NEW YORK — We’ve laughed, cried and gaped since mid-October at the unspooling of one of the highest profile trials in recent showbiz history, but now it’s done.
The final witness, John Donohue, disputed other legal experts’ notion that Michael Ovitz would have sued Disney were he fired. Disney “could have taken another tack and gone after him aggressively” — firing Ovitz for cause but suing him for “improper personal enrichment.”
When live testimony ended abruptly Wednesday in Delaware Chancery Court, it seemed light years since an agitated Ovitz or irate Michael Eisner dominated the stand.
Lawyers agreed to discuss briefs — a flurry of written arguments they’ll file in coming months — off the record in chambers of Judge William B. Chandler III. “Alternatively,” Chandler said, “just give me 10 minutes and I’ll get back and give you my ruling.”
A shocked silence, then raucous laughter gripped the courthouse. Chandler is expected to take several months at least to render his verdict.
Donohue, a prosecution witness, referred to previous testimony by defense witnesses John Fox and Larry Feldman, saying Feldman was “incredibly generous,” based on the evidence, in crediting Ovitz with profitable deals that were “thwarted by Eisner’s poor judgment.”
He said, for instance, that docs purporting to show Ovitz pushed for Disney to buy Putnam contained only the publisher’s name and a few financials. “Ovitz could have been in a coma and been collecting those documents,” he said.
He said it’s far from clear Ovitz would have won a case against Disney.
“If anyone was thinking ahead, there was an issue of litigation on both sides. … They were looking at this termination the way you might look at the termination of an assembly-line worker in a factory. In that case, the central issues are how do I avoid litigation,” Donohue said.
Shareholders sued Disney’s board, including Eisner and Ovitz, for inking a no-fault termination that allowed Ovitz to walk away with a severance package worth about $140 million. The 8-year-old case finally made its way to court last fall. And whatever the verdict, the trial has been a huge embarrassment for Disney and a clear warning bell to all corporate boards.
Donohue reminded the court that his guides in the case have been Eisner’s own writings, letters and memos that consistently question Ovitz’s truthfulness.
But, throughout, the core stumbling block in the prosecution’s case has been no evidence of any specific lies.
Defendants testified that Eisner was only venting, that Ovitz told no lies beyond, perhaps, little the white ones.
So Donohue was asked an uncomfortable question — if his testimony depended on the fact that all the defense witnesses perjured themselves by insisting there were no lies and no reason to fire for cause.
No, he said. If Disney and Eisner had opted way back in 1996 to pursue a termination for cause, “They would have documented for the record a lot of the (lies) that Mr. Eisner” can’t remember now.
If they had taken that step at the time, Eisner (and others) would have remembered at the time. “It’s not unusual, after eight years, that they aren’t clear in his mind.”