By Matthew Russell Lee, Patreon Podcast
BBC - Guardian UK - Honduras - ESPN
SDNY COURTHOUSE, July 21 – Jennifer Eckhart and Cathy Areu sued Fox News, Ed Henry, Sean Hannity and others. Their cases have since been severed.
On July 21, 2021 U.S. District Court for the Southern District of New York Judge Ronnie Abrams held an oral argument. Inner City Press live tweeted it, here (podcast here)
Fox News' lawyer says that even if Fox knew of prostitution, it would not make out a sex trafficking claim for purposes of Federal jurisdiction. "She hasn't alleged that Mr. Henry coerced anyone into a commercial sex act."
Fox News' lawyer: She alleged Ed Henry had an affair with a Las Vegas stripper. But that is not even workplace conduct.
Judge Abrams: But if he promised to get a woman into an important place to get a job, why isn't that a thing of value?
Judge Abrams: Why can't I consider his text message asking, Why did you turn away today? Fox News' lawyer: Her claims are time barred. Those communications are not sexual. Judge Abrams: Isn't it part of that harassment? Fox News' lawyer: It is too remote in time
Fox News' lawyer: The alleged rape was in 2017. The text is 20 months later. It's too remote. Judge Abrams: There are texts saying, Are you playing hard to get. The Morgan case says it is not too remove-- Fox News' lawyer: I think you're talking about the Sullivan case.
Fox News' lawyer: They were co-workers. Mr. Henry was not a manager. Their first contact was through a private Twitter message. Nor is there a sufficient allegation that Fox knew of Mr. Henry's misconduct. She reported it, three years later.
Judge Abrams: Wasn't she asked, in her exit interview, if she had been sexually harassed? Fox News' lawyer: It is not an admission of knowledge. In this day and age it is common to ask that in an exit interview. To find that way would disincentivize asking
Fox News' lawyer: She concedes in his briefing that when she said toxic workplace, she didn't mention sexual harassment. But we don't have to read her mind.
Fox News' lawyer: She claims that Fox firing Mr. Henry without giving her prior notice was a form of retaliation. She says Fox's Rule 11 motion is also retaliation. That cannot be a cognizable claim. She has already filed and amended. And the motion is authorized
Fox News' lawyer: She says that Mr. Henry's filing, which included intimate photographs, is Fox News' fault. But Fox didn't endorse the filing. Anyway, the Rule 11 motion is against Ms. Area and the firm representing her. I want to defend my honor, about hiring me
Fox News' lawyer: Ms. Areu's case was severed. And hiring me is not an admission -- Judge Abrams: I find those arguments offensive and will not consider them. Fox News' lawyer: Anyway, the statute doesn't apply to images included in a legal pleading.
Ed Henry's lawyer: If he was trying to date someone, that does not support that he was a habitual sex harasser. His statement about putting her in a room with important people was after they had a sexual relationship. Judge Abrams: Before the alleged rape--
Ed Henry's lawyer: There was a relationship, then an offer to help. That cannot be sex trafficking. They had sex. They had a relationship; it continued. You can't just say, it's turned into sex trafficking because they spoke about supporting each other
Ed Henry's lawyer: Maybe he's puffing. But it's not enough. In the Weinstein cases, there are very specific allegations, many meetings before he gets them into a hotel room. In the David case you decided, he suggested she had the film role. That's not this.
Ed Henry's lawyer: There's no need to entice her - he's already in a relationship with her. He's a political anchor. She doesn't talk about politics. Why would she believe she would be on a political show?
Ed Henry's lawyer: The "Yo, why did you turn away" was just a greeting. Mr. Henry cannot be personally liable under these cited statutes because he was not her supervisor. Judge Abrams: What about gender animus? Ed Henry's lawyer: We're not conceding anything.
Ed Henry's lawyer: We were within our right to append the pictures Judge Abrams: Why couldn't you just describe them in writing? Ed Henry's lawyer: We redacted the more intimate sections.
Judge Abrams: I have a hard stop coming up. [So a ruling today is unlikely - Inner City Press will stay on the case(s)
Ms. Eckhart's lawyer cites Bill O'Reilly. Judge Abrams: Under state law, the employer would have to condone or approved. Eckhart's lawyer: They condoned it. Even approved it, by promoting him.
Eckhart's lawyer: My client was told, You're going to face repercussions if you pursue the complaint. Then she was terminated despite her outstanding performance. We didn't plead that Fox asks everyone if they faced harassment, despite what Ms. McKenna said.
Judge Abrams: Why should I read into "toxic environment" that she was alleging protected activity? Eckhart's lawyer: Fox understood that she could have been raising a concern about harassment and discrimination. Judge Abrams: And the sex trafficking claim? Eckhart's lawyer: He made promises to her that were fraudulent. Then he violently attacked her. This is Weinstein-esque. He pushed her head down.
Eckhart's lawyer: I've never seen anything like this, the filing of those photographs. We cited photos of my client handcuffed, not these photographs. This was gratuitous. How can they argue it is a common legal practice?
Judge Abrams: What about the redactions? Eckhart's lawyer: You can see around the thong... Also, when you're raping a woman, that fact that she's a woman obviously has something to do with it.
Eckhart's lawyer: They called Ms. Areu a hot potato. That's not appropriate. Fox News' lawyer: It was the situation created by the Wigdor firm I was referring to. Ed Henry's lawyer: The photos were relevant. Even rape would not make out a sex trafficking case.
Judge Abrams: Well argued on all sides. I will reserve decision. Adjourned.
On April 20, 2021, SDNY Magistrate Judge Gabriel W. Gorenstein held an oral argument as to whether Judge Abrams' stay on discovery should remain in place until Fox's motion to get out of the case is decided. Inner City Press live tweeted it here: (podcast here)
Ed Henry's lawyer: My client is out of a job for months, unable to clear his reputation. The fact that Fox is pointing to document in its system that might help Mr. Henry is not the point. We need the case to move forward. I agree with the plaintiffs on that.
Ed Henry's lawyer: We need the plaintiff's emails, with us and others. Maybe there's a way to limit the nature of the discovery we get as to Fox.
Judge Gorenstein: OK, I'll give Fox a chance to reply. Fox's lawyer: We don't think Fox should be dragged into it
Magistrate Judge Gorenstein: Defendant's argument with dismissal as to it have support. I am sympathetic to Plaintiff's wish to move forward, and Henry's, to try to defend his reputation. But there is not much prejudice, like elderly witnesses...
Judge Gorenstein: As to the breadth of discovery, there are limits to what a third party has to produce, versus a party. Electronic discovery is expensive to re-do. So, I conclude the stay previously ordered by Judge Abrams should remain in place.
So: there will still be a stay on discovery, until Fox's motion to get out of the case is decided.
On October 19, Ed Henry had fired back, including "7. Attached hereto as Exhibit D is a true and correct copy of email correspondence between Ed Henry and Jennifer Eckhart, dated October 21, 2015. 8. Attached hereto as Exhibit E is a true and correct copy of a message, dated January 2, 2016, from Jennifer Eckhart to Ed Henry sending him a “Playlist” of songs via Dropbox. Included in this “Playlist” are songs like “Coffee (Fucking)” (which features the lyrics “Fucking in the morning . . . I’ve never felt comfortable like this . . . Sweet dreams turn into fucking in the morning”) and “Cockiness (Love It When You Eat It)” (which features the lyrics “I want you to be my sex slave . . . Set my whole body on fire”). 9. Attached hereto as Exhibit F is a true and correct copy of email correspondence Jennifer Eckhart sent to Ed Henry, dated January 13, 2016, with a link to a picture of a man’s tattoo, as well as a screenshot from that webpage. 10. Attached hereto as Exhibits G-U are true and correct copies of photographs Jennifer Eckhart sent Ed Henry in 2017. In exhibits I, J, M, and Q, Plaintiff’s intimate parts have been purposely obscured. Dated: New York, New York October 19, 2020."
The exhibits was in PACER, and public - then on the morning of October 20, they were not available. Jennifer Eckhard's lawyer wrote in:
"we made an emergency application to the ECF Help Desk to temporarily seal these exhibits pending a formal application to Your Honor, which was granted early this morning. Case 1:20-cv-05593-RA Document 91 Filed 10/20/20 Page 1 of 2 The Honorable Ronnie Abrams October 20, 2020 Page 2 While we expect that Defendant Henry will attempt to draw a false equivalency between the text messages that Plaintiff included in her Amended Complaint in an effort to justify his behavior, there is obviously no comparison between words sent by a party and disseminating nude images of someone to the general public. Indeed, in New York, public dissemination of nude images in this manner is actually unlawful. See N.Y. Penal Law § 245.15. Notably, we are not seeking to redact or seal any of the non-image related exhibits that Defendant Henry filed with his motion to dismiss (notwithstanding the fact that this material is also irrelevant at the motion to dismiss stage). These pictures also represent the type of confidential and sensitive information that are normally sealed in the course of litigations. In re N.Y. Times Co., 828 F.2d 110, 116 (2d Cir. 1987). Courts have identified particular examples of “higher values.” See e.g., Giuffre v. Maxwell, No. 15 Civ. 7433 (RWS), 2017 WL 1787934, at *2 (S.D.N.Y. May 2, 2017)"
Will this citation to Maxwell work? On October 22 Ed Henry fired back: "Re: Jennifer Eckhart v. Fox News Network, LLC, et al., Civil Case No. 1:20-cv-05593 Dear Judge Abrams: We write on behalf of Defendant Edward Henry in response to the October 20, 2020 letter motion filed by Plaintiff Jennifer Eckhart, requesting that this Court seal certain documents filed by Mr. Henry in connection with his motion to dismiss Plaintiff’s Second Amended Complaint and for a more definite statement. See Dkt 91. Mr. Henry opposes Plaintiff’s request to seal these documents from the public. As an initial matter, Plaintiff’s application should be denied for improper use of the Court’s “Emergency Sealing” process and for her offensive and meritless argument that under New York law the “public dissemination of nude images in this manner is actually unlawful,” citing to New York Penal Law 245.15. (See Plaintiff letter at 2.) In actuality, the Emergency Sealing Request is intended for instances when a party mistakenly files its own confidential information, not to hide from public view documents that the party finds embarrassing. See SDNY Electronic Case Filing Rules & Instructions § 21.7 (April 1, 2020). Plaintiff, therefore, had no right to seek emergency sealing through the ECF office. Moreover, Plaintiff has no need to seek relief on an emergency basis. In her letter, Plaintiff falsely contends that Mr. Henry did cfoti@maglaw.com (212) 880-9530 October 21, 2020 Case 1:20-cv-05593-RA Document 94 Filed 10/21/20 Page 1 of 4 The Honorable Ronnie Abrams October 21, 2020 2 not inform Plaintiff about the photographs prior to filing. To the contrary, as far back as July, Mr. Henry’s counsel informed Plaintiff’s counsel that Mr. Henry was in possession of the photographs which we believed proved the fallacy of Plaintiff’s claims. Plaintiff obviously knew the nature of the photographs she had sent Mr. Henry and could have sought relief from their becoming public prior to the filing. She chose not to do so. Her decision instead to utilize the Emergency Sealing mechanism is a blatant misuse of the court system and requires that the temporary stay be lifted immediately."
But the sealing was not lifted. Judge Abrams ruled that since she can't consider such "extrinsic" material on a motions to dismiss, the photos are not judicial documents, at least not for now: "Sealing requests are subject to the test set forth in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006). That test requires the Court to first determine whether the documents at issue are “judicial documents” by examining whether they are “relevant to the performance of the judicial function and useful in the judicial process.” United States v. Erie Cnty., 763 F.3d 235, 239 (2d Cir. 2014). If the documents are judicial documents, then a common law presumption of access attaches, and the Court must then consider the weight of that presumption against any “competing considerations.” Lugosch, 435 F.3d at 119–120. In light of the fact that these exhibits were submitted in connection with Defendant Henry’s motion to dismiss, they would generally be considered judicial documents entitled to a presumption of public access. See City of Almaty, Kazakhstan v. Ablyazov, No. USDC-SDNY DOCUMENT ELECTRONICALLY FILED DOC#: DATE FILED: 10-21-20 Case 1:20-cv-05593-RA Document 95 Filed 10/21/20 Page 1 of 2 2 15-CV-5345, 2019 WL 4747654, at *5 (S.D.N.Y. Sept. 30, 2019) (“Documents submitted in support or opposition to a motion to dismiss are judicial documents.”). The Court nevertheless grants the motion to seal the fifteen photographs. Not only do these exhibits contain highly sensitive images that Plaintiff has an understandable interest in keeping private, cf. United States v. Amodeo, 71 F.3d 1044, 1051 (2d Cir. 1995) (“In determining the weight to be accorded an assertion of a right of privacy, courts should first consider the degree to which the subject matter is traditionally considered private rather than public.”), but they also constitute extrinsic evidence which this Court is not permitted to consider—and thus should not have been filed—in conjunction with this motion to dismiss. See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 231 (2d Cir. 2016), see also Kopec v. Coughlin, 922 F.2d 152, 155–56 (2d Cir. 1991). Hence, they are not at this time “relevant to the performance of the judicial function and useful in the judicial process.” Erie Cnty., 763 F.3d at 239. Taken together, these considerations outweigh any presumption of access, and the Court finds that—at this juncture—sealing is appropriate under Lugosch. Accordingly, it is hereby ORDERED that Plaintiff’s motion to seal Exhibits 7–21 of docket entry 85 is GRANTED, albeit without prejudice to an application to unseal the exhibits at an appropriate time. The Court will file these exhibits under seal, visible to only the parties (Jennifer Eckhart, Fox News Network, LLC, Ed Henry, Sean Hannity, Tucker Carlson, and Howard Kurtz); counsel for the parties; and court staff. The Clerk of Court is respectfully directed to terminate the motion pending at Dkt. 91." Watch this site.
We'll have more on this, too. For now we note that the Guiffre v. [Ghislaine] Maxwell case cited above was cited elsewhere in the SDNY on October 20, in support of sealing or not docketing mere words, letters by Suspicious Activities Report leaker / whistleblower Natalie Edwards, which Inner City Press applied to unseal, October 20 order here.
Ms. Areu says Sean Hannity threw a $100 bill on the set desk and "began calling out to men in the room and demanding that someone take Ms. Areu out on a date for drinks at Del Friscos."
At issue on October 7 was whether the separate the two women's cases. This will be done.
Update: After Inner City Press published the above about the October 7 proceeding, we received the following which we publish in full:
Statement from FOX News on the Cathy Areu amended complaint “As we have maintained, the accusations against Tucker Carlson, Sean Hannity and Howard Kurtz are utterly devoid of merit. Ms. Areu’s allegation that women are not treated equally at FOX News is also provably false and yet another malicious attempt to smear the network with baseless claims. In fact, FOX News has provided more leadership opportunities for women than any other cable news network, including featuring more solo women anchors and hosts on-air and retaining a senior staff comprised of more than 50% female executives.”
Statement from FOX News in response to Wigdor lawsuit filing: “Based on the findings of a comprehensive independent investigation conducted by an outside law firm, including interviews with numerous eyewitnesses, we have determined that all of Cathy Areu’s claims against FOX News, including its management as well as its hosts Tucker Carlson, Sean Hannity & Howard Kurtz and its contributor Gianno Caldwell, are false, patently frivolous and utterly devoid of any merit. We take all claims of harassment, misconduct and retaliation seriously, promptly investigating them and taking immediate action as needed — in this case, the appropriate action based on our investigation is to defend vigorously against these baseless allegations. Ms. Areu and Jennifer Eckhart can pursue their claims against Ed Henry directly with him, as FOX News already took swift action as soon as it learned of Ms. Eckhart’s claims on June 25 and Mr. Henry is no longer employed by the network.”
The lead case is Eckhart et al v. Fox News Network, LLC et al., 20-cv-5593 (Abrams / Gorenstein)
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