The Shirley Sherrod Complaint Against Andrew Breitbart

As many readers already know, Shirley Sherrod has filed a lawsuit against Andrew Breitbart over his statements, and the doctored and manipulated video he published, that resulted in her to losing her job at the US Department of Agriculture. Although Ms. Sherrod was not technically fired by the Obama Administration, she was ordered to resign immediately. Ms. Sherrod promised in late July of 2010 that she would sue Breitbart, and now she has done so, with the added ironic addition of effecting service of the summons and complaint on him at the Conservative Political Action Conference (CPAC).

What no one has seen yet is the actual complaint filed in the matter. Here it is in all its 42 page glory.

The first thing you will note is that the complaint is filed against not just Andrew Breitbart, but Breitbart associate, writer and putative producer of BreitbartTV, Larry O’Connor, as well as the “John Doe” from Georgia Breitbart claims originally forwarded the video.

The second thing you will note is the complaint is framed in terms of “defamation, false light and intentional infliction of emotional distress” and was filed in the District of Columbia Superior Court. The choice of DC Superior Court is fascinating; at first glance, it appears the complaint could have been filed either in Georgia District or DC District federal courts, perhaps even a Georgia state court (although that seems more problematic). Why exactly did the plaintiff choose DC Superior Court? I have already made inquiry of Ms. Sherrod’s attorney on this question but, until a formal answer is received, I think it a safe assumption they considered it the most favorable venue for convenience, procedure and potential jury composition. And I think that is pretty smart lawyering by the way.

The complaint is long, and very well composed, but the gist of the case is contained here:

3. Although the defamatory blog post authored by Defendant Breitbart purported to show “video proof” that Mrs. Sherrod exhibited “racism” in the performance of her USDA job responsibilities, the short two-minute thirty-six (2:36) second video clip that Defendants embedded in the blog post as alleged “proof” of this defamatory accusation was, in truth, an edited excerpt from a much longer speech by Mrs. Sherrod that demonstrated exactly the opposite. In sharp contrast to the deliberately false depiction that Defendants presented in the defamatory blog post, the unabridged speech describes how, in 1986, working for a non-profit group that helped poor farmers, Mrs. Sherrod provided concern and service to a white farmer who, without her help, would almost certainly have lost his farm in rural Georgia.

4. Specifically, Defendants defamed Mrs. Sherrod by editing and publishing an intentionally false and misleading clip of Mrs. Sherrod’s speech and added the following statements as a narrative to the clip:

• “Mrs. Sherrod admits that in her federally appointed position, overseeing over a billion dollars … She discriminates against people due to their race.”

• Mrs. Sherrod’s speech is “video evidence of racism coming from a federal appointee and NAACP award recipient.”

• “[T]his federally appointed executive bureaucrat lays out in stark detail, that her federal duties are managed through the prism of race and class distinctions.”

• “In the first video, Sherrod describes how she racially discriminates against a white farmer.”

• Her speech is a “racist tale.”

To this day, Defendant Breitbart publishes these exact same defamatory statements on his

website despite his admitted knowledge of the truth. Indeed, he has subsequently stated that he “could care less about Shirley Sherrod,” underscoring that Mrs. Sherrod’s reputation was, at the very least, expected and acceptable collateral damage to his agenda. http://video.foxnews.com/v/4288023/racial-double-standard-in-white-house.

5. As a direct result of the highly-charged internet media environment, where misleading video segments and defamatory accusations can “go viral” and spread to a global audience in a matter of seconds, the defamatory blog post about Mrs. Sherrod — and the deceptive video segments that accompanied it — did extensive and irreparable harm to Mrs. Sherrod and her reputation.

Now, that is the basis of the claim in the introductory portion of the complaint. Far beyond simple notice pleading, however, the complaint paints a wonderful picture and story of who Shirley Sherrod is, where she came from, what she has done and how hers has been a life interrupted by the malevolent actions of Andrew Breitbart et. al. Part and parcel of this is the damning specificity with which the “actual malice” is laid out and that a case for punitive damages is included.

The complaint is also notable for the specificity with which it describes Breitbart’s continuing defamatory acts subsequent to the original publication, including on Twitter. The Twitter inclusion will be interesting as there has not yet been much definitive litigation on the use of that medium as a defamatory vehicle, but there is no reason for it to be different than any other electronic medium, which has been litigated.

Lastly, the complaint is telling for just who Shirley Sherrod’s attorneys are, and it is a very significant point. There are a team of four attorneys at the DC office of Kirkland & Ellis, Thomas Clare, Michael Jones and Beth Williams with the lead being one Thomas D. Yannucci. And who is Tom Yannucci? Glad you asked. He is, if not the preeminent, one of the most preeminent plaintiffs defamation attorneys in the United States. From a September/October 2000 Columbia Journalism Review article:

In-house lawyers at top news organizations describe him as “extremely aggressive,” “very effective,” a straight shooter, and someone who, more than any other plaintiffs’ lawyer, “strikes fear in news organizations’ hearts.”

It is not hyperbole. Yannucci is the attorney who embarrassed and gutted NBC’s Dateline on the fraudulent GM exploding gas tank story and who obtained a page one above the fold retraction from Gannett Newspapers and the Cincinnati Enquirer, and reportedly $18 million dollars, in the Chiquita Brands story. The CJR story on Mr. Yannucci is excellent and gives a very good feel for just how accomplished he is at his trade.

Shirley Sherrod is quite a woman, and she has come to the dance locked and loaded and with a very compelling story. Andrew Breitbart better strap in, it could be a bumpy ride.

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        • Frank33 says:

          This honky picked on the wrong person, when he went after Shirley Sherrod

          Sherrod is the real deal. Breitbart is racist but he was also trying to punk the President. He did punk Obama. Obama showed his total defective character by not defending Sherrod. Perhaps, Obama will ask Sherrod, to give up her lawsuit, for Bipartisanyness.

          Recall, the junior partner of Breitbart, OKeefe, tried to punk CNN. OKeefe had his own Love Boat, to entrap a CNN Reporter. Or something.

          • bmaz says:

            You mean like a Beer Summit as he used to make Henry Louis Gates’ civil rights case against excessive police force and false arrest go away??

            • earlofhuntingdon says:

              As your tone implies, ain’t gonna happen. Ms. Sherrod knows an empty suit when she sees one, and the difference between an offer of real help and a plea to STFU.

              • Phoenix Woman says:

                Shirley Sherrod thinks strategically, knows how to make her anger work for her and not against her, is not easily distracted, is extremely intelligent, and has a will of iron. The only person I know of who comes close to her is Al Franken, and if I had to choose between the two in a close fight I’d pick her.

  1. fabucat says:

    The DC Superior Court would be most sympathetic to Mrs. Sherrod’s claims. Georgia Courts would be a fail for a black woman. California courts would be an iffy proposition for Sherrod–it would be too convenient for the defendant and any presiding judge might be sympathetic to Breitbart, who is a California citizen. I hope that Sherrod gets an African-American judge (heh-heh), because there are plenty on the DC Superior Court bench.

  2. fabucat says:

    I just skimmed the complaint and I find it interesting that Sherrod hasn’t requested a specific amount for damages. Perhaps I just didn’t catch it.

  3. Phoenix Woman says:

    This is the lady who beat the USDA. Taking on a pissant wingnut-welfare recipient is child’s play for somebody like her.

    I’m looking forward to the discovery phase — and even more to the penalty phase.

  4. Mary says:

    Good piece – Kirkland & Ellis aren’t cheap and without punitives I’m wondering what kind of damages they will be looking at – enough to cover legals and leave something?

    What kind of resources to Breitbart have to pay?

    Mostly, though, I’m wondering how you managed to complete this very good and to the point post, without using the Airplane “Shirley” clip.

  5. mzchief says:

    A must-watch case! The attack apparatus against civil servants that do their job is deplorable and has hurt this country terribly. I am all for sunlight.

  6. Margaret says:

    At the time, Breitbart said that releasing the video when he did din’t have anything to do with the Pigford settlement:

    When TPM asked Andrew Breitbart last July if the release of an edited video of Shirley Sherrod was timed to impact a Senate vote on restitution for black farmers, he said no.

    Now that he is being sued, his tone has changed to using the Pigford settlements as a justification for his intrepidly “letting everybody know what’s going on”:

    “This new lawsuit will not stop the American public from finding out what is really going on, who is directly culpable, and the critical role of the Pigford claimant in all off this,” Breitbart said in the Big Government release. The release calls Pigford “one of the biggest cases of corruption and politically-motivated fraud” in U.S. history.

    Link

      • liberaldem says:

        I hope that this suit leads to the disclosure of who bankrolls Breitbart and his stable of slimy little creeps. Kudos to Ms. Sherrod, and may justice roll like a might stream!

  7. nowthenzen says:

    the civil rights struggle did now ‘end’ in victory or defeat

    it just took a break

    forces for opression attacking people for who they are, not what they do

    here we go again

  8. NorskeFlamethrower says:

    AND THE KILLIN” GOEZ ON AND ON AND…

    Citizen Bmaz:

    First of all thank you for all of your posts on all things legal…you have a real gift for bein able to translate the legal ciphers that are designed to keep regular people from understanding legal actions and the legal system as a whole. My question is: What does placing this in Superior Court in DC do to the ability of the judge or an appellate court from reducin’ any damage award…and will the process be faster than if it had been filed in District Court?

    KEEP THE FAITH AND PASS THE AMMUNITION, WE DON’T HAVE A SYSTEM OF JUSTICE…YET!!

  9. micki says:

    According to the LAT:

    In response, Breitbart’s media company released a statement that said, in part: “The lawsuit . . . does not name as co-Defendants President Barack Obama, the USDA and USDA head Tom Vilsack, even though it is they who fired [Sherrod], and who, according to [Sherrod] herself, denied her due process.

    “Mr. Breitbart categorically rejects the transparent effort to chill his constitutionally protected free speech and, to reiterate, looks forward to exercising his full and broad discovery rights. Mr. Breitbart is absolutely confident of being fully vindicated.”

    There they go again….free speech blah blah blah.

    • PascoBill says:

      Such a common mistake, among the loudmouth liars – freedom of speech, first amendment style, says no laws may be passed which infringe on freedom of speech. However, we are also protected from libel, slander, and malicious lies. I think all she needs to show is that Breitbart misrepresented her record with malice – and in this case, that should be easy to do.

      Of course, I could be wrong. IANAL. Obviously.

  10. earlofhuntingdon says:

    As its representation of General Motors suggests, K&E is a powerhouse establishment firm that rarely rocks the boat. It has been home to both excellent, ethical lawyers at the top of their game, as well as to the Clinton’s sexually curious legal nemesis. That a top team there is taking on Breitbart for Ms. Sherrod is wonderful, but there will be multiple purposes in doing so. I hope, though, that Ms. Sherrod prevails against an organization and an individual that appear to do little but serially, willfully and intentionally abuse the First Amendment.

    • earlofhuntingdon says:

      FYI, the other senior litigator on the K&E team that worked on the GM “exploding” gas tank myth, Thomas Gottschalk, became GM’s general counsel.

    • bmaz says:

      My understanding is that Yannucci hand picks his defamation section team and that they are very autonomous at K & E. He has a very solid reputation for really working for his clients, whether they be plaintiff of defendant (which he also is apparently well known for in some regards). I think Ms. Sherrod is in good hands, and this is far from her first time to the legal rodeo; she knows what she is doing and what she wants.

  11. arcadesproject says:

    Hooray for Shirley! And a great big Valentine to her, too. I am glad she is standing up to the scumbag Breitbart. Shirley could have, with dignity and honor, blown the whole thing off. But she chose to take on the evil creep even though she must know how powerful and malign he and his patrons really are.

  12. fitley says:

    Shirley got the big guns to back her up. This will be like shooting fish in a barrel with the Nagasaki Bomb. Poor Andrew the Braindead. Thought it was just another day of lying and deceiving didn’t you, you POS? Wake up and smell the fallout. Oh this is going to be good. Sooooo Good.

  13. cbl says:

    wow. thanks so much bmaz ! great specific news amidst the schadenfreude

    this could be like watching Dees & SPLC bankrupt the United Klans of America

    cbl has a happy

  14. Synoia says:

    Brietbart was reported as saying he has little money, but he lives in the LA suburb of Brentwood (of OJ Fame), in a 3,200 sq ft home, on approx 18,000 sq ft lot, bought in 1993, estimated value today $3 Million, in a neighborhood with values from $1.4 million to $7.5 million for houses of similar (15%) size.

    He’s either from money or made it 17 years ago. He bough the house when he was aged 24 or 25, so I’d suspect he comes from money.

    From the french version of Slate “un quartier chic de Los Angeles”

  15. tanbark says:

    Breitbart wasn’t the one that pissed himself like a little puppy dog and threw her under the conservative bus. That was Barack Obama.

    Can she sue him?

  16. rmwarnick says:

    For the hard-core right, “racism” equals the alleged denial of opportunity to white people. Breitbart was trying to reinforce that false narrative.

    • thatvisionthing says:

      Still, I like the crack about it being Obama and Vilsack who actually completed the dirty circle. Co-defendants, I’ll take it. They should be effing ashamed of themselves. Ignominity…and beyond!!

      I need popcorn.

  17. thatvisionthing says:

    DC Superior Court — is this my dream? Judge Russell Canaan of Deaf Dogs and the Indictments? The world’s only almost-all-judge band? Do NOT wake me up

  18. kroyall says:

    Breitbart put up a video of the woman and in that video she basically admitted she had racist tendencies but later changed her position on that. Breitbart was forthcoming with both of these facts from the start. Thus Sherrod has no case. Breitbart never alleged anything that wasn’t true.

    If Ms. Sherrod wants to press the matter it will be an excellent forum for revealing the corruption of the Pigford scandal which she was also directly involved in. I am sure Breitbart is hoping the case will go forward.

  19. TheScarletPimpernel says:

    The part I love best is that “unknown” defendant. That shows me that this attorney is one Hell of a good lawyer. He is waiting for the discovery to put Randy Andy under the bright light and pistol whip him for hours on end until he finds the connection to Fox News. You can bet you a*s that there will be an amended complaint faster than you can say ‘damages’ when Andy finally slips up and gives a peek at the tie to Fox. Rupert is going to have to pay big time for his support to his little weasel.
    And as to the question of why this is brought in the District of Columbia, if it were brought anywhere in Georgia, particularly where there is a high likelihood of a large African-American voter population (jury roll) the defendants would move to have it moved to one of the bedroom counties of Atlanta that are overwhelmingly white and overwhelmingly racially bigoted.

  20. TheScarletPimpernel says:

    In response to [email protected]:

    Obviously you are a Fox News watcher. You know, one of those people who are intellectually inferior to those who don’t watch Fox News.
    The video was sliced at a very ‘cutesy’ moment to present it in a false light. Brietbart has played coy about it ever since. Fox News has played coyer about it ever since, even to the point of continuing to run the ‘cut’ video long after the entire video was released.
    Have fun sorting that out while your boy and Fox News (who will eventually be the ‘deep pockets’ in the case) get their a***s handed to them.