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For Bingham, Erin Andrews verdict is one that got away

Sportscaster and television host Erin Andrews, center, stands with attorney Scott Carr, second from left, as the jury arrives in the courtroom after reaching a verdict Monday, March 7, 2016, in Nashville, Tenn. A jury awarded Andrews $55 million in her lawsuit against a stalker who bought a hotel room next to her and secretly recorded a nude video, finding that the hotel companies and the stalker shared in the blame. (AP Photo/Mark Humphrey)
Sportscaster and television host Erin Andrews, center, stands with attorney Scott Carr, second from left, as the jury arrives in the courtroom after reaching a verdict Monday, March 7, 2016, in Nashville, Tenn. A jury awarded Andrews $55 million in her lawsuit against a stalker who bought a hotel room next to her and secretly recorded a nude video, finding that the hotel companies and the stalker shared in the blame. (AP Photo/Mark Humphrey)

By Brian Baxter, From The Am Law Daily

The $55 million judgment awarded to sportscaster Erin Andrews this week by a Nashville jury might once have been a windfall for Bingham McCutchen.

The now-defunct firm took the lead for Andrews back in 2009 after illicit videos of her in hotel rooms surfaced online. But a conflict with a key Bingham client, Marriott International Inc., precluded the firm from pushing forward.

Marshall Grossman, a high-profile Los Angeles litigator whose own firm Bingham swallowed up in 2007, was retained by Andrews after someone in her circle reached out to Nathan Hochman, a former federal prosecutor who joined Bingham in early 2009. Grossman told The Am Law Daily at the time that since Hochman was “relatively new to this area of voyeurism,” he asked Grossman to handle the matter.

And so Grossman did, issuing a scathing press release threatening to expose the individuals who secretly used hotel room peepholes to film Andrews nude. Grossman, who left Bingham in January 2014 to become a partner at Orrick, Herrington & Sutcliffe in Santa Monica, California, recalled that from the start he had three main objectives in representing Andrews, a Fox Sports television personality who also hosts ABC’s “Dancing with the Stars.”

“We wanted to show that she was a victim, as there was some talk in the beginning that she could have orchestrated this,” Grossman said this week. “And then we wanted to stop [online] distribution of the video and go after the perpetrators and have them prosecuted.”

Easier said than done in the viral video age. But Grossman, a well-connected Los Angeles lawyer, had a few weapons at his disposal. He admitted to a small bit of chicanery, warning in the press release issued by Andrews’ team that the videos of her could be embedded with malware. The claim was concocted, but it may have dissuaded others from downloading the material and reposting it on other websites.

“They could have [had malware], I really don’t know,” Grossman said sheepishly. “But we were facing myriad issues at the time, and at the top of the list was stopping the dissemination of this gross invasion of privacy.”

Grossman, pictured right, also called on another lawyer he knew in Los Angeles, Harvey Levin, to assist him in tracking down those responsible for filming Andrews while she traveled for work. Levin, who was profiled in a recent story by The New Yorker, is the attorney-turned-founder of celebrity news website, which is owned by media giant Time Warner Inc.

As detailed in subsequent court proceedings, an individual approached TMZ in January 2009 to gauge its interest in buying videos of Andrews in the buff. TMZ declined to do so, but did not inform Andrews that she had unwittingly been filmed. When the videos surfaced online several months later, Grossman made contact with Levin at TMZ to obtain any information that might lead FBI investigators to those responsible for filming Andrews without her consent.

Grossman said this week he was not at liberty to disclose what exactly Levin and TMZ provided Andrews’ legal team, but acknowledged that the information helped the FBI identify and arrest insurance company manager Michael David Barrett, indicted in October 2009 in a federal court in Los Angeles. Barrett pleaded guilty and was given a two-and-a-half-year prison sentence in 2010. (He was released on July 3, 2012, according to federal prison records.)

Despite now living in his parents’ basement in Portland, Oregon, the 54-year-old Barrett is on the hook for 51 percent of the damages—about $28 million—awarded by a Nashville jury to Andrews this week. While Andrews is unlikely to reap anything from that award, she’s in far better standing when it comes to the $27 million she won from two hotel companies, Nashville-based West End Hotel Partners LLC and Sacramento-based Windsor Capital Group Inc.

Grossman said that even before Barrett was in custody, it was clear that his client would seek legal redress from the hotels that allowed her to be filmed within the confines of a room where she expected privacy. Of course, finding out which hotels those were would not be easy.

“The hotels were singularly uncooperative,” said Grossman, adding that Andrews’ legal team used private investigators to coordinate with her own personal stylist to figure out which clothes she was wearing for certain assignments and where. In Nashville, a private investigator rented a room at the Nashville Marriott at Vanderbilt University, where Andrews stayed in 2008. Barrett had asked hotel staffers for Andrews’ room number and requested to be put in adjoining rooms in order to surreptitiously film her.

Grossman said the private investigator used a small pen camera to film the inside of the Nashville hotel room to see if Andrews would recognize if that was where she stayed when being filmed changing by Barrett, who used peepholes in hotel room doors to watch her. Grossman criticized the actions of the hotels, noting that the peephole issue could be easily fixed, “but they don’t want to spend the dollars.”

In December 2011, Andrews filed suit in Tennessee state court against Marriott, the Nashville hotel’s franchisee West End Hotel Partners and its operator Windsor Capital. Last fall, in response to a judicial order, Andrews’ legal team disclosed that it would seek $75 million in damages from the three defendants.

Grossman, who still keeps in touch with Andrews and her parents, had by that time long left the case. He said the litigation dragged on because Marriott “stonewalled,” refusing to come to terms with Andrews or push its fellow co-defendants to settle. The only recourse, Grossman said, was litigation.

But unfortunately for Bingham, the firm had done tax work for Marriott, some of which was through legacy firm McKee Nelson, which Bingham acquired in July 2009, right around the time that Grossman agreed to represent Andrews. (The bulk of Bingham was absorbed last year by Morgan, Lewis & Bockius.) As a result, Grossman was forced to withdraw, referring the matter to Bruce Broillet, a longtime friend and fellow litigator from Santa Monica’s Greene Broillet & Wheeler.

It was Broillet, along with partner Scott Carr and local counsel Randall Kinnard of Nashville’s Kinnard, Clayton & Beveridge, who prevailed this week after a two-week trial against West End and Windsor Capital. Courtroom observers have credited a tearful Andrews’ own testimony, as well as several alleged missteps by the defense, with helping secure a judgment in her favor from the six-person jury.

Marriott, advised by Aubrey Harwell II of Nashville’s Neal & Harwell, managed to extricate itself from the case in late January. The Bethesda, Maryland-based hotel giant put out a statement after the verdict, reiterating that it was no longer a party to a dispute involving one of its franchisees, and expressing sympathy for “the ordeal that Erin Andrews went through because of [Barrett’s] criminal conduct.”

Edward Ryan, Marriott’s general counsel, spoke with sibling publication The National Law Journal this week shortly before the Andrews verdict about the company’s approach to the case and its arrangements with franchisees.

While the damages award could have been larger if Marriott were still in the case, Grossman said the hotelier has also taken a significant public relations hit by refusing to settle and having its name all over news reports about the trial. He praised Broillet and his legal team for their “well-lawyered” representation of Andrews.

And what will Grossman get out of the Nashville jury award, should it be upheld on appeal or settled quietly beforehand?

“Not a nickel,” he said.

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