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Filing # 44603158 E-Filed 07/29/2016 01:31:04 PM

IN THE DISTRICT COURT OF APPEAL


SECOND DISTRICT, STATE OF FLORIDA
GAWKER MEDIA, LLC, NICK DENTON
and A.J. DAULERIO
Defendants/Appellants,

Case No. 2D16-2535


L.T. No. 12012447-CI-011

vs.
TERRY GENE BOLLEA professionally
known as HULK HOGAN,
Plaintiff/Appellee.
___________________________________/

DEFENDANTS/APPELLANTS NICK DENTON AND A.J. DAULERIOS


EMERGENCY MOTION FOR PROVISIONAL STAY OF EXECUTION
(IMMEDIATE ACTION REQUESTED)
Pursuant to Florida Rule of Appellate Procedure 9.310, Defendants/
Appellants Nick Denton and A.J. Daulerio the publisher of the news organization
Gawker Media, LLC (Gawker) and its former writer/editor, who are now each
subject to a judgment of over $115 million hereby move on an emergency basis
for an immediate, provisional stay of execution of the judgment below. The Court
below has denied a stay of execution, and has denied even a brief temporary stay to
allow this Court to review that ruling.
Accordingly, these Defendants move for this provisional stay while this
Court reviews their emergency motion, to be filed imminently and no later than
Monday, August 1, 2016, for review of the trial courts order denying a stay of
execution of the judgment. That motion will be consistent with the previously1

filed Emergency Motion for Stay of Execution Pending Appeal, filed July 25,
2016, updated and amplified to reflect subsequent developments. This provisional
motion therefore seeks to preserve the status quo long enough for this Court to be
able to rule on Defendants forthcoming motion before the relief sought becomes
moot. Absent an immediate stay, plaintiffs will begin seizing Movants assets,
forcing them into bankruptcy. In addition to its appellate jurisdiction, this Court
has the authority to exercise its all writs jurisdiction pursuant the Florida
Constitution, Article V, Section 4(b)(3).
I.

Recent Stay Proceedings


These Defendants bring this emergency motion now because it is the only

vehicle they have to avoid imminent execution of the judgment entered below. By
way of pertinent background, on June 7, 2016, the trial court entered judgment in
this case for $140.1 million and for injunctive relief, including permanently
enjoining Defendants speech. Prior Tabs 18-19. 1 The judgment was entered
against these Defendants/Appellants, as well as Gawker Media. Both the jurys
verdict and the injunction conflict with this Courts prior ruling that the video
excerpts at issue address a matter of public concern and are protected speech.
Gawker Media, LLC v. Bollea, 129 So. 3d 1196, 1201-03 (Fla. 2d DCA 2014).
1

Citations to Prior Tab __ refer to the Appendix to the Prior Motion to


Stay Execution Pending Appeal filed on July 25, 2016. Citations to Tab __ refer
to the Appendix filed contemporaneously herewith providing the Court with
additional documents referenced herein.
2

Two days later, on June 9, 2016, all three defendants moved for a stay of
execution of the judgment pending appeal. Prior Tab 21. In that motion, they
submitted evidence that they could not post a bond for a $140.1 million judgment,
but these individual Defendants agreed to pledge virtually all of their assets to
Plaintiff. Id. at 6-9; see also Fla. R. App. P. 9.310(a). They also explained that a
stay was warranted in light of both (a) this Courts prior ruling and (b) the right
under the First Amendment to have this Court conduct an independent appellate
review.
At a hearing on June 10, 2016, the trial court announced its intention to
impose a number of additional, onerous conditions on any stay, all requested by
Plaintiff/Appellee. Prior Tab 26 at 52:7-53:14. Those conditions would have
amounted to an effective denial of a stay because they would have provided as
security to Plaintiff virtually everything he would have gotten by executing his
judgment, including complete control over Defendants operations and finances,
during the appeal. Id. at 41:25-42:15, 43:2-19, 46:3-18, 51:2-13, 52:7-53:14; see
also Prior Tab 27 (Plaintiffs proposed order). The trial court also denied
Defendants request for a seven-day stay of those conditions to allow this Court to
review the issue, as well as requests for successively shorter stays, including as
short as two hours. Prior Tab 26 at 54:3-55:9.

Early that afternoon and before the trial court entered an order, Gawker filed
a petition for bankruptcy under Chapter 11 of the federal bankruptcy code in the
Southern District of New York. To Defendants knowledge, this case is the first
time in American history that a trial court judgment for defamation or invasion of
privacy has forced a national news organization into immediate bankruptcy. As a
result of the automatic stay imposed by Section 362 of the bankruptcy code, all
proceedings with respect to Defendant Gawker are now automatically stayed.
Following a temporary stay with respect to Denton and Daulerio entered by
the Bankruptcy Court, they immediately returned to this Court to seek a stay of
execution pending appeal, which Bollea opposed. Their lengthy Motion for Stay
of Execution Pending Appeal explained that a stay was warranted in these
circumstances under the Federal and Florida Constitutions, and other applicable
law, that prohibits forcing a defendant into bankruptcy before a judgment
challenging speech can be reviewed.
Simultaneously, Bollea filed a motion in the trial court claiming that Denton
and Daulerio had misrepresented certain facts and seeking, as a result, an order
vacating the trial courts earlier stay-with-conditions, imposing no stay going
forward (or requiring an impossible-to-satisfy bond of more than $50 million per
Defendant), and seeking sanctions, contempt and attorneys fees. Denton and
Daulerio filed an opposition explaining that there were no misrepresentations, that
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Bolleas claims to the contrary were based on mischaracterizations of the facts


beyond recognition and, significantly, that the Bankruptcy Court had already
considered and rejected his arguments out of hand, calling them, for example, a
waste of time. Tab B at Ex. T 19:3-20. This Court then entered a stay for thirty
days or until the trial court ruled on that motion, indicating that its ruling was
without prejudice to a renewed motion for a stay of execution in this Court in order
to review any further order denying a stay or imposing a stay with conditions. See
July 27, 2016 Order.
The trial court gave Denton and Daulerio less than 24 hours to file their
opposition and then, at its direction, each side submitted proposed orders reflecting
their respective positions. The order submitted by Denton and Daulerio would
have entered a stay and would have required them to post all of their material
assets as security (including all of their stock in the company, and proceeds derived
from any sale of those shares or from their disposition in the bankruptcy case, as
well as the equity in Dentons condominium). Tab C. It included non-dissipation
provisions and allowed Bollea to domesticate the judgment in New York. Id.
Indeed, it proposed a stay on substantially similar terms to the relief proposed by
plaintiff at the June 10, 2016 hearing. In sum, it allowed this Court to hear the
appeal of the judgment while affording Bollea a substantial amount of protection

securing that judgment with all of the assets he could expect to collect if the
judgment is upheld.
Bolleas order, by contrast, recited a series of legal principles unrelated to
stays, as well as a series of factual findings that are simply not supported by the
record and, as indicated above, that had already been raised and rejected by the
Bankruptcy Court. Tab D.
The trial court entered Bolleas order without meaningful modification,
accepting his claim that these Defendants made material misrepresentations to him
and the lower court. Tab E. The court came to this conclusion and made these
findings without conducting a hearing. Instead, it simply adopted Bolleas
proposed findings as its own. Those findings were based on Bolleas own
misstatements to the trial court and his effort to twist the record of what happened
before that court and in Gawkers federal bankruptcy proceeding. As Denton and
Daulerio explained in detail in their Opposition to Bolleas Motion to Vacate,
Bolleas charges are wholly without merit. See Tab A at 3-14. Suffice it to say,
there is no evidence that Denton and Daulerio intended to mislead the court below.
Rather, the record confirms that, as they told the court, they had limited resources
and could not obtain a bond, but were offering to post as security essentially all of
their assets so they could pursue their appeal on the merits. That was true at the
time of the initial hearing below, and remains true today.
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In its order, the trial court, in language adopted verbatim from Bolleas
proposed order, see Tab D at 7 22, recited that that In their opposition, Mr.
Denton and Mr. Daulerio have not offered any other security or conditions. Rather,
they stand by their pledge of stock without any conditions at all. Tab E at 6 13.
That is flat out wrong. As explained above, Gawkers proposed order, Tab C,
which ran to seven pages, incorporated detailed provisions for security, including
not only a detailed a mechanism for pledging stock enforceable by the Court, but
also non-dissipation provisions, domestication of the judgment against both
Denton and Daulerio, security should Denton sell his condominium, and
completion of the detailed financial information sheets attached to the judgment.
Finally, Denton and Daulerio filed a written motion asking the trial judge for
a brief stay of her order to allow them to seek review in this Court. Bollea opposed
that motion, and the trial court denied the requested brief stay. Tab E at 7 3. As
a result, Defendants are filing this provisional motion because it is the only
remaining avenue that can potentially provide them immediate, temporary relief
prior to Plaintiffs effectuating a seizure of all of their assets and forcing them into
bankruptcy. Absent immediate action by this Court execution will begin.
II.

A Provisional Stay is Warranted


In determining whether to issue a stay to maintain the status quo during an

appellate proceeding, courts have traditionally considered two factors: the moving
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partys likelihood of success on the merits, and the likelihood of harm should a
stay not be granted. Perez v. Perez, 769 So. 2d 389, 391 n.4 (Fla. 3d DCA 1999)
(citing State ex rel. Price v. McCord, 380 So. 2d 1037 (Fla. 1980)). In this
particular case, those factors should also be informed by the fact that, as explained
in greater detail in the previously-filed Motion to Stay Execution, unlike in typical
appeals the First Amendment guarantees these Defendants a right to independent
appellate review of this judgment. See, e.g., Snyder v. Phelps, 562 U.S. 443, 460
(2011); Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S.
557, 567 (1995); see also Miami Herald Publg Co. v. Ane, 458 So. 2d 239, 242
(Fla. 1984) (recognizing First Amendment independent review requirement).
Indeed, the First Amendment requires a stay where refusing one would deprive a
speaker of such review, see Henry v. First Natl Bank of Clarksdale, 595 F.2d 291
(5th Cir. 1979) (protecting NAACP from execution of judgment during pendency
of appeal to preserve its First Amendment rights); Snyder v. Phelps, 580 F.3d 206,
216 n.6 (4th Cir. 2009) (noting substantial reduction in security required of
Westboro Baptist Church and individual defendants during pendency of appeal to
permit review of First Amendment issues). Defendants First Amendment right to
independent appellate review would have little force if the only practical means to

exercise that right would be for them to declare personal bankruptcy, which is what
would necessarily ensue if they cannot obtain a stay of execution. 2
Moreover, Defendants have a high likelihood of success on the merits for
multiple reasons, beginning with the fact that the judgment below is based solely
on speech that this Court has already deemed to be protected by the First
Amendment. Specifically, this Court previously found that the video excerpts at
issue pertained to a matter of legitimate public concern, an issue which is
dispositive of all of Plaintiffs claims. See Bollea, 129 So. 3d at 1201-03. The trial
courts view that it was free to disregard all of this Courts reasoning on that
question was plainly erroneous, so this case never should have gone to trial at all.
See Prior Motion to Stay Execution, filed July 25, 2016, at 30-33. In any event, the
soundness of this Courts previous ruling is reinforced by the trial record. See id.
at 33-39.
2

The Due Process Clause separately requires a stay where the judgment is
extraordinary, as is indisputably the case here, see Evitts v. Lucey, 469 U.S. 387,
405 (1985) (holding that it violates due process for a state to provide a right of
appeal yet deprive a defendant of a fair opportunity to obtain an adjudication on
the merits of his appeal); Texaco Inc. v. Pennzoil Co., 784 F.2d 1133, 1154 (2d
Cir. 1986) (It is self-evident that an appeal would be futile if, by the time the
appellate court considered his case, the appeal had by application of a bonding law
been robbed of any effectiveness.), revd on jurisdictional grounds, 481 U.S. 1
(1987). The Florida Constitution separately requires a stay of a judgment such as
this to secure Denton and Daulerio a meaningful right to appeal, see McFadden v.
State, 177 So. 3d 562, 566 (Fla. 2015) (Appeals to . . . the District Courts of
Appeal are constitutionally guaranteed rights in this State.) (citation omitted);
Amendments to the Fla. R. App. P., 696 So. 2d 1103, 1104 (Fla. 1996) (recognizing
same).
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In addition, even if it had legal merit, the magnitude of the judgment is


grossly excessive, with the compensatory damages award alone being twelve times
higher than the largest award against a media defendant ever affirmed by an
appellate court anywhere in a case alleging libel or invasion of privacy. In
addition, the likelihood of success is high because the trial court:
a. erred by not ruling that, as a matter of law, Plaintiff otherwise failed to
satisfy the requisite elements of each of his claims;
b. refused to remit the jurys $60 million award for emotional distress
damages, even though (1) Plaintiff had stipulated that he was only
seeking garden variety emotional distress, (2) the award was 600 times
the upper limit on what plaintiffs in such cases are permitted to recover,
and (3) it was far in excess of even non-garden variety emotional distress
awards with far more severe injuries;
c. let stand the jurys $55 million award of economic damages, even though
(1) the use of a persons likeness in this context does not as a matter of
law give rise to a claim for misappropriation, the only possible basis for
awarding economic damages, (2) the trial court shielded Plaintiff from
any discovery about the value of his publicity rights that were supposedly
infringed, and (3) the two experts Plaintiff used to support his economic
damages claim should never have been allowed to testify;
d. let stand the jurys $25.1 million punitive damages award, even though
(1) that award was premised on the notion that Defendants engaged in
intentional misconduct in publishing material this Court had already
deemed, on its face, to be protected, and (2) the amount itself was grossly
out of proportion for the conduct at issue, even assuming it was
knowingly unlawful; and
e. committed numerous prejudicial errors at trial that highlight why the First
Amendment required judgment as a matter of law rather than submitting
the public concern issue to a jury, including, but not limited to,
(1) permitting Plaintiff, through the admission of a journalism expert, to
conflate the legal issue of whether the challenged publication related to a
matter of public concern with the quite different issue of whether
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Defendants complied with traditional journalistic ethics in publishing it,


and (2) permitting Plaintiff to introduce extensive bad character
evidence about Defendants at trial in an effort to inflame the jury,
including evidence of other stories about celebrities that have never been
determined to be anything other than constitutionally-protected speech.
Defendants will expand on each of these grounds in their soon-to-be-filed Motion
for Stay of Execution and note, in the meantime, that each of them was previously
explained in detail in their previously filed stay motion, filed July 25, 2016. See id.
at 39-49. Suffice to say that the likelihood that a literally unprecedented $140
million judgment will simply be affirmed is so low that it cannot justifying the
denial of any stay as the trial court has now done.
As set forth above (and in both their prior and forthcoming Motion for Stay
of Execution), the likelihood of harm to these Defendants absent a stay is certain,
since they will have no choice but to declare personal bankruptcy. A stay is
particularly warranted given the unique circumstances of this case, in which it has
recently become clear that forcing all of the Defendants into bankruptcy in
retaliation for their speech has been the driving force of this case from its
inception. After the trial, billionaire Peter Thiel, a longtime critic of Gawkers
media coverage of him, admitted to The New York Times that he has secretly
financed this (and other) litigation all along for the express purpose, as the Times
reported, to put the media company out of business. See Prior Tab 21 at Ex. 2;
see also id. at Ex. 3. Unfortunately, that effort has already pushed Gawker into
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filing for bankruptcy. It would be even more regrettable if two of its journalists
were forced to do the same before their First Amendment rights can be considered
by this Court. The public has a strong interest in not having speakers deterred
from speaking out of fear of being forced into bankruptcy. See, e.g., New York
Times Co. v. Sullivan, 376 U.S. 254, 278 (1964) (Whether or not a newspaper can
survive a succession of such judgments, the pall of fear and timidity imposed upon
those who would give voice to public criticism is an atmosphere in which the First
Amendment freedoms cannot survive.).
An immediate, provisional stay will preserve the status quo in order to give
this Court sufficient time to consider Defendants emergency motion for a stay.
CONCLUSION
For the foregoing reasons, Defendants/Appellants Denton and Daulerio
respectfully request that this Court issue an immediate, provisional stay of
execution of the judgment pending adjudication of their Emergency Motion to Stay
Pending Appeal.
July 29, 2016

Respectfully submitted,
THOMAS & LOCICERO PL
By:

/s/ Gregg D. Thomas


Gregg D. Thomas
Florida Bar No.: 223913
Rachel E. Fugate
Florida Bar No.: 0144029
601 South Boulevard, P.O. Box 2602 (33601)
Tampa, FL 33606
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Telephone: (813) 984-3060


Facsimile: (813) 984-3070
gthomas@tlolawfirm.com
rfugate@tlolawfirm.com
Seth D. Berlin
Pro Hac Vice No.: 103440 (application pending)
Michael Berry
Pro Hac Vice No.: 108191 (application pending)
Paul J. Safier
Pro Hac Vice No.: 103437 (application pending)
LEVINE SULLIVAN KOCH & SCHULZ, LLP
1899 L Street, NW, Suite 200
Washington, DC 20036
Telephone: (202) 508-1122
Facsimile: (202) 861-9888
sberlin@lskslaw.com
mberry@lskslaw.com
psafier@lskslaw.com
Philip J. Padovano
Florida Bar No.: 157473
Steven L. Brannock
Florida Bar No.: 319651
BRANNOCK & HUMPHRIES
1111 West Cass Street, Suite 200
Tampa, Florida 33606
Tel: (813) 223-4300
Fax: (813) 262-0604
sbrannock@bhappeals.com
chumphries@bhappeals.com
Secondary Email: eservice@bhappeals.com
Counsel for Defendants/Appellants Nick
Denton and A.J. Daulerio

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 29th day of July 2016, I caused a true and
correct copy of the foregoing to be served via the Florida Courts E-Filing Portal
on the following counsel of record:
Kenneth G. Turkel, Esq.
kturkel@BajoCuva.com
Shane B. Vogt, Esq.
shane.vogt@BajoCuva.com
Bajo Cuva Cohen & Turkel, P.A.
100 N. Tampa Street, Suite 1900
Tampa, FL 33602
Tel: (813) 443-2199
Fax: (813) 443-2193

David Houston, Esq.


Law Office of David Houston
dhouston@houstonatlaw.com
432 Court Street
Reno, NV 89501
Tel: (775) 786-4188

Charles J. Harder, Esq.


charder@HMAfirm.com
Douglas E. Mirell, Esq.
dmirell@HMAfirm.com
Harder Mirell & Abrams LLP
132 S. Rodeo Drive, Suite 301
Beverly Hills, CA 90212
Tel: (424) 203-1600
Fax: (424) 203-1601

Kristin A. Norse
Stuart C. Markman
Kynes, Markman &
Fleman, P.A.
Post Office Box 3396
Tampa, FL 33601-3396
knorse@kmf-law.com
smarkman@kmf-law.com
Tel: (813) 229-1118
Fax: (813) 221-6750

David M. Caldevilla
dcaldevilla@dgfirm.com
de la Parte & Gilbert, P.A.
Post Office Box 2350
Tampa, FL 33601-2350
Tel: (813)229-2775
Attorneys for Plaintiff/Appellee
/s/ Gregg D. Thomas
Attorney
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