Where Were The Lawyers, Chapter 25,847: The Paula Deen Fiasco

Jimmy Carter says Paula Deen has been punished enough for her use of racial epithets.  True, many people of her age and background probably used racial epithets (although many probably did not).   But that she is no worse than other people is irrelevant--she was a brand, and the brand was based on distinctive friendliness, wholesomeness, and kindness.   Her brand was destroyed--her endorsement losses include Target, Walmart, Smithfield, QVC, Sears, J.C. Penney, Novo-Nordisk, and Ceasars Entertainment--not simply because she used racial epithets, but deservedly because she forgot the importance of her image.  The deposition transcript makes her look indifferent to racial and sexual harassment by her brother at her restaurant--it was very difficult for the plaintiff's lawyer to get her to admit the inappropriateness of what seemed like an unremitting flow of crude remarks.  A purely legalistic strategy might work if you are an investment bank or a multinational, but if your stock in trade is niceness, it is a big problem if your brother and business partner admits the "use of the word n**** in the workplace" and you can't bring yourself to stop it or even admit that it is wrong.  While the client has free will, I fear that this fiasco is Martha Stewart all over again, where, somehow, a person paid large fees to talk herself into trouble while represented by distinguished lawyers.

The suit involved a former female manager at Uncle Bubba's Seafood and Oyster House, which is partially owned by Deen and managed by her brother, Earl "Bubba" Hiers, also a part owner.   The restaurant loses money and is subsidized by Paula Dean Enterprises.  Bubba is alleged to be a crude person, who, according to the allegations, showed up at work drunk, assaulted an employee, viewed pornography at work and showed it to unwilling employees, and used the N-word.  According to Paula Deen herself, Bubba stole money from the restaurant, received in-patient drug and alcohol rehabilitation, and told racial and sexual jokes to employees.  Ms. Deen hired a consulting firm to evaluate the complaints, which found them valid, but Ms. Deen rejected that opinion because she concluded that the firm she herself hired had been deceived by people  with evil motives. (Oddly, the firm has an endorsement from Paula Deen on its website)

Demonstrating great lack of curiosity, Ms. Deen testified she never asked her brother about the truth of the allegations against him, but apparently assumed that the pornography-watching and showing  could have happened ("I know that all the men in my family at one time or another they'll tell each other, look what so and so sent me on my phone, you know.  It's just men being men.", Tr. at 69), and that if it did, was unwilling to say it was improper ("You know, each situation can--can be different.  It's not black and white.  there's a lot of gray in that." Tr. at 68). 

It seems to be a case of blood being thicker than water.  She was in money-losing business with a brother who she knew was problematic, and, after she got rich and famous, instead of hardening her heart (or even writing a big check and keeping her distance professionally) she stayed in business with him.  When asked "Can you imagine your brother speaking to a female employee who had just gotten dentures that I'll bet your husband is going to like that?" She responded "I can imagine several men in my life that would have said something similar."  Tr. at  136.  

True, rich people don't like to be pushed around, but Paula Deen's participation in a deposition where everyone knew that she would say the things that she said reflects such catastrophically bad judgment that it is almost inexplicable.  Perhaps she overruled her lawyers because she was penny wise and pound foolish, perhaps she did not understand that the public would regard her toleration of racial and sexual harassment, even if she was technically not liable, as inconsistent with the warm family values associated with her personality.   Alternatively, perhaps her lawyers failed to offer their business judgment that with at least smoke, the case should be settled quietly. Obviously this is true in retrospect, but with six or more lawyers defending the case, and takeover-style discovery, I wonder if even before the implosion settlement would have cost dramatically more than defense. I sure hope that in the file there is an emphatic letter to Ms. Deen from counsel strongly advising settlement of the suit at whatever price it costs.