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Litigation Partner Aaron Moss Appears Before Massachusetts Supreme Judicial Court on Behalf of Client Barstool Sports

February 1, 2021Press Release

Aaron Moss, Partner and Chair of Greenberg Glusker's Litigation Department, appeared before the Massachusetts Supreme Judicial Court on behalf of client Barstool Sports on Monday, February 1, 2021.

The dispute arose when a Massachusetts mayor, Joseph Curtatone, criticized the Boston Bruins hockey team for doing a promotion with Barstool. Kirk Minihane, a Barstool podcast host, repeatedly attempted to interview the mayor to press him on his comments. The mayor refused so Minihane pretended to be a Boston Globe reporter to get the interview. He conducted the interview after explaining to the mayor that he would be recording it. Minihane later published the interview in full.

During oral argument, Massachusetts’ top appellate court suggested that Minihane did not violate the state’s wiretap law by recording the interview because the recording was not secret.

“The Massachusetts Wiretap Act is clear: it only prohibits secret recordings. If a recording isn’t secret, the question of consent is irrelevant,” Moss commented. “Mayor Curtatone knew he was being recorded and that his comments would be publicly reported. If the Mayor’s position were adopted, it would chill legitimate newsgathering protected by the First Amendment. Fortunately, the Justices appeared to understand this, and we are hopeful that the decision will be fully affirmed.”

The ACLU submitted an amicus brief in support of Barstool’s position, in which the Reporters Committee for Freedom of the Press joined.

Moss and Litigation Counsel Steven Stein, along with their colleague Intellectual Property Partner Jesse Saivar and co-counsel Andrew Caplan of Twohig Caplan LLP, have handled this case from the start, obtaining dismissal of the mayor’s lawsuit before the trial court.

Moss delivered the oral argument by videoconference due to the pandemic. Video of the oral argument is available here.

Greenberg Glusker is Barstool’s principal litigation firm, handling or overseeing numerous disputes, including IP infringement suits and an ongoing breach of contract and defamation suit in federal court. Greenberg Glusker also handles all of Barstool’s day-to-day transactional matters including its talent deals, content distribution arrangements, branded content agreements, merchandising transactions, IP licensing, backend technology agreements, and its large trademark portfolio.

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