Saturday October 17th, 2015

Fox Sports broadcaster Erin Andrews has increased the damages she demands in a civil lawsuit related to a man who unlawfully videotaped her in the Nashville Marriott at Vanderbilt University from $10 million to $75 million. Andrews’ lawsuit, filed in a Tennessee state court in 2010, contends that four co-defendants—Marriott International, West End Hotel Partners, Windsor Capital Group and Michael David Barrett—share legal responsibility for Barrett filming Andrews through a hotel door peephole in 2008. Andrews raises seven claims in her lawsuit, including negligence, invasion of privacy and intentional infliction of emotional distress. The case is scheduled to go to trial in Davidson County (Tenn.) Circuit Court on February 22, 2016.

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Andrews’s encounter with Barrett, a serial stalker, was frightening. Court documents contend that Barrett engineered sophisticated techniques to locate the home addresses, travel schedules and birthdays of the women he stalked and then created opportunities to be located next to these women in private settings. He allegedly videotaped at least 17 women, including several TV personalities, often on multiple occasions. With Andrews, Barrett would call hotels where Andrews might be staying and hope to convince a hotel employee to confirm Andrews’s reservation. He is thought to have stalked and videotaped Andrews in at least three different cities. One of those cities was Nashville, where Barrett managed to book a room at the Nashville Marriott next to the room where Andrews would stay. He then manipulated the peephole on Andrews’ hotel room door and videotaped her while she changed. The following year Andrews learned that Barrett’s videotapes were online. She has expended considerable energy and expense attempting to remove Barrett’s videos of her from the Internet. In 2009, Barrett pleaded guilty to interstate stalking charges and in 2010 was sentenced to 30 months in prison. Andrews now seeks financial recovery from Barrett to account for the damage he caused her.

Andrews also alleges that the hotel and its operators acted in a negligent way and have similarly harmed her. This is important point for at least two reasons.

First, the 53-year-old Barrett likely lacks the financial wherewithal to pay Andrews a meaningful amount of money. Although Barrett was an insurance executive prior to his incarceration between 2010 and 2012, his attorney, David Willingham, was quoted in 2010 as saying, “Mr. Barrett has lost everything he built throughout his life. He's lost his career, his fiancée and his life savings." It is unclear whether Barrett has been employed since his release from prison, but chances are high he has not amassed much in the way of savings. Barrett might also have outstanding legal expenses, particularly since he has been accused of videotaping other women. In law, a defendant who can’t pay a civil judgment is sometimes called “judgment proof.” Such a defendant might never obtain the necessary wealth or assets to pay what a judge has ordered him or her to pay. Barrett could fall into the category of judgment proof defendants.

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Marriott International is obviously in a different financial situation than Barrett. According to the Marriott International’s most recent annual report, the company reported revenues of $13.8 billion in the 2014 fiscal year. As to co-defendants West End Hotel Partners and Windsor Capital Group, they are private companies and not subject to the same public financial disclosures as the publicly traded Marriott International. Still, it is reasonably safe to assume that these businesses, which operate and manage hotels, are in better financial shape than Barrett.

A defendant that has the financial means to pay large civil judgments is sometimes called a “deep pocket.” This type of defendant is often attractive to sue given its ability to pay large amounts of damages. Such a defendant—particularly when it is a publicly traded company—often has incentives to offer the plaintiff a lucrative settlement in hopes the plaintiff might accept and drop the lawsuit. A deep pocket normally is sensitive to media attention paid to a lawsuit and often worries about potential negative disclosures during pretrial discovery. Marriott International has at least some of the qualities of a deep pocket, but to date has not struck a settlement with Andrews.

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The three hotel co-defendants—Marriott International, West End Hotel Partners and Windsor Capital Group—surely recognize they may end up paying Barrett’s share in any judgment. Normally when co-defendants are found liable, they are “joint and severally liable.” This means that if one defendant is judgment proof, the others have to pay all or a portion of the judgment proof defendant’s share. Here, the hotel co-defendants could be on the hook to pay most, if not all, of whatever amount Barrett is ordered to pay Andrews. That said, in recent years the Tennessee Supreme Court and the Tennessee General Assembly have significantly limited the scope of joint and several liability. On the surface, this development works in the hotel defendants’ favor since they might not be obligated to pay for Barrett. Tennessee case law, however, suggests that joint and several liability remains in place for circumstances where co-defendants act in concert with one another. It could be argued that Barrett acted in concert with the hotel through the hotel intentionally booking a room for him next to Andrews’ room. 

The second significance of Andrews suing those who operated the Nashville Marriott is that if her allegations prove true, the hotel and its staff would have acted reprehensibly. Consider that these employees would have facilitated Barrett’s quest to invade Andrews’s privacy and humiliate her. According to Andrews’s complaint, hotel staff not only confirmed to Barrett that Andrews would be staying at the hotel but they honored his request to occupy the room next to one in which she would be staying. As if that wasn’t bad enough, hotel staff also allegedly failed to stop or even notice Barrett altering the peephole into Andrews’ room, which in turn enabled Barrett to take illegal videos of Andrews.

It would not be an effective defense for the hotel co-defendants to blame the individual employees who interacted with Barrett. Under a legal doctrine known as “respondeat superior,” employers, including hotel operators, are generally responsible for the conduct of the employees when the conduct occurs within the scope of the employee’s employment. Andrews asserts that Marriott was negligent in hiring, training and supervising the hotel employees who unwittingly aided Barrett. This alleged negligence, according to Andrews, has caused her “severe and permanent emotional distress, embarrassment, [and] past and future medical expenses” and has triggered “damages relating to the unauthorized use of her image and likeness.”

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How the defendants can wage a defense against Andrews

As in every lawsuit, the four defendants Andrews have sued have an opportunity to argue that any misconduct on their part did not rise to the level of unlawful misconduct. This opportunity likely won’t help Barrett. His admission to renting a room next to Andrews and videotaping her, as well as his pleading guilty to interstate stalking charges, make it nearly impossible for him to now wage an effective defense in a civil lawsuit over the same misconduct to which he has admitted.

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As explained above, Barrett is probably not the main target of Andrews, who knows that Barrett is almost certainly unable to pay much in damages. Marriott International, West End Hotel Partners and Windsor Capital are more likely of interest to Andrews and her attorneys. But in contrast to Barrett, these three co-defendants have not faced criminal charges over the peeping incident, let alone pleaded guilty to crimes. With that in mind, the three hotel co-defendants could assert several defenses against Andrews’s claims. For instance, they might contend that Andrews has overstated the involvement of hotel staff in the incident, particularly in regards to the uploading and distribution of video by Barrett after he left the hotel. They might also portray Barrett as deceiving the hotel staff in a way that depicts the hotel as less culpable. Fortunately for Andrews, these types of defenses are unlikely to work. Under premises law liability, hotels usually owe guests a high duty of care, including protecting guests from crimes committed by other guests.

While the three hotel co-defendants might struggle to prove they are not at fault, they likely will have more success in depicting Andrews’s demand for $75 million as excessive. For starters, Andrews’s injuries appear limited to psychological distress and reputational embarrassment. She did not seem to suffer significant “physical injuries,” which tend to receive higher damages awards than other types of injuries. Along those lines, as humiliating and degrading the privacy invasion must have been for Andrews—and probably still is—she was not disabled, maimed or scarred, nor did she have to undergo surgery to repair injuries or suffer through post-surgery rehabilitation. Andrews is also an adult, which is significant in that plaintiffs who are children tend to receive more than adults in damages. The $75 million in damages also far exceeds the typical award given in torts trials, including in the “worst case” scenario of where someone is the victim of a wrongful death. According to an article published by the North Carolina Law Review in 2010, the average wrongful death award in the United States from April 1998 to April 2008 was $3.4 million for an adult male, $3.0 million for an adult female and $5.2 million for a minor. Andrews’s demand for $75 million is not in the same ballpark as these data points.

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The three hotel co-defendants are also poised to highlight how Andrews’s career has not suffered since the incident. If anything, Andrews’s career has taken off over the last few years. As explained by Sports Illustrated media writer Richard Deitsch, Fox won a bidding war for Andrews after her contract with ESPN expired in 2012. She hosts FOX College Football for Fox Sports and is a sideline reporter for Fox’s Major League Baseball broadcasts. Fox, as discussed by Deitsch in a 2014 column, also promoted Andrews to the No. 1 sideline spot for NFL games. Andrews also works for ABC as a co-host of the hit TV show Dancing With The Stars. Further, she is a social media star, with nearly 3 million Twitter followers. While it’s possible the 2008 incident and its aftermath have harmed Andrews’s career, her considerable success in broadcasting cuts against that theory. It may seem unfair to hold Andrews’s professional success against her in a lawsuit, but it is a meaningful limitation on her ability to prove how seriously she has been damaged.

None of this is to suggest that Andrews has not suffered substantial and possibly permanent injury. But $75 million is a number that seems unlikely to be established in a trial. Then again, Andrews might ask the court to consider what is sometimes called “general deterrence”—the idea that in punishing a culpable defendant, an example should be made out of that defendant. Andrews could insist that jurors should use her case to send a loud message to the hotel industry that hotels either take reasonable steps to stop stalkers and peepers from hurting guests or those hotels will pay dearly.

It is very possible that Andrews v. Marriott International et al. will never go to trial. The parties could reach a settlement, where Andrews agrees to drop her lawsuit in exchange for a payment. Stay tuned.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. This fall he is teaching an undergraduate course at UNH titled “Deflategate.” McCann is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and he teaches “Intellectual Property Law in Sports” in the Oregon Law Sports Law Institute.

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