IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

 

 STEVE WILSON

and JANE AKRE, Plaintiffs,

v. CASE NO. 98-2439 Div. D

NEW WORLD COMMUNICATIONS

OF TAMPA, INC. d/b/a WTVT-TV,

A Florida corporation, Defendant

_______________________________________________//

 

ANSWER AND AFFIRMATIVE DEFENSES

 

Answer

 

Defendant New World answers the First Amended Complaint filed herein and says:

Jurisdiction and Venue

1. Admits for jurisdictional purposes only.

2. Admits that Hillsborough County, Florida is the proper venue.

3. Admits.

4. Admits.

5. Admits.

Facts Common to All Counts

6. Admits that both Plaintiffs have long careers in journalism and admits further that both have a history of employment termination and difficult working relationships, during their careers.

7. Defendant is without knowledge of the specifics of Plaintiff Akre's resume, therefore denies the allegations of Paragraph 7, and demands strict proof thereof.

8. Defendant is without knowledge of the specifics of Plaintiff Wilson's resume, therefore denies the allegations of Paragraph 8, and demands strict proof thereof.

9. Defendant admits that its News Director and Assistant News Director met with the Plaintiffs after repeated telephone entreaties from Plaintiff Akre and, further, admits that Plaintiffs were hired after that meeting but denies that Plaintiffs were "recruited" as alleged in Paragraph 9. Defendant further admits the authenticity of Exhibits A and B, attached to the Complaint.

10. Defendant admits that Plaintiff Akre proposed an investigative piece on Posilac, a trade name for Recombinant Bovine Growth Hormone (hereinafter "BGH"), and its manufacturer Monsanto Corporation. Defendant further admits that Plaintiff Akre was authorized to prepare the piece, but is without knowledge of the remainder of the allegations in Paragraph 10, therefore must deny same, and demands strict proof thereof.

11. Admits that Plaintiff Wilson assisted his wife, Plaintiff Akre, in the preparation of the BGH piece, as was contemplated in the parties' Employment Agreements.

12. Admits that Plaintiff Akre, finally and after many reminders from the Assistant News Director, delivered the first-draft script for Part One, which was in the nature of a detailed outline. Admits the first draft of the script for Part One was delivered thereafter in an untimely fashion and had not been reviewed by news managers nor the station's lawyer, in clear violation of Defendant's newsroom policies for investigative pieces, which policies had been repeatedly and clearly conveyed to Plaintiffs. Defendant admits further that first-draft scripts for the remaining parts of the piece likewise were delivered thereafter in a similar incomplete, unreviewed and untimely fashion. Defendant specifically denies that any scripts were delivered one full week before the scheduled air dates.

13. Admits that Plaintiff's pieces clearly showed Florida's dairy farmers were using BGH and, further, admits the pieces were biased and one-sided and clearly demonstrated that Plaintiffs consistently had ignored any information, scientific or otherwise, that was counter to their bias that Posilac is carcinogenic.

14. Admits that several years ago Florida's grocery chains had stated they would ask their suppliers to sell them milk from untreated cows, at least until consumer acceptance of BGH was no longer an issue and admit, further, that experience has shown that milk from BGH-treated cows is commingled with milk from untreated cows at Florida's various milk processing centers.

15. Admits that review of the scripts began immediately upon receipt, but specifically denies that Plaintiffs cooperated in the pre-broadcast review process, including initially responding to the request for the underlying documentation of the scripts with copies of articles from the popular press, such as The Village Voice and Family Life magazine rather than any scientific data from peer-reviewed journals.

16. Defendant denies that the pieces were broadcast-ready or were cleared for broadcast in February, 1997, but specifically admits that its news managers worked feverishly on the pieces during the week before the first scheduled broadcast date and admits further that radio promotional spots were aired during that week, as is customary in the industry, but all in the vain hope and expectation that the pieces could be re-worked and become acceptable for broadcast to Defendant's viewers on time, as scheduled.

17. Admits the authenticity of Mr. Walsh's letter, which is Exhibit C, and which speaks for itself. Defendant is without knowledge of whether Mr. Ailes ever actually received Mr. Walsh's letter (Exhibit C) and, further, is without knowledge of Monsanto Corporation's motive in retaining Mr. Walsh.

18. Admits that Defendant's General Manager and News Director received a copy of Exhibit C directly from Mr. Walsh, but are without knowledge of whether someone at the station also received a copy of the letter from its parent corporation, as alleged in Paragraph 18, therefore denies this allegation and demands strict proof thereof. Defendant further denies that Plaintiffs' response to Exhibit C alleviated its extant and growing concerns about the truthfulness, accuracy and fairness of the reports. Defendant admits Plaintiffs expressed alarm that Exhibit C would affect the air-date of the BGH series and admits further that Plaintiffs were dismissive of the matters raised in Exhibit C.

19. Admits that at the last possible moment, Defendant's news managers realized the series could not be re-worked in time for the scheduled air date, due to the biased and undocumented nature of the pieces themselves, due to complaints already received earlier from two sources in Florida, and due to Exhibit C, and decided to postpone the broadcast. Defendant specifically denies that Exhibit C was the sole reason for the postponement, as alleged in Paragraph 19 and denies that any news manager told Plaintiffs such was the case.

20. Admits that during the following months Defendant's news manager and lawyers made a superhuman effort to make the BGH piece fair, balanced, and accurate, with very little assistance from Plaintiffs and, at times, a great deal of resistance and recrimination and personal attacks from Plaintiffs. Defendant specifically denies that Plaintiffs were ordered to write and re-write at least 73 versions of the scripts, and denies that Plaintiffs submitted 73 versions of the script to Defendant's news managers for review. Defendant specifically denies that Defendant repeatedly threatened or carried out various threats of retaliatory employment actions to coerce Plaintiffs and further denies that Plaintiffs were ordered to broadcast information they had demonstrated to be unfair, inaccurate, false and misleading.

21. Admits the authenticity of Exhibit D, but denies that Exhibit D documented the falsity of the matters raised in Exhibit C. Admits further that Plaintiffs and Defendant's news managers and lawyers had a conference telephone call during the week of February 24, 1997, and that one result, among several, of that call was the decision to re-interview Monsanto officials. Denies that a new air date of March 3 was set.

22. Admits that Monsanto demanded written questions in advance of the next round of interviews and that Plaintiffs provided instead a list of areas of proposed inquiry. Admits the authenticity of Exhibit E to the Amended Complaint.

23. Admits that Defendant's news managers had begun to suspect, before receiving Exhibit E, that Plaintiffs were not interested in a fair, accurate, and balanced report on BGH. Defendant admits that at the next scheduled meeting concerning the scripts, Plaintiffs were instructed to make changes and to produce underlying documentation for the claims in the BGH piece, a standard feature of the pre-broadcast review process and a feature that should have been well-known to reporters of Plaintiffs' proclaimed expertise and experience. Defendant admits further that such request for documentation was met with Plaintiffs' vehement objections that they were insulted at such a request. A copy of those objections and purported insult is attached hereto and incorporated herein as Exhibit 1, in a memorandum Plainiffs addressed to the station's news managers and lawyer, dated March 6, 1997. Defendant specifically denies that the reports had been scheduled for broadcast in March, 1997, or that any broadcast was postponed as a result of Defendant's receipt of Exhibit E.

24. Admits that Plaintiffs eventually produced a 3-ring binder of various documents, some of them incomplete, which did not alleviate the news managers' concerns and, in fact, raised additional questions about the fairness, accuracy, and truthfulness of the series. Defendant specifically denies that Plaintiffs' 3-ring binder was full of detailed answers to Defendant's questions.

25. Admits that Plaintiffs objected to some changes suggested by the news managers, agreed to make other changes but failed to actually do so, flatly refused to make still other changes, made some suggested changes in some drafts but then returned to the original language in some instances in subsequent drafts, and, in some instances, introduced new language that created new problems for the news managers. Defendant admits that Plaintiffs provided purported documentation to substantiate their scripts, and admits that some of the documentation flatly contradicted Plaintiffs' claims. Further, Defendant specifically denies that, during this process over many months, did Plaintiffs ever mention, either orally or in writing, the Federal Communications Commission or the Communications Act of 1934, or any other law, rule, or regulation that Defendant purportedly was violating in its review process. Defendant specifically denies that Plaintiffs clearly verified the truth and accuracy of their work or that Defendant ignored Plaintiffs' proffered documentation. Defendant specifically denies that it directed Plaintiffs to include information they knew to be false or misleading.

26. Defendant admits to the authenticity of Exhibit F, the Carolyn Forrest letter of April 10, 1997, and admits the exhibit is a fair and accurate summary of events up to that date.

27. Defendant admits that Plaintiffs told David Boylan, the station's new General Manager, that the contents of Exhibit F were untrue, just as they had previously told the news managers back in February that the contents of Exhibit C were untrue. Defendant admits that Mr. Boylan encouraged Plaintiffs to cooperate with the station's news managers and lawyers and admits further that Mr. Boylan, as General Manager, did not interfere in the pre-broadcast review process by reviewing scripts or offering editorial suggestions or engaging in other editorial functions reserved for the news managers.. Defendant specifically denies that Mr. Boylan said he was "not interested" in the BGH story, but, to the contrary, admits that Mr. Boylan was interested in resolving the controversy and getting the story on the air, as were the news managers and the station's lawyers. Defendant admits that, during the meeting described in Paragraph 27, Plaintiff Wilson confessed he was not accustomed to working with lawyers and did not like having his work reviewed by lawyers before broadcast and admits that Mr. Boylan asked him if that were a hill he was willing to die on and admits informing him that Defendant's procedures required such review. Defendant otherwise denies the allegations of Paragraph 27.

28. Defendant denies that Mr. Boylan or any other agent or employee of Defendant ever ordered Plaintiffs to broadcast material known to be false and misleading, either during the meeting described in Paragraph 28 or at any other time. Defendant admits that Plaintiff Wilson and Mr. Boylan discussed, again, the Defendant's standard pre-broadcast review process and the necessity of Plaintiffs' conforming their conduct to it. Defendant admits further that Plaintiffs and Mr. Boylan discussed the possibility of Plaintiff Wilson's just resigning and Plaintiff Akre being assigned to the duties of weekend anchor and health reporter. Defendant denies that the specifics of the BGH story were even discussed at either of the meetings described in Paragraphs 27 and 28, but admits that the meetings centered on Plaintiffs' distress at the pre-broadcast review process itself as a fixture of the station's normal procedures and the overall direction of the station's investigative unit. Defendant specifically admits that Mr. Boylan said the company had paid $3 billion for a group of ten stations, and the company was entitled to set up the pre-broadcast review process it chose and that, until Plaintiff Wilson owned his own station, he must follow Defendant's procedures. Defendant specifically denies that Mr. Boylan ever said that "the news is what we tell you it is," or anything akin to such a statement, as alleged in Paragraph 28. Defendant specifically denies that the FCC or Communications Act of 1934 were discussed or even mentioned at the meeting alleged in Paragraph 28, or that Plaintiffs protested the legality of Defendant's conduct.

29. Defendant admits the authenticity of Exhibit G, which speaks for itself. Defendant specifically denies Plaintiffs' characterization of the import and meaning of Exhibit G, specifically that Exhibit G was Plaintiffs' "reaffirming" their commitment to fair and accurate reporting.

30. Defendant admits the authenticity of Exhibit H, which speaks for itself and which reiterated Plaintiffs' existing obligations of confidentiality under the parties' Employment Agreements and specifically denies that Exhibit H was an attempt to purchase Plaintiffs' silence, because Plaintiffs were already bound by the provisions of Exhibits A and B. Defendant specifically denies Plaintiffs' characterization of the import and meaning of Exhibit H, specifically that Exhibit H "contemplated Plaintiffs' dropping their ethical objections." Defendant admits that its news managers were anxious to complete the pre-broadcast review process and that no headway was made in the following weeks.

31. Defendant admits the authenticity of Exhibit I from Ms. Akre to Ms. Forrest, bearing the date of May 23, 1997, which speaks for itself, and of Exhibit J from Mr. Wilson to Ms. Forrest, bearing the date of May 28, 1997, which acknowledged "a lot of continued progress" and which speaks for itself.

32. Defendant specifically denies the statements attributed to Ms Forrest in Paragraph 32. On the contrary, Defendant admits that its attorney, Ms Forrest, advised Plaintiffs that Defendant's internal standard for accuracy demanded that any statements in a broadcast report challenged by suit be provably true on a motion for summary judgment and that Plaintiffs' continued insistence on including language in their report that would fail this standard was unacceptable and exposed Defendant to unnecessarily risky and expensive litigation. Defendant further admits that Plaintiffs resisted such a standard during the subject conversation.

33. Defendant denies that Plaintiffs ever followed, fully and accurately, Defendant's editing instructions for the BGH report but admits that Plaintiffs continued to present documentation that did not support their position. Defendant admits that it tried to work with Plaintiff in showing how the documentation did not support their logic, all to no avail. Defendant admits that it alerted Plaintiff Akre that she might be subject to a change in job duties upon the arrival of a new news manager in June, consistent with the parties' written employment agreement. Defendant further admits that, in fact, Plaintiff Akre was assigned a daily news story, to which she vehemently objected and which assignment she discharged in an unsatisfactory manner.

34. Defendant admits that, once again, it expended considerable resources at an all-day meeting on July 11, 1997, with Plaintiffs, outside counsel, and the news director. Defendant further admits that at the conclusion of that meeting, save one or two changes that Plaintiffs agreed to make but later failed to make, the scripts were acceptable to Defendant's news managers and news counsel. Defendant denies that any new air dates were set for the BGH reports.. Defendant admits that Exhibit K is a first-cut video of the reports and that the video reports never progressed beyond a first-cut stage.

35. Defendant admits that Mr. Metlin, News Director for Defendant, telephonically advised Plaintiffs that Defendant would be exercising the "out" in the Plaintiffs' employment contracts according to the procedure set forth in Paragraph 2(C) of Exhibits A and B, while Plaintiffs were vacationing together at their home in North Carolina. Defendant admits the authenticity of Exhibit L and further admits that Defendant mailed each Plaintiff a copy of the notice in accord with the parties' agreement within the contract's notice period, admits that Plaintiff Akre was notified by the U.S. Post Office on multiple occasions both at Plaintiffs' vacation home in North Carolina and at their permanent Florida home, admits that both letters addressed to Plaintiff Akre eventually were returned as "unclaimed" mail, admits that Plaintiff Wilson stated he received his notice only because he mistakenly thought it was something else, and admits further that Mr. Metlin also provided Plaintiffs via hand delivery a copy of the notice.

36. Defendant admits that only after Plaintiffs knew their employment would end on December 2, 1997, and only after the contractual notice period had closed did Plaintiff Wilson, for the first time, claim that Defendant's pre-broadcast review of the BGH reports violated the Communications Act of 1934 and claim, also for the first time, that Plaintiffs were being ordered to slant the BGH reports. Defendant admits further that in a meeting with Mr. Metlin in late September Plaintiffs told Mr. Metlin they were unhappy with the changes in the scripts to which they had previously agreed and wanted to start the process over, from the beginning. Defendant admits the authenticity of Exhibit M, which speaks for itself.

37. Defendant admits that after Plaintiffs knew their employment would end on December 2, 1997, and after the contractual notice period had closed, Plaintiff Akre claimed, for the first time, that Defendant's pre-broadcast review of the BGH reports violated the Communications Act of 1934. Defendant admits the authenticity of Exhibit N, which speaks for itself. Defendant specifically denies that Plaintiff Akre failed to receive proper notice of her termination, but admits that Plaintiff Akre knew her husband, Plaintiff Wilson, had received his notice of termination via certified mail at a time and place where she resided with him and waited until the notice period had closed before claiming she had not received notice.

38. Defendant admits that Mr. Metlin asked Plaintiffs to make one final effort to produce scripts that were broadcast-worthy. Defendant further admits that Mr. Boylan suspended Plaintiffs for ten days without pay for the insubordination evidenced by their abandonment of the review process and by their backtracking on previously agreed-upon changes. Admits that Defendant's letter to Plaintiffs informing them fully of the reasons for their suspension is attached to the Amended Complaint as Exhibit S, which is Ms. Forrest's accurate summary of the history of the parties' relations. Defendant denies that Mr. Metlin directed Plaintiffs to prepare two versions of the scripts, as alleged in Paragraph 38, but admits that Plaintiffs asked whether Mr. Metlin would review a brand-new version of the scripts as they wanted them broadcast, if they prepared such a version on their own initiative.

39. Defendant denies the allegations of Paragraph 39, as evidenced by Exhibit O.

40. Defendant admits that Plaintiffs claimed they were working at home on the BGH reports during their period of suspension and further admits they were not permitted access to Defendant's facilities during the suspension period, without making arrangements in advance with Mr. Metlin. Defendant admits that Plaintiffs months earlier had demanded and received the privilege of working at their home on the BGH reports and further admits that any of the "reporters' records and notes" stored in the Defendant's computer were duplicated in the Plaintiffs' files at home. Defendant denies that Mr. Boylan ever instructed or suggested to Plaintiffs that they work without pay during their period of suspension and denies that Mr. Boylan ever "recanted" any such instruction and admits further that, in fact, Plaintiffs were paid during the suspension period based on their claims that they were working at home on the BGH series. Defendant admits the authenticity of Exhibit O, which speaks for itself.

41. Defendant denies that Plaintiffs were assigned to complete two additional script versions and denies that Exhibits Q and R were scripts submitted to Defendant for review, as evidenced by the marginalia on Exhibit Q and the copyright symbol on Exhibit R. Defendant admits the authenticity of composite Exhibit P, which exhibit speaks for itself. Defendant denies that Defendant ordered Plaintiffs to produce anything other than a script that meets Defendant's broadcast standards for fairness and accuracy, as opposed to Plaintiffs' desire to broadcast sensationalized, one-sided, inaccurate, and unreviewed reports.

42. Defendant admits that in the fall of 1997, the parties entered into settlement negotiations in order to end the controversy, which negotiations were unsuccessful ultimately and according to which Plaintiffs would be paid for the second year of their respective contracts, at full salary and benefits, as station consultants, which proposition was agreeable to Plaintiffs. In the context of those negotiations, Defendant admits Plaintiff Wilson expressed putative suspicion that Defendant would stop the second-year payments despite any proposed consulting agreement, and in that context, Defendant admits that Mr. Boylan told him the payments would be continued beyond December 1, 1997. Defendant admits further that Plaintiffs escalated and changed their demands until, finally, Mr. Roberts, senior employment counsel to Fox Inc., informed Plaintiffs via facsimile transmission that their termination would be effective on December 2, 1997, as they had been informed previously during the notice period.. Defendant denies that Mr. Boylan gave Plaintiffs his personal assurances that their BGH report would be broadcast, without qualification.

43. Defendant denies the allegations of Paragraph 43.

44. Defendant denies the allegations of Paragraph 44.

45. Defendant denies that it retaliated against Plaintiffs, and, further:

a. Denies the allegations of Paragraph 45(a);

b. Admits the authenticity of Exhibit S, which speaks for itself, and admits the Plaintiffs had proved themselves impossible to work with by anyone's standards, and admits further that Plaintiffs' own refusal to have their work edited made them unsuitable journalists, but denies that Defendant ever ordered Plaintiffs to broadcast false and misleading news reports;

c. Denies that Plaintiffs' suspension in any way violated the parties' employment contracts or was triggered by Exhibits M and N, but admits that Plaintiffs' abandonment of the review process, as announced by Plaintiffs to Mr. Metlin, was the cause for their suspension;

d. Denies that Defendant ever ordered Plaintiffs to work without pay, admits that Plaintiffs' access to Defendant's facilities was limited during their suspension; and denies that the material in the Defendant's computer was necessary to Plaintiffs' labors, as Plaintiffs already possessed such materials on their home computers and Defendant offered to give Plaintiffs hard copies of anything they specified;

e. Admits that, based upon Plaintiffs' claims they worked during their period of suspension, Defendant paid Plaintiffs their ordinary wages and further admits that their period of suspension, indeed, was extended while Defendant continued to evaluate the situation;

f. Denies the allegations of Paragraph 45(f); and

g. Denies that Plaintiff Akre was given any work assignment as punitive retaliation, and admits that ratings rose when another employee took over the weekend anchor duties.

COUNT I

Breach of Contract

46. Admits for jurisdiction purposes only but denies that Plaintiffs, or either of them, have any meritorious claim for breach of contract.

47. Admits

48. Admits.

49. Admits that Defendant hired Plaintiffs to be on-the-air investigative reporters, and further admits that Plaintiff Wilson was employed part-time, without any benefits, and Plaintiff Akre was employed full-time, with benefits.

50. Admits.

51. Denies that Plaintiffs fully and faithfully discharged their contractual obligations and admits that Plaintiffs' unreasonable and intemperate behavior throughout their employment was expensive, disruptive, and did not advance Defendant's interests in providing quality news programming to its viewers.

52. Denies the allegations of Paragraph 52.

53. Denies that the Agreement provided Plaintiff Akre with any sort of guarantee of particular job assignments, and admits that Plaintiff Akre was relieved of her weekend anchor duties when she vacationed and when she was suspended and further admits that her replacement generated higher audience ratings and was a more suitable weekend anchor.

54. Denies that Defendant failed to give timely notice to Plaintiff Akre in accord with Paragraph 2(C) of the parties' Agreement and admits that Defendant removed Plaintiff Akre from its employ effective December 2, 1997, in accord with the parties' Agreement.

55. Denies.

56. Defendant denies it breached the parties' Employment Agreements, and is without knowledge of Plaintiffs' damages, therefore denies same, and demands strict proof thereof.

57. Defendant is without knowledge of the allegations in Paragraph 57, therefore denies same and demands strict proof thereof.

WHEREFORE Defendant demands that this action be dismissed and Plaintiffs take nothing.

COUNT II

Declaratory Judgment

58. Admits for jurisdictional purposes only, but denies that Plaintiffs have made out a claim for declaratory relief.

59. Denies that Plaintiffs are entitled to declaratory relief, upon the pleaded or any statement of unpleaded facts.

60. Defendant admits the terms of the parties' employment contracts, denies that Defendant ever ordered Plaintiffs to perform any task that violated law or the terms of those contracts, and denies that the FCC has any rules or regulations regarding "rigging and slanting of the news," as alleged in Paragraph 60.

61. Defendant admits the terms of the parties' employment contracts, but denies that it directed Plaintiffs to do anything to jeopardize Defendant's FCC license.

62. Defendant admits the terms of the parties' employment contracts, admits that more than 180 days have passed since Plaintiffs' last date of employment with Defendant, and denies that Defendant's conduct renders any of the contract provisions void or voidable at the instance of the Plaintiffs.

63. Defendant admits the terms of the parties' contracts and admits that it presently has unasserted and unthreatened multiple remedies against Plaintiffs for their conduct, both during and after their employment with Defendant.

64. Defendant admits the terms of the parties' contracts and admits that Plaintiffs retain possession of materials belonging to Defendant and admits further that Plaintiffs have improperly disseminated some of those materials, in violation of their contractual obligations.

65. Defendant denies the allegations of Paragraph 65.

WHEREFORE Defendant demands this action be dismissed and that Plaintiffs take nothing.

 

COUNT III

Whistle-blower Act Violation

66. Admits for jurisdictional purposes only, but denies that Plaintiffs have any claim under the Florida Private Whistleblower Act.

67. Defendant admits the allegations of Paragraph 67.

68. Defendant denies the allegations of Paragraph 68 and further denies that Defendant behaved as Plaintiffs alleged earlier in their Amended Complaint.

69. Defendant denies the allegations of Paragraph 69 and its sub-parts.

70. Defendant denies the allegations of Paragraph 70, but admits that Plaintiffs wrote many memoranda to Defendant's news managers and counsel, expressing their feelings about the pre-broadcast review process, none of them mentioning any law, rule or regulation Defendant allegedly was violating until after they knew they had been terminated.

71. Defendant is without knowledge of Plaintiffs' mental condition, therefore denies same and demands strict proof thereof, and otherwise denies the allegations of Paragraph 71.

72. Defendant denies the allegations of Paragraph 72.

WHEREFORE Defendant demands that this action be dismissed and that Plaintiffs take nothing.

ALL ALLEGATIONS NOT SPECIFICALLY ADMITTED ARE DENIED.

 

AFFIRMATIVE DEFENSES

First Affirmative Defense

As a first affirmative defense, Plaintiff Akre has failed to state a cause of action for breach of contract in that Defendant mailed its notices to Plaintiffs pursuant to Paragraph 2(C) of the parties' Agreements, by certified mail, return receipt requested, in a timely fashion, and Plaintiff Akre's refusal to respond to three notices of attempted delivery by the U.S. Postal Service is tantamount to her receipt of the notice. Copies of the postal receipts and of the fronts of the returned envelopes are attached hereto and incorporated herein as composite Exhibit 2.

Second Affirmative Defense

As a second affirmative defense, Plaintiffs have failed to state a claim under Florida's Whistleblower Act in that neither Plaintiff advised Defendant in writing or otherwise of a law, rule, or regulation Defendant allegedly was violating.

Third Affirmative Defense

As a third affirmative defense, Plaintiffs' own misconduct in misappropriating the property of Defendant by posting scripts and the videotape of the BGH reports on their World Wide Web site and by exhibiting the videotape during a professional meeting in June, 1997, and by otherwise making improper use of Defendant's property, all without consent or foreknowledge of Defendant and even after receiving Defendant's demand for the return of its property (attached hereto and incorporated herein as Exhibit 3) violates Defendant's contractual and intellectual property rights, amounts to a breach of the express terms of the parties' contract, and precludes Plaintiffs' recovery on any theory of law or equity.

Fourth Affirmative Defense

As a fourth affirmative defense, throughout practically the entire course of their employment with Defendant, Plaintiffs violated the terms of confidentiality of the parties' contracts and their common-law duty of loyalty that every employee owes to his or her employer by disparaging Defendant to third parties and by revealing particulars of Defendant's pre-broadcast review process, including attorney-client communications.

Fifth Affirmative Defense

As a fifth affirmative defense, Plaintiffs' own contentious, argumentative, ad hominem, and vituperative conduct and their refusal to abide by Defendant's established policies and procedures were the sole reasons for Defendant's decision to terminate their employment.

Sixth Affirmative Defense

As a sixth affirmative defense, Defendant's insistence upon fair, accurate and balanced news reporting does not violate any law, rule or regulation.

Seventh Affirmative Defense

As a seventh affirmative defense, Defendant's insistence upon fair, accurate and balanced news reporting does not violate the parties' contracts.

Eighth Affirmative Defense

As an eighth affirmative defense, the First Amendment to the United States Constitution and Article I, Section 4 of the Florida Constitution prohibit judicial review of Defendant's news judgments and the exercise of editorial discretion, consistent with the guarantees of a free press.

Ninth Affirmative Defense

As a ninth affirmative defense, Plaintiffs have failed to state a real and present controversy, sufficient to warrant a declaratory judgment by the court.

Tenth Affirmative Defense

As a tenth affirmative defense, Plaintiff Akre breached the parties' contract by failing and refusing to perform either the quantity or quality of work contemplated by the terms of her employment.

Eleventh Affirmative Defense

As an eleventh affirmative defense, Plaintiffs have failed to state a cause of action in that the Federal Communications Commission's "rigging and slanting" doctrine is more in the nature of that agency's obiter dictum, and is not a "law, rule, or regulation" within the meaning of Florida Statutes 448.102.

Twelfth Affirmative Defense

As a twelfth affirmative defense, Plaintiffs have failed to state a cause of action in that pursuant to the express terms of the parties' contracts, Plaintiffs had no contractual right to any particular job, and Defendant was entitled to give the Plaintiffs any job assignment it deemed advisable.

 

Thirteenth Affirmative Defense

As a thirteenth affirmative defense, Plaintiffs' own admitted unfamiliarity in working with attorneys during the pre-broadcast review process and their refusal to be edited or to abide by Defendant's journalistic standards make them unsuitable for reporting jobs.

Fourteenth Affirmative Defense

As a fourteenth affirmative defense, Plaintiffs have failed to state a claim in that threatening to disclose their displeasure to the FCC for a news report that had not been broadcast is not the type of conduct protected by Florida's Whistleblower Act.

Fifteenth Affirmative Defense

As a fifteenth affirmative defense, Plaintiffs have failed to state a cause of action in that the FCC does not intrude upon issues of editorial discretion or the exercise of news judgment, as a matter of long-standing policy, and, thus, the FCC would be without jurisdiction to adjudicate any complaint filed by Plaintiffs on the facts alleged.

Sixteenth Affirmative Defense

As a sixteenth affirmative defense, Plaintiff Akre is estopped from claiming she did not receive notice of her termination.

Seventeenth Affirmative Defense

As a seventeenth affirmative defense, any damages suffered by Plaintiffs are attributable solely to their own conduct.

 

Eighteenth Affirmative Defense.

As an eighteenth affirmative defense, Defendant is entitled to a set-off to any damages claimed by Plaintiffs for the consequences of Plaintiffs' conduct during and after their employment with Defendant, including, but not limited to, their campaign of malicious disparagement of Defendant and its employees and Defendant's related entities.

Nineteenth Affirmative Defense

As a nineteenth affirmative defense, Plaintiffs have failed to state a cause of action for whistleblower relief in that their claims of the unlawfulness of Defendant's conduct did not start until after they knew they were being terminated.

Respectfully submitted,

 

 

PATRICIA FIELDS ANDERSON, ESQ.

Fla. Bar # 352871

RAHDERT, ANDERSON, McGOWAN & STEELE, P.A.

535 Central Avenue

St. Petersburg, FL 33701

727 / 823-4191

727 / 823-6189 (fax)

Attorney for Defendant NEW WORLD

 

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