Court allows lawsuit over secret sex video to go to trial

The Georgia Court of Appeals (as well as the state Supreme Court) is located in the State Judicial Building in downtown Atlanta. (Supreme Court of Georgia)

The Georgia Court of Appeals (as well as the state Supreme Court) is located in the State Judicial Building in downtown Atlanta. (Supreme Court of Georgia)

The Georgia Court of Appeals has cleared the way for an explosive lawsuit regarding how and why a secret sex video of Waffle House chairman Joe Rogers Jr. was made.

The lawsuit, filed by Rogers, accuses three high-profile Marietta lawyers of racketeering and invasion of privacy in connection with the taping of Rogers’ former housekeeper performing a sex act on the Waffle House executive.

Mye Brindle, Joe Rogers’ former housekeeper.

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The ruling means that attorneys David Cohen, John Butters and Hylton Dupree could be found liable in a conspiracy that included Mye Brindle, the former housekeeper.

The lawyers will appeal the ruling to the Georgia Supreme Court, according to a statement released Friday by the lawyers’ legal team.

“This ruling will have a chilling effect on victims of workplace sexual harassment and the attorneys who would help them pursue justice,” John Floyd, who represents Cohen and Butters, said.

Rogers’ attorney, Robert Ingram, said the ruling discourages “unscrupulous individuals (who) plan ahead of time to surreptitiously video record another in a private place without their knowledge or consent in an effort to then use the recording to extort money. … It also makes it clear that lawyers, like everyone else, are not above the law.”

Waffle House chairman Joe Rogers Jr.

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Brindle recorded the video on June 20, 2012, shortly after she'd retained Cohen and Butters to represent her in a sexual harassment claim against Rogers. Cohen then mailed Rogers a letter, accusing him of engaging in a long history of unwelcome sexual demands and harassment that had been "well-documented by numerous video and audio recordings."

Rogers has admitted to having sex with Brindle but says it was consensual.

Cohen’s letter recommended Rogers end the matter with a financial settlement. In similar cases of a sensitive sexual matter, the letter said, public disclosure leads to “intrusive governmental investigations,” criminal charges, incarceration, divorce and “the destruction of families.”

In September 2012, Rogers tried to mediate the dispute with Brindle, Cohen, Butters and Dupree. It ended without an agreement, with Rogers offering $100,000 and Brindle demanding $12 million, according to court records.

Marietta lawyer David Cohen.

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Rogers then filed two lawsuits, one against Brindle, which is still pending, and the other against her lawyers, which was allowed to proceed under Thursday's ruling by the Court of Appeals.

Judge Amanda Mercier, writing for the majority, said that the attorneys’ alleged involvement in conspiring with Brindle to secretly videotape Rogers was “tortious and criminal.”

Mercier cited a Georgia statute that says it is unlawful for anyone, without the consent of all parties involved, to use a device to observe, photograph or record the activities of another person in “any private place and out of public view.”

Six other Appeals Court judges agreed with Mercier. Two issued dissents. One, Judge Anne Elizabeth Barnes, said no court or jury had determined the secret videotaping was illegal and “case law supports the conclusion that no one committed any crimes related to the video.”

Marietta lawyer John Butters.

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But Georgia law does not require a criminal conviction to be obtained for a plaintiff to bring a civil lawsuit that alleges criminal behavior, Mercier wrote.

Rogers’ attorney praised the court’s decision.

“We now have an appellate decision that says the Legislature meant what it said — that you cannot secretly videotape people in a place where they have an expectation of privacy,” Ingram said.

The ruling sets an important precedent, he said.

“It says you must have the consent of all parties observed,” Ingram said. “We don’t want spouses going in and secretly videotaping their sexual activity in the bedroom and then threatening to post it on YouTube unless the other spouse agrees to turn over custody of the children.”

Marietta lawyer Hylton Dupree.

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The Appeals Court opinion upheld most of Cobb County Judge Robert Leonard's rulings that were challenged on appeal. Last week, Leonard removed himself from the litigation, citing a potential conflict of interest. In his recusal order, Leonard lashed out at Cohen, accusing the lawyer of making false accusations and engaging in unethical behavior to try to get the judge's removal.

In a separate ruling, also issued Thursday, the Court of Appeals upheld an award of $198,383 in attorneys fees to Rogers that had been imposed against Cohen by a Fulton County judge. This related to a lawsuit that Cohen filed against Rogers in Fulton, when the same lawsuit was already pending in Cobb County.

On Friday, Cohen said he will appeal that decision as well.

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