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Hulk Hogan wins major legal battle, but will he win the war?

It's far too early for Hulk Hogan to be popping the champagne just yet, as Florida’s Second District Court of Appeal has overturned several prior favourable rulings in this case. He's still a long way off making any money off his litigation against Gawker Media.

By Keith Harris
Yesterday was a big win for Hulk Hogan's legal counsel, but they still have a lot of work to do.
Yesterday was a big win for Hulk Hogan's legal counsel, but they still have a lot of work to do.
Gerardo Mora/Getty Images

Having followed the Hulk Hogan vs. Gawker Media trial from the beginning, it seems like Gawker's goose was well and truly cooked on day three when a videotaped deposition of A.J. Daulerio, the former editor-in-chief of Gawker.com and the author of the Hogan sex tape article, was shown to the jury where he lost his mind in the heat of the moment by flippantly answering four to a question about what age would a celebrity's sex tape be non-newsworthy. It also didn't help that Daulerio had been so open about how "amusing" he had found Hogan's sex tape to be. Clearly, Daulerio was someone who had acted in a wilful disregard for the emotional distress publication of excerpts of the sex tape would cause Hogan and the gross invasion of his privacy it represented. It left Gawker's attorneys a mountain to climb and despite some very strong arguments on their parts, it seems that their association with Daulerio killed all their credibility.

The end result was Hogan being awarded $55 million for economic injuries and $60 million for emotional distress with punitive damages yet to be determined. The sky could really be the limit for the award damages total, currently standing at $115 million, as the jury is obviously 100% on Hogan's side.

However, Gawker who are playing the long game, had some reason to smile on Friday too. That's because almost 2,000 pages of previously sealed legal documents related to the case were finally released to the public, after an appellate court overruled Judge Pamela Campbell's ruling that they should remain secret, which revealed a lot of information that was damaging to Hogan's case.

Most notably, Hogan sent a text message to Bubba The Love Sponge on Oct.12th, 2012, about a week after Daulerio's post, saying: "We know there's more than one tape out there and one that has several racial slurs we're told, I have a pay-per-view and I am not waiting for anymore surprises because we know there is a lot more coming, all because you filmed me, so I'm asking you one more time, why do you lie to me then film me anyway, I need an answer now because things are moving really fast and I really can hope you make me understand because I'm not playing anymore games and I'm not waiting for anymore BS lies."

It should be noted that Hogan sued Gawker Media for $100 million three days later. Thus, a key part of Gawker's desired defence was going to be that Hogan had filed suit against their company to prevent additional footage from being released that showed him using racial slurs and that was the cause of his emotional distress over that time period, but Judge Campbell ruled that evidence inadmissible.

Campbell had also quashed Gawker's subpoena of Bubba The Love Sponge to force him to testify, despite him being a key witness given he was the party that had secretly recorded Hulk Hogan having sex with his ex-wife Heather Cole. The sealed documents revealed that Bubba had told the FBI, who was investigating an attempt to extort Hogan for money in return for copies of the sex tapes, that Hogan knew he was being recorded at the time:

Even if you believe that Gawker got was what coming to them, it's hard to believe that the company genuinely got a fair shake to present their best case as so much relevant information over the circumstances of the sex tape being published and the lawsuit being filed was strangely ruled inadmissible.

Not only did Bubba likely lie to the FBI, Hogan's lawyer Charles Harder may have also misrepresented to the state court that his client had never seen the sex tapes in question, which Hogan is alleged to have done so during the aforementioned extortion investigation:

Heather Cole who claimed in her videotaped deposition that she didn't know she was being secretly filmed by her then husband, also told the FBI a different story:

Even Hogan himself has his own credibility issues in the newly released information although largely through his retelling of tall stories from his wrestling career, like claiming he wasn't interested in becoming President of the United States, because he "didn't want to do too good a job and get assassinated."

Given that the appeals court was the one who granted the release of these previously sealed documents, it's probably a sign that they would rule such evidence admissible when they hear the case themselves.

So even though Hulk Hogan won the trial outright, it's highly questionable whether he will win the war. At the very least, the damages he's been awarded will likely be substantially reduced, in particular, the $55 million for economic injuries, which was largely based on the perceived value of a sex tape he didn't want to sell, rather than lost income from its publication.

One barrier to appealing this case is that Gawker Media will have to post a substantial bond in order to do so (believed by some to be 10% of the total damages awarded, which would be at least $11.5 million, likely significantly more, although others have claimed they would have to pay a bond of $50 million). However, given that Gawker seems to have been prepared for the worst case scenario, I don't think this will be an issue. Indeed, Gawker CEO Nick Denton published the following statement after the verdict indicating that he's going full steam ahead with the appeals process:

"Given key evidence and the most important witness were both improperly withheld from this jury, we all knew the appeals court will need to resolve the case. I want to thank our lawyers for their outstanding work and am confident that we would have prevailed at trial if we had been allowed to present the full case to the jury. That's why we feel very positive about the appeal that we have already begun preparing, as we expect to win this case ultimately."

I'm not sure Gawker would have won if they were allowed to present the case they had wanted to before the jury, but it obviously couldn't have helped Hogan's case for damages.

The reason why Denton is so bullish that they won't have to pay Hogan a dime is because of the "full, convoluted history of the case" as explained by Peter Sterne of Politico. Basically, Hogan was initially denied a temporary injunction against Gawker's video by Judge James Whittemore of Florida’s Middle District federal court, which was then granted by Judge Pamela Campbell in state court, but that injunction was later overturned by Florida’s Second District Court of Appeal on the grounds that the video was newsworthy and Gawker's publication of it was protected by the First Amendment. That suggests that the appeals court is much more sympathetic of Gawker's legal argument than either Judge Campbell or the jury were, so it is unlikely to uphold the huge damages Hogan has been awarded.

Obviously, Hulk Hogan's side are bullish too, given such an overwhelmingly favourable outcome at the trial. According to journalist Ian Sherr, one of his attorneys told him "We are exceptionally happy with the verdict. It sends a clear message to those organisations like Gawker. It says loudly and clearly no more. Privacy exists and will be enforced by our court system." Hogan's lawyer David Houston has also downplayed the significance of the release of the previously sealed documents in the case:

"The materials being released are a separate matter and not part of this case. The court is releasing FBI documents which have been previously leaked to the media through an unknown source. It is necessary to note that throughout this three-and-a-half year lawsuit, Bubba Clem has only testified once under oath, and in that testimony confirmed that Terry Bollea had no knowledge of being filmed or anything to do with it. It was not until 2012, five years later, that Mr. Bollea learned anything about it. Additionally, it makes no sense that there would be an FBI investigation brought by Mr. Bollea into an extortion attempt if he had anything to do with the filming or dissemination."

This may very well prove to be true, but clearly it's far too early for Hulk Hogan to be popping the champagne just yet. The appeals process will obviously be long and arduous. Even if a huge monetary award is upheld, Denton would probably be forced to declare bankruptcy and Hogan would only receive a small fraction of the money he was awarded. Ultimately Hogan's high risk gamble may not pay off, given that in the process of attempting to land a big payday for himself he was exposed as a racist which has curtailed his opportunities to earn a living since his private comments were made public in late July 2015 and will do so long into the future. Yesterday, may well prove to be a completely hollow victory.

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