Gloria Allred Finally Gets Her Bill Cosby Showdown

Happy Monday, I’m Eriq Gardner.

Welcome back to The Rainmaker, my new private email focused on the legal underbelly of Hollywood, Silicon Valley, Washington, and Wall Street.

I hope you’ve enjoyed the free preview of this newsletter. After this week, it will become members-only. If you’re not already a Puck subscriber, you can sign up here for continued full access. A subscription not only entitles you to The Rainmaker, but also amazing work by my colleagues. I hope, for instance, you’ve been reading William Cohan’s deep dives into Elon’s Twitter deal or Julia Ioffe’s examination of the Russia-Ukraine endgame or Baratunde Thurston’s take on Justice Samuel Alito’s Roe reversal. That, plus Matthew Belloni, Dylan Byers, Theodore Schleifer, Peter Hamby, Tina Nguyen, and our newest correspondent, Tara Palmeri, recently arrived from Politico.

In today’s column, I explore a remarkable moment for an iconic women’s rights attorney. Yes, we need to talk about Gloria. Plus, the U.S. Women’s Soccer team coup, a secret vote at Netflix, and the Hollywood agent fired after supposedly defecating on the floor of a gender-neutral bathroom.

But first…

Decision of the Week

The 3rd Circuit Court of Appeals has created some breathing room for employers to get on social media and joke about sending wayward workers to a Siberian labor camp. The dispute concerned Federalist publisher Ben Domenech, who, in June 2019, tweeted, “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” An in-house judge at the National Labor Relations Board concluded the following year that this tweet violated the portion of federal labor law that prohibits employers from interfering with an employee’s right to unionize. The media company appealed, and the 3rd Circuit—supported by conservative policy groups and the comedians Penn & Teller—agreed that the federal labor agency needed to take a First Amendment-protected joke. On May 20, the NLRB’s order was set aside, with the 3rd Circuit concluding that a FDRLST employee wouldn’t “view the tweet as a threat of reprisal.” Here’s the full opinion.

Well, Shit…

ICM Partners can’t avoid a public courtroom in its fight with Spencer Baumgarten, an agent who formerly worked in its motion picture division. Baumgarten is suing after being let go in late 2019 following a rumor (false, he says) that he defecated on the floor of a gender-neutral bathroom. ICM attempted to move his case to arbitration based on how the “Member Agreement” he signed when he joined the agency referenced the “ICM Operating Agreement,” which had an arbitration provision. First, the trial court, and now a California appeals court in a May 18 ruling, found a lack of evidence that Baumgarten actually agreed to arbitration. I’ll be watching where this case goes. He’s claiming age and disability discrimination, defamation, and perhaps most intriguingly, whistleblower retaliation after he allegedly highlighted “potential illegality” at ICM.

Gloria Allred Finally Gets Her Bill Cosby Showdown

A civil trial is about to begin against Cosby. Here’s why Allred, not the disgraced comic, might take the witness stand.

ERIQ GARDNER

Confession time: I’ve always been skeptical of attorneys who litigate civil cases in the press. Send me court filings? Wonderful. Explain to me the finer points of law? Certainly. Tell me your client is a totally wonderful human being and it’s the other guy who is scum? OK, fine. But hold a televised press conference to advance the cause? Eh… not so fast.

The problem, as I see it, is that the media becomes merely a tool for leverage, regardless of the merits of the case. Reporters should be cautious here. If something is moving along in court, we can count on various rules of civil and criminal procedure to help sort fact from fiction. But those lawyers aiming to score big settlements by merely playing the public shame card are sidestepping some of the checks inherent in the judicial process. Extra scrutiny becomes necessary when lawyers act as publicists.

For years, Gloria Allred has epitomized, perhaps even perfected, the art of public lawyering. She’s been a trailblazer for the likes of Douglas Wigdor, Michael Avenatti, and her own daughter, Lisa Bloom. No doubt, some of her targets (Donald Trump, O.J. Simpson, Michael Jackson, Charlie Sheen, R. Kelly, etc.) may deserve her hits, but she has also had a habit of handling many client matters without actually stepping into court. What’s more, she espouses a public policy philosophy—allowing N.D.A.s and arbitration clauses for sexual assault victims, for example—that conveniently benefits her law practice but arguably isn’t optimal for female victims in general.

All that said, I’m now reconsidering Allred. At age 80, she’s about to go to trial against Bill Cosby, a fellow octogenarian who, like her, was born and raised in Philadelphia, attended an elite school there, and moved out to Los Angeles in the 1960s. She’s been pursuing Cosby for years and is finally getting the chance on behalf of Judy Huth, who alleges she was sexually assaulted by Cosby as a teenager, at the Playboy Mansion in the mid-70s. The specific claims are sexual battery and the intentional infliction of emotional distress after Cosby allegedly gave her and a friend alcohol, then sat on a bed and molested her. Except for one other ongoing case in New Jersey, from actress Lili Bernard, this is the last bit of legal drama circling Cosby over what dozens of accusers say was a decades-long practice of drugging and raping women. This also represents quite the moment for Allred, who has been around so long she once represented Norma McCorvey, the “Roe” in the 1973 abortion rights ruling, Roe v. Wade, that’s very likely to soon be overturned.

Rather incredibly, despite Allred’s talent for attention, plus Cosby’s own notoriety, it feels like this trial, set to kick off this week in Los Angeles, is flying under the radar. Maybe it’s being overshadowed by other ongoing celebrity libel cases (Johnny Depp v. Amber Heard, Wagatha Christie…). Or perhaps it’s because the stakes seem low, given the outcome can’t result in Cosby heading back to jail, after the Pennsylvania Supreme Court last summer overturned his criminal conviction in a different case.

Nevertheless, the trial really should be followed, not only for Cosby, but also for Allred. Let me set this wild but totally possible scene: Huth rests her case, and now it’s Cosby’s turn to refute her claims. Who does he call to the stand? None other than Huth’s own lawyer, the iconic women's rights attorney Gloria Allred. She becomes the defendant’s star witness!

That twist might sound like something out of Perry Mason, but it definitely could happen. Allred is asking the judge to preclude that possibility, and here’s what Cosby is arguing in response: “Plaintiffs cannot have it both ways. They seek to make this case about unrelated allegations against [Cosby] on the one hand but seek to preclude [Cosby] from challenging these stories on legitimate grounds that some women may have had strong incentives to fabricate or embellish their stories, in part, because of the media attention they received; media attention that was engineered by their attorney in some instances.”

Cosby further tells the judge that Allred’s role as “publicist” puts her conduct at issue, and he appears to be priming a defense built around the narrative that even if you believe him to be a monster, that doesn’t make every allegation against him true. In other words, Allred becomes part of the thread to explain how and why certain women might have made stuff up or come to faulty memories.

Accordingly, if the judge agrees with Cosby’s argument, Allred would have to explain herself on the stand. If she does so successfully, this trial could become a satisfying coda for Cosby’s accusers, similar to the successful civil case that followed O.J. Simpson’s acquittal in the 1990s. It could also become a last hurrah for Allred herself after a pretty storied career.

A few years ago, I met Allred. She had been following my work and was coming to New York, where I was living. She invited me to get together, and we ended up talking for a couple of hours in a conference room at the New York headquarters of JAMS, the arbitration outfit. (JAMS is located in The New York Times building, which I always found ironic. Do the reporters who work there know that somewhere on a different floor, all sorts of corporate secrets are being told? If I worked there, I’d be staring at the elevators all day.)

The conversation was spirited and mostly cordial, and got most interesting when we debated whether the statute of limitations should be extended for victims of sexual assault. Playing devil’s advocate, I argued that if there is a sexual predator in our midst, shouldn’t we incentivize victims to come forth sooner rather than later to prevent future crimes? She responded that it wasn’t particularly easy for victims to come forward. I had to grant that, indeed, the deadline for filing claims hadn’t prevented the Bill Cosby situation. (I invited her to speak again last week, but she responded she was too busy with her trial prep.)

It wasn’t too long after that meeting that Allred convinced the California legislature to extend the statute of limitations to five years from the date an accuser discovers a psychological injury from a long-ago childhood sexual assault. That partly explains why something that allegedly happened a half century ago is just now getting to trial.

In the Huth case this past week, Los Angeles Superior Court judge Craig Karlan rejected Cosby’s contention that the law violated constitutional prohibitions against ex post facto laws. The trial will proceed, although that probably will be the area that Cosby challenges on appeal should he lose.

But Allred’s successful lobbying for extended statute of limitations also figures to make an impact in another way—and it’s about to be showcased at this upcoming trial. Namely, Cosby won’t be forced to testify because the judge has ruled he faces the appreciable risk of self-incrimination and potential prosecution in the state. To make him answer questions on the witness stand would violate his rights under the Fifth Amendment.

That could make civil cases tougher for plaintiffs to win. After all, think back to the O.J. Simpson civil case. Allred at the time was representing Nicole Brown Simpson’s family, but the real star at that trial was attorney Daniel Petrocelli, who represented Ron Goldman’s family and got a chance to cross-examine Simpson (who famously did not testify during the criminal case). During the questioning, Petrocelli presented photographs of Simpson wearing Bruno Magli shoes that the former football star had just sworn he never owned. After Simpson was found liable for Goldman’s death, one juror told CNN’s Larry King, “O.J. insulted us on the stand.” Now imagine if Simpson could have avoided that interrogation altogether.

Cosby will avoid one. There’s no chance he’ll be cornered on the witness stand. Indeed, according to his publicist, Cosby might not even show up at this trial.

Clint’s CBD Damages

For the last few years, Clint Eastwood has been exacting Dirty Harry-style justice from websites that falsely claimed he endorsed cannabidiol (CBD) products. In 2021, he won a default judgment of $6.1 million against a Lithuanian company responsible for writing fake news articles about him, and he just followed it up with a second victory against a digital marketer for $2 million in California federal court.

The defendants in the second case never showed up, which is too bad because the suit raised a fascinating question. The owners of the site never used Eastwood’s name anywhere viewers would have seen it, but they did use his name in metadata tags intended to boost how it ranked in online search results. Is that a violation of Eastwood’s commercial rights to his name or likeness?

The California judge didn’t get into the weeds of trademark or right of publicity law, but he did note that Eastwood once earned $2 million for a Super Bowl ad for a cannabis-related endorsement. And so while he acknowledged the “fundamental differences between a Super Bowl commercial and using a name in a hidden metatag,” he awarded $2 million to Eastwood anyway. Here’s the full ruling.

Meanwhile, Sacha Baron Cohen just settled the lawsuit he brought over a billboard for a cannabis product that showed his “Borat” character with two thumbs up, next to the line, “It’s nice!” (The press says Cohen dropped the case, but given that it was dismissed with prejudice, it’s likely Cohen got something for this conclusion.) Just from a legal nerd’s vantage point, was the billboard truly a false endorsement—meaning the cannabis company falsely conveyed that Cohen had endorsed the products—or a copyright infringement since, really, it was “Borat” featured, not Cohen? Or both? Sounds like a law exam question, and I imagine a few of you will have some thoughts.

Soccer’s Winding Path to Equal Pay

The U.S. women’s soccer team will be paid at the same rate for game appearances and tournament victories as the men’s team, according to an announcement from the sport’s governing body this week. This follows a closely-watched court battle where star female players alleged pay discrimination. Here’s the thing: The women lost that case. In May 2020, a federal judge gave a big summary judgment victory to the U.S. Soccer Federation on the grounds that the women had essentially bargained for a different compensation structure than the men. But the ruling was appealed, and there was a huge public outcry. And meanwhile, crucially, a new round of collective bargaining negotiations happened. Thus, this result, which might cause others including the U.S. Olympic Committee, the N.C.A.A., and maybe even some big corporations (such as Disney and Nike, currently facing pay bias class actions on the gender front) to take heed.

Will Netflix Get a Union?

Those involved are staying quiet about this, possibly fearing potential repercussions for interference, but Netflix’s freelance post-production workers on scripted content based in New York are in the midst of a secret union vote. They have until May 27 to return a ballot regarding whether they’d like to be represented by the Communications Workers of America. Technically, if these freelancers (doing everything from visual effects to music) are unionized, they’ll be negotiating with the Alliance of Motion Picture and Television Producers, which represents various studios and employers in Hollywood. The results of the election should be announced next month.

Also On the Docket

The Justice Department is demanding that Steve Wynn register as a foreign agent after allegedly lobbying Donald Trump on behalf of the Chinese government. Where do I go for odds on how this turns out?

The crazy 5th Circuit Court of Appeals has done it again. This time, it has ruled that the S.E.C.’s use of in-house judges violated the Seventh Amendment right to a jury trial and that Congress couldn’t delegate legislative power to the agency. Somewhere in Hollywood, someone is asking what this means for the copyright small claims court.

Perhaps seeing the spectacular ratings that CourtTV is generating for the Johnny Depp-Amber Heard saga, or maybe eyeing a future documentary, CNN made a motion on Thursday to record and broadcast the new Cosby trial. A judge has yet to rule, though California judges have been reluctant to allow cameras in the courtroom ever since the O.J. Simpson media circus.

The Actors’ Equity Association says it has reached an agreement with the Broadway League to release those who worked on Scott Rudin theatrical productions from non-disclosure agreements. Let’s hope Rudin is taking this development calmly.

Josh Tarnow, formerly the in-house lawyer for LeBron James’s production company, has launched his own law firm.

New York’s highest appeals court is being asked to decide whether an elephant is legally a person entitled to protection against unlawful imprisonment. At the hearing, one judge asked whether it’d become illegal to own a pet.

Possibly the best dispute ever concerning the Visual Artists Rights Act has come to an end after Italian-Canadian artist Cosimo Cavallaro settled with the government contractors hired by the Trump administration to build a wall along the U.S.-Mexico border. To comment on that spectacle, Cavallaro created a six-foot-tall wall of cheese, which was then destroyed. No word on what he’s getting. Hopefully a lot of cheddar.

FOUR STORIES WE'RE TALKING ABOUT

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Warren's Redstone Gamble

Notes on Buffett’s mediaco M&A play, Elon’s latest machinations, and why Wall Street bankers love Brian Roberts.

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Roberts' EA Flirtation

The Comcast-NBCUniversal chief was close to a deal that would have changed the content wars.

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Jeff Roe '24

Insiders are obsessing over the political canoodling between Trump and Jeff Roe, the G.O.P. political operative.

TARA PALMERI

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