(AP Photo/A&E)
A former star of the “Storage Wars” reality show can continue with his wrongful termination claim against A&E, even after the network succeeded in its free-speech challenge to the rest of his lawsuit.
The Mogel Calls Foul
Dave Hester reportedly sued A&E in December 2012, alleging that he was fired after he complained that the California-based show “Storage Wars,” in which professional buyers bid on storage lockers, was rigged. Known on the show as “The Mogel,” Hester operates his own auction house.
The buyers on the show make their bids following a short glance inside the door of the lockers, whose contents are being auctioned because rent was not paid on them. Hester says he complained that producers were planting valuable items in the lockers, which influenced the outcomes of the auctions.
“Hester was told that his contract would be renewed for season four, but after complaining about the ‘fraud’ that was being perpetrated on the viewers, he was told his services would no longer be required,” according to Aaron Morris, a partner with Morris & Stone in Tustin, Calif., who wrote about the case in a recent blog post.
Hester sued for unfair business practices, among other things, claiming the producers’ actions made him look less skillful and hurting his business, as well as for wrongful termination.
Fake . . . and Free
A&E responded with a motion under California’s anti-SLAPP statute, which allows the dismissal of frivolous lawsuits that arise from protected free speech activity.
California, like many other states, has outlawed SLAPPs, or “strategic lawsuits against public participation” – suits that are filed in order to shut down important debate about matters of public interest.
Aaron Morris
A&E claimed that because Hester’s unfair business practice claim related to the creative content of its show, it was barred by the anti-SLAPP law. Courts have only allowed the unfair business practices claim to apply to “commercial speech,” not expressive works like TV shows, it said.
And a judge agreed in July, ordering Hester to pay over $122,000 of A&E’s legal fees spent defending his lawsuit.
“A faked reality show is an expression of free speech,” confirms Morris. A&E’s anti-SLAPP motion “was a no-brainer,” continues Morris, because the show “involves a free speech issue of public interest., bringing it within the anti-SLAPP statute.”
“[A] SLAPP suit will often make no mention of defamation or any other obviously SLAPPable claim, but nonetheless will be a SLAPP,” he explains.
Employment Claim Stands
However, the judge did allow Hester’s wrongful termination claim to stand. Morris indicates this was a surprise. “For every wrong, there is not necessarily a remedy,” he wrote. “Some attorneys just never get this.”
“If I hire you for my television show, and I have the contractual right not to renew that contract at some point in the future, and you do something I don’t like, such as telling me you don’t like the way I am running the show that I’m paying you $750,000 to be on, then I just may decide not to keep you around,” he says.
“You are not some bastion for the public, given the task of making sure my show is pure. All reality shows are faked to some extent, and the viewers all know they are faked,” Morris continues.
“It may stink that Hester got ‘fired’ for wanting to keep the show honest, but if he wanted to make sure he never got fired for criticizing the show, the he should have added a ‘you may not fire me when I tell you your show stinks’ clause to his contract,” he says.
