IN THE CIRCUIT COURT OF MARSHALL COUNTY, WEST VIRGINIA THE MARSHALL COUNTY COAL COMPANY, THE MARION COUNTY COAL COMPANY, THE MONONGALIA COUNTY COAL COMPANY, ea: Til-i THE HARRISON COUNTY COAL COMPANY, . - THE OHIO COUNTY COAL COMPANY, MURRAY ENERGY CORPORATION, and i ROBE RT E. MURRAY, .. .1: A i A Plaintiffs, Civil Action NO. Judge Jeffrey Cramer? Rwy Y. JOHN OLIVER, CHARLES WILSON, PARTIALLY IMPORTANT PRODUCTIONS, LLC, HOME BOX OFFICE, INC., TIME WARNER, INC., and DOES 1 through 10.. Defendants. MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION The above?captioned Plaintiffs hereby move (the ?Motion?) pursuant tO Rule 65 of the West Virginia Rules Of Civil Procedure for entry Of a temporary restraining order, preliminary injunction, and gag order? to restrain Defendants, during the pendency Of this litigation, from re?broadcasting the Defamatory Statements that are the subject Of Plaintiffs? Complaint, and- (ii) publicly discussing the substance of this litigation. This relief is necessary to prevent further irreparable harm to Plaintiffs and their employees, and tO preserve Plaintiffs? ability tO Obtain justice from a jury Of impartial peers in this Court. In support Of this Motion, Plaintiffs respectfully submit the accompanying Memorandum ofLaw in Support ofPlainths" Motion for a Temporary Restraining Order and Preliminary Injunction and the A?idavit of Robert E. Murray; (ii) A f?davit of John Kiayko; and A?davit of Heather Santini. Due to the imminent 10250250 and irreparable injury, loss, and damage that this Motion seeks to prevent, Plaintiffs reSpectfully request an expedited hearing on the Motion. WHEREFORE, Plaintiffs respectfully request that the Court enter an order granting the Motion and such other relief as may be just and proper. Dated: June 28, 2017 Respectfully submitted, frey A. Grove, Esq. (#6065) David L. Delk, Jr., Esq. (#6883) GROVE, DELK, PLLC 44 1/2 15th Street Wheeling, WV 26003 (304) 905-1961 (304) 905-8628 (facsimile) IN THE CIRCUIT COURT OF MARSHALL COUNTY, WEST VIRGINIA THE MARSHALL COUNTY COAL COMPANY, THE MARION COUNTY COAL COMPANY, THE MONONGALIA COUNTY COAL COMPANY, THE HARRISON COUNTY COAL COMPANY, THE OHIO COUNTY COAL COMPANY, MURRAY ENERGY CORPORATION, and ROBERT E. MURRAY, Plaintiffs, Civil Action No. l7?C?124 Judge Jeffrey Cramer v. JOHN OLIVER, CHARLES WILSON, PARTIALLY IMPORTANT PRODUCTIONS, LLC, HOME BOX OFFICE, INC., TIME WARNER, INC., and DOES 1 through 10. Defendants. MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION The above-captioned Plaintiffs hereby submit this Memorandum of Law in Support of Plaintt?fs? Motion for a Temporary Restraining Order and Injunction and, for the reasons set forth herein, respectfully request that this Court enter a temporary restraining order, preliminary injunction, and ?gag order? to restrain Defendants, during the pendency of this litigation, from re-broadcasting the Defamatory Statements that are the subject of Plaintiffs? Complaint,1 and (ii) publicly discussing the substance of this litigation. This relief is necessary to prevent further irreparable harm to Plaintiffs and their employees, and to preserve Plaintiffs" ability to obtain justice from a jury of impartial peers in this Court. The relevant facts. and authorities are set forth below. Due to the imminent and irreparable injury, loss, and damage that the Motion seeks to prevent, Plaintiffs respectfully request an expedited hearing on the Motion. Capitalized terms used but not de?ned herein are de?ned in the Complaint. PRELIMINARY STATEMENT Plaintiffs are quickly learning ?rsthand about the phenomenon that Time and Fortune magazines have dubbed the ?John Oliver Effect.? When Plaintiffs ?led their Complaint, they did not appreciate the extent of the destructive aftermath that Defendants" malicious and false broadcast would cause. Mr. Murray and his employees and family have been inundated with an onslaught of threats, harassment, and intimidation by people that are simply following Defendants? lead as they view and re-view the Defamatory Statements. Murray Energy?s website has been overrun with messages of ?Eat Shit, Bob.? Employees who once enjoyed coming to work now spend their days receiving countless phone calls and e-mails telling them they are ?a worthless piece of shit,? and worse. Mr. Murray?s family members have even received death threats. None of this would have occurred but for Defendants? broadcast of the Defamatory Statements. Worse yet, Defendants knew that fans of the show would react in this manner. Continued publication and public access to the Defamatory Statements will only enlist additional people to Defendants? perverse ?call to action,? with additional grave consequences. Moreover, the John Oliver Effect has already spilled over to directly affect this litigation: numerous media outlets are commenting on their views of this action in a biased fashior. that often times provides viewers with access to the entire June 18 broadcast. Additionally, the broadcast?s YouTube video has been viewed 1.9 million times more since the Complaint was ?led. The pervasiveness of the Defamatory Statements is unfairly tilting public opinion in Defendants? favor so much so that third parties have speci?cally directed threats and harassment at Plaintiffs? counsel regarding the perceived merits of Plaintiffs? claims. Plaintiffs? ability to assemble a fair and impartial jury diminishes every day that the Defamatory Statements are available to prejudice the individuals that might be called upon to serve justice in this matter. Plaintiffs therefore seek narrow relief to protect the wellbeing and property of those affected by this lawsuit and the potential pool of West Virginian jurors. Seeking Court intervention in this manner comes as a last resort following Plaintiffs? request for a voluntary agreement from Defendants, which defense counsel refused, notwithstanding Defendants? awareness of these facts and, significantly, Mr. Murray?s serious health condition and. the harassment resulting from the show that is specified in the Complaint. To prevent further imminent and irreparable harm, Plaintiffs request an Order enjoining the rebroadcast of the program at issue in this litigation and prohibiting Defendants from using their unique powers, through their access to millions of West Virginians, to bias the potential jurors who will determine their fate. Plaintiffs? request for limited relief will mitigate further irreparable injury to Mr. Murray and his companies, as well as protect untold numbers of innocent Murray Energy employees from the consequences of the John Oliver Effect. Plaintiffs also believe fairness dictates reciprocity, and will similarly be bound to refrain from utilizing the press, which they have attempted to modestly employ in a futile endeavor to level the disproportionate media playing ?eld that Defendants enjoy. FACTS I. Defendants? Assault on Mr. Murray and his Companies. On June 13, 2017, before approximately 134 million subscribers, Defendants executed a meticulously planned attempt to assassinate the character and reputation of Mr. Robert E. Murray and his companies, including Murray Energy Corporation and those in West Virginia, on a world stage. In carrying out their attack on Mr. Murray and his companies, however, Defendants ignored facts in their possession that directly contradicted the false and defamatory statements about Mr. Murray and his companies that they improperly passed off as truths to the nation and throughout the world. When Defendants made Mr. Murray and the other Plaintiffs aware that they intended to advance their anti?coal agenda by, among other things, broadcasting injurious, false, and defamatory statements to millions of people, Mr. Murray and the other Plaintiffs, at Defendants" invitation (believed to have been extended under the guise of responsible and ethical journalism), transmitted?prior to the June 18, 2017 broadcast?infomation and facts directly contrary to the injurious, false, and defamatory statements that Defendants threatened to broadcast. But instead of reporting on the facts, including those facts which Defendants secured through their (what turned out to be) disingenuous outreach to Mr. Murray and his companies, Defendants ignored them and ?doubled-down? on their character assassination of Mr. Murray and the business reputation of his companies, ending their recorded broadcast with the phrases ?Eat Shit, Bob? and ?Kiss my ass, Bob.? Defendants? initial broadcast of the Defamatory Statements has subsequently been viewed over 6.1 million times on YouTube (an increase of 1.9 million since Plaintiffs ?led their Complaint), over 1.5 million times on Facebook (with over 32,000 likes) (an increase of 300,000 and 3,000, respectively, since the Complaint was filed), and an unknown number of additional times by people who have viewed the broadcast on streaming applications. The number of people who have viewed the Defamatory Statements will only continue to rise throughout this litigation. II. The ?John Oliver Effect?: Defendants? Audience Joins in the Assault on Mr. Murray and his Companies. Defendants have broadcasted the show ?Last Week Tonight with John Oliver? since April 27, 2014. In that time, the show has developed a loyal fan base, averaging millions of viewers each week. Defendants regularly take advantage of that fact to advance their agendas. As has been the subject of wide-spread reports, including by Time and Fortune magazines, Defendants incite viewers of Defendant Oliver?s show to attack, harass, and injure the show?s subjects. Known as ?The John Oliver Effect,? Defendants are well aware of the injury the show?s fans in?ict upon Mr. Oliver?s targets, and they encourage it. As reported by Fortune magazine: With his signature humor, Oliver convinces his audience that they should care about these complex topics and often signs off with a call to action. The result is what Time has called the ?John Oliver Effect,? in which the British comedian helps?in ways both big and small?ate create very real change. This level of in?uence is what landed Oliver, who in addition to the shows host is also an executive producer, on Fortune?s 2015 40 Under 40 list. Beth Kowltt, The John Oliver Effect: Why the British Comedian Impact is no Joke, ortune.com (Sept. 29, 2015). Time magazine similarly recounted how Defendants incite vigilantism. Times article reported how Defendant Oliver called upon his viewers to in?ict damage upon governmental property: ??seize your moment, my lovely trolls,? he said. ?Turn on caps lock, and my pretties!? He got his wish. Following the show, a ?ood of new comments led to major glitches for the FCC website.? See Victor Luckerson, How the ?John Oliver E?ect? is Having Rent-Life Impact, Time Magazine (Jan. 20, 2015) (Updated July 10, 2015). Other instances of the John Oliver Effect causing signi?cant damage have been reported. In 2015, Defendants aired a segment discussing alleged exploitation of chicken farmers by chicken production companies. Defendant Oliver criticized members of the House Appropriations Committee, who declined to pass a bill that, in his view, would have protected the farmers. Defendant Oliver then encouraged viewers to harass congresspersons by editing their Wikipedia pages to label them as ?chicken According to one source, at least thirty-six Wikipedia articles were vandalized. See Plaintiffs have similarly experienced the John Oliver Effect, to disturbing and dangerous proportions. In the days following the June 18, 2017 broadcast of Last Week Tonight with John Oliver, in which the Defamatory Statements were ?rst broadcast to millions of viewers, Murray Energy?s website twice received over 30,000 spam messages within a 20?minute window in an effort to ?crash? the site. See A?z?davit of John Klayko (the ?Klayko 1i 5. A third, potentially more damaging attack, received from multiple sources, forced Murray Energy to take its website down on the morning of June 20, 2017, to implement new, increased security measures. Threats of physical harm and property damage have only increased since the Complaint was ?led. Id. ii 10. Plaintiffs also have been continuously harassed by numerous telephone calls that have subjected Plaintiffs? employees to threats and vulgarities and tied up Plaintiffs? telephone lines, preventing timely communications with Plaintiffs? customers and vendors. Klayko Aff. 1] 8; A?idavit of Heather Santim' (the ??antini 1] 4. These attacks caught Plaintiffs? innocent employees in the cross?re?employees who, by any measure of descent humanity, should not be subject to the vulgarities asserted by Defendants? viewership. Some of the harassing calls incited by the Defamatory Statements can be summarized as follows: a Multiple callers exclaiming ?Tell Bob Murray to eat shit!? or ?Eat shit, 0 One caller stating that ?your owner is a pussy and he?s 0 Another caller asked an employee if she liked working for a company that was destroying the planet; . One stated that ?Murray Energy is a lying piece of shit?; 0 One person congratulated Mr. Murray on being probably one of the most heartless people alive to watch so many of his employees die; A group called on speaker phone demanding Plaintiffs? employee to ?justify to the whole room why you like working at Murray Energy? and then demanded. that she repeat her positive answer ?to all the miners, that Bob Murray took all the black lung insurance from?; 0 One stated his desire to ?tell Bob Murray to eat shit and kiss my assl?; - One condemned an employee, explaining that ?you should be ashamed of yourself for working for a company like Murray Energy? II Multiple callers asked ?Is Dr. Evil I One stated ?you?re a worthless piece of shit? . Others demanded that Plaintiffs ?stop with their bullshit lawsuits? or asked ?Why are you suing John Oliver?? I One threatened employees ?to watch their back?; 0 One stated ?hope your CEO goes to Hell?; In One explained ?this is a squirrel, you Bob. you Bob!?; I Another called a receptionist ?a Bitch,? among other derogatory terms. Santini Aff. 1i 4. If the foregoing were not enough, employees are also in fear from hearing that. Mr. Murray?s son, who is not a party to this action, received a phone call on his mobile phone from a caller that wished him death. Santini Aff. 1i 7. These telephone calls represent a fraction of what Plaintiffs have endured since the initial broadcast, which only intensified after Plaintiffs commenced this action to vindicate the wrongs they have suffered, including demands to ?Drop the lawsuit.? Id. fl 5. Plaintiffs? emails servers have also been subjected to malicious attacks and harassing communications since the June 18 broadcast of ?Last Week Tonight with John Oliver,? and increasingly following the commencement of this action. Klayko Aff. 5, 7. In addition to the attempts to crash Murray Energy?s website described above and in the Complaint, Plaintiffs have received numerous disparaging e?mails echoing Defendant Oliver?s comments on the show. The following emails are examples of the John Oliver Effect: From: Chris McNair From: 3111 131 $111131 4' a 00.001113?? Date: June 22, 2017 at 9:18:57 PM EDT Date: June 22, 2017 at 6:36:21 PM EDT To: miuna?eoalsnumamm To: RE: Can] News Mag Subject: AT SHIT Eat SHTT Bob! From: Mike Waite . .. Date: June 22, 2017 at 5:12:08 PM EDT From: Ryan