The widow of blogger and web publisher Andrew Breitbart is fighting an attempt to make her a defendant in a defamation lawsuit against her late husband.
After months of wrangling over Breitbart's role in the case following his death in March 2012, lawyers for the plaintiff have asked the court to substitute Susannah Breitbart as a defendant. Over the weekend, lawyers for Susannah Breitbart, represented by Reed Smith, filed papers opposing that request.
Former U.S. Department of Agriculture official Shirley Sherrod sued Breitbart, Breitbart's colleague Larry O'Connor and an anonymous third defendant in the Washington federal trial court over a video clip of Sherrod speaking that was posted on Breitbart's website. Sherrod accused Breitbart of "deceptively" editing the clip to make it seem as though Sherrod, who is black, discriminated against a white farmer.
Sherrod agreed to her superiors' request to resign after the clip came out. However, she received apologies from the White House and other officials after the full version of her speech was released, showing she said she ultimately rejected making decisions based on race.
At a hearing last month, U.S. District Judge Richard Leon expressed his frustration that lawyers in the case had not figured out the status of Breitbart's estate and what his death would mean for the case moving forward.
Several weeks later, Sherrod, represented by Kirkland & Ellis, asked the court to substitute Susannah Breitbart as a defendant. Her lawyers argued Sherrod's lawsuit could continue against his successor-in this case, his widow-under D.C. and California law (Breitbart lived in California).
On October 5, Susannah Breitbart agreed that she and her children were the successors to Andrew Breitbart, who died without a will. However, she argued Sherrod was asking for damages "in excess of amounts allowed" under California law that addresses litigation after the death of a party.
Sherrod didn't specify how much money she wanted in her complaint, except to say she was seeking compensatory and punitive damages. Susannah Breitbart quoted a section of the California Code of Civil Procedure saying punitive damages could not be recovered from a decedent's successor.
Susannah Breitbart is represented by Reed Smith partner Eric Dubelier. He wasn’t immediately reached for comment. Sherrod's lawyer, Thomas Clare, a partner at Kirkland & Ellis, declined to comment.
Breitbart's co-defendant, Larry O'Connor, who’s represented by Baker & Hostetler, did not take a position on whether Susannah Breitbart should become a defendant, according to Sherrod's court filing.
National Law Journal photo by Diego M. Radzinschi.