested information. Judge Schneider recognized that courts were split on the issue, but ultimately denied the defendants’ motion and held that the plaintiffs did not have to disclose whether their claims were being funded by a third party. Despite their victory in Court, if adopted, Local Rule 7.1.1 will require plaintiffs to disclose this information.

Which brings me back to Gawker. Gawker Media might still be around today if the Sixth Judicial Circuit in Pinellas County, Florida had a rule like the District of New Jersey’s proposed Local Rule 7.1.1. Bollea v. Gawker is probably one of the most consequential (and strangest) lawsuits in the history of modern American media. In 2016, Hulk Hogan (né Terry Bollea), the professional wrestler, won a nine-figure jury verdict that ultimately bankrupted Gawker Media. The lawsuit concerned the publication of a video of Hogan having consensual sex with his best friend’s wife, which the same friend secretly recorded.

Behind the scenes, an even more bizarre story was playing out. Peter Thiel, the Paypal co-founder, was bankrolling Hogan’s lawsuit in order to exact revenge on Gawker for publicly outing the notoriously private billionaire as gay. In December 2007, Gawker Media’s tech blog Valleywag published a post under the headline “Peter Thiel is totally gay, people.” Thiel waited several years for the opportunity to take Gawker down before landing on Hogan’s lawsuit as the means to exact his revenge.

In 2012, the Hulk Hogan sex tapes were leaked to Gawker which published the videos under the headline: “Even for a Minute, Watching Hulk Hogan Have Sex in a Canopy Bed is Not Safe For Work but Watch it Anyway.” Hogan was mortified and decided to sue Gawker for invasion of privacy. News of Hogan’s intentions made it to Thiel’s legal team who reached out to Hogan’s lawyers and told them that Thiel was willing to bankroll the suit. In October 2012, Hogan filed a lawsuit against Gawker Media seeking $100 million in damages for invasion of privacy, infliction of emotional distress and violation of the Florida Security and Communications Act. The jury ultimately awarded Hogan $140 million in damages leading to Gawker Media filing for bankruptcy.

Had Gawker’s legal team been aware that Thiel was bankrolling the lawsuit, their strategy in the litigation probably would have been very different. If you are fighting Hogan alone you file motions and drag it out to be as painful as possible for Hogan, in the hopes that he’ll settle. Hogan wouldn’t settle—because Gawker wasn’t fighting Hogan—they were fighting a billionaire—with unlimited funds to litigate. Had Gawker known that Thiel was funding the lawsuit they could have cast aspersions on him and made the case to the jury that they were being hounded by a billionaire seeking revenge for a petty grudge. All of a sudden what initially looks like a pure invasion of privacy case is something much different—and raises serious questions about privacy and a free press and whether a billionaire should be able to shut down a media outlet out of pure spite. That’s an entirely different kettle of fish—and an argument the jury never got to hear.