UPDATED: Mistrial Declared in Jeff Jarrett vs. Anthem Media Lawsuit

UPDATE: A mistrial has officially been declared in Jeff Jarrett and Global Wrestling Entertainment vs. Anthem Wrestling lawsuit. PWInsider reports that US District Court Judge Waverly D. Crenshaw, Jr. declared a mistrial earlier today after Anthem filed a motion requesting such. Anthem’s request for the mistrial sprung from a claim that Jarrett’s lawyer had prejudiced the jury by stating that Ed Nordholm was not present for court proceedings on July 20th, as well as by bringing up numbers regarding liabilities in closing arguments despite the court stressing that they were to be left for the discussion about potential damages.

The judge has ordered that the GFW Amped! tapes that are a big part of the lawsuit be preserved, and a conference call is scheduled for September 11th to begin setting up a new trial. The verdict — in which the jury found Anthem Media liable — has been vacated and the jury has been dismissed.

At this point, the two sides could end up settling to avoid the cost of starting the legal battle all over again, or they could push to another trial.

ORIGINAL: PWInsider reports that Anthem Wrestling, the parent company of Impact Wrestling, filed a 50-page motion yesterday requesting a mistrial in their ongoing legal battle with Jeff Jarrett. The motion was filed with Chief Judge Waverly D. Crenshaw, Jr. and the United States District Court of The Middle District of Tennessee. The move would force the trial to start all over again, even though the jury had already made their verdict. A hearing was scheduled at 10 AM ET and Jarrett’s legal team has filed a response. The hearing will determine if the verdict will stand or if the trial will be restarted. The following items were noted about the verdict based on filings:

* The jury ruled that Anthem is liable to Global Force Entertainment for federal trademark infringement of the registered trademark GLOBAL FORCE WRESTLING, violation of the Tennessee Consumer Protection Act, unjust enrichment, negligence, conversion, and federal unfair competition for infringement and Tennessee trademark infringement for using the GFW logo.

*The jury ruled that Anthem is liable to Jarrett for violation of the Tennessee Personal Rights Protection Act.

* The jury ruled that Anthem was liable for federal trademark infringement of the trademark GLOBAL FORCE WRESTLING.

* Anthem is liable for unfair competition for infringing upon the GFW logo.

* Anthem is liable for Tennessee trademark infringement for using the GFW logo.

* The jury ruled in favor of Global Force Entertainment on the unjust enrichment claim and ruled that Anthem used the GFW content for their own enrichment without having the license to do so.

* The jury ruled that that Anthem was negligent in deleting the original footage of the GFW Amped content.

* Anthem is liable for conversion for its deletion of the original footage of the Amped content.

* The jury ruled that Anthem’s liability was caused by Jeff Jarrett breaching his fiduciary duty and duty of loyalty in this action was caused by Jarrett’s own breach of his fiduciary duty and his duty of loyalty . Jarrett is liable to Anthem for the breaches and may have to pay damages.

* The jury ruled that Anthem’s conduct against Jarrett/GFW was willful.

The jury had not awarded damages or punitive damages yet, and Anthem wants to have the entire matter thrown out to restart the trial. If the motion is dismissed, then the jury will move forward with awarding damages.

The case surrounds whether or not Impact had the rights to continue using footage of GFW’s Amped TV tapings, which Jarrett, who was the Chief Creative Officer of the company, made the call to use. Jarrett claims that after he was fired, Impact no longer had the rights. Impact had the masters of the footage deleted from their servers and Jarrett claims that stopped him from trademarking the footage and cost him money. Impact said they only generated $10,000 in revenue from the content, through selling it on DVD and PPV. Jarrett also wants to get the trademark of his name from Anthem, which required it when they took over the company after they foreclosed on the debt that Dixie Carter’s Impact Ventures had built from Anthem paying for TV tapings. The two had discussed a settlement several times but were unable to come to terms.

Anthem’s mistrial motion claims that Jarrett’s attorney Samuel Miller made a statement during his closing argument on July 21 which prejudiced the jury by noting that Ed Nordholm wasn’t at the court that day. He did so after Anthem’s legal team requested the court not allow that to be mentioned and the court agreed. The trial had been postponed for weeks after it was believed someone on the Anthem legal team had been exposed to COVID-19. The trial was going to resume on July 21 but since the court had scheduling issues with the jury, the court decided to resume proceedings on July 20. Impact was taping TV that day so Nordholm and Scott D’Amore were not able to attend and so Anthem sent Chief Financial Officer Niral V. Merchant to attend with the court’s blessing.

Miller said at the time: “When we started this jury — ladies and gentlemen of the jury, when we started this trial three weeks ago, I told you three things. One, Anthem had a problem. That problem was Mr. Nordholm, who is not here today. We proved that Mr. Nordholm was the problem.”

The motion reads:

Mr. Miller was clearly indicating that Mr. Nordholm is a problematic individual who did not even bother to attend the closing arguments. Plaintiffs’ strategy throughout the trial was to portray Mr. Nordholm as the villain. Pointing out his absence against the order of the Court and with knowledge of Anthem Wrestling’s concerns, was a continuation of this strategy to turn the jury against Anthem Wrestling.

Second, while this statement was made only once, it was made during a crucial time of the trial. While not binding precedent on this Court, a Tennessee court has recognized that even if the offending comment was “not part of a pattern” and “happened only once,” an improper statement can be the basis for a mistrial when “it occurred during closing argument, a critical point in the trial just before the case went to the jury.

Third, Mr. Miller’s comment served no purpose whatsoever except to prejudice the jury against Anthem Wrestling, disrupting the tribunal and the administration of justice. Mr. Nordholm’s absence from closing arguments had no relevance to or impact on the issues that the jury was deciding. Pointing out Mr. Nordholm’s absence was intentionally done to achieve Defendant’s expressed concern: prejudicing the jury by making them believe that Anthem Wrestling’s representative did not care about the matter at hand and was not taking the trial seriously. Considering the fact that the Court had already ordered the parties not to make such statements and Defendant’s counsel had informed the Court and Plaintiffs’ counsel of its concern in writing that the rescheduled date and absence of Mr. Nordholm would prejudice the jury, the nature of Mr. Miller’s improper comments is even more problematic. Fourth, while the Court instructed the jury to disregard Mr. Nordholm’s absence, the cat was already out of the bag once Mr. Miller pointed out that fact. Within the context of Mr. Miller’s repeated strategy to paint Mr. Nordholm as the villain and the statement’s total lack of relevance to the issues of the case, Mr. Miller’s statement could not be cured with an instruction.

Fifth, it is likely that the case was very close at the time of closing arguments. The intellectual property issues at this case were very complicated, and, in addition to Plaintiffs’ evidence, Anthem Wrestling put on substantial evidence of multiple defenses. Finally, the jury returned a verdict holding Anthem Wrestling liable on most of Plaintiffs’ claims and found that Anthem Wrestling acted willfully on multiple claims.

Anthem attorneys stated that Miller “prejudiced the jury by repeatedly referring to large monetary amounts and alleged damages against the Court’s order to reserve that aspect of the case for the damages phase of the trial.” The court broke down the trial in several portions to keep the issues simplified for the jury – liability, damages and punitive damages, so the jury could rule on them separately. Anthem said that Miller kept bringing up financial numbers and possible damages even though the court told him not to do so.

He said in his closing argument: “The production costs were, in reality, based on [Ed Nordholm’s] testimony, over $100,000 per hour of content. That means just to produce the 12 hours of content would have cost Anthem $1.2 million. The benefit of saving $1.2 million dollars was huge. Anthem wants you to believe it could have replaced the content for $25,000 an hour. But they don’t tell you how they came to that number. Mr. Nordholm told you he left out paying for talent. He told you he left out paying for lighting. He told you he left out paying for everything else involved in creating new content.”

Anthem’s attorneys objected since they were dealing with the liabilities portion of the case, and the judge stated that he would give further instructions later on. Anthem claimed that Jarrett’s team “continued to make statements regarding evidence the Court had ruled to be inappropriate for this phase of the trial. Mr. Miller repeatedly stated that Anthem saved a lot of money from using the content at issue and that Defendant never paid Plaintiffs for the use of such content and intellectual property. These statements were so prevalent and problematic that the Court, in the middle of Mr. Miller’s closing argument, had to order the jury to leave the room and admonish Mr. Miller.”

Crenshaw admonished Miller and said: “Mr. Miller, you’ve gone too far. This is on liability only. I gave you some leeway, but now you’re continuing to come back to the issue of what money is due. Repeatedly. Now, either I can clean it up or you can clean it up, but it needs to be cleaned up. … We’re only on liability. So there’s no need for your continued argument about what money is due. It’s just not. … [Y]ou’re not in the damages phase now. And you’re specifically and over and over again asking the jury to make a decision on liability because they’re due something. We’re here only on the theories that you’ve put forth and whether or not any of those theories have been established by preponderance of the evidence.”

The jury were brought back in and were told: “Ladies and gentlemen of the jury, I want to share with you that in the instructions that I’ll give you, you will learn that the case right now is only on the claims of the plaintiff against the defendant and the defendant’s claims against the plaintiff. And that’s the decision that I’m going to ask you all to make. Whether or not the plaintiff or the defendant may or may not be entitled to anything depends on your decision that — that I’ll give you on the first stage of the case. So, therefore, what the lawyers are telling you now, first of all is, is not evidence. You’ve heard all the evidence. And you’ll be the judges of how much weight to give to the evidence you’ve heard. And I’ll give you instructions that you can consider all of it, some of it, or none of it at all. But what the lawyers — as I told you in the beginning say — is not evidence. So they may make reference during their closing to things that are not at issue here at this point. And to that extent you have to follow the instructions that I’ll give you, as I told you when you were selected, whether you agree with those instructions or not. So with that, Mr. Miller, you have a few minutes left.”

Anthem claims that Miller prejudiced the jury against them and the jury instructions were incorrect due to breaking the trial down into three sections. They wrote: “The totality of the circumstances shows that Mr. Miller’s improper conduct created a reasonable probability that the jury would influence the verdict and a new trial should be granted. The instructions submitted by the parties that explained the consequences of finding willfulness and the purpose of making such a determination—the award of punitive damages—was withheld from the jury. Similarly, the verdict form simply asked whether the jury found that Anthem Wrestling acted with the requisite mental state but did not notify the jury of the consequences of such a finding.”

Jarrett’s team, meanwhile, said the motion for a mistrial should be denied and Miller did nothing improper, as the issue was handled by Judge Crenshaw when it happened.

Jarrett’s response, filed this morning, reads:

Plaintiffs’ counsel was genuinely surprised by the Court’s admonishment for violating an instruction regarding Mr. Nordholm’s absence for two reasons. First, Plaintiffs’ counsel truthfully does not recall the Court giving an instruction during the July 17 telephone conference that neither party could not point out Mr. Nordholm’s absence to the jury.1 In its Motion, Anthem does not cite to any page of a rough transcript for the Court’s instruction regarding Mr. Nordholm’s absence.

If there was such an instruction, Plaintiffs’ counsel certainly did not intend to violate it. Given the various moving parts of this particular trial, it was an honest mistake to not recall the telephonic oral instruction. It was not intentional. Certainly, no attorney wants to do anything that would have an opening statement stopped by the judge within the first few seconds, which is what happened here. There is no benefit to an attorney having a closing statement interrupted.

In fact, prior to Anthem’s Motion, Plaintiffs’ counsel could not understand where such instruction could have been given because the Court’s instruction immediately prior to closing statements pertained only to COVID-19 and the unavailability of anyone due to that illness. Nobody said at any time Mr. Nordholm could not attend due to COVID-19.

To the contrary, Anthem’s counsel represented on July 19, 2020 that Mr. Nordholm could not attend due to another alleged other commitment.

Anthem has not met its burden of showing Plaintiffs’ counsels statements were improper.

First, phrases relating to the amount of money Anthem saved in production costs were necessary to proving the unjust benefit conferred on Anthem by using the Amped content at the liability stage of the trial. Indeed, the jury instructions for unjust enrichment at the liability phase defined “benefit” as “any form of advantage that has a measurable value including the advantage of being saved from an expense or loss.”

To meet its burden of proof for unjust enrichment, Plaintiff GFE had to prove the measurable advantage that Anthem received from using the Amped content. In trial, Ed Nordholm was impeached through his prior deposition testimony that the cost per hour of production for Impact! in 2017 was “in excess of $100,000.” (Rough Trial Tr. 86:18-87:7, July 2, 2020). 4 Defendant did not object to this line of questioning during trial. Anthem’s benefit, therefore, was the cost savings of not having to create and produce twelve hours of wrestling content to meet its deliverable obligations. The measurable benefit was the $100,000 per hour. This was admitted without objection in the liability stage because it was clear it went to the measurable benefit for unjust enrichment. Because Anthem used twelve hours

Anthem’s counsel stated at the post-verdict status conference, “I don’t think [the jury] even realized they needed to be paying attention to numbers and so forth” and noted that she believed the jury was “shocked” they were coming back to make a damages determination. (Post-Verdict Hr’g Tr. 43:1-3, July 21, 2020). It is disingenuous for Anthem to simultaneously state that the jury did not know it would be making a damages determination and also be prejudiced by argument related to how much GFE was damaged. 4 Plaintiffs have not yet received the final version of the trial transcripts.

Accordingly, the cites in this brief are to the rough draft provided by the court reporter to generally guide the Court on where to find the citations in the record. Case 3:18-cv-00749 Document 259 Filed 07/30/20 Page 6 of 19 PageID #: 4595 7 of the Master Amped Content to meet its deliverable obligations, the total benefit was $1.2 million (i.e. $100,000 x 12 = $1.2 million).

The nature of these comments therefore could not be prejudicial to Anthem because it came into evidence during trial and were necessary to proving GFE’s unjust enrichment claims. Anthem was in no way prejudiced. Second, Plaintiffs’ counsel had a duty to counter Anthem’s unjust enrichment counterclaim. The third element of the unjust enrichment counterclaim required Anthem to prove “GFE’s or Mr. Jarrett’s acceptance of such benefit under such circumstances that it would be inequitable or unjust for them to retain the benefit without payment of the value thereof.”

Anthem stated in its closing argument the alleged measurable value on its own unjust enrichment claim, namely the $40,000 payment to Kevin Sullivan. (Rough Trial Tr. 67:20-22, July 20, 2020). To show that any alleged benefit was not unjust or inequitable Plaintiff had to show that the value of the cost savings from using the Master Amped Content far exceeded the alleged benefit to GFE for the $40,000 payment to Kevin Sullivan. Third, to counter Anthem’s affirmative defense of implied license, Plaintiff GFE had to show that there was no agreement to use GFE’s trademarks and logos unless the merger was completed. Anthem referred to a “contract” five times in its closing argument. (Rough Trial Tr. 55:25-1, 58:2-4, 65:25-66:4, 71:6-9, July 20, 2020). Anthem also claimed the license was “legally binding.” (Rough Trial Tr. 58:2-3, July 20, 2020).

To show there was no agreement and therefore no “legally binding” license or contract, Plaintiff had to prove there was no consideration and no “bargain for exchange.” Plaintiff, indeed, never received anything in exchange for Anthem’s use of its trademarks and logos. There was no consideration, therefore, there was no license. Plaintiff’s counsel’s statements that Anthem was claiming it had a “free and forever license” highlighted the fallacy in Anthem’s defense. Because the nature of the comments was true, and necessary to counter Anthem’s affirmative defense, Plaintiffs’ counsel’s statements were not improper and in no way prejudiced Anthem. Finally, the total value of the benefit (which is at least the $1.2 million in production costs savings) also goes to showing Anthem’s willfulness and intent for conversion, negligence, unjust enrichment, and violation of the Tennessee Consumer Protection Act. Anthem decided to use GFE’s content and trademarks for its own benefit long after the merger was terminated because the benefit of doing so was so great. Showing the great value of Anthem’s benefit was significant to proving that Anthem’s actions were intentional and willful and the motive for willfully and intentionally taking those actions. For the foregoing reasons, Plaintiff’s statements pertaining to the measurable benefit were not improper because they involved facts that came into evidence and were necessary to prove Plaintiffs’ claims and rebut Defendant’s counterclaims and defenses. Similarly, showing the fallacy of Anthem’s repeated representations that there was a “contract” or “agreement” is both fair and necessary to defeat that defense to both infringement and unjust enrichment (i.e. Anthem claimed at closing that the existence of a contract bars an unjust enrichment claim). Even if this Court disagrees, the Court’s multiple curative instructions resolved any potential prejudice. Clarksville-Montgomery Cty. Sch. Sys. 925 F.2d 993 at 1002 (“[W]here such prejudice is cured by instructions of the court, the motion for a new trial should be denied.”).

Here, the jury returned a mixed verdict. The jury did not find in favor of GFE on all trademark issues, did not find in favor of Mr. Jarrett on his cancellation claim, and found in favor of Defendant on its claims of Breach of Fiduciary Duty and Breach of Loyalty. This mixed verdict indicates that the jury was not prejudiced by any statements made by Plaintiffs’ counsel during closing and should weigh against granting a new trial.

The jury found that (1) Defendant’s violation of the Tennessee Consumer Protection Act were willful and knowing; (2) Defendant’s conversion of the original Amped files of the 16 episodes was done by fraud, ill will, malice, recklessness, wantonness, oppression, insult, willful or conscious disregard of the plaintiff’s rights Global’s rights and/or other aggravating circumstances; and (3) Defendant’s use and/or destruction of the original Amped files for the 16 episodes were intentional or reckless.