Waffles with a side of extortion

In the case that keeps on giving, the matter of Waffle House CEO Joe Rogers remains in the news this week. A Fulton Superior Court judge ruled that the indictment’s first count, extortion, was overbroad as charged and the rest of the charges failed to state a crime. Some history is in order.

Rogers’ housekeeper, Ms. Brindle, also performed certain sexual acts for Mr. Rogers. She says it was compulsion as part of the job, apparently Rogers claims it was simply mutual sexual conduct. She hired lawyers who set her up with a video recorder to record the act. That is when it went astray because Georgia makes the recording of a conversation legal, so long as you are a party to it, but not when it involves “Any person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view…” O.C.G.A. Sec. 16-11-62.

The obvious intent of this statute was to make it illegal to video record an encounter, presumably sexual (Because otherwise, who cares?), without the consent of the other party. One can certainly see the merit in that law. Now let me add a caveat, absent some nefarious purpose like blackmail, most people just don’t need to be seen naked except by their spouse.

Back to Joe “Scattered, Smothered and Covered” Rogers. The attorneys allegedly directed Brindle to do the very thing that the law disallows, that is, to record a sexual encounter with an unknowing victim. But, was he a victim? The attorneys were attempting to garner proof of Brindle’s allegations that she was required to perform these sexual favors for Rogers. The attorneys, armed with the recording, sent a demand letter to Rogers saying, in essence, if you don’t pay us lots of money (I think $30 million got mentioned at some point), then we’ll expose you as a cheating spouse, lowdown executive and philandering no-gooder. I don’t think they used those words, but that was their implied threat.

So, Rogers took the offensive and sued Brindle and the lawyers. The civil trial court sided with Rogers and allowed the case to proceed. On the criminal charges against Brindle and her lawyers, a Fulton County judge has sided with Brindle’s attorneys and dismissed the charges, but the DA has vowed to appeal.

Brindle’s lawyer, Brian Steele (an excellent attorney), argues that Georgia’s extortion statute is overbroad and that no lawyer in history has been threatened with criminal prosecution for a “demand letter.” He makes some good points, but so does the state. If no lawyer in history has been charged with this before, it means it has not been used by prosecutors willy nilly to chill civil controversies. Yet, Steele points out that no lawyer will ever send a demand letter again if you can get prosecuted for doing so? Yeah, I see his point, but I think the actions leading up to the demand letter are really the issue. The courts will decide.

I’m thinking of starting a betting pool on how this case ends up. That’s probably illegal too.

Kelly Burke, master attorney, former district attorney and magistrate judge, is engaged in private practice. He writes about the law, Rock ‘n’ Roll and politics. These articles are not designed to give legal advice but are designed to inform the public about how the law affects their daily lives. Contact Kelly at kelly@burkelasseterllc.com to comment on this article or suggest articles that you’d like to see, and visit his website www.kellyrburke.com to view prior columns.

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