Mouse motion nixed in Finke suit

Judge dismisses anti-SLAPP statute, won't admit letter

Embattled journalist Nikki Finke cleared a major hurdle Friday in her wrongful termination lawsuit against the Disney Co. and the New York Post when a judge issued a tentative order denying Disney’s attempt to strike the suit.

In the order, L.A. Superior Court Judge Gregory W. Alarcon denied Disney’s motion to strike under the so-called anti-SLAPP statute. Anti-SLAPP actions are traditionally brought by political activists whose free-speech rights are threatened, but Disney brought the motion claiming it had a First Amendment right to complain to the Post about Finke’s reporting on the Winnie the Pooh case. Judges can, but usually don’t, withdraw a tentative ruling.

Much of the motion revolved around a letter written by Disney prexy-chief operating officer Robert Iger complaining about the accuracy of Finke’s two stories. Disney attorney Patricia Glaser described it as a constitutionally protected letter to the editor; Finke’s lawyers say the letter misstates what happened in the Pooh litigation and was intended not as a letter to the editor but to pressure the Post into firing Finke. Alarcon refused to admit the Iger letter into evidence and rejected Disney’s argument.

First Amendment issue

Finke’s attorney, Carole Handler, said, “We’re pleased that the court’s tentative order found that Disney did not meet its burden under the anti-SLAPP statute. The only person whose First Amendment rights are at risk is Nikki Finke, who deserves to be able to write a truthful article without being punished for it.”

Glaser maintains that there is no “admissible evidence being offered in defense of the complaint. Their homework should have been done before they filed, not after.”

The Post was not involved in Disney’s anti-SLAPP motion.

Finke filed suit in April, after she was terminated by the Post. Finke filed two stories on the Pooh case on Jan. 28, shortly after court records were unsealed. The stories ran under the headlines “Pooh Scandal Is Shred Hot” and “Deep Pooh-Pooh” and showed an illustration of Mickey Mouse feeding documents into a shredder. One story also contained a reference to Arthur Andersen and the just-breaking Enron scandal.

Additions to story

Finke claims the headlines, illustration and use of the word “shred” in the story were added without her approval.

The underlying 11-year-old Pooh case involves a multimillion-dollar royalty dispute with the Slesinger family, which owns a partial license to the Pooh characters. Before Finke’s story ran, Daily Variety and other publications reported in May 2001 and in early January that Disney had destroyed 40 boxes of documents relating to the litigation, including a file labeled “Pooh Legal Problems,” and was sanctioned for $90,000. Daily Variety also reported that the Slesingers were seeking to terminate Disney’s license as a possible remedy.

Disney’s chief substantive complaints about Finke’s stories were that they said Disney had destroyed documents in the litigation and that the studio would be seriously damaged if the Slesingers succeed in terminating the Pooh license. Last month, Disney mentioned the Pooh litigation for the first time in its SEC filings, acknowledging that losing the lawsuit could cost the company several hundred million dollars.

Finke’s complaint ascribes her treatment to the timing of her stories –21 days before Disney’s annual shareholder meeting where Eisner had to address the company’s abysmal stock price — and the “tone” of the articles.

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