It didn’t take long for the jury to decide. After two weeks of testimony, the six-strong team of jurors retired to deliberate their verdict – and were back within four hours to deliver it. And what did they decide? Something that shocked everyone. Something that no-one foresaw…
Here’s what Gawker was hoping would happen:
Aware that their chances of outright winning at trial weren’t good, they were expecting Hulk Hogan to win the case but for the jury to award just a fraction of the $100m Hogan was asking for. They would then launch an appeal to overturn the result or reduce that amount.
This isn’t us guessing. This is what Gawker said. Specifically, what Gawker’s president and general counsel Heather Dietrich said: “It’s probably difficult to win the case entirely, outright, knowing the jury that we’re facing, but it’s possible. More likely than not, we end up with a really small judgment that we can easily carry and we appeal that.”
It’s understandable why they might have thought that. Whenever Gawker has faced previous sex tape challenges, the settlements have come in very much under budget. When Eric Dane and Rebecca Gayheart sued Gawker for publishing their sex tape, they reached an out-of-court settlement which (although private) was valued somewhere in the low six-figure range.
When Gawker published a video that showed Fred Durst’s dick, Fred Durst sent them flowers.
So they had good reason to be hopeful.
Here’s what actually happened:
At roughly 6:40pm (EDT), after a little under four hours of deliberation, the jury had reached a verdict.
Did the jury believe the plaintiff had proved that, in posting the video, Gawker had publicly disclosed private facts about the plaintiff? Yes.
Did the jury believe the plaintiff had proved that Gawker intended to cause him severe emotional distress, or acted with reckless disregard? Yes.
Did the jury believe the plaintiff had proved he had a reasonable expectation of privacy in the bedroom where the video was recorded? Yes.
All down the board it was yes, yes, yes. And, critically, the jury also found that Gawker Media, Nick Denton and A.J. Daulerio had indeed intruded on Hulk Hogan’s privacy and inflicted emotional damage upon him.
Damage to the tune of $115 million. $15 million more than Hulk Hogan had asked for.
This figure wrong-footed everyone. When Hogan brought a suit of $100m, general consensus was that it was massively extravagant. Even Hogan’s own counsel did a pretty lame job of justifying the $100m figure, suggesting that the tape would have earned Hulk Hogan $50m had it been on pay-per-view porn site. Which is palpable nonsense. (For context, Kim Kardashian – someone who people actually enjoy seeing naked – earned about $4.5m from her sex tape.)
Given that Hulk Hogan settled out of court with Bubba The Love Sponge for a mere $5,000 – Gawker was probably expecting, worse case scenario, to cough up something in the six-figure to seven-figure range. Not eight-figure, and certainly not nine-figure.
But it doesn’t end there. That was just the compensatory damages. The jury also determined there was a case for punitive damages (i.e. a monetary fine over and above what they felt Hulk Hogan was personally owed to punish Gawker and deter them – or others – from attempting the same).
Florida state law usually has a cap for punitive damages: no more than three times the amount awarded in compensatory damages. That would have meant the jury could have thrown an extra $345m onto the bottom of the bill – bringing the total sum to nearly half a billion dollars. However, Hogan’s team tried to argue that Gawker’s behaviour was so reckless that this cap didn’t apply.
The law states that if the defendant showed “specific intent to harm the claimant and determines that the defendant’s conduct did in fact harm the claimant, there shall be no cap on punitive damages”.
However, the judge also pointed out – in a rare moment of clemency towards Gawker – that the jury shouldn’t hand down punitive damages that will cause bankruptcy or financial ruin.
Obviously the higher the bill, the harder it is to pay – but there’s another reason this high bill is bad for Gawker.
Florida is one of the US states which demands that the defendant has to pay a supersedeas bond while they appeal. That means they have to cough up cash while their appeal is processed – a little catch that many commentators suggested further convinced Hogan to bring the case in Florida. Although the cap for supersedeas bonds in Florida tops out at $50m, Gawker doesn’t exactly have that sort of cash just sitting around (especially not if their expert witnesses did their sums correctly).
So what now for Gawker? Well, first they have to get their hands on $50m quickly. Then they have to put together their appeal.
One of the things they are hoping they will prop them up is a recently released cache of previously sealed documents, amounting to around 2,000 pages, of documents that the judge was forced to open up – but only did so alert that the jury had already retired to consider their verdict.
In this cache, Gawker claims, is key evidence which helps their case. Most of what reporters have spotted so far is conflicting information from Bubba The Love Sponge and Heather Clem – who appear to have lied to someone (be it the courts, the police of the FBI). But given that they are ancillary characters in this – Hogan’s case is specifically with Gawker, not with the Clems – and given that Gawker were the ones to call her (possibly untrustworthy) evidence as part of their defence, it might not end being the clear cut cure they’re after.
Gawker seems to be of the opinion that Hogan took this case, not because he felt his privacy had been invaded, but because he was worried that evidence of him using racist language (which he appears to use on these tapes) would leak. Seeing as he’s already been fired from WWE for this, and Nick Denton is claiming he is only just learning about this, it’s hard to see how anyone can argue that justifies publishing an ill-gotten sex tape. But that’s why lawyers get paid hundreds of dollars an hour.
They have to hope that the information in there is sufficiently damaging to Hulk Hogan’s case/reputation to either overturn the entire verdict (which seems unlikely) or to reduce the damages to a more manageable amount that they can weather.
All we know for sure is that this isn’t the end…