Mr. Nutterbutter, of course, is a giant, talking squirrel, and sidekick of acerbic late night comedian, John Oliver. Mr. Nutterbutter and friends, John Oliver, HBO and Time Warner, Inc., were recently handed a legal defeat when a federal court in West Virginia refused a request to allow a lawsuit, based in part on Mr. Nutterbutter’s comments, to proceed in federal court.

The kerfuffle began when Bob Murray, CEO of Ohio based Murray Energy Corporation, was upset – very upset – with his portrayal in the June 18 segment of John Oliver’s Last Week Tonight. During the show, political comedian John Oliver took aim at Murray and other coal company executives for their opposition to coal safety regulations and for their treatment of coal miners.

Oliver’s criticism was not limited to the Murray Energy Company. He criticized Murray personally, referring to him as a “geriatric Dr. Evil.” He also took Murray to task for claiming that an accident at Murray Energy’s Utah mine which resulted in nine fatalities, was the result of an earthquake. Oliver disputed Murray’s explanation, citing a Congressional investigation that had no evidence of a geological event.

Mr. Murray’s ire was increased when Oliver recounted the actions of two Murray Energy employees who returned bonus checks. One employee returned a check for $11.58 after signing it “Kiss my ass, Bob” while another returned a check for $3.22 after signing it “Eat shit, Bob.”  Mr. Nutterbutter, the human size squirrel, endorsed the employees’ actions by offering Mr. Murray a check for “3 acorns and 18 cents…made out to Eat Shit, Bob, memo Kiss My Ass.”

Apparently Mr. Murray had anticipated his harsh treatment at the hands of Mr. Nutterbutter and John Oliver. Prior to air, Murray’s attorneys sent a cease and desist letter to Last Week Tonight, threatening legal action. The communication was not an idle threat.  Over the past fifteen years, Mr. Murray was not shy about asserting his legal rights, suing local reporters, environmental activists and media outlets.

Undeterred by Mr. Murray’s letter or willingness to litigate, the show aired, with both John Oliver and Mr. Nutterbutter acknowledging the risk of a lawsuit.

Murray made good on his threat: he filed an action in state court in West Virginia against Oliver, HBO, and Time Warner, claiming defamation, invasion of privacy and intentional infliction of emotional distress. Describing the nature of his distress, Murray’s complaint states that the broadcast upset him more than anything else ever had (which presumably includes the deaths of the nine employees killed in one of his mines).

The case attracted the attention of the American Civil Liberties Union (“ACLU”) which filed an amicus brief – which was almost as entertaining as the original on behalf of Mr. Nutterbutter.

Unfortunately for Mr. Nutterbutter and his friends, the plaintiffs seem to have won the first round by defeating a motion by the defendants to remove the action to federal court. This means that the action will be tried in West Virginia state court. Mr. Murray further demonstrated his willingness to play hardball by filing an unusual motion seeking to disqualify the ACLU’s amicus brief.  Mr. Murray’s lawyers argued that that Oliver’s previous on-air support of the ACLU and his fundraising, biased the ACLU on Oliver’s behalf and created a potential financial interest of the ACLU in the outcome.

While the foregoing may seem like pointless procedural wrangling, with little to do with whether Mr. Murray has suffered any injury, knowledgeable litigators know that such actions represent strategic decisions which can have an enormous impact on the outcome of the case.

As in real estate, the “location” where a law suit is filed is important. There is significant variation among states and between the federal and state courts. These differences can be an advantage for one party or an additional hurdle for the other. Each state has its own laws of civil procedure and evidence which determine how a case will proceed and how it will be decided.  For example, a twelve person jury is not always required in state civil trials. States allow juries of as few as six members and do not always require a unanimous decision in non-criminal proceedings.

State court dockets may impact how long it takes to bring a case to trial while state rules of evidence determine what evidence is presented to a jury. Many states, including Pennsylvania, elect judges who may potentially be subject to real or imagined political pressure from one of the parties. And, as in sports, there is also a real “home-team advantage” in litigation. Juries and judges may be unconsciously biased in favor of a person or company that is or has been a significant benefactor of a community, or who is simply more “relatable” than an anonymous, out-of-state party.

In addition to procedural laws, each state has it own substantive version of torts such as defamation, intentional infliction of emotional distress and invasion of privacy. While the core elements of each of these claims are similar from state to state, there are differences which can be significant. For example, the interpretation of some state versions of these torts may make it extremely difficult to secure an award of punitive damages, while other states are more willing to impose damages unrelated to any economic detriment.

The posture of the parties may also make a difference. Media defendants claiming First Amendment protections have not fared as well in state courts as in the federal court system. In a recent case, Hulk Hogan sued Gawker,[1] an on-line entertainment news outlet, for invasion of privacy. Despite Gawker’s status as a member of the media, a Florida jury awarded Hogan $115 million in compensatory damages and $25 million in punitive damages. Contrast this with the famous Hustler case of 1988,[2] in which evangelical and political leader Jerry Falwell, was parodied in a satiric article. The Supreme Court ruled in favor of Hustler, and limited the ability of a public figure to recover against a media outlet for a comic portrayal.  While every case, particularly those involving defamation, depend on the exact words utilized, the accuracy of the comment, and the manner in which a reasonable person might interpret such language, it is undeniable that the forum for litigation can have a significant impact on the outcome.

While basketball teams – and squirrels – can certainly overcome the challenges of not having a home court advantage, it is not without effort and the assistance of able counsel. But all is not lost. Mr. Nutterbutter may have other friends willing to file amicus briefs on his behalf.  It is rumored that noted commentator, Triumph, the insult dog, is considering a brief in support of Mr. Nutterbutter. Whatever the outcome, the litigation promises to be at least as entertaining as the segment that gave rise to it all. Nuts to you, Mr. Nutterbutter!