Lawyer: TLC's Jon Gosselin 'Jon & Kate' lawsuit 'weak' and 'baseless'
By Christopher Rocchio, 10/19/2009
Jon Gosselin's lawyer has fired back at TLC's lawsuit against the Jon & Kate Plus 8 star, calling it "weak, feeble and baseless."
"Clearly, this litigation has heralded in the battle of 'David' against 'Goliath' and Jon Gosselin fully intends to stand firm, protect his family and defend against TLC and Discovery," attorney Mark Jay Heller said in a Friday media statement obtained by OK! Weekly.
"This litigation is clearly a tactic that Discovery and TLC have initiated in furtherance of their hunger to jump back on the gravy train, but Jon Gosselin has decided to put the breaks on the Discovery and TLC trainwreck."
In his statement, Heller expressed surprise about how he learned of the breach of contract lawsuit filed against Gosselin on Friday.
"Apparently, TLC has elected to initially litigate this case in the Court of Public Opinion, rather than the Circuit Court for Montgomery County Maryland because neither Jon nor I have been served with legal pleadings or informed by TLC of the instant litigation," reads the statement.
"Remarkably, instead, I read the alleged Complaint on the internet, since it would appear that Discovery and TLC chose to pander and publicize their weak, feeble and baseless claim to the media rather than providing the Defendant with appropriate notice through the traditional judicial process."
Heller's protest about TLC's alleged decision to "initially litigate this case in the Court of Public Opinion" appears particularly ironic given his own previous behavior.
During an appearance on CNN's Larry King Live earlier this month, Heller had boasted he and Gosselin were "going to court" -- both legal court and "the court of public opinion," the latter of which he had seemed to consider more important and cited repeatedly in the interview.
"Larry, not only will we be going to the state court, but being on this program before you and your viewers, we're in court," Heller told King at the time. "We're in the court of public opinion. And I defy TLC to satisfy you and your viewers that they are right and Jon is wrong."
In his Friday statement, Heller said he plans to fight the lawsuit if and when the network formally serves his client.
"Jon will vigorously defend against this baseless action, assuming Discovery and TLC choose to go forward with their claim by legally serving him with notice," said Heller. "We are confident that through the course of litigation it will clearly be evident that Discovery and TLC exploited, manipulated and abused the Gosselins' vulnerability and financial hardship."
Heller and Gosselin have previously stated that Gosselin and his estranged wife Kate lacked representation when they signed a late 2006 contract for Jon & Kate Plus 8's eight-episode first season which debut TLC's Discovery Health Channel sister network in April 2007.
TLC's lawsuit claims the show is currently being produced under a "new" April 29, 2008 contract in which Jon and Kate "were represented by both their manager and their lawyer" and the Gosselins have been retaining legal counsel since Summer 2007 when the parties negotiated new terms for Jon & Kate Plus 8's 12-episode second season.
However in his statement, Heller claims the couple's lack of representation during the initial contract negotiations makes TLC's contract with Jon "unenforceable."
"We believe that the contract will be unenforceable in light of the fact that Discovery and TLC initially had Jon execute a complicated, complex and sophisticated agreement at a time when he had no legal representative," reads the statement.
In addition, Heller reiterated that the contract was also null and void due to the fact TLC never secured Pennsylvania Child Labor Law permits for the show's filming -- a point the network has disputed, claiming permits are not required for "documentary filmmaking."
"The contract was against Public Policy because we believe Discovery and TLC violated Pennsylvania Child Labor Laws, failed to seek appropriate State and Municipal Permits, failed to pay the Gosselins fair consideration, and intentionally circumvented their responsibility to specifically designate legal and lawful compensation to the eight infant children, which is now the subject of an investigation by the Pennsylvania Department of Labor and Industry and could result in summary Criminal Proceedings," Heller said in the statement.
According to the TLC's lawsuit, the April 2008 contract Jon signed included several "provisions designed and intended to give [TLC] the ability to manage the publicity, marketing and distribution of the program."
Those provisions -- which TLC claims Jon has violated -- allegedly include an agreement that the Gosselin family's services and home would be made available for filming the show and be provided "exclusively" to TLC and a clause that required Jon not engage in "inappropriate conduct," including "dishonesty or public intoxication or other conduct that offended 'social conventions or public morals of decency'" or other behavior "that brought the family or TLC 'into public disrepute, contempt, scandal or ridicule.'"
In addition, the contract also allegedly includes provisions that prevent Jon from disclosing confidential information and issuing pressing releases or public statements "about the program, TLC, or other parties involved with the program (including his own family members)" without TLC's consent. It also allegedly prevents him from promoting or endorsing any products without TLC's consent.
While the lawsuit claims TLC consented to Jon's media requests "where appropriate under the circumstances," it alleges that Jon committed "numerous breaches" of the contract's exclusivity provisions via "unauthorized appearances, public statements, press releases, and the disclosure of confidential information."
According to the filing, "the overwhelming majority of [Gosselin's] media appearances and statements... were not approved by [TLC]," resulting in the network "repeatedly" objecting in writing that his conduct -- which included telling King the family was getting paid $22,500 per Jon & Kate Plus 8 episode -- violated the contract's exclusivity and confidentiality provisions.
Jon also allegedly "entered into a lucrative arrangement to appear regularly on Entertainment Tonight and its companion show, The Insider," "routinely sold photographic rights to various media outlets," and made "false and disparaging statements about TLC and [Kate Gosselin]."
In addition, the lawsuit also alleges Jon has "failed to render services and has interfered with the provision of services," made "promotional appearances and product endorsements" that have violated the agreement, and was featured in "photographs and stories" about "bar and nightclub" appearances in which he was "apparently intoxicated and in the company of women other than his wife" early this year before the couplepublicly announced they were separating and filed for divorce on June 22.
However according to Heller, the provisions violated Jon's constitutional rights.
"The purported Contract was also grossly overreaching and restrictive attempting to abridge the most basic Constitutional Right that all American citizens have of Freedom of Speech," Heller said in the statement.
"Discovery and TLC has treated Jon Gosselin like a dog by attempting to keep him on a leash and muzzle him and deny the father of eight the opportunity to earn a livelihood to support his family."
TLC's lawsuit also claims the contract gave the network "exclusive editorial discretion over the program, including determining which family members would appear, how the program would be marketed, and what the program would be called" and an option to terminate Jon "individually" if he failed to conduct himself in "an appropriate manner."
In addition to supporting TLC's previous statements that it still considers Jon to be under exclusive contract to the network, the lawsuit's claims are also consistent with TLC's previous insistence there is no merit to Heller's recent allegations that the network's decision to re-title the showKate Plus 8 have also rendered the contract "null and void."
However Heller still disagrees.
"When TLC and Discovery ended the program Jon & Kate Plus 8 they also effectively terminated the purported contract and accordingly, any rights or obligations they perceived existed concerning Jon's conduct or actions, rights or privileges from that point forward were also terminated," Heller said in the statement.
"All of the aforesaid, clearly, in our opinion, renders the alleged contract as null and void, unenforceable and unconscionable."
Heller's statement also repeated his now apparently deliberately disingenuous claim that claims that TLC and Discovery have "been rumored" to have made "over $186 million dollars in revenue for one quarter, purportedly attributed to the success of the program Jon & Kate Plus 8."
Heller first made the bogus claim -- which he has stated was a reference to an August The New York Post report about the second quarter 2009 profit of TLC's Discovery Communications parent company -- during his October 1 Larry King Live appearance.
"TLC is making $186 million," he told King. "This was reported in a lot of journals. It was a compilation that was done by people that track revenues.
And I read it, frankly, in The New York Post. And the story said that the majority of that revenue was attributed to the Jon & Kate Plus 8 program," in an apparent reference to an August 5 report about the second quarter 2009 profit of TLC's Discovery Communications parent company.
However Heller's $186 million claim appears to have multiple inaccuracies, as The Post report never stated "the majority" of the revenue could be "attributed" to Jon & Kate Plus 8.
Instead, the report only stated that Discovery -- a global media company that also operates Discovery Channel, Animal Planet and more than 100 networks that are broadcast in more than 170 countries, as well as producing consumer and educational products -- had its earnings "driven in part by higher ratings for shows like Deadliest Catch, River Monsters, and Jon & Kate Plus 8" before also noting that Jon & Kate's ratings had "soared recently."
In addition, The Post had also reported a $183 million figure -- not $186 million -- and noted that $46 million of the amount was due to a one-time tax gain resulting from a new venture in which Discovery will relaunch its Discovery Kids network as a Hasbro-branded network.