Kesha v. Taylor Swift On Dealing With Mistreatment

Pop stars Kesha and Taylor Swift both have hit songs about being horribly wronged by men in their lives.

Kesha's hit song, "Praying", looks to divine justice to right the scales and tries to stay positive. It is the classic response that Christianity endorses.

Taylor Swift's hit song, “Look What You Made Me Do”, comes from a similar place but espouses revenge.

Both women have young adult musical roots in Nashville, although Kesha's single mother was a struggling singer-songwriter, while Swift came from money. Both women experienced high profile court cases against abusers they encountered in their professional life. Kesha's case was ultimately dismissed on statute of limitations grounds, while Swift won on her counterclaims against a groper claiming what amounted to defamation.

Personally, I think TS's approach is a better way to live, on average, although letting go of the past, as Kesha does, can certainly be more functional when revenge is impossible or costly.

Mueller v. Swift Part IV

A federal jury on Monday found that a former radio show host groped singer Taylor Swift before a 2013 concert in Denver and awarded her $1 in damages. 

The jury also found that neither Swift’s mother nor her radio promotions manager interfered with David Mueller’s employment contract when they reported the assault.

From the Denver Post.

The outcome is unsurprising and well supported by the evidence. The end effect for Mueller is to leave him even worse off than he would have been had he not brought the suit at all in reputation (massively calling attention to his sexual misconduct) and economically. He will be responsible for Taylor Swift's out of pocket litigation costs (but not attorneys' fees) in addition to $1. The ruling also effectively precludes litigation by Mueller against anyone else.

The ruling in favor of Taylor Swift also makes an appeal exceedingly difficult for Mueller to prevail in since there were no real objections to the process related to the counterclaim and that determination is inconsistent with a ruling in his favor.

It is also worth observing that this trial took six full days (and was scheduled for nine, just in case). If it had been a bench trial, it most likely would have take three days, or, at most four days. The time spent on jury selection, preparing jury instructions, instructing the jury and having the jury deliberate would have been absent, and breaks in the trial would have been shorter.

Mueller v. Swift Part III

Closing arguments were held in the Mueller v. Swift trial this morning before the case was sent to the jury to deliberate.

“He lost his job because he grabbed her butt and he got caught,” said [Taylor Swift's] attorney 

Douglas Baldridge, referring to Taylor Swift’s claim that former KYGO radio host David Mueller groped her before a concert at the Pepsi Center. “Now he’s trying to save his butt.” 

But Gabe McFarland, an attorney for Mueller, told jurors that Taylor Swift falsely accused him of assaulting her and that accusation destroyed his career. 

“Why would Ms. Swift lie? I don’t know,” said McFarland. “I’m sure she thinks it’s true, but the photograph says otherwise.” 

McFarland told eight jurors that Swift’s mother Andrea Swift, and her radio promotions manager, Frank Bell, used their influence to pressure KYGO into firing Mueller. 

McFarland asked the jury to award Mueller $257,500. Baldridge asked the jurors to reject Mueller’s case and award $1 to Swift in her counterclaim.

From The Denver Post (emphasis added).

A $3 million damages request has been deflated to $257,500 in closing arguments.

Furthermore, the emphasized language by Mueller's attorney, while sufficient to defend against an assault and battery claim if the jury believed it, would not be sufficient to support a claim for intentional interference with contract. If Taylor Swift believed she was wrongfully groped and her mother and her manager believed her, there cannot be liability on Mueller's intentional interference with contract claim, which requires wrongful intent. This is a concession that Mueller's attorney should not have made in closing argument that puts any verdict that might be obtained at risk.

Of course, in all likelihood, the jury is not going to believe Mueller's unlikely tale, will dismiss his two remaining claims, and will find in favor of Taylor Swift on her counterclaims, quite possibly before this afternoon ends.

Jury instructions in the case that were used to charge the jury today are here.

Mueller v. Swift Part II

In a previous post, I reviewed the claims at issue in the Mueller v. Swift case in which a trial was being held in U.S. District Court in the District of Colorado this week.

This week, a jury was selected and all of the evidence was presented. Then, a motions hearing to see which claims were supported by enough evidence to go to a jury remained. On Monday, closing arguments will be presented to a jury.

It was a bad day for Mueller's case.

At the start of the trial, the claims were as follows:

(1) intentional interference with contract (related to the firing of Mueller) and (2) tortious interference with business relations (related to his loss of an option in his contract), against Taylor Swift, her manager and her mother. Both of Mueller's claims are against all three of them personally, and also against Taylor Swift without regard to fault on the grounds that she is responsible for any conduct of her manager. Counterclaims for assault and battery brought by Taylor Swift against Mueller are also pending.

The judge didn't even let the jury consider, because there was no evidence to support the claims:

* tortious interference with business relations against all parties.

* intentional interference with contract as to Taylor Swift because (1) contracting her mom and manager was a privileged communication to her own employer of a suspected incident of sexual assault, and (2) because her mom and her manager work for her production company, not for her personally, so she has no vicarious liability and the production company isn't a party to the action.

This leaves for the jury:

* intentional interference with contract against her mom
* intentional interference with contract against her manager
* counterclaims for assault and battery

Moreover, the jury cannot find for Mueller if the jury finds that there was assault and battery.

And, the jury has to find that either mom or the manager believed that Taylor Swift was lying when the manager, with the emphatic support of the mom, contacted KYGO, Mueller's employer about the incident.

There are now fewer logically possible outcomes:

* Intentional interference with contract against mom but not the manager. Mueller gets $$ and costs.
* Intentional interference with contract against the manager but not mom. Mueller gets $$ and costs.
* Intentional interference with contract against the manager and mom. Mueller gets $$ and costs.
* All claims are dismissed. Neither party gets costs.
* Assault and battery against Meuller. Taylor Swift gets $1 plus costs.

Both parties will pay their own attorneys' fees unless the court makes a groundless or vexatious claim determination, which is highly unlikely given that the claims above survived a motion for summary judgment and a Rule 50 motion at the close of evidence.

Given the evidence presented at trial, one of the last two possibilities is most likely, and the last is by far the most likely, so it isn't even really worth trying to do a damages analysis in the very unlikely event that Meuller prevails.

An assault and battery finding would also prevent Meuller from asserting a claim against KYGO or Swift's management company, or anyone else. Fortunately for him, he will, at least, escape a sex offender conviction as a result of this trial, because it is a civil lawsuit and not a criminal one.

What Are The Claims In Mueller v. Swift?

The trial in the big Mueller v. Taylor Swift case is being held right now in the U.S. District Court for the District of Colorado, just down the road from my office. 

While I am vaguely aware that the case involved allegations that Mueller, a Denver DJ groped Taylor Swift, a national popular music star who is one of the most successful cases of an artist transitioning from country music to pop music, I didn't know much else. And, as a lawyer, the news stories that I did glance at, frustratingly did not make clear what was at issue in the case.

The Claims and Counterclaims

Fortunately, original public court records that can clarify the matter are now easily available on the Internet. A May 31, 2017 ruling on a Motion for Summary Judgment in the case by the federal trial court judge presiding over this jury trial was particularly informative.

This is a diversity case pending in federal court. The Plaintiff, David Mueller, brought claims for intentional interference with contract (pertaining to him being fired from a two year contract with KYGO), tortious interference with prospective business relations (pertaining to his loss of potential income from a one year option of the radio station to renew his contract), slander per se, and slander per quod against Taylor Swift, Frank Bell (Taylor Swift's manager who was present at the venue where the incident happened) and Andrea Swift (Taylor Swift's mother who was on tour with her when the incident happened). Taylor Swift brought a counterclaim for the torts of assault and battery.

David Mueller was a country music DJ at Country Music radio station KYGO and the case concerns a backstage meet and greet at Pepsi Center in Denver on June 2, 2013 where Mueller allegedly grabbed Taylor Swift's butt during a photo shoot (partially corroborated by an ambiguous photo), what was said about it afterwards, and what happened as a result. She told her mom, they told her manager, her manager complained and called the DJ's boss the next day and his boss investigated the claims. The day after that DJ was fired for cause (he had a two year employment contract with a one year option to renew on the radio station's part). He sued on May 29, 2015 in state court and the case was removed to federal court by the Defendants who are not Colorado residents.

Mueller's claims for slander per se and slander per quod were added to the case after he filed suit on February 25, 2016 and then dismissed on a motion for summary judgment because they were filed after the one year statute of limitations and not revived by the filing of counterclaims because the slander claims were not counterclaims. (The assault and battery claims also have a one year statute of limitations but were timely due to a revival statute in Colorado law that permits the filing of counterclaims related to the claims in the complaint even if they are otherwise barred by the statute of limitations.) 

The Bottom Line: The Pending Claims

Thus, the claims that have gone to a jury trial in this case (which is set for nine days) are (1) intentional interference with contract (related to the firing of Mueller) and (2) tortious interference with business relations (related to his loss of an option in his contract), against Taylor Swift, her manager and her mother.  Both of Mueller's claims are against all three of them personally, and also against Taylor Swift without regard to fault on the grounds that she is responsible for any conduct of her manager. Counterclaims for assault and battery brought by Taylor Swift against Mueller are also pending. 

The radio station is not being sued for wrongful termination.

Facts Pertinent To Liability

It is rather surprising that this case is set for a nine day trial, although some of that no doubt reflects the fact that jury selection was expected to, and did, take a long time, because not many facts are really at issue.

All of the facts pertinent to liability on the claims and the counterclaims happened over a period of three days, starting on the evening of June 2 and continuing until the late afternoon of June 4. Taylor Swift and her mom's acts allegedly giving rise to liability and Mueller's acts allegedly giving rise to counterclaim liability, all took place on the evening of June 2. Her manager's actions allegedly giving rise to liability allegedly continued from that evening until the following morning when he made a phone call. Mueller's actions in response to the accusations took place later on the following day, but on June 4, it appears that the undisputed facts are Mueller was informed that he was fired and that people were informed of that fact, but nothing else happened relating to the liability of any of the parties.

All of the facts giving rise to liability probably took place over a couple of hours at most.

Other Issues

The Court imposed a sanction on Mueller for spoliation of evidence, but only a mild one, allowing the Defendants to cross-examine Mueller on his doctoring and later destruction of tape recorded evidence of his meeting with his employers on June 3.

Plausible Outcomes

In the end analysis, it turns out that this is actually a very simple case with interrelated claims that reduce the number of possible outcomes.

The eight realistic possibilities in light of the facts and the pending claims on the issue of liability are:

* Mueller wins on both claims against all Defendants. Taylor Swift's counterclaims are dismissed.

* Mueller wins on both claims against Taylor Swift and her manager, but not her mother. Taylor Swift's counterclaims are dismissed.

* Mueller wins on both claims against Taylor Swift, but not her manager or her mother. Taylor Swift's counterclaims are dismissed.

* Mueller wins on only his intentional interference with contract claim against all Defendants. Taylor Swift's counterclaims are dismissed.

* Mueller wins on only his intentional interference with contract claim against Taylor Swift and her manager, but not her mother. Taylor Swift's counterclaims are dismissed.

* Mueller wins on only his intentional interference with contract claim against Taylor Swift, but not her manager or her mother. Taylor Swift's counterclaims are dismissed.

* All of Mueller's claims and all of Taylor Swift's claims are dismissed.

* Mueller's claims are dismissed and Taylor Swift wins on her counterclaims against Mueller.

Damages

Each side may also need to show damages arising from the liability claims. Presumably, Taylor Swift's counterclaim includes few if any economic damage award amounts. Presumably, the core of Mueller's claim would be for almost three years of lost DJ wages possibly reduced by amounts he could have earned in other employment mitigating his damages. The Denver Post, quoted below, says he's seeking $3 million in damages.

There would be pre-judgment and post-judgment interest in both cases at the statutory rate of 8% per annum. Neither claim entitles a prevailing party to attorneys' fees, but a prevailing party would be entitled to out of pocket costs like filing fees and expert witness fees.

Non-economic damages are also limited by statute (if I recall correctly, to $250,000 plus an inflation adjustment, maybe twice that depending on the facts), and it isn't clear to me if non-economic damages are available on Mueller's claims although they are clearly available on Taylor Swift's counterclaim. But, according to the Denver Post, she is only seeking nominal damages, which means that she doesn't need to present any evidence on damages.

Mueller sued Swift and others on her team, claiming they cost him his job and is seeking up to $3 million in damages. Swift countersued, alleging sexual assault, and is asking for a symbolic $1 judgment.

It appears that an exemplary damages award could be made on any of the remaining claims, damages are limited to up to two times the combined economic and non-economic damages awarded in the case (one times that amount in some circumstances, double in other circumstances). 

My Assessment Of The Case

Mueller's odds of winning this case are low. Indeed, after reviewing some news accounts of the evidence offered at trial so far, they are very low.

He has to convince a jury that he didn't grope Taylor Swift contrary to her testimony, that Taylor Swift didn't sincerely believe that he groped her even if he didn't contrary to her testimony, and that Taylor Swift then wrongfully accused him of groping her even though she'd never met him before in her life and knew nothing about him (and didn't even know his name until after the incident) before having a conservation with him for a few minutes and posing for a photograph with him, available as evidence, in which it is appears possible that he could have been groping her. 

Mueller must do so in light of testimony that could suggest that he destroyed evidence that would have been harmful to his case. He must also show in the face of contrary testimony from his former employers that it was more likely than not that his contract would have been renewed.

As to her mother, Mueller has to show that her mother thought Taylor Swift was making a false accusation and went along with urging her manager to take action anyway. As to her manager's personal liability, Mueller likewise has to show that the manager didn't believe Taylor Swift's accusations. A jury is very unlikely to believe either of these allegations.

Taylor Swift has a powerful personality and will testify effectively. She will be a credible witness. Her testimony is corroborated by a photographer and a guard. She immediately mentions it to at least three different people right after the photo shoot.

Mueller will come before the jury as a possibly lech ex-DJ and while glib as a DJ, not a star and not particularly more effective than Taylor Swift's mother or her manager. No one on the scene will be able to testify in a way the convincingly confirms his claims.

Mueller admits having some bodily contact with her in the incident. So, even if a jury believed him would provide a basis for Taylor Swift to believe that he was trying to sexually assault her even if that wasn't his intent. If a jury found that she believed that he intended to assault her, she has no legal liability even if they believe his testimony. They don't have to believe Taylor Swift about what actually happened, they simply have to believe Taylor Swift about what she subjectively believed happened. This is pretty much an impossible hurdle for Mueller's case to overcome.

There is some indications in the pleadings that a third party may have been actually groping Taylor Swift and that Mueller was wrongfully accused, but that Taylor Swift didn't know that fact. But, it appears that this is not the argument that Mueller is making at trial. If the jury believed that this was the case, Mueller's claims would be dismissed, but Taylor Swift's counterclaims would also be dismissed.

The mostly likely outcome is that Taylor Swift cleanly wins and that Mueller cleanly loses.