Redstone’s lawyer says media mogul is old, not impaired

Sumner Redstone in February 2014. (Photo by Dan Steinberg/Invision for The Hollywood Reporter/AP Images)

Sumner Redstone isn’t mentally impaired, just old, his lawyer told a judge in Massachusetts in arguing against a request by Viacom Chief Executive Officer Philippe Dauman to have the media mogul medically evaluated.

“The idea that he could suffer from mortal disease at any time you could say that about any elderly person,” Redstone’s lawyer Robert Kleiger said during a hearing Tuesday. “Neither his physical or mental condition are deteriorating.”

Dauman and Viacom director George Abrams sued last month after Redstone removed them from a trust that controls his $40 billion media empire. Lawyers for the men, who are seeking to be reinstated, urged a judge to hold a quick trial over their claims that the 93-year-old Redstone was mentally impaired when he made the decision to oust them and is being manipulated by his daughter Shari.

“Nobody can reasonably deny that Sumner Redstone will not be long available,” said Les Fagen, an attorney for Dauman and Abrams. “The question my clients ask, not out of self interest but out of fiduciary duty, they want to know whether the Sumner Redstone they knew would ever do this to his closest friends.”

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Probate Judge George Phelan said he would rule on the request for an expedited trial schedule at a later date.

“I have a lot to digest,” Phelan said at the end of the hearing. “I grew up in a housing project where I was lucky to have a quarter in my pocket so I’m trying to digest the concept of billion with a B.”

The dispute is being heard in state probate court in Canton, Massachusetts, about 20 miles (32 kilometers) south of Boston in the county where the trust was created. It’s one of two courts on separate coasts being asked to decide the legal battle over Redstone’s mental capacity and his ability to make decisions even as the billionaire takes steps to reassert control over Viacom, the owner of MTV and Paramount Pictures.

In May, a judge in Los Angeles rejected a lawsuit filed by Redstone’s ex-girlfriend, Manuela Herzer, who had sought to have him declared incompetent and asked to be reinstated as his health-care guardian. Herzer’s lawyer Pierce O’Donnell filed paperwork to seek a new trial on June 1, the day Redstone’s granddaughter Keryn also hired him as she seeks to keep Shari from gaining control.

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Redstone filed his own lawsuit in Los Angeles seeking court approval of his decision to fire Dauman and Abrams. The lawsuit, which seeks to have the dispute heard in California, was filed on the same day Dauman filed his complaint in Massachusetts. Shares of Viacom, which were down more than 40 percent last year, have rallied in the wake of Redstone’s moves.

The billionaire said June 3 that he had the backing of four out of seven trustees, which means Dauman and Abrams will be out of the trust even if they win their case.

At the heart of Dauman’s complaint is the contention that Redstone isn’t speaking for himself. He argues that Redstone suffers from dementia and is under the undue influence of his once-estranged daughter in a plot to take control of the trust’s majority stakes in Viacom and CBS Corp.

Fagen told Phelan on Tuesday that while the trust agreement doesn’t define the term “undue influence,” the burden of proof is on Shari to disprove it. Redstone’s trust agreement is private. Lawyers gave Phelan a copy of the documents on Tuesday for review.

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Shari Redstone isn’t acting as her father’s fiduciary and isn’t in charge of his care, Kleiger told Phelan. The billionaire, who has an independent care manager, leaves the house to visit family and has friends in Malibu, the lawyer said.

“He is not a prisoner in his own house,” Kleiger said.

He’s in good health and was hospitalized only once since last fall so doctors could monitor his reactions to new medications, Kleiger said. While Redstone’s speech can be difficult to understand, the billionaire says vulgarities “with remarkable clarity,” he added.

Redstone said in court papers that he lost faith in Dauman after he and Abrams acted against his wishes. The duo removed Redstone as Viacom’s chairman, ignored his opposition to shopping a Paramount stake, shunned requests for information and basically treated him “as if he was already gone,” according to the filing. Redstone said he feared Dauman would answer to no one if he held the top two posts at Viacom while controlling the trust.

As an example of Redstone’s lucidity, attorney Kleiger recounted a meeting at the magnate’s home earlier this year in which Redstone asked him to deliver to Viacom executives a message telling them not to sell off Paramount.

Dauman’s attorney countered that the anecdote instead showed Redstone was slipping as he would never entrust Kleiger, then a relative stranger, with such a message.

“Does this sound like the act of a competent man?,” Fagen asked. “Or does it sound like a man who’s kind of left in prison trying to get a message out?”

On Monday, Viacom’s controlling shareholder, Redstone’s National Amusements Inc., amended the media company’s bylaws to ensure that Dauman doesn’t move ahead with any deals involving Paramount without the unanimous consent of Viacom’s board of directors. Sumner and Shari Redstone are both on Viacom’s board.