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Filan: Laugh Factory audience members have case to recover damages

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Should Richards pay for his rant?
Nov. 27: Attorney Gloria Allred talks about her clients, who were the alleged targets of actor Michael Richards' racist rant.
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Susan Filan
Senior legal analyst

By now, we have all heard that comedic actor Michael Richards engaged in a racist tirade and dropped the “n-bomb” repeatedly during a stand up comedy routine at the Laugh Factory in Los Angeles.

We know that his hateful speech was captured on video tape and has been replayed on television and on the web for all the world to see and hear.

And now we know the two men who were the victims of Richards’ speech, Kyle Doss and Frank McBride, are not just offended and outraged, they claim they are hurt to the point of being “injured” in the legal sense.  They have hired Gloria Allred to represent them in order to seek reparations for the harm they suffered.

The legal basis for their claim of injury is the tort of “intentional infliction of emotional distress.”  This tort requires a showing that Richards’ conduct was so heinous and beyond the standards of civilized decency as to be utterly intolerable.  Whether he intended to inflict emotional distress or not, if his conduct was such that any reasonable person would know that his actions would cause injury, it is enough to hold him liable.

I spoke with Gloria Allred about her case against Richards.  The first thing she wanted me to know is that some of the facts have not been reported accurately.  She says her clients were not hecklers, as some media have labeled them.  Rather, they were patrons at a comedy club with a two-drink minimum and they were in a large birthday party of 23 people.  It was while the server was taking their drink order that Richards allegedly said from the stage, “those dumb Mexicans and blacks in the cheap seats,” referring to Doss and McBride as noise makers.  McBride is Mexican-American.  Doss allegedly said to Richards, “My friend does not think that’s very funny.”  Richards allegedly responded by giving him “the finger” and then saying the “n-word.”  And then he launched into his tirade, much of it we have already heard.  But if that wasn’t bad enough, Allred said there was more. 

Allred told me that other hateful invectives were allegedly hurled off camera included, “In the morning I will still be rich and you will still be an 'n.'"   Richards also allegedly said, “I am rich, and I can get you arrested.”

So what does Allred want for her clients?  Money?  Is that what you think?  How tacky, how tasteless, how cheap, you say, trying to profit from this ugly incident.  Some of you are probably thinking this is just another get-rich scheme in money-hungry America by lawsuit-happy plaintiffs. 

Well, no, actually, this time it might not be just about the money.  Allred has a remarkably unique approach to this case that she extended to Richards’ attorney as a way of settling it before suit is ever filed.  And if both parties agree to Allred’s proposal at the outset, no suit will ever need to be filed.

Here is what Allred told me:  “[W]e think the best resolution is for Mr. Richards to sit down in front of a retired judge, with my clients present, and listen to the pain he inflicted.  Acknowledge he was wrong directly, man-to-man, face-to-face.  Apologize.  Explain why he did it.”

The judge would be one mutually chosen and agreed to by both parties.  Whatever the judge recommends, both sides will agree to.  If the judge recommends punishment, whatever it is, monetary or not, both sides will accept whatever the judge says. 

This is a novel approach.  It may not be just about the money.  If it were, a suit would be filed and the plaintiffs would probably win.  They have a pretty good case.  They were insulted, embarrassed, humiliated and hurt in public.  That it was not just limited to those present in the Laugh Factory that night, but that it has been replayed for the world on the Web adds to their injury.  If they were just in it for the money, they would file suit.  Instead they are agreeing to mediate up front, and have it binding.

Oh, easy for Allred, you might say.  If it is such a good case, one she cannot lose, what does she have to lose by skipping the lawsuit where she would have to prove liability and going straight to verdict where the only issue is damages, or rather how much money do her clients get?  Well, maybe it is a clever move, a no-brainer on her part.  But I don’t think so.  Doss and McBride give up a lot by not filing suit.  They give up their right to take depositions and file interrogatories and engage in the civil process of discovery.  Were this to go to trial and get to a jury, they may get a lot more than what a lone judge might assess. 

It seems to me like the plaintiffs are taking the high road, the fair and reasonable road, by asking a judge to tell them what the right result should be.  If it is just an apology, so be it.  If the apology comes with a check, so be it.  It seems pretty fair and straightforward to me.

I would love to know what Richards’ side has to say about this.  I do not know who his lawyer is, or I would have gotten their side of the story too. 

If Richards agrees to Allred’s proposal, and a judge decides the appropriate course of action, case over.  If Richards does not agree, I predict a lawsuit will soon follow. 

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