Viacom chairman Sumner Redstone is in charge of his faculties that he can decide who he wants his health care agent to be, a judge ruled today. “I find no urgency,” Superior Court Judge Clifford Klein said Monday, blunting an immediate examination of the media mogul as requested by his former companion and health care agent. Klein cited no emergency in the matter due in great part to Redstone’s around-the-clock care plus the fact that his current designated health care agent is an attorney and the CEO of Viacom.
Delivering a blow to the quick action that Manuela Herzer sought from the courts, the ruling had larger implications. Both Viacom and CBS could have seen a rupture in their formal exec rule and even stock in this latest turn in the ongoing issue of Redstone’s successor, if his capacity to decide who gets to manage his care if Redstone is unable had been successfully challenged at this juncture. “He continues to make his own health care decisions,” said Redstone’s lawyer Gabrielle Vidal in court today, stressing that the need for an assigned health agent to actually be making decisions is currently not required.
The ailing 92-year-old media mogul’s mental capacity was dragged into the courts last week when his now seemingly banished companion and self-described caregiver Herzer filed paperwork November 24 to again be named Redstone’s health care agent.
That process would require a determination, as Herzer’s petition says, of the “vacant” Viacom boss’ ability to make decisions. Among those decisions are the removing of Herzer from her past responsibility under Redstone’s Advance Heath Care directive after just more than a month. That happened right after Herzer was removed from the Viacom chairman’s home October 12. Although Redstone’s former health care agent is literally going up against Big Media, she has some big guns on her side: Hollywood powerhouse lawyer Bert Fields and his Greenberg Glusker Fields Claman & Machtinger LLP colleague Pierce O’Donnell are representing Herzer in the matter. Fields was not in the courtroom today, but O’Donnell and a number of other lawyers from the firm were.
While shutting down the primary thrust of Herzer’s petition for now, Klein did not grant a dismissal of that petition as Redstone’s lawyer had sought. The process has been continued to a hearing early next year, likely in late January. O’Donnell told the court he would like to see a video deposition of Redstone in the matter. The case is being transferred to another courtroom for reassignment and Redstone’s lawyers sought to find a new judge other than the one presently on the other parts of the case. Any further discovery, which Judge Klein called “too broad” today, or depos are in a holding pattern until the dismissal hearing next yer. Herzer’s lawyers put a sunny face on Monday’s actions by Judge Klein. “They tried to throw us out on Day 1 and we are glad the judge denied that,” O’Donnell said outside the courtroom after the short hearing today. “The good news is the petition is alive.”
In their response last week, attorneys for Redstone said this is not about who should take care of Redstone, but all about “Ms. Herzer’s personal financial agenda.” Not only did Vidal, Amy Koch and David Hodge of Loeb & Loeb reject the need for hearings or determinations in their November 25 response, but they presented Viacom president and CEO Philippe Dauman as a witness, so to speak.
In a declaration just before Thanksgiving last week, Dauman — named to replace Herzer as Redstone’s health care agent — said Redstone was “engaged and attentive” when he saw the company founder earlier this month. Redstone’s longtime corporate right hand man says he cares “deeply for Sumner and will do whatever is necessary to ensure that he continues to receive superior care.” Herzer’s lawyers filed an response to the opposition today, paperwork that Redstone’s attorneys told Judge Klein they had not had time to properly assess.