The Eramo / Erdely / Rolling Stone appeal

Have to make this a separate post from
“The Eramo / Erdely / Rolling Stone trial”
because that had gotten so large that updating it moved at a glacial pace
(a problem either with blogger or with my browser).

News groups’ motion sides in part with Rolling Stone
Daily Progress, 2016-12-11

Nine news organizations are partially siding with Rolling Stone magazine in challenging the jury’s verdict in the recent multimillion-dollar defamation lawsuit won by University of Virginia administrator Nicole Eramo.

On Thursday, the Reporters Committee for Freedom of the Press was joined by The Associated Press, The Washington Post and other organizations in a filing that supports Rolling Stone’s motion to override part of the jury’s Nov. 4 verdict in the high-profile case.


Other news organizations quickly found holes in the article’s centerpiece narrative, leading the magazine to append an editor’s note at the top of the article on Dec. 5, 2014, stating that Rolling Stone’s trust in the article’s primary source had been misplaced. After a review by the Columbia Journalism School found that the article was a “journalistic failure that was avoidable,” Rolling Stone officially retracted the piece in April 2015.

Eramo’s suit went to trial in October, at which time she argued that she’d been painted as the “chief villain” in Erdely’s debunked tale. At the time of the article’s publication, Eramo had been the associate dean charged with aiding student survivors of sexual assault; mentioned more than 30 times in the piece, Eramo claimed she had been portrayed as callous and indifferent to students’ needs, and that she’s since suffered unduly at the hands of Erdely and her editors.

After three weeks at trial, jurors found in favor of Eramo, saying in their verdict that Erdely had acted with actual malice in publishing certain patently false statements about Eramo, and that the magazine had acted with equal malice in “republishing” the article with the editor’s note on Dec. 5. They awarded Eramo $3 million, although she had sought $7.85 million when the suit was filed.

This past Dec. 5, exactly two years after the fateful editor’s note was tacked onto the online story, Rolling Stone filed a motion with the court to overrule the jury’s verdict. The motion states that there is no evidence to support the jury’s findings that the defamatory statements were republished, and that Eramo did not successfully prove that Erdely published the statements with actual malice.

While neither Eramo nor a federal judge has responded to the magazine’s motion, a judge has temporarily suspended the enforcement of the jury’s verdict until the matter is settled.

In its own filing, the Reporters Committee for Freedom of the Press said that it and eight other news organizations support Rolling Stone’s motion “with respect to the question of whether the editor’s note constituted a ‘republication’ of the entire article,” and that they wish to assist the court in its determination of the case.

In the filing, the organizations say they are reputable news organizations and that each of which “recognizes a commitment to be vigilant in clarifying inconsistencies and to update their work accordingly” in the hopes of providing their audience with accurate information. In that capacity, the organizations wish to “stress the chilling effects” that would result if Rolling Stone was to be penalized for the “republishing” element of the jury’s verdict.

“Plaintiff threatens to set a dangerous precedent for news organizations and those who rely upon them for accurate up-to-the-minute news throughout the country,” the filing reads. “Upholding the current verdict would set [the organizations] on a collision course between correcting errors in their journalism and facing liability for doing so.”

The collective news groups believe that if confronted with the possibility of punishment for using editor’s notes and offering apologies as done in this Rolling Stone case, “news organizations may avoid responding to new information altogether, diminishing their credibility and harming the public in the process.”

A federal judge has yet to publicly weigh in on the recent spate of filings, other than to stall the verdict’s enforcement.


Eramo’s attorneys ask judge to uphold jury verdict
by Kate Bellows
Cavalier Daily, 2017-01-02


On the other hand, the defense’s motion for judgment contended Rolling Stone and Wenner Media had not re-published their article, arguing that there was no evidence they “affirmatively reiterated” their defamatory statements or intended to reach a new audience by adding the note.

“The jury verdict acts as a million-dollar penalty against a publisher that sought to promptly put readers on notice of serious concerns with an article and, as such, violates basic public policy,” the defense team’s lawyers said.

However, Eramo’s attorneys argued the Editor’s Note reiterated the damaging statements against their client.

“Defendants went out of their way in the Editor’s Note to bolster the portions of the article not specifically dealing with Jackie’s alleged assault, and in particular the criticisms of Dean Eramo’s response to Jackie’s rape,” Eramo’s attorneys wrote.


In addition to the defense’s motion for judgment, the Reporters Committee for Freedom of the Press and eight media companies filed an amicus (“friend of the court”) brief in support of the defendants’ motion for judgment.

“The Court’s decision to have the jury determine whether the defamatory information was ‘republished’ when an editor’s note was attached would be harmful for news organizations and those who rely upon them for accurate news reports,” the brief stated. “Upholding the current verdict would discourage the news media from correcting errors in their stories, particularly because not mentioning a particular fact from a story in the note constitutes ‘republishing’ it.”

Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, said that after the group decided to write to the court on the issue of republication, they asked several different media organizations to join them.

“The Reporters Committee filed a brief now because there was a clear issue before the court, concerning what it allowed the jury to decide,” Leslie said in an email statement. “[That is] whether posting an editor's note to a story constitutes a ‘republication’ of the article.”

Eramo, Rolling Stone lawyers square off again in Roanoke
Daily Progress, 2017-02-09


The jury found in Eramo’s favor, but in December, the magazine formally asked Judge Glen Conrad to vacate the jury’s verdict and make a new judgment as a matter of law, citing a rule that suggests the jury did not have a “legally sufficient evidentiary basis” for finding in Eramo’s favor.

Specifically, the magazine has asked Conrad to overturn the jury’s finding that the magazine was liable for “republishing” three defamatory statements about Eramo on Dec. 5, 2014, when the magazine appended an editor’s note to the top of the article stating that it no longer found Jackie credible.

The magazine alleges that the trial’s evidentiary record “does not support” the jury’s finding that the article had been “republished,” a position that nine news agencies also have taken in their own motion to the court.

It further disputes the finding that Erdely acted with “actual malice” in publishing some of the statements, a standard set by Conrad ahead of the trial. They claim Eramo failed to produce “clear and convincing evidence” that Erdely had acted with reckless disregard for the truth in publishing the statement, nor did Eramo produce sufficient evidence of special damages awarded for statements Erdely had made to media outlets after the article’s publication.

The question of whether or not the magazine “republished” the article by appending an editor’s note to the story was a central topic on Thursday — aptly so, considering that $1 million of Eramo’s damages were gleaned from the jury’s determination that it did constitute a “republishing.”

Just as they did at trial, attorneys for the magazine argued that the note clearly indicates that the editors no longer believed in Jackie’s account and that they were repudiating any statements or information that was attributed to her — including, they say, the defamatory statements made about Eramo.

Conrad acknowledged the interpretation but pointed to publisher Jann Wenner’s taped deposition videos shown at trial, during which he stated that he did not consider the editor’s note to be a complete retraction of the article’s central narrative. Conrad further noted that the editor’s note does not specifically say anything about Eramo or her portrayal in the article, and that a “reasonable juror” could conclude that the note doesn’t retract the statements made about her.

“This is where they made an error, and I think a grave error,” attorney Liz McNamara responded, before acknowledging that the legal interpretation may have to be taken up in the federal appeals court.

The magazine’s attorneys also asked the judge to make a new ruling on the special damages awarded to Eramo due to six statements made by Erdely, both in the article and after its publication. Rolling Stone contends that, regardless of whether Erdely acted with actual malice in publishing two defamatory statements, Eramo did not present sufficient evidence that she was due any special damages for the other four, each made after the article’s publication.

Eramo’s attorneys countered that their client was blocked from testifying about the damages she was due because of the post-publication statements, but the magazine proffered that the damages coming from those statements should either be nullified or decided with a new trial, a suggestion met with derision by all parties in the courtroom.

Were the damages for the post-publication statements forfeited, McNamara said, then Eramo would only be due damages coming from the two remaining statements. Because the jury ordered $2 million in damages from Erdely’s six statements, eliminating four of those statements would reduce the damages to a total of $666,666.67.


The Settlement

Rolling Stone settles with former U-Va. dean in defamation case
By T. Rees Shapiro and Emma Brown
Washington Post, 2017-04-11

Rolling Stone has reached a confidential settlement with Nicole Eramo, a former University of Virginia associate dean who had sued the magazine alleging that it defamed her in a 2014 story about an alleged gang rape on campus, according to lawyers for both parties.

The settlement brings an end to a lawsuit that had roiled the U-Va. community with a case study in the practice and ethics of journalism.

“We are delighted that this dispute is now behind us, as it allows Nicole to move on and focus on doing what she does best, which is supporting victims of sexual assault,” said Libby Locke, a lawyer for Eramo, in a statement Tuesday.

Rolling Stone called the settlement an “amicable resolution.”


In November, a federal jury sided with Eramo, awarding her $3 million in damages — $1 million from Rolling Stone and $2 million from Erdely.

Rolling Stone filed a motion to vacate that judgment, the first step toward an appeal, but then agreed to settle the case before a judge could rule.

Court costs: After winning jury trial, Eramo settles
by Lisa Provence
C-Ville, 2017-04-18


In a statement, the magazine says,
“Rolling Stone, Sabrina Rubin Erdely and Nicole Eramo have come to an amicable resolution.
The terms are confidential.”

And Eramo’s attorney, Libby Locke, says,
“We are delighted that this dispute is now behind us,
as it allows Nicole to move on and focus on doing what she does best,
which is supporting victims of sexual assault.”

The settlement gives both sides control and it also ends it, says Lucan.
“Maybe vindication for Dean Eramo means more than the dollar award.”