Court Flips Food Lion in Favor of ABC Appeals Ruling Is a Setback for Wielding News-Gathering Torts against Journalists

Article excerpt

If there was one point of agreement in the Food Lion vs. ABC legal battle, it was the devastation the expose caused. It aired Nov. 2, 1992, on the network's "Prime Time Live" news show, which - using hidden cameras worn by two producers who surreptitiously gained employment at two separate Food Lion stores - exposed behind-the-scenes handling of putrid food. Caught on tape: old meat and fish repackaged and sold, and expired chicken smeared with barbeque sauce to hide the stench.

By the end of the following day, Food Lion executives watched the company's stock plummet more than 11% - an estimated $1.9 billion.

The grocer fought back by wreaking havoc in how ABC News conducts its business. It made a multibillion-dollar legal claim based not on libel but on the way in which the producers infiltrated the stores. Food Lion won a $5.5-million jury verdict in punitive damages (later reduced to $315,000) in 1997 on claims the producers and network committed fraud and trespass, and "breached their duty to loyalty" to the grocer. The decision pinned the case as a First Amendment "poster child" of what some call a new era of media litigation - news-gathering tort lawsuits, which attack a story's reporting, rather than its content.

Last week, the U.S. Court of Appeals for the 4th Circuit swung the pendulum back in ABC's, and journalism's, favor when it ruled 2-1 that the $315,000 award tied directly to the fraud claim would be thrown out. The court let stand the two other Food Lion victories - trespass and breach of loyalty - along with the original jury awards for damage: $1 for each.

"Food Lion was hoping to send a message that what was done to them was awful, and winning big damages would help make that point," said Lee Levine, an expert in news-gathering torts and an attorney at the Washington firm of Levine, Sullivan & Koch. "Well, '$2' says that's what their claim was worth."

The grocer faxed a press release stating it was disappointed in the verdict, but noted the court did uphold two of its claims. …