February 12th, 2014
Bryan Sullivan was quoted in Pete Brush’s Law360 piece titled “”Hoffman Libel Suit To Test If News Media Can Blame Fakers,” which discusses David Bar Katz’s $50 million libel suit over a false National Enquirer report.
Law360, New York (February 11, 2014, 7:34 PM ET) — A writer’s $50 million libel suit over a false National Enquirer report that he was Philip Seymour Hoffman’s lover could test New York courts’ tolerance for journalistic sob stories about fake sources after the tabloid claimed it had been “tricked” by a caller claiming to be the plaintiff, legal experts said.
The potentially devastating damages claim was filed Feb. 5 against Enquirer parent American Media Inc. by stage- and screenwriter David Bar Katz, who found the actor dead on Feb. 2 and who calls the report an “outrage” that should be met with a stern rebuke in the form of punitive damages.
Two days after Katz sued, the tabloid issued a correction and apology that blamed “a source who we have now concluded misled us as to his identity” who supposedly duped an experienced reporter into penning a story that also falsely quoted Katz as saying Hoffman was freebasing cocaine the night before his death.
“A veteran Enquirer reporter spoke at length with someone who identified himself as David Katz, and he had reason to believe he was indeed speaking with Mr. Katz,” the tabloid said.
“We believe we were tricked,” it added.
But with the Enquirer’s story for sale on supermarket shelves in its Feb. 17 issue, the apology likely will be seen as cold comfort by the plaintiff, whose suit notes he “will forever be haunted by the fact that he was the one who discovered Hoffman’s body” and says that on top of his anguish, the report exposes him to “hatred, contempt or aversion.”
Libel lawyers tuning in to the matter tell Law360 that, barring a settlement where both sides find satisfaction, the first question lawyers at the Enquirer will ask will be whether they can poke holes in Katz’s assertion that he is “not a public figure for defamation purposes” even though he characterizes himself as a “celebrated” writer in the complaint.
If the Enquirer can convince a court that Katz is a public figure, his burden of proof for damages shoots through the roof.
“If I were the Enquirer, I might argue that he is a public figure — and I would have some ammo for that,” said Kelley Drye & Warren LLP entertainment and media lawyer David E. Fink, who added that Katz’s affirmative assertion in the suit that he’s not a public figure “sounds like an argument somebody might make in a brief.”
But Fink and other lawyers added the caveat that the tabloid’s ability to win that fight was far from certain against a man who — despite having a claim to celebrity and a Wikipedia page — likely is best-known now as a result of his association with the famed actor’s untimely demise.
Other lawyers watching the case, such as entertainment and business litigator Mitchell J. Langberg of Brownstein Hyatt Farber Schreck LLP, saw an attack on Katz’s status as a nonpublic figure as a near-certain loser.
“Public-figure status is reserved for people who have such prominence in society that they have become household names,” Langberg said. “Celebrities such as Jay Leno and Howard Stern have reached this status. Katz has not.”
The tabloid would also face an uphill battle even to show that Katz is a “limited public figure” in the case as a result of having “thrust himself into the vortex” of a “public issue” to “engage the public’s attention in an attempt to influence the outcome,” Langberg said.
“Katz does not appear to have voluntarily thrust himself into any public controversy, particularly for the purpose of influencing its outcome,” he added.
But media lawyers say the public-figure argument isn’t the only path to success for the magazine since New York courts also have a “weird standard” in libel cases where they attempt to determine whether the story in question was a matter of public concern.
Even if Katz were a deeply private figure, if the Hoffman story is deemed by a court to transcend mere gossip and become a matter of public import — perhaps because of the discussion of addiction it spawned — then the plaintiff’s relatively low standard of proving mere negligence ratchets up to a standard where he must show the tabloid acted “in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties,” as laid out in a case called Chapadeau v. Utica Observer.
“That could be a very close call, and it will have a significant impact on how the case plays out,” Langberg said, noting what appears to be a profusion of dupes in the media in recent years — perhaps most famous among them the Stern-inspired callers who fool cable news outlets scrambling for information during breaking news events.
Meanwhile, a fight over the public import of the story — and over whether the Enquirer was “grossly irresponsible” for allegedly thinking it was talking to Katz — could result in a potentially painful discovery process for the plaintiff, warned business affairs attorney Bryan M. Sullivan of Early Sullivan Wright Gizer & McRae LLP.
For example, while Katz says he didn’t talk to the magazine about Hoffman, his suit also says that he had not spoken with the Enquirer “since Hoffman’s death” — implying that he had at some point talked to the magazine.
If Katz had a prior relationship with reporters at the Enquirer, it could give a judge or jury pause if those reporters claim they thought they were having a fresh discussion, experts said.
“All of that stuff could become the focus of discovery,” said Sullivan, who added that one of the reasons why libel cases tend to settle is due to discovery that delves into litigants’ personal lives.
Meanwhile, the act of apologizing likely has already helped the Enquirer, regardless of whether a “we got fooled” defense flies, since New York law allows courts to consider retractions when mulling damages.
“That’s a defense that the jury considers in New York,” Fink said.
Katz is represented by Judd Burstein PC, who declined requests for comment. Counsel information for the Enquirer was not available.
The complaint is Katz v. American Media, case number 151062/2014, in the New York Supreme Court.
–Editing by John Quinn and Christine Chun.
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