Drunk reality show participant’s invasion of privacy claim stays in court, for now

Amirmotazedi v. Viacom, Inc., — F.Supp.2d —, 2011 WL 802134 (D.D.C. March 9, 2011)

Plaintiff sued the producers of The Real World (MTV, Viacom and Bunim-Murray Productions) for, among other things, invasion of privacy and intentional infliction of emotional distress over the way that the show portrayed her in an episode and in outtakes posted on the web. Defendants moved to dismiss, claiming that the plaintiff signed a release on the night she visited the Real World house, and that the release’s arbitration clause meant the case did not belong in court. The court denied the motion.

To argue against the enforceability of the arbitration provision, plaintiff asserted that she was so drunk on the night of the filming that she lacked the mental capacity to understand the significance of the arbitration provision. (This is called the voluntary intoxication defense.)

The court sided with plaintiff, finding that plaintiff’s mental capacity defense went to the question of formation, or the “making” of the agreement to arbitrate, thus under the Federal Arbitration Act, the question of the arbitration provision’s enforceability must be decided by the court. That’s not to say that the court won’t ultimately kick the case into arbitration. It’s just that the case stays before the court for now to determine whether plaintiff’s voluntary intoxication defense requires the agreement to be voided.

Related: California court invalidates Alienware arbitration provision in online terms and conditions

Tweet by friend of husband of jury foreperson did not taint jury trial

U.S. v. Forde, 2011 WL 63831 (4th Cir. January 10, 2011)

Defendant was convicted of bankruptcy fraud and some other similar crimes. One of his arguments on appeal was that the trial court judge erred by not holding a hearing to investigate alleged juror impropriety. The jury foreperson’s husband’s friend had posted the following tweet during the trial:

assume: suppose to be the case, without proof; presume: suppose that something is the case on the basis of probability.

The appellate court rejected the defendant’s argument. It held that the duty to investigate juror impropriety arises only when the party alleging misconduct makes and adequate showing of extrinsic influence to overcome the presumption of jury impartiality. “In other words, there must be something more than mere speculation.”

The court found that “the string of possibilities” about the tweet — i.e., that the foreperson possibly talked to her husband, who possibly talked to his friend, who possibly took to Twitter in response to what the husband possibly told him — was nothing but speculation and thus fell far short of establishing reasonable grounds for investigation.