On April 7th, 2017, after the sudden suspension of production of her show at TheBlaze, Tomi Lahren created a bit of a firestorm in the political world when she abruptly filed suit against her employer and Glenn Beck. The lawsuit alleged Wrongful Termination, Breach of Contract and a number of tort claims, among other things. Not long after the suit was filed, TheBlaze countered with a lawsuit of its own.

While many outlets have commented on the circumstances surrounding the dueling lawsuits, few have considered the relative merits of the claims leveled on both sides. In my opinion – operating only on the facts currently available – Tomi Lahren has a tough road to recovery ahead of her.

Although the complaint contains several counts, it is first and foremost a breach of contract claim. This article will focus primarily on that, as well as touch on a few other aspects. In my view, none of the secondary claims alleged will likely hold up without the court first finding either 1) TheBlaze wrongfully terminated Lahren; or 2) TheBlaze failed to fulfill its obligations under the Agreement.

The 230-episode “requirement”

The crux of Lahren’s argument rests on the claim that TheBlaze agreed to annually produce and air 230 episodes of her self-titled show, “Tomi.” According to the complaint, TheBlaze has “never come close” to that number, and their failure to do so results in TheBlaze’s breach of contract and constructive termination of Lahren.

The problem with that argument is the contract expressly states TheBlaze has no obligation to make any amount of episodes. To the contrary, the requirement to make 230-episodes applies only to Lahren. While this limits TheBlaze’s rights under the contract to some extent, it does not do so in the way Lahren suggests.

If, for example, TheBlaze desired to make three hundred episodes of “Tomi” in one year, Lahren would only be contractually obligated to make 230 (but likely no more). If, however, TheBlaze decided to make just 40 episodes of her show, that is entirely their prerogative.

A cursory review of Lahren’s contract reveals she agreed to this dynamic in no uncertain terms. While it can be argued that the 230-episode requirement — standing alone — is somewhat ambiguously drafted, the entirety of the terms of their agreement resolve any such ambiguity. The exact langauge of the 230-episode provision provides,

 Two hundred thirty (230) one hour programs shall be created each calendar year, with replays twice over a 24-hour period.

That language might be read to suggest a mutual obligation for both Lahren and TheBlaze. Reading the contract in its entirety, however, resolves any uncertainty as to who the obligation applies to. First, it is contained in the “Services” section, which begins by stating,

[e]mployee agrees to carry out the duties reasonably assigned to Employee by [TheBlaze]… as follows…

Since the this section of the agreement outlines the duties and obligations Lahren as an employee of TheBlaze, it is quite a stretch to suggest TheBlaze was somehow binding itself to the 230-episode requirement. This would seem to halt Lahren’s claim in and of itself, but TheBlaze has further protection elsewhere in the agreement.

In the “Pay or Play” section, the contract expressly provides,

nothing in this Agreement shall be deemed to obligate [TheBlaze]… to use or broadcast or otherwise use any or all programs or materials provided by Employee… and [TheBlaze] shall have fully discharged its obligations hereunder by paying the applicable monetary compensation…

This express limitation on TheBlaze’s obligations makes a great deal of sense. If a business is going to pay a relatively unknown (at the time) on-screen personality presumably significant guaranteed compensation, they deserve to be able to say “you, in exchange, will provide X amount of labor.” It does not follow, however, that such business would be required to air every product of that labor, nor does it mean that failure to insist on the performance of labor results in liability for the employer. This is especially true in the entertainment industry where considerations such as viewership numbers and advertising revenue are taken into account.

Absent express language in the agreement indicating otherwise – of which, I have found none – Lahren simply cannot show TheBlaze somehow committed to a certain episode minimum. Indeed, there is much language in the contract indicating exactly the opposite. Accordingly, Lahren’s breach of contract claim on this issue likely fails as a matter of law.

Lahren’s wardrobe budget-reveal and the Non-Disclosure AgreeNDA

In the event Lahren is able to show she was constructively terminated, the case has the potential to get very slippery for TheBlaze. Much of the outcome will then hinge on the applicability of a non-disclosure agreement (“NDA”). In its counterclaim against Lahren, TheBlaze argues Lahren publicly revealed her $40,000 wardrobe budget in violation of her NDA, which expressly states she must keep company pricing and financial information confidential.

If the NDA is proven valid and enforceable, the disclosure of Lahren’s wardrobe budget will likely hurt her claim that she was wrongfully terminated.

This begs the question: Is the NDA valid?

Lahren’s counsel makes the argument that Lahren never signed the NDA and is therefore not subject to its terms. In support of this, Lahren produced a copy of an unsigned NDA that was apparently given to her by TheBlaze. While the blank signature page makes for compelling imagery, the terms of the confidentiality provision of her employment agreement suggest it will be of little value for Lahren.

Confidentiality: Employee agrees to comply with the terms set forth in the Non-Discolsure Agreement attached hereto as Exhibit A and incorporated herein by this reference.

Assuming TheBlaze actually provided the NDA contemporaneously with the employment agreement, they are likely relieved of any obligation to ensure Lahren physically signed the separate NDA, as it is presumed apart of the valid employment agreement. Perhaps Lahren could present evidence showing the NDA is somehow otherwise inapplicable, but that seems highly unlikely. As a result, Lahren’s comments about her wardrobe, coupled with other apparent employee issues periodically occurring, operate as reasonable grounds for suspension and even termination under the contract.

Are Lahren’s comments on The View a protected exercise of her 1st Amendment rights?

In light of the raging free-speech debate occurring at college campuses like Berkeley, one other claim from the complaint is worth noting. Lahren repeatedly asserts that, due to the pro-choice stance she took in an appearance on The View, she is being “unlawfully retaliated” against for exercising her constitutional right to free expression. While I’m as ardent a supporter of the first amendment as anyone, I cannot see how it applies here.

The first amendment applies to government actors, not private companies. People routinely privately contract away their rights to speak freely on any number of topics. Indeed, a NDA is exactly that: an agreement foregoing one’s ability to speak freely on a subject in exchange for some form of valuable consideration. In this case, that consideration was employment and compensation.

Including this first amendment discussion in the complaint seems primarily tailored to constructing a narrative in the media that TheBlaze creates an atmosphere of viewpoint discrimination in the workplace. Because these complaints are all publicly available, journalists looking to capitalize on sensationalist quotes will zero in on bald assertions of constitutional violations such as these. While the court will quickly dispose of them, a persistent narrative in the media could present a public image problem for TheBlaze and cause them to settle. Secondarily, though, it seems Lahren is referencing the first amendment to provide the basis for a retaliation claim. If so, it would be the first I’ve ever seen in this context.

In her complaint, “wrongful retaliation” is specifically alleged against TheBlaze because Lahren “expressed her personal viewpoint on a public television show” (referring to her appearance on The View). Retaliation in the employment law context, however, has a very specific meaning and is not nearly as broad as we use the term in everyday parlance. In the employment context, it typically refers to discrimination or adverse employment action taken against an employee due to that employee engaging in some specific type of “protected conduct.”

At this stage, it is difficult to see how Lahren could possibly prevail on such a claim. She did not engage in “protected conduct,” as free expression is not generally protected in the private employer setting. In fact, she appears to have engaged in conduct expressly prohibited by the terms of her employment agreement with TheBlaze. I am aware of no law — Texas or federal — that will negate that.

Likely Outcome

While I can empathize with the career consequences that accompany having your show shelved for several months in the middle of a strong run of significant publicity, Lahren faces an uphill battle in this case.

The lawsuit is not about whether TheBlaze should have simply cut Lahren loose when they decided not to continue production of her show. It’s primarily about whether TheBlaze breached the employment contract. Based on the evidence currently available, I don’t think Lahren can show they did.

My advice here would be to reach as palatable a settlement as you can, and move on.

Bryan Jacoutot is a lawyer in the employment and labor relations group in the Atlanta-based law firm, Taylor English Duma.