Tune in for the first episode of Season 10! This season’s theme is Other People’s Problems, and in each episode we will discuss public stories in the news and share legal takeaways. We kickoff the season with a very public story – the Johnny Depp vs. Amber Heard trial. We discuss reputation management, defamation, and the business risk that comes from online reviews.
Listen to the full episode using the player below, or by visiting one of the links below. Below is the episode’s transcript which has been edited for readability. If you have any questions or would like to learn more, email us at info@byrdadatto.com.
Transcript
Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues simplified through real client stories and real world experiences, creating simplicity in 3, 2, 1.
Brad: Welcome back to another episode of Legal 123s with ByrdAdatto. I’m your host, Brad Adatto. I’m here with my co-host Michael Byrd. Now, Michael, Welcome to season 10.
Michael: Yes, thanks, Brad. This is going to be a great one. We have a mix of some episodes like today where just the two of us get to tell the story, and throughout the season we’re gonna sprinkle in some guests.
Brad: Awesome! I can’t wait to see who our guests are. Tell the audience though, Michael, what is our Season 10 theme?
Michael: Well, as a business and healthcare law firm, we meet a lot of interesting people and learn their amazing stories. This season we are spicing things up a bit.
Brad: Awesome!
Michael: We are here to talk about OPP, other people’s problems.
Brad: Wow. Are we gonna go back in a time [00:01:00] machine to talk about some famous songs by naughty by nature?
Michael: Well, there’s a small demographic of our audience that’s nodding their head right now and probably singing the song. Don’t start, Brad.
Brad: Okay.
Michael: However, we did learn from Riley and our younger crowd at the office that they’d never even heard of the song.
Brad: All right, well, let’s tell them what we are gonna do with OPP?
Michael: We’re going to tell public stories in the news. They’re not gonna be our client stories, so there’ll be stories that people are generally familiar with, although some are more local or more healthcare based, so maybe not. Then, talk about some legal lessons that can be learned from these fascinating stories.
Brad: I love it. So what’s our OPP story to date?
Michael: Slow down, Brad.
Brad: Oh, sorry.
Michael: We have some other things to get to first.
Brad: Sorry, I was getting excited.
Michael: Do you remember our conversation on a prior episode where we discussed our experience flying on a private jet?
Brad: Yeah! Now I remember he actually posted a picture on our YouTube page of us with that [00:02:00] nice private jet. I think I also may have recalled that you, not me, may have eaten the last two bags of animal cookies that was saved in the plan for the owner’s five year old.
Michael: Well, now that’s fake news because you ate one bag.
Brad: What?
Michael: And then…
Brad: That’s not how I remembered it.
Michael: I got onto you and I may have then taken the last bag, but let’s not talk about that here.
Brad: Yeah.
Michael: Okay. We touched on this whole experience of flying in a private jet during the red flag season when we were talking about the episode on phantom stock.
Brad: Yeah, our phantom playing.
Michael: Yes. One of the points of our discussion, Brad, was the differences in wealth when it comes to plan ownership.
Brad: Yes, that’s when we started talking about F U money, right?
Michael: Yeah, being F U rich. That’s right, Brad.
Brad: Yeah, yeah. For those who don’t know, what is being F U Rich or having F U money? Michael and I actually thought we understood what that meant, but we learned we were very wrong. We thought owning a plane was F U money. [00:03:00] Owning a plane that you can stand upright in, you don’t have to crouch to kind of board in, that’s a private plane. That’s F U money.
Michael: If you have to crouch when boarding, you’re just ordinary money.
Brad: Yes.
Michael: Okay. Well, my mind was blown recently, Brad. As I learned there was a whole other level of wealth to differentiate the FU rich crowd. I read a fascinating article about the underbelly of yacht ownership.
Brad: Yeah, and I think it’s funny that you use the word underbelly to describe yacht ownership because that sounds seedy, but it really isn’t. You made the mistake of sharing this article with me, and then I made the mistake of sharing with everyone I know, and all I know is our eyes were wide open to what we thought was F U rich and quickly learned there is this next level that I don’t even know how you could even define it because FU Rich seems like small potatoes compared to this.
Michael: You must have skipped the part of the article where they were talking [00:04:00] about the seedy elements, but yes, and it is crazy fascinating. They were talking about, not just yachts, Brad, they were talking about the worlds biggest yachts.
Brad: Yeah.
Michael: The largest yachts are more than 500 feet. They’re on the same scale as a naval destroyer.
Brad: Yes. And actually, I’ve had the pleasure of seeing some of these yachts when I’m in Miami and San Diego. It’s kind of funny, you’ll see like a yacht with, Oh, that one just has a little dingy in the back and Oh, that one has a motorcycle, and then you’re like, Oh, that has a whole boat that holds a bunch of people. Oh my gosh. That one actually has a helicopter on it. So just as you keep watching them…
Michael: Yeah. You know, one of the points of the article is that airplane ownership is just transportation.
Brad: Oh, yeah. Sure.
Michael: At some point, all the super wealthy have as big of a plane as you can get. The article points out that the big ship is more than transportation. They’re more about status. The larger, the better. If it has a working [00:05:00] crew on board and is more than 98 feet long, it’s called a super yacht.
Brad: Okay.
Michael: Anything more than 230 feet is a mega yacht, and anything more than 295 feet is a giga yacht.
Brad: Yeah. What was fascinating was, this seems like a lot, but according to the article, the world contains 5,400 super yachts, so it’s 98 feet or longer.
Michael: Yeah.
Brad: About a hundred giga, yacht yachts, which is about 230 feet long, so…
Michael: Rarefied air.
Brad: Yes.
Michael: At the Giga level.
Brad: Yeah.
Michael: Yeah. Well, there are unwritten rules of status when it comes to the boat. Probably not too surprising. A Dutch boat, for example, they’d say in the article, will hold its value better than an Italian boat. Who knew?
Brad: Yeah.
Michael: There are other rules like that. Brad, I’m about to say something and you’ve gotta check the 13 year old inside of you and keep it clean. Okay?
Brad: Okay, all right!
Michael: Unsurprisingly, the most telling statistic for your yacht [00:06:00] is LOA length overall.
Brad: Okay, I’m holding it together here. Well, I guess, unlike a plane, there are no limits to LOA.
Michael: Yes, we need to power through cause I can see this derailing very quickly. The craziest part of the odd story is that it is just shocking that because of international rules conceived after the sinking of the Titanic…
Brad: Oh!
Michael: Back when you were born?
Brad: Yeah.
Michael: I beat you to the punch.
Brad: Yeah, you did. I was about to ask you if you were on that boat?
Michael: Yes! Well, some rules that came out of the sinking of the Titanic, state that pleasure yachts are permitted to carry no more than 12 passengers.
Brad: So the gigawatt, the mega yacht, and the super yachts can all only carry 12 passengers. That’s just crazy!
Michael: Yeah, and the catch is that this rule doesn’t apply to the crew.
Brad: Yeah.
Michael: So there’s no limit there. The [00:07:00] wealthy or the FU wealthy distinguish themselves not just by the LOA of their boat, but by the size of the crew that they hire. There’s sometimes up to 50 crew members looking after 12 guests.
Brad: I think that’s giga few money, maybe.
Michael: Yes.
Brad: Maybe that’s where we met. So Michael, with only 12 people allowed on the boat, I think some hard conversations are gonna have to be had when you’re trying to ask which guest is gonna get to join you.
Michael: Yeah. I mean, they talked in the article about you better having something of value to bring if you’re gonna be a guest.
Brad: Like a saint’s fan.
Michael: Probably not.
Brad: No, that’s not a thing of value.
Michael: Probably not being really smart in compliance.
Brad: Oh.
Michael: Now maybe being a podcast star.
Brad: Yes!
Michael: We need to bump our audience.
Brad: We gotta get our payola jar better.
Michael: Yeah. I think we’re very far away from being invited in the 12 to a giga yacht, but maybe like on a sunset cruise [00:08:00] on a cruiser boat or something.
Brad: Maybe.
Michael: Well, as mind-blowing as all this is, Brad, the yacht story is actually tame compared to the highly public OPP story that we will tell today.
Brad: All right, Michael, Nice segue. I guess it’s time for today’s OPP story.
Michael: Let’s start by introducing the main characters to today’s story. Johnny Depp and Amber Heard.
Brad: Who? I’ve never heard of them.
Michael: Well, even though that statement is actually believable, Brad, I know for a fact that you at least know Johnny Depp. I would bet that you have a Pirates of the Caribbean poster hanging up in your bedroom at your house.
Brad: All right, Michael. I thought we discussed that there are certain personal aspects of my life we’re not supposed to talk about on this podcast. You cannot bring up my Pirate to the Caribbean boat collection either, Okay?
Michael: You mean yachts?
Brad: Oh no, I don’t have ’em though, anyway.
Michael: Oh, yeah. Okay. We won’t go there.
Brad: All right. [00:09:00]
Michael: Obviously, Johnny Depp is about as famous as you can get. He’s been named the Sexiest Man Alive twice, and Brad, don’t say it. You’ve never been named, let’s move on. Johnny Depp has starred in hit movies like Edward Scissor hands, Donny Brasco, of course, the Pirates of the Caribbean franchise. He’s been nominated for three Oscars…
Brad: Yes, but unfortunately most of us who know who Johnny Depp is, there is a dark side, and I know that back in 2017 there was some articles that were coming out about his nature in drinking and a lot of financial troubles.
Michael: Yeah, there’s a lot of stuff in the media on the personal and financial side, but I’m guessing he’s pretty interesting in that he’s been invited on a giga yacht more than once.
Brad: Yes. I could see someone wanting to have one of their limited invites for passengers to have Jack Sparrow on their boat.
Michael: Fair. True enough. Well, Amber [00:10:00] Heard was just beginning to become a household name when she first met Johnny Depp in 2009, they actually co guarded in a movie called The Rum Diary. I personally was not familiar with Amber Heard. Had you heard of her before this trial?
Brad: Not really. I can see Johnny doing really well in something with rum in it though, but I don’t think I saw the rum diary either. I do know that I remember that her big break was when she got into the Aquaman franchise.
Michael: Right. Well, I think I first became aware of her in the tabloids when they were getting a divorce, so they actually were not married that long. They were married in 2015 and Heard filed for a divorce in 2016.
Brad: Yeah, that’s not very long and I know the lawsuit happened in 2022. They’re divorced in 2016. What’s going on? Who’s suing who and why?
Michael: Yeah, no, I mean, the timeline is actually really interesting. I [00:11:00] mean, they were married back in 2015, divorced a year later, and then all of a sudden they’re going to trial in 2022. Well, Johnny Depp sued Amber Heard for defamation. He actually filed the lawsuit in 2019 and we’ll touch a little bit on more of that in a minute. He sued her for defamation. The allegation is tied to a headline in an article written by Heard. Amber apparently published an article in the Washington Post in 2018, again after the divorce with a headline that said, “I spoke up against sexual violence and faced our culture’s wrath that has to change”, end quote.
Brad: All right, so lots to unpack there, but for our audience who just started hearing you talk, you threw out a vocabulary word for the day that I think we need to go back to. What is defamation?
Michael: Fair enough. Defamation is a statement that injures a third party’s reputation. So [00:12:00] we learn about torts in law school. The torts…
Brad: Torts are awesome audience members.
Michael: Yes. The tort of Defamation includes both libel, which are written statements…
Brad: True.
Michael: And slander, which are spoken statements. State common law and there’s statutory laws that govern defamation actions and each state varies in their standards for defamation and the potential damages that can go with it.
Brad: All right, Michael, thank you for bringing us back to law school 1 0 1. Back to the story. So it doesn’t mention Depp in that headline that you just talked about on the Washington Post. How did we do this lawsuit?
Michael: Yeah. I mean, it’s a fair point. So Depp’s not mentioned. This is what with the statement, the whole lawsuit was, said quote, “I spoke up against sexual violence and faced our culture’s wrath. That has to change”. I think there’s some context that’s missing here and that the [00:13:00] implication from Johnny in the lawsuit is that she’s talking about him. Depp argued in the lawsuit that Heard is implying that Depp abused her over the course of their marriage.
Brad: Right, and this goes back to part of the divorce. She actually accused him at one point of domestic violence, right?
Michael: Yeah, no, you’re right. Heard applied for a TRO in 2016 on the grounds of domestic violence.
Brad: All right, Michael, you keep throwing out these vocabulary words, I’m gonna jump in on this one. For audience members that don’t know, a TRO stands for a temporary restraining order. TRO is generally approved, well, it has to be approved by a court and basically orders a restraining of one person from doing something to another person. That could be, in this case, with marriage or keeping people away from each other. It could also be a TRO preventing someone from opening another medical practice. TROs are used all the time [00:14:00] in both civil marriages and in contract enforcements.
Michael: Yeah, and kind of interestingly when they reached a settlement for their divorce in 2016, Heard withdrew her request for a restraining order. So there was never really this legal determination one way or another about whether Johnny had abused her back during that time.
Brad: Yeah, that probably makes sense cause I don’t remember much media hoopla out there when they settled the divorce that there was any domestic abuse allegations.
Michael: No, you’re right. It’s kind of weird, there was definitely news about it. You know, when she filed for a TRO it made the news but it kind of faded away. I actually saw an article recently, you know, kind of tying with this recent litigation. This is gonna go back to people that know what OPP is, but back in the day there was an actor named Rob Lowe, and he had a sex tape and it was in the news and then it was gone. Everybody [00:15:00] moved on almost immediately, and that’s kind of what happened here. It was like, in the news one day and people moved on the next.
Brad: For our listeners, yes, Rob Lowe is still alive. He did not mean anything like that. He just meant that only a few old people listening to us actually remember anything that happened with Rob Lowe in the sex statement.
Michael: Yes.
Brad: So what’s changed and why was this such a big deal that it made this article that was written two years ago? Like what happened, is this well after the divorce?
Michael: Yeah. So, the divorce was 2016, she wrote an article in 2018, and obviously it was insightful enough that he wanted to file a lawsuit over it. Well, the world changed in 2017, so kind of unrelated, The Me Too movement started in 2017 following the accusations against Harvey Weinstein. This kind of brought the prior allegations of the restraining order into a different perspective, and Amber Heard was named an [00:16:00] ambassador on women’s rights for the ACLU.
Brad: Okay, going back, trying to get all these moving parts here. They married, then they were divorced, and then there was a settlement, and now Johnny filed some defamation suit, and remind the audience. When did he file it?
Michael: Yeah, it’s hard to keep it all straight. So, 2016 divorce, 2017 Me too movement hits, 2018 Washington Post article written by Amber Heard.
Brad: Okay.
Michael: And then in 2019, Depp filed the lawsuit.
Brad: Got it.
Michael: Seeking 50 million in damages.
Brad: Okay.
Michael: And it took it until 2022 for that lawsuit to go to trial because of all the discovery and the back and forth as we saw play out in the media. A defamation lawsuit gets super messy. Johnny Depp, to prevail essentially had to prove that the statements or the insinuation that he hurt her were untrue. In [00:17:00] other words, he had to show that he did not abuse her.
Brad: Yeah. For those who read the suit and started following it, this case seemed to actually be trying to show that Amber Heard was actually the abusive person inside of this marriage and not Johnny.
Michael: Yeah. Brad, I know where you’re going here. We gotta keep it clean. You wanna point out the evidence presented in trial that Amber went big potty on Johnny Depp’s bed, right?
Brad: I wasn’t gonna point that out, but now that you said it I have to say that it was fascinating to see. All the evidence presented in this poop incident and apparently, this was a power move by Amber.
Michael: Yeah, it was. It made it very disturbing. I mean, not that someone going poop on someone’s bed isn’t big enough, but the fact that it was a power move, Oh my goodness. Okay, you [00:18:00] sucked me in, Brad.
Brad: I did not!
Michael: Okay. We’re moving on from all the dirty laundry.
Brad: Okay. Yeah, that’s not fair.
Michael: More than just the sheets came out during this trial for both of them. The trial captivated the nation with the social media having millions of followers voting for Johnny or voting for Amber.
Brad: Yeah, as I recall, the social media jury, which audience members does not actually has a say, but the public says millions and millions and more people are favoring Johnny over Amber in this trial. I still know in our office, I can at least say for about 90% of the female staff was on Team Johnny and they had the trial on TV every single day at our office.
Michael: Yeah, and to be fair, neither of them came out, Johnny or Amber looking great.
Brad: No.
Michael: I mean it was bad. Team Johnny, at least in the public opinion, [00:19:00] was a big thing and it probably was the biggest win for him ultimately because it was probably going to restore his career, but actually this team Johnny movement on social media is what played out in court.
Brad: Yeah.
Michael: The jury awarded Depp 15 million in damages, including 5 million in punitive damages. This is agreeing that the statement in the 2018 Washington Post was defamation. The actual award was reduced by the judge, procedural stuff, and caps on damages that brought the total down to 10.35 million. You know what’s not talked about too much is that Amber Heard actually had a counterclaim for defamation and she was awarded 2 million for her counterclaim. It was an allegation that Depp’s attorney had defamed her as.
Brad: Whew. All right. Riley, can we get some like air purifiers in this room? [00:20:00] Cause this all just feels kind of gross after all this. Audience members, I’m sure you’re just trying to figure out what to do next. Let’s just go to a commercial, Michael. On the other side, let’s talk about how DEF Defamation can come into play even for our listening audience.
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Brad: Welcome back to Legal 123s with ByrdAdatto. I’m your host, Brad Adatto with my co-host, Michael Byrd. Now, Michael, this season our theme is OPP. How in the [00:21:00] world can we take this messy story that has Poop gate involved with Johnny and Amber and possibly apply this to our everyday listeners and business owners.
Michael: Well, first, let me applaud you, Brad. You may finally be turning a corner. Now that you’ve reached the age of 50 and you’re able to keep it together, for the most part, and if I do say so myself, I’m proud of me too. .
Brad: I’m about to give you a hat tip myself.
Michael: All right. Well, we’ve touched on reputation management in prior episodes.
Brad: Yeah.
Michael: And our partner, Jeff Siegel, talks about it all the time. In fact, he has an entire business built around reputation management. It is a business risk that comes from people going online to post reviews about a business. These can be positive of course, and there’s part from a business strategy perspective in managing that, but they also can be negative and there’s kind of a [00:22:00] strategy and some compliance things you wanna navigate on that front.
Brad: Yeah, and for our listeners who are in the healthcare business obviously to remember, there’s patient privacy concerns that do play out. When a practice does acknowledge a person as a patient online, and of course it gets even messier if they start sharing personal information on this patient while responding to them.
Michael: Yeah. All good points. Even kind of stepping back from healthcare for a moment and that an individual has a strong protection to post comments online about a business. They kind of classically will cite to the first amendment of the Constitution on free speech that protects them to say their opinions about a business.
Brad: Yeah, and what’s even more complicated was many states actually have something called anti-slapp, and that’s two Ps, laws that allow someone to recover damages. If a business owner sues someone for posting a [00:23:00] review online, this law, I mean, the intent of the law is built around the protection, as Michael said, around your right to the First Amendment. So in theory, if a business that is the 800 pound gorilla has money and they start bullying you around by trying to sue you or preventing you from posting a review, you have now an opportunity in these states that have anti-slapp laws to then turn around and basically you say you can’t bully me from preventing me from doing it. Those audience members, who are in those states be very well aware of those.
Michael: Yeah, it definitely puts some skin in the game about a business attacking someone for posting a negative review, but an individual can still cross the line.
Brad: Like pooping on the bed.
Michael: Well, hopefully, Brad, that’s intuitive for most people.
Brad: Okay. Yeah.
Michael: I mean, I hope and I won’t say it, that’s not defamation.
Brad: Oh.
Michael: It’s close.
Brad: That’s different, A different word. [00:24:00]
Michael: Different word, Okay. Yeah, but if someone…
Brad: Uh oh, audience members.
Michael: I’m sorry, I shouldn’t have complimented myself. If someone post a review online, that’s untrue, It can give grounds for recovery to a small business.
Brad: Yeah, and we hear stories of, unfortunately, usually doctors who fight the big fight and they sue their former patients for defamation allegedly posting lies online. I know that Jeff has talked about that there are these competitors that will do that, and so, yes, we understand that.
Michael: Yeah. It’s messy in the sense that someone says something negative about the business and that there’s a defensiveness that comes in and they’re saying it’s not true. The business wants to stand up for people making stuff up, but just like the Depp trial, if you go there, these become messy and expensive. These lawsuits can cost hundreds [00:25:00] of thousands of dollars in legal fees and take years to resolve.
Brad: Yeah, and I think in Johnny’s case, it costs millions of dollars in legal fees.
Michael: Sure.
Brad: And as we’ve trying to avoid saying it, but the dirty laundry did come out, Michael.
Michael: Yes, it did.
Brad: And, you know, our partner has actually told the story to us maybe even on podcast before, but he talks about the Streisand effect when you file a lawsuit. For our audience who doesn’t know Michael, why don’t you tell what the stress in effect is?
Michael: Yeah, it was interesting, I don’t even think it was a defamation case. I think it was a privacy case. But generally, and you can correct me if I am Missing something, Brad. I think that there was some photographers in a helicopter that took pictures of Barbara Streisand’s estate. They were posted on some online websites.
Brad: They did.
Michael: Yeah. Or they did, and then she decided to sue for invasion of privacy. That [00:26:00] lawsuit actually drove more people to the website, millions of people to the website, and it probably would’ve garnered very little attention had she never even filed the suit in the first place.
Brad: Yes, so hence the Streisand effect. Look, as Michael said, if you’re being defamed in public, most people will wanna lash out to protect their name and their reputation. They have built up the goodwill, but attacking the patient and publishing that post can actually be larger issues like the Streisand and effect. If you’re out there attacking your patient online, how are these other people gonna look to you as a place that they want to go? And if we said this in other ways, it’s best if you can, if you do have a negative. The first thing you can do is try to take the conversation offline. Many times when we have these conversations with our clients, they actually know who posted the negative review, and sometimes just by having that [00:27:00] conversation offline, being nice to that person, they might even take it down. Look, if that doesn’t work, the practice should have one response. You shouldn’t be, and some, and this needs to be reasonable and it shouldn’t be a debate going back and forth to that patient. The response. That’s ultimately, at the end of the day, you have your opportunity to show that you’re reasonable that when you come you’re gonna try to find a way to educate the public. You’re gonna address whatever the concern was, but ultimately, the very, and very, very importantly, you’re doing it in a way that does not address the author directly.
Michael: Yeah. I mean, kind of wrapping up the episode, I think we have to acknowledge that if you’re a business and you see something posted about you that’s negative, that’s emotionally triggering. If you see something that’s posted that’s not true in the first place, that’s compounding the negativity.
Brad: Yeah.
Michael: And while, being extra emotional might make you interesting, maybe even interesting [00:28:00] enough to get invited onto a yacht. Maybe not a giga yacht, but maybe a super yacht. It’s not gonna do well with your business because you have so many potholes that you can hit if you run on that emotion and react with the emotion, whether it’s unforeseen consequences like the Streisand effect that we just talked about, or getting in a lawsuit that you regret later because of how much money you’re spending, or actually creating liability for yourself by the way you respond. You just gotta be super careful when you get triggered to make sure you calm down and try to sort through what’s the best way to deal with the issue.
Brad: Good stuff, Mr. Byrd. Well guess what? Audience Member Next Wednesdays show we discuss the World’s Richest Man getting in a fight with a social media company. That’s right, The OPP of Twitter versus Elon Musk. [00:29:00]
Outro: Thanks again for joining us today and remember, if you like this episode, please subscribe. Make sure to give us a five-star rating and share with your friends. You can also sign up for the ByrdAdatto newsletter by going to our website at byrdadatto.com. ByrdAdatto is providing this podcast as a public service. This podcast is for educational purposes only. This podcast does not constitute legal advice, nor does it establish an attorney, client relationship. Reference to any specific product or entity does not constitute an endorsement or recommendation by ByrdAdatto. The views expressed by guests are their own and their appearance on the program does not imply an endorsement of them or any entity they represent. Please consult with an attorney on your legal issues.
