Followup: PBS Wins Verdict In Suit By Fired TV Show Host Tavis Smiley

It was a trial to remember for Morgan, Lewis & Bockius partner Grace Speights, lead defense attorney for PBS against Tavis Smiley, former long-running program host for the TV network — and not just because she defeated a million-dollar labor and employment claim against her client in a high-profile case. TS Media Inc. v. Public Broadcasting Service (PBS), 2018 CA 001247 B. She also won a $1.486 million jury verdict for PBS by using a morals contract clause.

"This was a landmark case, both in terms of the precedent-setting nature of testing the morals clause in contracts before a jury, and by the fact that our client was the one being sued by someone accused of sexual misconduct," Speights told The National Law Journal, an ALM affiliate publication of Entertainment Law & Finance, by email as she flew to the West Coast for a client meeting. (For more coverage of this case, see, "Morals Clause in Spotlight in Smiley PBS Litigation" by Michael S. Poster on p.3 of the March 2020 issue of Entertainment Law & Finance.)

There was a status conference a few days later back in Washington before D.C. Superior Court Judge Yvonne Williams to discuss what to do next. The jury award wasn't the end of the story; there was the matter of attorney fees.

Smiley's lawyers planned to appeal. "We are disappointed in the jury's verdict but respect the process," said Smiley attorney John K. Rubiner of Barton, Klugman & Oetting in Los Angeles. "We are planning to appeal based on a variety of issues that were raised in pretrial and trial rulings."

Smiley's team also included Harvard Law School professor Ronald S. Sullivan Jr. and Jeffrey D. Robinson of Lewis Baach Kaufmann Middlemiss in DC. They were up against more than just Speights and her team, which included W. Brad Nes, Amanda B. Robinson and Elliott Brown.

The entire #MeToo movement informed the trial, embodied by the six women who testified by video deposition that Smiley — their boss — made sexual demands on them or subjected them to lewd jokes.

Smiley denied the charges, calling them all lies, and saying sexual relationships he had with the women were consensual, according to published reports. He also said his sexual jokes were innocent and not intended to offend. But the women won the day with the jury. "This wasn't just 'he said, she said,'" wrote Washington Post reporter Keith Alexander, quoting one of the 10 men on the jury. "This was 'he said, she said, she said, she said, she said, she said, she said.'"

The story started in 2017 at the height of the #MeToo movement. PBS fired Smiley — and another host, Charlie Rose — after investigating a series of employee complaints of sexual harassment. Smiley sued PBS for breach of contract, demanding $1 million he said he should have been paid. PBS countersued, saying he had been paid for shows he didn't produce. Ultimately, PBS alleged Smiley's conduct violated the talent contract's morals clause, which prohibits on-air talent from participating in behavior that would negatively affect the network's reputation.

In addition to being the global head of the Morgan Lewis labor and employment practice group, Speights is a member of the firm's cross-disciplinary crisis management practice team. "Over the course of two years, we were able to get several aspects of the case dismissed, so what came before the jury were contract claims by both sides," Speights said. "But with the backdrop of the #MeToo movement, and PBS's unyielding commitment to stand up for what was right, the case was so much more than the interpretation of contracts."

The end result will affect far more than this case, according to Speights. "PBS stood up for the women who were brave enough to share their stories and went to tremendous lengths to protect its hard-earned brand and reputation for public trust," Speights said. "Ultimately the case has given employers another tool in their arsenal to ensure a safe and respectful workplace culture."

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Katheryn Hayes Tucker is an Atlanta-based reporter covering legal news for the Daily Report and other ALM publications.