Lukasz Gottwald v. Kesha Rose Sebert

• Court: New York Court of Appeals
• Decided: June 13, 2023
• Docket: 32-33
• Status: Published

Opinion

State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.

Nos. 32 & 33 Lukasz Gottwald, &c., et al., Respondents, v. Kesha Rose Sebert, &c., Appellant, et al., Defendants.

Case No. 32:

Anton Metlitsky, for appellant. Christine Lepera, for respondents. Legal Momentum et al.; Samuel D. Isaly; Advance Publications, Inc. et al.; and Maria Kim Grand, amici curiae.

Case No. 33: Anton Metlitsky, for appellant. David A. Steinberg, for respondents. Samuel D. Isaly; National Women's Law Center et al.; and The Reporters Committee for Freedom of the Press et al., amici curiae. GARCIA, J.:

Plaintiff in this defamation suit, Lukasz Gottwald (“Gottwald”), is a music producer

known as “Dr. Luke.” Defendant Kesha Rose Sebert (“Sebert”) is a singer and songwriter

known as “Kesha.” Sebert signed a recording contract with one of Gottwald’s companies

in 2005 and the arrangement produced several successful albums. However, in 2014,

Sebert sought to void her contractual arrangement with Gottwald by filing an action in

California, alleging that Gottwald raped her shortly after she signed the original recording

deal. In response, Gottwald brought this action in New York alleging that statements made

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by Sebert and her agents with respect to the alleged sexual assault were defamatory. We

hold that Gottwald is a limited public figure who must prove by clear and convincing

evidence that Sebert acted with actual malice; that five of the allegedly defamatory

statements are privileged as a matter of law while the issue of privilege as to the remaining

20 statements must be resolved by a jury; and that certain provisions of the 2020

amendments to Civil Rights Law §§ 76-a and 70-a apply to this action.

I.

Gottwald, in addition to being a music producer, also owns several companies,

including plaintiffs Kasz Money, Inc. (“KMI”) and Prescription Songs, LLC. In 2005,

Gottwald signed Sebert, an aspiring singer and songwriter, to a record deal through KMI.

Sebert alleges that a short time later Gottwald raped her—an allegation he has denied.

Through her representatives, Sebert subsequently attempted to gain her release from the

KMI agreement based on the alleged sexual assault. Those efforts were unsuccessful.

Instead, in 2008, the parties amended the KMI agreement and entered into separate

publishing and recording agreements. In 2010, Gottwald and KMI released two

commercially successful albums with Sebert, and in 2012, Gottwald and Sebert released a

third album through another of Gottwald’s record labels.

By 2012, however, Sebert sought to renegotiate the terms of her agreements with

Gottwald but attempts to settle the dispute were once more unsuccessful. Sebert then

commenced an action against Gottwald and his various companies in California, alleging

that Gottwald had raped her in 2005 and seeking damages as well as an injunction voiding

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her contracts with plaintiffs. Gottwald filed this action in Supreme Court, New York

County, that same day. The operative complaint pleads two counts of defamation against

Sebert. The first asserts that she acted with malice in making false statements regarding

the alleged rape. The second count is based on a statement made by Sebert alleging

Gottwald raped another female recording artist.1

The California court granted Gottwald’s motion for a stay of that action, while

Sebert filed counterclaims here based on the same allegations contained in her California

complaint. She then moved in Supreme Court for a preliminary injunction asking the court

to enjoin Gottwald and his companies from interfering with her attempts to work with

others and to prevent them from enforcing any contractual exclusivity and ownership

provisions. The court denied the injunction. In 2016, Supreme Court granted Gottwald’s

motion to dismiss Sebert’s counterclaims as, inter alia, time-barred and outside Supreme

Court’s subject matter jurisdiction (2016 NY Slip Op 32815 [U] [Sup Ct, NY County

2016]). Sebert appealed the denial of the injunction and dismissal of her counterclaims but

later withdrew both appeals and voluntarily dismissed her California action.2

After completing discovery, the parties cross-moved for summary judgment. As

relevant here, Sebert argued that Gottwald is a public figure and can recover for defamation

only upon proof that the alleged defamatory statements were made with actual malice, and

1 That artist denied any sexual assault by Gottwald and the Appellate Division determined that the statement was defamatory per se (see 193 AD3d 573, 581 [1st Dept 2021]). 2 None of Sebert’s original counterclaims in this action survive.

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that 25 of those statements cannot serve as the basis for liability in any event because they

are privileged. Supreme Court granted partial summary judgment in favor of Gottwald and

denied Sebert’s motion (2020 NY Slip Op 30347 [U], at *5 [Sup Ct, NY County 2020]).

Sebert appealed.

In 2020, while that appeal was pending, the Legislature amended a 1992 statute

designed to protect certain individuals who face targeted litigation for their participation in

public affairs, i.e., Strategic Lawsuits Against Public Participation (“SLAPP” suits). The

1992 law—New York’s anti-SLAPP statute (L 1992, ch 767)—is codified in Civil Rights

Law § 76-a and § 70-a. Sebert moved in Supreme Court for a ruling that the 2020

amendments to the anti-SLAPP statute apply to this action and for leave to assert a

counterclaim for attorney’s fees, damages for emotional distress, and punitive damages, as

permitted by the amended statute. That court agreed, holding that the amendments applied

retroactively to pending claims and granting Sebert leave to file a counterclaim. Gottwald

appealed that decision.

The Appellate Division, in two separate opinions, reversed on the application of

the anti-SLAPP statute, holding that the amendments were not retroactive and so did not

apply to this litigation, and affirmed Supreme Court’s holding that Gottwald was not a

public figure and that issues of fact precluded the grant of summary judgment on certain

defamatory statements (203 AD3d 488 [1st Dept 2022]; 193 AD3d 573 [1st Dept 2021]).

The respective panels granted Sebert leave to appeal, certifying in each case the question

of whether the orders were properly made. We answer each question in the negative.

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II.

We first consider whether Gottwald is a public figure such that he must prove the

allegedly defamatory statements were made with “actual malice” (see Huggins v Moore,

94 NY2d 296, 301 [1999]). If subject to that standard, Gottwald would be required to

prove by clear and convincing evidence that each statement was made “with either

knowledge that it was false or reckless disregard for the truth” (id.; see also New York

Times Co. v Sullivan, 376 US 254, 279-280 [1964]). This actual malice standard need not

apply to private figures (see Wolston v Reader’s Digest Ass’n, Inc., 443 US 157, 164

[1979]); rather, “the States may define for themselves the appropriate standard of liability”

for those individuals (Gertz v Robert Welch, Inc., 418 US 323, 347 [1974]). In New York,

the accepted standard for private figures is negligence (see Krauss v Globe Intl., 251 AD2d

191, 194 [1st Dept 1998]; see also Kesner v Buhl, 590 F Supp 3d 680, 692 [SD NY 2022]).

“The category of public figures is of necessity quite broad” (James v Gannett Co.,

40 NY2d 415, 422 [1976] [internal quotation marks and citation omitted]). At the same

time, public figure status “is a matter of degree” (id. at 423). Certain individuals may be

considered public figures for all purposes while others “may invite publicity only with

respect to a narrow area of interest” and may fairly be considered public figures only where

the alleged defamation relates to the publicity they sought (id.). One becomes such a

limited-purpose public figure through some “purposeful activity,” by which the individual

has “thrust” themself “into the public spotlight and sought a continuing public interest in

[their] activities” (id. at 423; see also Maule v NYM Corp., 54 NY2d 880 [1981]). In that

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case, an otherwise private individual may properly be considered “a public personality”

(id.; see Kipper v NYP Holdings Co., Inc., 12 NY3d 348, 353 n 3 [2009]). We agree with

the dissent below that Gottwald meets this standard and is a limited-purpose public figure

(193 AD3d at 587 [Scarpulla, J., dissenting] [Gottwald “purposefully and continuously

publicized and promoted his business relationships with young female artists, like (Sebert),

to continue to attract publicity for himself and new talent for his label”]).

By 2014, when Gottwald initiated this defamation action, he was, by his own

account, a celebrity—an acclaimed music producer who had achieved enormous success

in a high-profile career. As self-described in the complaint, he “has written the most

Number One songs of any songwriter ever” and “was named by Billboard as one of the top

ten producers of the decade in 2009.” Gottwald’s engagement with the media was

“obviously designed to project his name and personality” before a wide audience to

establish his reputation in this field (see Maule, 54 NY2d at 882). He purposefully sought

media attention for himself, his businesses, and for the artists he represented, including

Sebert, to advance those business interests (see James, 40 NY2d at 423). He had been

featured in various publications, as well as on radio and television, highlighting the nature

of his relationships with those artists and his development of their talent and careers. Sebert

alleged that, shortly after establishing a professional relationship as her producer, Gottwald

sexually assaulted her. Therefore, Gottwald is appropriately considered a limited-purpose

public figure, and as a result he must prove that Sebert’s allegedly defamatory statements

were made with actual malice.

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III.

Sebert identifies 25 allegedly defamatory statements that she contends cannot serve

as the basis for liability because they are protected by one or more of three privileges: the

litigation privilege, the pre-litigation privilege, and the statutory fair report privilege under

Civil Rights Law § 74. Supreme Court denied summary judgment on the privileged

statements, reasoning that “sharply disputed questions of fact going to the heart of the case

about whether Sebert’s California complaint was brought in good faith…or whether it was

a ‘sham’ intended to defame and pressure plaintiffs” require that the privilege issues be

decided by a jury (2020 NY Slip Op at *9-10). The Appellate Division agreed with

Supreme Court that issues of fact regarding whether the litigation was brought in good faith

precluded summary judgment on the application of any privilege. The court explained that

the jury could conclude that Sebert “commenced that action … to pressure Gottwald into

renegotiating her contracts or to release her from her contracts” and that there was record

support for Gottwald’s allegations that Sebert’s action was a sham (193 AD3d at 580). We

agree that questions of fact exist as to the application of the pre-litigation and fair report

privileges—those issues must go to a jury—but disagree as to application of the absolute

litigation privilege.

In general, “[a] privileged communication is one which, but for the occasion on

which it is uttered, would be defamatory and actionable” (Park Knoll Assoc. v Schmidt, 59

NY2d 205, 208 [1983]). “The privilege may be either absolute or conditional depending

on the occasion and the position or status of the speaker” (id. at 208-209). This Court has

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long held that “absolute immunity from liability for defamation exists for oral and written

statements made by attorneys in connection with a proceeding before a court ‘when such

words and writings are material and pertinent to the questions involved’ ” (Front, Inc. v

Khalil, 24 NY3d 713, 718 [2015], quoting Youmans v Smith, 153 NY 214, 219 [1897]).

The litigation privilege, being absolute, “confers immunity from liability regardless of

motive” (Park Knoll Assoc., 59 NY2d at 209).

In its analysis of the applicability of the absolute privilege, the Appellate Division

relied upon a line of cases holding that this privilege may be “lost if abused” in certain

circumstances (Halperin v Salvan, 117 AD2d 544, 548 [1st Dept 1986]), for example, if

the underlying action was brought with malice (see Lacher v Engel, 33 AD3d 10, 14 [1st

Dept 2006]). Accordingly, that Court held that the privilege “will not be conferred where

the underlying lawsuit was a sham action brought solely to defame the defendant” (193

AD3d at 580, quoting Flomenhaft v Finkelstein, 127 AD3d 634, 638 [1st Dept 2015];

Lacher, 33 AD3d at 10). This was error.

A “sham exception” is inconsistent with the absolute privilege recognized by this

Court for statements made in connection with judicial proceedings. It is well-established

that “[i]n questions falling within the absolute privilege the question of malice has no

place” (Moore v Manufacturers’ Natl. Bank of Troy, 78 Sickels 420, 426 [1890]). The five

statements Sebert claims are covered by the absolute litigation privilege relate to the

California complaint, the counterclaims in the New York action, and an affidavit in support

of her motion for a preliminary injunction. Each of these statements was made during the

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course of a judicial proceeding and each is “material and pertinent to the questions

involved” in the California and New York actions (Front, 24 NY3d at 718, citing Youmans,

153 NY at 219). Because these five statements fall squarely within the purview of the

absolute litigation privilege, they “ ‘cannot serve as the basis for the imposition of liability

in a defamation action’ ” (Rosenberg v MetLife, Inc., 8 NY3d 359, 365 [2007], quoting

Toker v Pollak, 44 NY2d 211, 218 [1978]).

Sebert asserts that two of the remaining statements are protected by a separate pre-

litigation privilege: a draft version of the California complaint sent by Sebert’s

representatives to the general counsel of Sony Music Entertainment (which owned one of

Gottwald’s companies that had a contract with Kesha) during settlement negotiations; and

an embargoed copy of the California complaint sent by Sebert’s representatives to a tabloid

news organization shortly before it was filed.

Generally, statements made in anticipation of good faith litigation are privileged,

given that “[c]ommunication during this pre-litigation phase should be encouraged and not

chilled by the possibility of being the basis for a defamation suit” (Front, 24 NY3d at 719).

In Front, however, we “recognize[d] that extending privileged status to communications

made prior to anticipated litigation has the potential to be abused” and that “applying an

absolute privilege to statements made during a phase prior to litigation would be

problematic and unnecessary to advance the goals of encouraging communication prior to

the commencement of litigation” (id.). The privilege is therefore qualified, meaning that

it may be “lost” only “where a defendant proves that the statements were not pertinent to a

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good faith anticipated litigation” (id. at 720). This is the “logical basis to distinguish”

(dissenting op at 18) between this qualified pre-litigation privilege and the absolute

litigation privilege.3 Here, as the courts below held, there is an issue of fact for the jury as

to whether the California suit was at this stage “good faith anticipated litigation.”

Sebert claims that 19 other statements fall under the protection offered by Civil

Rights Law § 74, known as the fair report privilege. These statements are that same

embargoed complaint as well as 18 additional statements including, among other things,

statements made by Sebert and her representatives regarding the rape allegations in a “Press

Plan” distributed to numerous media outlets, on a podcast, in television and magazine

interviews, in a press release, and on various social media outlets.

The statutory privilege applies to “the publication of a fair and true report of any

judicial proceeding” (Civil Rights Law § 74) where “the substance of the [statement is]

substantially accurate” (Holy Spirit Assn. for Unification of World Christianity v New York,

49 NY2d 63, 67 [1979]). This Court has excluded from the privilege’s coverage statements

made by those who “maliciously institute a judicial proceeding alleging false and

defamatory charges” (Williams v Williams, 23 NY2d 592, 599 [1969]).4 We disagree with

3 It is the good faith of the anticipated litigation that is determinative, not the audience (dissenting op at 17-19). Nor is it relevant that a statement was made “one day prior” to filing of the action (id. at 18) or that it contained the “contents” of a future complaint (id. at n 9): communications made in anticipation of litigation are, by definition, subject to the qualified “pre-litigation” privilege. 4 As we noted in Williams, this limitation on the privilege is not “intended to restrict in any manner the reporting of news stories and other reports which are made in the public

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the dissent’s view that Williams is limited to “the filing of a false complaint by a principal

of a company against a former principal who then sent a letter with a copy of the summons

and complaint to ‘interested parties engaged in the same trade’ ” (dissenting op at 21,

quoting Williams, 23 NY2d at 606 [Fuld, C.J., dissenting in part]). Rather, it is an

admittedly narrow qualification to the statutory privilege, applicable in this case, where

there is a question of fact as to whether the litigation in California and counterclaims in

New York were brought by Sebert in good faith or maliciously to defame Gottwald and

pressure plaintiffs to release her from her contracts. Regarding the 19 statements

purportedly covered by the statutory privilege, that is a question appropriately left for the

jury.

IV.

Finally, we address whether the 2020 amendments to the anti-SLAPP statute apply

to this litigation. As enacted in 1992, the anti-SLAPP statute was “designed to protect

citizens who participate in public affairs,” namely those relating to applications requiring

government approval, against retaliatory lawsuits (Sponsor’s Mem, Bill Jacket, L 1992, ch

767]). As relevant here, former Civil Rights Law § 76-a (1) (a) provided:

“An ‘action involving public petition and participation’ is an action, claim, cross claim or counterclaim for damages that is brought by a public applicant or permittee, and is materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission.”

interest” (21 NY2d at 599). Rather, it applies only to those who are shown to have “maliciously institute[ed]” a proceeding (id.).

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The statute defined “an action involving public petition and participation” narrowly to

include only claims “brought by a public applicant or permittee,” further defined as “any

person who has applied for or obtained a permit, zoning change, lease, license, certificate

or other entitlement for use or permission to act from any government body, or any person

with an interest, connection or affiliation with such person that is materially related to such

application or permission” (Civil Rights Law former § 76-a [1] [a], [b] [1992]). Claims

covered by the statute require proof of actual malice by clear and convincing evidence

(Civil Rights Law former § 76-a [2]). Defendants in a SLAPP suit were entitled to a

counterclaim and, if successful, could potentially recover costs, attorney’s fees, and

damages (Civil Rights Law former § 70-a [1] [a], [b], [c] [1992]).

The legislature enacted the 2020 amendments to “extend the protection” of the 1992

statute to a broader class of individuals (Senate Introducer’s Mem in Support, Bill Jacket,

L 2020, ch 250]). Those amendments substantially expanded the definition of “an action

involving public petition and participation” to include “a claim based upon: (1) any

communication in a place open to the public or a public forum in connection with an issue

of public interest; or (2) any other lawful conduct in furtherance of the exercise of the

constitutional right of free speech in connection with an issue of public interest, or in

furtherance of the exercise of the constitutional right of petition” (Civil Rights Law § 76-a

[1] [a] [1], [2] [2020]). The term “ ‘[p]ublic interest’ shall be construed broadly, and shall

mean any subject other than a purely private matter” (Civil Rights Law § 76-a [1] [d]).

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The amendments altered the remedy offered by Section 70-a for defendants falling

within the purview of the amended Section 76-a. That section empowers defendants to

“maintain an action, claim, cross claim or counterclaim to recover damages, including costs

and attorney’s fees, from any person who commenced or continued such action” (Civil

Rights Law § 70-a [1]). The award of costs and attorney’s fees to defendants was made

mandatory rather than a matter of discretion (Civil Rights Law § 70-a [1] [a]). Sections

providing for the discretionary award of compensatory and punitive damages were not

amended but have far broader application given the expanded scope of the relevant

definitions (Civil Rights Law § 70-a [1] [b] and [c] [emphasis added]).

Sebert asserts that the broadened definition of public petition and participation in

Section 76-a applies to this action and establishes the governing standard for liability.

However, because we now hold that Gottwald is a limited public figure who must prove

by clear and convincing evidence that the allegedly defamatory statements were made with

actual malice, we do not address whether the provision of the amended statute (Civil Rights

Law § 76-a [2]) imposing that standard applies to actions pending at the time of its

enactment.

Sebert further contends that she may now assert a counterclaim for damages and

attorney’s fees under Section 70-a. After conducting a retroactivity analysis, Supreme

Court agreed and granted Sebert leave to amend her answer to assert a Section 70-a

counterclaim, holding that the 2020 amendments should “apply to pending cases” because

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of the legislation’s “important purpose” in amending the statute and that application to

pending cases would not violate Gottwald’s due process rights.

The Appellate Division reversed, holding that “there is insufficient evidence

supporting the conclusion that the legislature intended” the amendments “to apply

retroactively to pending claims” (203 AD3d at 488). The Court determined that “the

presumption of prospective application” had not been overcome given that “[t]he

legislature did not specify that the new legislation was to be applied retroactively” and that

“[t]he legislature acted to broaden the scope of the law almost 30 years after the law was

originally enacted, purportedly to advance an underlying remedial purpose that was not

adequately addressed in the original legislative language” (id. at 489). Because the court

held that the amendments did not apply to actions pending at the time the amendments

were enacted, it denied Sebert’s motion for leave to assert a counterclaim pursuant to

Section 70-a.

“[R]etroactive operation is not favored by the courts and statutes will not be given

such construction unless the language expressly or by necessary implication requires it”

(Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 584 [1998]). This

approach reflects a “deeply rooted presumption against retroactivity . . . based on

elementary considerations of fairness” (Regina Metropolitan Co., LLC v New York State,

35 NY3d 332, 370 [2020] [internal citations, quotation marks, and alterations omitted]).

But “[a] statute does not operate ‘retrospectively’ merely because it is applied in a case

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arising from conduct antedating the statute’s enactment” (Landgraf v USI Film Products,

511 US 244, 269 [1994]).

Here, the legislature did not “expressly prescribe[] the statute’s proper reach” and

therefore we must apply the “judicial default rules” in assessing retroactivity (id. at 280).

Pursuant to these rules, we look to the text of the statute to determine whether it was

intended to have retroactive effect (id.). The language chosen here makes clear that the

intended application is prospective. A counterclaim may be maintained against any person

who “commenced or continued” an action involving public participation (Civil Rights Law

§ 70-a [1]; see Civil Rights Law § 76-a). Similar language is found in the provision

providing for costs and attorney’s fees, where the action was “commenced or continued

without a substantial basis in fact and law and could not be supported by a substantial

argument for the extension, modification or reversal of existing law” (Civil Rights Law §

70-a [1] [a]). “[O]ther compensatory damages” and punitive damages are recoverable

“upon an additional demonstration” that the action was “commenced or continued for the

purpose [or, with respect to punitive damages, for the “sole purpose”] of harassing,

intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech,

petition or association rights” (Civil Rights Law § 70-a [1] [b], [c]). There is no retroactive

effect when these provisions are applied, according to their terms, to the continuation of

the action beyond the effective date of the amendments. To the extent that Sebert’s

statements constitute public petition and participation, and should a factfinder determine

that she meets the other relevant statutory conditions, Gottwald’s continuation of his suit

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beyond the effective date of the amendments entitles Sebert to recover damages. Because

Gottwald’s liability attached, if at all, when he chose to continue the defamation suit after

the effective date of the statute, any potential calculation of attorney’s fees or other

damages begins at the statute’s effective date (see Landgraf, 511 US at 281-283; see also

id. at 275 n 29).

Sebert, and our dissenting colleague (see dissenting op at 5-13), would find

legislative intent to calculate fees and damages from the commencement, rather than the

continuation, of the suit. But “it takes a clear expression of the legislative purpose . . . to

justify retroactive application of a statute” (Regina, 35 NY3d at 370 [internal citations,

quotation marks, and alterations omitted]). Here, we do not find anything approaching the

required expression of clear legislative intent. While the statute directs that it “shall take

effect immediately,” we have previously held that, for purposes of determining retroactive

application, “the meaning of [that] phrase is equivocal” and is not “enough to require

application to pending litigation” (Becker v Huss Co., 43 NY2d 527, 541 [1978]; see also

Majewski, 91 NY2d at 583; Landgraf, 511 US at 257). Nor is there anything in the

amended statute requiring retroactive application “by necessary implication.” As to the

dissent’s suggestion that the statute is “remedial,” a statute imposing damages is not “the

sort of ‘remedial’ change that should presumptively apply in pending cases” (Landgraf,

511 US at 285 n 37; see Regina, 35 NY2d at 365).

Sebert argues that the fact that express language providing that the statute “shall

apply to actions commenced on or after” the statute’s effective date was removed during

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the drafting process clearly indicates the legislature’s intent that the amendments apply

retroactively. This is not the effect of that change. Had that language been included,

application to pending litigation—whether retroactive or not—would have been barred by

the express terms of the statute. Instead, as enacted, the amendments apply to pending

cases insofar as they have been continued after the effective date. The dissent’s reliance

on this history to support a finding of retroactive intent is misplaced (dissenting op at 9).

In Majewski, evidence that removal in the drafting process of a provision that the statute

would apply to “lawsuits that have neither been settled nor reduced to judgment” could,

we noted, be considered “evidence consistent with the strong presumption of prospective

application” (91 NY2d at 587). It is not evidence sufficient to overcome that strong

presumption.

Moreover, this is not a case where the legislative history indicates that “the purpose

of the new legislation is to clarify what the law was always meant to say and do” (id. at

585) or to “correct” an overly “narrow” interpretation by the courts (dissenting op at 7).

Rather, the legislature intended the amendments to greatly expand the limited coverage

offered by the original anti-SLAPP statute (see Landgraf, 511 US at 252-253 [amendment

“significantly expand[ed] the monetary relief potentially available” under prior law]).

Accordingly, the strong presumption against retroactive legislation has not been overcome

with respect to the amendments to the anti-SLAPP statute.

Application of the amendments to Gottwald’s post-effective date continuation of

the action does not “upset[] reliance interests” or “trigger[] fundamental concerns about

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fairness” (Regina, 35 NY3d at 365). Although the “[r]etroactive imposition of punitive

damages” raises constitutional concerns, those concerns become relevant only if the statute

“explicitly authorized damages for preenactment conduct” (Landgraf, 511 US at 281).

Similarly, the imposition of compensatory damages is problematic only if it penalizes

conduct predating the statute (id. at 281-282). Our interpretation of the application of the

fees and damages provisions does not implicate these concerns (see id. at 267 n 21 [“In

some cases . . . the interest in avoiding the adjudication of constitutional questions will

counsel against a retroactive application”]).5 As applied here, Sebert may assert a

counterclaim under Civil Rights Law § 70-a and, if successful, recover costs, attorney’s

fees, and damages based on Gottwald’s continuation of this action following the

amendment’s effective date.

* * *

Accordingly, in Gottwald v Sebert I, the order of the Appellate Division should be

reversed, with costs, Sebert’s motion to amend her answer to assert a counterclaim pursuant

to Civil Rights Law § 70-a granted, and the certified question answered in the negative. In

Gottwald v Sebert II, the order of the Appellate Division should be modified, without costs,

in accordance with this opinion, as so modified affirmed, and the certified question

answered in the negative.

5 It is unclear whether the dissent would authorize such constitutionally suspect punitive damages for pre-enactment conduct (see dissenting op at 12-13 and n 6).

- 18 - RIVERA, J. (dissenting in part):

The underlying litigation presents two counter-narratives. In one, a popular singer

alleges she was raped and then exploited for years by a successful music producer who

refused to free her from her lucrative recording and publication contracts. In the other, the

music producer claims the singer defamed him and his companies with false claims of

sexual abuse and harassment when he did not agree to more favorable business terms.

These are familiar counter-narratives reflecting the power dynamic between a powerful

mentor and an up-and-coming mentee, but they have taken on a new resonance in an era

of increased public awareness of sexual abuse at the workplace. Assuming the parties do

not settle, a jury eventually must decide which version to believe and to what extent. Our

task here is to decide what legal standards govern the parties’ respective claims.

I agree with several of the majority’s conclusions but my analysis differs in certain

important respects. First, I agree that respondents must establish malice to succeed on their

defamation claims. For all but one claim, this is their statutory burden of proof under New

York’s Civil Rights Law—specifically the amended anti-SLAPP law—and, as the majority

correctly holds, malice is also the standard applied to all the claims under established

principles of defamation law. I also agree that the anti-SLAPP law’s remedies apply to this

pending action, but not as temporally limited by the majority. Lastly, I agree the alleged

defamatory statements in a previously-filed complaint are privileged, but I cannot agree

that there are outstanding factual issues regarding the remaining challenged statements.

Based on our precedent and the intended purpose of the privileges asserted, I would hold

that the pre-litigation privilege applies to an embargoed draft of the complaint sent to

counsel for settlement purposes and to a tabloid the day before filing. Further, the statutory

fair report privilege applies to all but two of the allegedly defamatory statements to the

media.

Respondents are Lukasz Gottwald, known professionally as “Dr. Luke,” and his two

affiliated companies. The moniker identifies him as the music producer of several pop hits

which have made him both a well-known and well-fixed personality—and not just within

the music industry. For years he has actively promoted his success in the media, having

appeared on a major television network and having been the subject of major stories in

print and digital publications with extensive readership.1 By any account, his public

relations agents have done a masterful job.

Appellant Kesha Rose Sebert is the singer “Kesha,” who has several number one

hits to her credit. Dr. Luke was instrumental to Kesha’s career, 2 developing an interest in

her when she was 18 years old after a colleague gave him a CD recording of Kesha singing.

Shortly thereafter, Dr. Luke and Kesha signed a six-album record deal and Kesha relocated

to Los Angeles. The two collaborated on Kesha’s first album, which sold over two million

copies and catapulted her to worldwide fame. Her follow-up extended play (EP) and second

album enjoyed similar commercial success.

Respondents filed a defamation action against Kesha in New York state court based

on claims associated with a California lawsuit she filed earlier that day against Dr. Luke,

wherein she alleged that he drugged and raped her after a 2005 Hollywood party and

verbally and emotionally abused her throughout their working relationship. Kesha sought

1 Dr. Luke was profiled in The New Yorker, which boasts a paid circulation of over 1.2 million, and New York Magazine, which has a readership of over 150,000 (Alliance for Audited Media, Magazine Media – Snapshot Report [Dec. 31, 2022], available at https://abcas3.auditedmedia.com/ecirc/magtitlesearch.asp [accessed May 8, 2023]). 2 I refer to both parties by the professional names for which they are famously known. -3- -4- Nos. 32 & 33

rescission of her contracts and various damages. In respondents’ defamation action, Kesha

asserted counterclaims of sexual assault and battery, sexual harassment, bias-related

violence under New York Civil Rights Law § 79-n, gender-motivated violence under New

York City Administrative Code § 8-904, and intentional infliction of emotional distress. In

support, Kesha contends that respondents’ defamation suit is subject to New York’s current

anti-SLAPP law and thus requires that they show her statements were made with malicious

intent, and that regardless, the same malice standard applies because Dr. Luke is a public

figure. She further claims she may seek compensatory and punitive damages, attorney’s

fees and costs as provided under the law should she succeed on her counterclaims.

Respondents counter that the law was amended in 2020 during the pendency of this

defamation action and may not be applied retroactively to their claims, meaning that they

need only show negligence and Kesha’s statutory counterclaims may not proceed.

For the reasons I discuss, the amended anti-SLAPP law applies to this pending

action, and for the one claim outside the statute, respondents must establish malice because

as a matter of common law Dr. Luke is a public figure for the limited purpose of this

litigation.

Generally, a court must apply “the law in effect at the time it renders its decision,

unless doing so would result in manifest injustice or there is statutory direction or

legislative history to the contrary” (Bradley v School Bd. of City of Richmond, 416 US 696,

711 [1974]; see also Thorpe v Hous. Auth. of City of Durham, 393 US 268 [1969]). Express

language as to the operative effect of a statute is unnecessary absent these identified

limiting grounds. Indeed, “[e]ven absent specific legislative authorization, application of

new statutes passed after the events in suit is unquestionably proper in many situations”

(Landgraf v USI Film Products, 511 US 244, 273 [1994]). Prospective application is only

mandated where newly enacted statutory language would have the retroactive effect of

impairing substantive rights and due process guarantees (see id. at 278-280). Here, the

Legislature intended the amended anti-SLAPP law to apply to this pending litigation and

doing so would not impair respondents’ substantive rights or otherwise be unfair.

A.

New York, like most states, has enacted an anti-SLAPP law—short for anti-

Strategic Lawsuits Against Public Participation—to protect defendants against lawsuits

based on protected speech.3 New York first enacted its version in 1992 and amended it in

2020. The relevant amendments clarified that the statute covered speech in connection

“with an issue of public interest” and required that plaintiffs establish a defendant’s malice

in actions involving such speech (Civil Rights Law § 76-a), and recognized a defendant’s

claim for damages, attorney’s fees and costs against a person instituting such action (id. §

70-a).

3 32 other states have an anti-SLAPP law, approximately 20 of which are comparably broad to New York’s version (see Updates to the Anti-SLAPP Report Card, Institute for Free Speech [May 18, 2022], available at https://www.ifs.org/blog/updates-to-the-anti-slapp- report-card/ [accessed June 5, 2023]). -5- -6- Nos. 32 & 33

The amendments are remedial, and the Legislature specifically intended them to

enhance protections for defendants and thereby minimize litigation that chills free speech

(see Asman v Ambach, 64 NY2d 989, 991 [1985] [“amendments are to be viewed as

remedial” where they are “designed to correct imperfections in the prior law, by giving

relief to an aggrieved party”] [cleaned up]; see also Assembly Sponsor’s Mem, Bill Jacket,

L 2020, ch 250 [explaining that the amendments will better protect SLAPP-suit defendants

from the “threat of personal damages and litigation costs” associated with abusive

litigation]). We must assume that the Legislature was aware of the well-established rule

that remedial legislation applies to pending litigation “to effectuate its beneficial purpose”

(Matter of Gleason [Michael Vee, Ltd.], 96 NY2d 117, 122 [2001]).4

4 The majority is correct that a footnote in Landgraf acknowledged that the general presumption that remedial statutes should apply to pending cases might not apply to statutes “introducing damages liability” (511 US at 285 n 37; see majority op at 16). However, the footnote did not foreclose the application of newly modified remedies to pending cases. The Court quoted Hastings v Earth Satellite Corp. (628 F2d 85, 93 [DC Cir 1980]) for the proposition that “ ‘[r]etroactive modification’ of damages remedies may ‘normally harbo[r] much less potential for mischief than retroactive changes in the principles of liability . . . but that potential is nevertheless still significant” (id.). Here, the amendments do not introduce a new remedy for past conduct, but simply modify an existing remedy, and the only question is whether that modification as applied to respondents’ pending action works an unfairness and upsets prior expectations. In that vein, the Supreme Court’s reference to Hastings is particularly apt. Hastings recognized the distinction between remedies and principles of liability with respect to the retroactive application of both, noting that, unlike “retroactive creation of legal responsibilities or abolition of legal rights [which] risks unfairness because the retroactive change confounds the expectations upon which persons acted,” “[r]etroactive modifications in remedy [] do not involve the same degree of unfairness. Such modifications do not transform a legal act into an illegal act[]. Modification of remedy merely adjusts the extent, or method of enforcement, of liability in instances in which the possibility of liability previously was known” (628 F2d at 93). That is precisely the effect of section 70-a, which adjusts the extent of liability already known to any plaintiff who files a frivolous lawsuit. Accordingly, the “mischief” referenced in the Landgraf footnote is not present here. Inasmuch as the -6- -7- Nos. 32 & 33

As the legislative history establishes, and contrary to the majority’s assertion (see

majority op at 17), the amendments were intended to correct the prior anti-SLAPP regime

which courts had interpreted too narrowly to adequately protect defendants and our state’s

interest in free public discourse on issues of public concern.

The Senate Sponsor’s Memorandum states:

“Section 76-a of the Civil Rights Law was originally enacted by the Legislature to provide ‘the utmost protection for the free exercise[,] speech, petition, and association rights, particularly where such rights are exercised in a public forum with respect to issues of public concern.’ L. 1992 Ch. 767. However, as drafted, and as narrowly interpreted by the courts, the application of Section 76-a has failed to accomplish that objective. In practice, the current statute has been strictly limited to cases initiated by persons or business entities that are embroiled in controversies over a public application or permit, usually in a real estate development situation. Meanwhile, many frivolous lawsuits are filed each year that are calculated solely to silence free speech and public participation, which do not specifically arise in the context of the public ‘permit’ process. By revising the definition of an ‘action involving public petition and participation,’ this amendment to Section 76-a will better advance the purposes that the Legislature originally identified in enacting New York’s anti-SLAPP law. This is done by broadly widening the ambit of the law to include matters of ‘public interest’, which is to be broadly construed, e.g. anything other than a ‘purely private matter’.

Additionally, the principal remedy currently provided to victims of SLAPP suits in New York is almost never actually imposed. The courts have failed to use their discretionary power to award costs and attorney’s fees to a defendant found

majority suggests that Regina’s parenthetical citation to that footnote is relevant to this analysis (35 NY2d at 365), Regina should not be understood to overrule our longstanding presumption applying remedial statutes to pending cases (see Palin v New York Times Co., 510 F Supp 3d 21, 28 [SD NY 2020] [“Nothing in Regina suggests that it is overturning the general rule that remedial legislation . . . is presumed to have retroactive effect”]).

to have been victimized by a frivolous lawsuit intended only to chill free speech. By an award of costs and fees, the Legislature had originally intended to address ‘threat of personal damages and litigation costs . . . as a means of harassing, intimidating, or punishing individuals, unincorporated associations, not-for- profit corporations and others who have involved themselves in public affairs.’ L. 1992 Ch. 767. This amendment to Section 70-A of the Civil Rights Law makes clear that a court ‘shall’ impose an award of costs and fees, but only if the court [finds] [sic] that the case has been initiated or pursued in bad faith. Together, the two amendments will protect citizens against the threat – and financial reality – of abusive litigation, but will not discourage meritorious litigation.

Further, a mandatory award of attorney’s fees is necessary to discourage SLAPP lawsuits – which attempt to chill free speech by definition – from being instituted” (Senate Sponsor’s Mem, Bill Jacket, L 2020, ch 250).

Likewise, the Assembly Sponsor explained to the Governor that “[i]n recent years,

we have seen a growth—in New York and nationwide—in these types of [SLAPP] suits,

which are brought with one goal in mind: to stifle the free expression of ideas and/or

criticism” (Assembly Sponsor’s Letter to the Governor, L 2020, ch 250). She explained

that because the prior version of the law “has proven inadequate to stem the rising tide [of

such suits],” the new bill “updates and modernizes [the statute] by expanding the breadth

of the law and also putting teeth into it” (id.). Clearly, the drafters of the amendments

recognized that the 1992 statute left individuals exposed to abusive litigation and deprived

of financial recourse, and thus considered it important to ensure robust remedies. It would

be nonsensical to assert that the Legislature intended to deny current SLAPP-suit victims

the benefit of the amended statute simply because they began defending a defamation

action before the amendments were enacted. To the contrary, the legislative history reveals

the very fact of those existing lawsuits was the impetus for the amendments.

Moreover, the Legislature instructed that the amendments “shall take effect

immediately” (L 2020, ch 250 § 4). Although the majority is correct that such language

alone does not require application to pending cases (majority op at 16), there is more. Given

the legislative history, and the sense of urgency that animated legislative action against

increased SLAPP litigation, the choice not to delay the amendments’ effective date further

supports the legislative desire that the law apply to all pending matters.

The drafting history confirms this intent. An earlier draft of the amendments

included express language stating that the statute “shall apply to actions commenced on or

after” the statute’s effective date. The Rent Stabilization Association, a trade organization

with an interest in the anti-SLAPP law, took note of the removal of the language and wrote

to the Governor, requesting that the original prospectivity language be restored. The phrase

was not reinserted in the final version of the bill the Governor signed into law, making it

apparent that the Legislature and the Executive made a concerted decision—over

objections of an interested party—to excise any language limiting the law’s application to

future cases.

The Court has previously found such action indicative of legislative intent. In

Majewski v Broadalbin-Perth Cent. School Dist., the Court examined certain amendments

to the Workers’ Compensation Law which, in an earlier draft, “expressly provided that it

would apply to lawsuits that have neither been settled nor reduced to judgment by the date

of its enactment” (91 NY2d 577, 587 [1998] [internal quotation marks omitted]). Like here,

that proposed language “d[id] not appear in the enacted version” (id.). Reciting the

principle that a “court may examine changes made in proposed legislation to determine

intent,” the Court held that the deletion of the language in Majewski was consistent with

the intent that the statute apply only prospectively (id.). Applying that same principle here,

the Legislature’s consideration and rejection of the prospective-only language shows that

it intended the amended statute to apply to pending claims. Indeed, contrary to the

majority’s misguided view, removal of prospective-only language that was criticized

because it would prohibit the application of the statute to pending litigation is as close to

express intent as it gets without the actual words.

B.

Respondents’ contention that application of the amendments to this litigation will

have a constitutionally impermissible retroactive effect is mistaken. Applying the amended

anti-SLAPP statute to this litigation as of the day of its commencement does not impact

respondents’ substantive rights and therefore presents no unfairness.5 First, the

5 Other New York courts—state and federal—have likewise applied the amendments to lawsuits pending at the time of enactment (see e.g. Palin, 510 F Supp 3d at 28 [holding that the amendments are remedial and that defamation plaintiff “was never entitled to recover monetary damages absent a showing of malice”]; Reus v ETC Hous. Corp., 72 Misc 3d 479 [Sup Ct, Clinton County 2021], affd 203 AD3d 1281 [3d Dept 2022]; Coleman v Grand, 523 F Supp 3d 244 [ED NY 2021]; Sackler v Am. Broadcasting Cos., 71 Misc 3d 693 [Sup Ct, New York County 2021]; Veritas v New York Times Co., 2021 WL 2395290 [Sup Ct, Westchester County 2021]; Kurland & Assocs., P.C. v Glassdoor, Inc., 2021 WL 1135187 [Sup Ct, New York County 2021]; Sweigert v Goodman, 2021 WL 1578097 [SD NY 2021]; Reilly v Crane Tech Solutions, LLC, 2021 WL 2580281 [Sup Ct, New York County 2021]; Cisneros v Cook, 2021 WL 2889924 [Sup Ct, New York County 2021]; Griffith v Daily Beast, 2021 WL 2940950 [Sup Ct, New York County 2021]; Goldman v. - 10 - - 11 - Nos. 32 & 33

amendments do not foreclose respondents’ defamation claims. For example, the

amendments did not abolish a pre-existing cause of action for defamation or otherwise

eliminate a basis for respondents’ recovery against Kesha, but simply modified

respondents’ burden of proof. Litigants have no “vested interest in any rule of law entitling

[them] to have the rule remain unaltered” (Preston Co. v Funkhouser, 261 NY 140, 144

[1933]), and certainly there is no constitutionally protected interest in the application of a

common evidentiary standard of fault that governs certain defamation actions to

respondents’ claims. Second, even if the statutory burden of proof did not apply, as the

majority holds, respondents’ claims are nevertheless subject to the same requirement that

they establish malice under general defamation law principles. Respondents have

understood all along that they might be subject to that standard. Indeed, they alleged in the

initial complaint and in each of the three amended complaints that Kesha acted with malice.

Respondents also were well aware when they commenced this litigation that in order to

avoid application of the malice standard they would have to argue that despite Dr. Luke’s

notoriety, he is not a public figure, even for limited purposes. And they did so argue,

repeatedly, advocating that point in the Appellate Division and before us. Respondents

cannot belatedly claim that it would be unfair to apply a standard which they have argued

in the alternative is both satisfied here and does not apply to them under existing case law.

Third, respondents cannot point to any conduct Dr. Luke would have changed based on the

Reddington, 2021 WL 4099462 [ED NY 2021]; Great Wall Medical P.C. v Levine, 2022 WL 869725 [Sup Ct, New York County 2022]; Kesner v Buhl, 590 F Supp 3d 680 [SD NY 2022]). - 11 - - 12 - Nos. 32 & 33

amendments if they had been in effect at the time of the alleged abuse. Retroactive effect

impacts actions that underlie litigation, not litigation conduct itself.

In the same vein, the financial relief available under section 70-a applies here and

should be measured from the moment respondents filed their complaint. As the majority

notes, this section applies to actions continued after the effective date of the amended

language (majority op at 15).6 When respondents chose to continue the litigation, they

could not reasonably expect that the amended provision would not apply. As to any

additional relief measured from the date of commencement, any party who files a

completely baseless action or who files an action solely to harass risks financial penalties.

For example, a court may, in its discretion, award any party or attorney the costs and

attorney’s fees resulting from frivolous litigation, and a court may also impose financial

sanctions upon a party engaging in frivolous conduct, including conduct meant to harass

(22 NYCRR 130-1.1; see e.g. Maroulis v 64th Street Third Ave. Assoc., 77 NY2d 831, 833

[1991] [“frivolous and meritless motion practice” amounted to “abuse of the judicial

process (which) supports the imposition of (monetary) sanctions”]; see also CPLR 3126

6 The majority’s prospective-only construction of the “commenced or continued” language in section 70-a (1) of the amended statute is an overly narrow construction of that phrase. The fact that any action continued at the time of the effective date of the amendments falls within the scope of the statute means just that; it does not necessarily or by implication mean that monetary relief is measured from the effective date. Despite the majority’s effort to complicate straightforward language, the meaning and effect of the word “commenced” in the phrase “commenced or continued” tracks to the person who commenced the prohibited legal action. Additionally, the majority’s interpretation is “at odds with the remedial nature” of the amendments (Matter of Marino S., 100 NY2d 361, 373 [2003]), which were intended to correct the former statute’s overly narrow definition of “public petition” and to better protect victims of SLAPP lawsuits (see discussion of legislative history, supra at 6-8). - 12 - - 13 - Nos. 32 & 33

[authorizing a court to impose monetary sanctions for a party’s refusal to obey an order for

disclosure]). Sanctions are a common and expected consequence for misuses of judicial

process which financially injure the opposing party and “divert[] unnecessarily” “the time

and attention of [the] Judges of this State” (Minister, Elder & Deacons of Refm. Prot. Dutch

Church of NY v 198 Broadway, 76 NY2d 411, 415 [1990]; cf. Engel v CBS, Inc., 93 NY2d

195, 207 [1999] [lawsuits brought for an improper purpose “not only waste precious

judicial resources, but are also anathema to the justice system itself”]).

Respondents’ reliance on Regina Metro. Co., LLC v New York State Div. of Hous.

and Community Renewal (35 NY3d 332 [2020]) is misplaced. There, the Court restated the

rule that “[a] statute has retroactive effect if ‘it would impair rights a party possessed when

[they] acted, increase a party's liability for past conduct, or impose new duties with respect

to transactions already completed,’ thus impacting ‘substantive’ rights (id. at 365, citing

Landgraf, 511 US at 278-280). But, as I discuss, no such rights are impacted here and

respondents have no identifiable reliance interests in the pre-amendment law. Thus,

application of the amendments to the pending litigation does not produce a retroactive

effect.

There is one claim not within the scope of the anti-SLAPP law and therefore

respondents’ burden of proof is assessed under established defamation law principles. A

plaintiff in a defamation action typically “must show: (1) a false statement that is (2)

published to a third party (3) without privilege or authorization, and that (4) causes harm,

unless the statement is one of the types of publications actionable regardless of harm”

(Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]). However, a plaintiff

who is a public official or public figure “must prove the statement was made with actual

malice, i.e., with either knowledge that it was false or reckless disregard for the truth”

(Huggins v Moore, 94 NY2d 296, 301 [1999] [internal quotation marks omitted]). “In some

instances an individual may achieve such pervasive fame or notoriety that [they] become[

] a public figure for all purposes and in all contexts” (Gertz v Robert Welch, Inc., 418 US

323, 351 [1974]). By contrast, a “limited purpose” public figure is “an individual [who]

voluntarily injects [themselves] or is drawn into a particular public controversy and thereby

becomes a public figure for a limited range of issues” (id.).

Respondents unpersuasively assert that Dr. Luke is not a public figure. Dr. Luke is

at the top of his profession and has cultivated a notorious public persona. He has actively

sought and gained media attention, rising above lesser-known figures in the music industry.

His bankable success is based primarily on producing pop hits with young female artists

like Kesha. Therefore, I agree with the majority that he is a limited public figure, as we

have defined that term (majority op at 5-6).7

Although the court unanimously rejects respondents’ contentions, it is important to

clarify that respondents’ proposed definition for a limited purpose public figure has no

place in our law. They assert that if an individual lacks the pervasive fame required to

establish that they are a public figure for all purposes, then any lesser level of fame is

7 As a consequence, we need not consider whether Dr. Luke is a general public figure for all purposes. - 14 - - 15 - Nos. 32 & 33

irrelevant. Under that proposed standard, a public figure for limited purposes must

comment on the specific topic that is the basis for the alleged defamatory statement—here,

the sexual assault of young female artists in the pop industry by those with power to affect

their careers. That is too narrow a view of limited-purpose public figures, and it is contrary

to our precedent. It also conveniently ignores the nature of Kesha’s claims that she was the

target of sexual abuse made possible by a power structure wherein artists—particularly

women and other marginalized individuals—are treated as prey by those with power to

make or break their careers. What person alleged to have sexually assaulted an artist would

comment publicly on the value of such conduct? What individual with the power that

Kesha alleges Dr. Luke exercises over his female clients would publicly acknowledge the

alleged abusive nature of the relationship?

It is only after the #MeToo movement that sexual harassment and abuse became the

topic of a global public platform (see Cole v Cole, 35 NY3d 1012, 1015 [2020] [Rivera, J.,

dissenting] [“Recently, in an impressive demonstration of organizing, the Me Too

Movement has effectively used social media to call for change and engage survivors of

sexual violence at unprecedented levels”]). Through the public commons of social media,

the movement shone a light on the prevalence of sexual abuse in society generally, but also

particularly within the entertainment industry. To adopt the narrow standard advocated by

respondents would be to insulate powerful individuals in any given industry who are all

but guaranteed never to comment publicly on the abusive power dynamics from which they

benefit.

Under our public figure doctrine as correctly applied by the majority, Dr. Luke is a

public figure in his professional capacity for the limited purpose of this litigation (majority

op at 6).8 Accordingly, to succeed on their remaining defamation claim, respondents must

prove that Kesha acted with actual malice.

Turning to the litigation-related privileges asserted by Kesha, I agree that there is

no “sham exception” to the absolute privilege for statements made in judicial proceedings

(majority op at 8-9). Therefore, as the majority concludes, the statements relating to

Kesha’s California complaint, along with her counterclaims and assertions in the instant

action, are absolutely privileged (id. at 9). However, I disagree with the majority that all of

the statements for which Kesha asserted the pre-litigation and fair report privileges must

8 The majority below determined that Dr. Luke was not a public figure based on the conclusion that he had not achieved the status of a “household name” (Gottwald v Sebert, 193 AD3d 573 [1st Dept 2021]). That standard has its genesis in a line of First Department cases holding that the class of all-purpose public figures “generally consists of people who have achieved enough prominence in society that their names are tantamount to household words,” as well as “political figures” (see e.g. Farrakhan v N.Y.P. Holdings, Inc., 168 Misc2d 536, 539 [Sup Ct, New York County 1995], affd 238 AD2d 197 [1st Dept 1997], lv denied 91 NY2d 803 [1997]; Krauss v Globe Intl., Inc., 1996 WL 780550, *3 [Sup Ct, New York County 1996], affd as mod 251 AD2d 191 [1st Dept 1998]). But the First Department has not addressed the normative basis for determining whether an individual has achieved public figure status. Which and how many households count in making that determination? Perhaps the focus is on households with consumers of pop music and those who work in this industry. That appears to be the approach of the dissent below when it concluded that Dr. Luke “is a household name to those that matter” (193 AD3d at 584). Notwithstanding the divided Appellate Division, we have no occasion here to consider the propriety of that standard as Dr. Luke is a public figure under our established case law. - 16 - - 17 - Nos. 32 & 33

go to a jury to determine whether she brought the underlying claims in good faith. With

two exceptions, those statements are privileged as a matter of law.

First, the draft complaint in the California litigation was sent to Sony’s general

counsel—at her request—in order to facilitate a settlement. This is common practice and

furthers the goal of avoiding litigation by fostering resolution without judicial intervention,

which is precisely the purpose we identified in support of the privilege in Front, Inc. v

Khalil Enterprises (24 NY3d 713 [2015]). Front held that pre-litigation communication

“should be encouraged and not chilled by the possibility of being the basis for a defamation

suit” because parties must be able to speak freely during settlement negotiations in order

“to reduce or avoid the need to actually commence litigation” (id. at 719). Only where

attorneys “are seeking to bully, harass, or intimidate their client’s adversaries by

threatening baseless litigation or by asserting wholly unmeritorious claims” is the privilege

destroyed (id. at 720). In this case, the parties had been engaged in settlement negotiations

for several months. Both parties clearly anticipated litigation, as evidenced by their

separate filings on the same day. Kesha’s attorney averred that he shared the draft

California complaint at opposing counsel’s behest, and that when the attorneys met to

review the complaint, Kesha’s lawyer stated that filing was imminent but that they were

eager to resolve it and willing to give it another try. Hence, the parties were engaged in

routine, good faith efforts to resolve the case—exactly what the pre-litigation privilege was

intended to cover. There is simply no record evidence that either attorney sought to “bully,

harass, or intimidate” the other by the mere fact of sharing the draft complaint before filing.

The fact that they were ultimately unable to reach an agreement does not make the

statements asserted therein any less privileged. Otherwise, there would be nothing left to

the privilege as negotiating parties would rightly be unwilling to share drafts of litigation

documents. The majority’s interpretation severely limits settlement efforts, in

contravention of Front.

Moreover, since the majority agrees that the contents of the filed California

complaint are absolutely privileged as statements made during the course of a judicial

proceeding (majority op at 8-9), it is odd to conclude that Kesha’s allegations as they

appeared in the filed complaint are privileged, while her identical allegations as they

appeared in the draft complaint are not similarly protected simply because the former was

served on counsel and the latter was provided to counsel as a courtesy in anticipation of

For the same reason, the sending of an embargoed copy of the California complaint

to TMZ the day before it was filed is likewise privileged as a matter of law. Again, there

is no logical basis to distinguish between the complaint as it was filed and the complaint

as it was shared with a media outlet one day prior with the understanding that it could not

be made public until after the actual filing.9

9 Contrary to the majority’s suggestion, I do not maintain that it is the intended audience of the statement that determines whether the privilege applies (majority op at 10 n 3). Neither do I mean to conflate the pre-litigation and absolute litigation privileges (id. at 10). The point is that the contents of the complaint as-filed and as-shared were identical, and the majority offers no sound reason to privilege the allegations as they appeared in one but not the other. In any case, the embargoed complaint sent to a media outlet that could not be made public until after filing falls within the fair report privilege. - 18 - - 19 - Nos. 32 & 33

As to the remaining 19 allegedly defamatory statements, all but two are covered by

the statutory fair report privilege as Kesha alleged. An “action cannot be maintained against

any person, firm or corporation, for the publication of a fair and true report of any judicial

proceeding, legislative proceeding or other official proceeding, or for any heading of the

report which is a fair and true headnote of the statement published” (Civil Rights Law §

74). “For a report to be characterized as fair and true within the meaning of the statute . . .

it is enough that the substance of the article be substantially accurate” (Holy Spirit Ass’n

for Unification of World Christianity v New York, 49 NY2d 63, 67 [1979] [internal

quotation marks omitted])

In a 2014 cable news interview and during an episode of a legal issues podcast,

Kesha’s attorney suggested that Dr. Luke’s conduct was not limited to Kesha. However,

Kesha’s complaint did not allege that Dr. Luke sexually assaulted or otherwise abused

multiple women. Therefore, a jury could determine that those statements are not

“substantially accurate” reports of the litigation and are therefore not statutorily privileged

(Holy Spirit Ass’n, 49 NY2d at 67). On several other occasions, the attorney compared Dr.

Luke to Bill Cosby, who at the time was a prominent figure in the news for alleged sexual

abuse (see Charlotte Alter, Everything You Need to Know About the Bill Cosby Scandal,

TIME Magazine [Nov. 24, 2014], available at https://time.com/3602131/bill-cosby-sexual-

assault-allegations-guide/ [accessed May 9, 2023]). To the extent that those statements

were intended to compare Cosby’s modus operandi—the use of the date rape drug GHB—

to the method in which Dr. Luke allegedly drugged Kesha, those statements are privileged

because they reflect specific allegations she has made in the course of the litigation. Each

- 19 - - 20 - Nos. 32 & 33

of the other statements for which Kesha asserted the statutory fair report privilege should

be protected, as they pertain to the allegations made in the litigation and are substantially

accurate reports of the proceedings.

The narrow exception to the fair report privilege set out in Williams v Williams (23

NY2d 592 [1969]) has no application here. In that case, the defamation defendant had

instituted an action against his brother and former business partner alleging that the brother

“conspired with others to misappropriate and misuse the company’s trade secrets and

assets” (id. at 595). He then had copies of the complaint “printed and circulated to members

of the trade” (id.). Noting the “unusual factual pattern” of the case (id. at 596), the majority

determined that Civil Rights Law § 74 did not apply because the defendant had maliciously

instituted the underlying action solely so that he could “circulate a press release or other

communication based thereon and escape liability by invoking the statute” (id. at 599).10

As the Court declared, Williams is limited to its unique facts—the filing of a false

complaint by a principal of a company against a former principal who then sent a letter

with a copy of the summons and complaint to “interested parties[] engaged in the same

trade” (id. at 606 [Fuld, C.J., dissenting in part]).11 We should not extend it lest we risk

eroding the privilege altogether. Chief Judge Fuld (joined by Judge Bergan) argued in

dissent that the majority, driven by “an unreasoned and unreasonable fear of abuse,” had

10 On appeal from the denial of the defendant’s motion to dismiss, the Court presumed that the plaintiff’s factual allegations were true (23 NY2d at 595-596, citing CPLR 3211). 11 The majority’s attempt to marginalize this interpretation of Williams is belied by the Court’s clear exhortation that the exception is limited to “the unusual factual pattern of [that] case” (23 NY2d at 596). - 20 - - 21 - Nos. 32 & 33

reached a “strained and incongruous result” that was “not only [ ] at odds with the language

and with the legislative history of section 74” but one that was “completely unnecessary to

protect against the sort of abuse envisioned by the court” (id. at 605). In response, the

majority argued that the decision would not limit free access to the courts and expressly

cautioned that the holding “in no way infringes upon the right of a person to bring an action

or to say or write material pertinent to a suit within the confines of that action” (id. at 599).

Apart from the unsound extension of Williams here, it is also unnecessary because

the concerns that animated the Court’s decision there are not implicated by Kesha’s filings

in California or New York. In Williams, the plaintiff fabricated legal claims as a vehicle to

disseminate lies to fellow tradespersons for the sole purpose of maligning the defendant.

The plaintiff then deployed the privilege to avoid liability for that malicious conduct. By

contrast, Kesha filed her California complaint and disseminated it to the media and pressed

her counterclaims in the New York litigation in response to respondents’ lawsuit. The

California filing is the exact conduct the Williams majority acknowledged was protected,

and the responsive filing in the New York action was defensive, not initiated as affirmative

abuse of the judicial process of the like presented in Williams. Thus, the statutory privilege

applies.

V.

I agree that the certified questions in these respective appeals should be answered

in the negative, but I disagree that potential relief on Kesha’s counterclaims is temporally

limited in the manner so held by the majority and that the privilege alleged for all but two

- 21 - - 22 - Nos. 32 & 33

of her statements must be presented to a jury. Our precedents do not support the majority’s

construction of the Civil Rights Law, and its treatment of the relevant privileges as factual

questions contravenes Front and eviscerates their intended purposes. Lawyers beware!

For No. 32:

Order reversed, with costs, defendant Kesha Rose Sebert’s motion to amend her answer to assert a counterclaim pursuant to Civil Rights Law § 70-a granted, and certified question answered in the negative. Opinion by Judge Garcia. Judges Singas, Cannataro and Troutman concur and Chief Judge Wilson concurs, for the reasons stated in section IV. Judge Rivera dissents in part in an opinion. Judge Halligan took no part.

For No. 33:

Order modified, without costs, in accordance with the opinion herein, as so modified, affirmed, and certified question answered in the negative. Opinion by Judge Garcia. Judges Singas, Cannataro and Troutman concur. Chief Judge Wilson joins section II of the majority opinion herein by Judge Garcia and dissents in part for the reasons stated in section IV of the dissenting opinion herein by Judge Rivera. Judge Rivera dissents in part in an opinion. Judge Halligan took no part.

Decided June 13, 2023

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