The National Trial Lawyers
  • Home
    • Meet Our Team
    • Contact Us
    • Mission & Goals
    • FAQ
  • Webinars
  • News
  • Membership Directory
    • Top 100 Map – Civil Plaintiff
    • Top 100 Map – Criminal Defense
    • Top 40 Under 40 Map – Civil Plaintiff
    • Top 40 Under 40 Map – Criminal Defense
  • Top 100
    • Civil Plaintiff Officers / Executive Committee
    • Criminal Defense Officers / Executive Committee
    • Benefits
    • About
    • Top 100 President’s Message
    • Diplomat
    • Membership Renewal
    • Member Profile Updates
    • Top 100 Badge
    • Media
  • Top 40
    • Civil Plaintiff Officers / Executive Committee
    • Criminal Defense Officers / Executive Committee
    • Top 40 Under 40 Trial Academy Bootcamp
    • Benefits
    • About
    • Top 40 President’s Message
    • Membership Renewal
    • Member Profile Updates
    • Top 40 Badge
    • Media
  • Specialty Assoc
    • About
    • Shop
    • Officers
    • Membership Renewal
    • Member Profile Updates
    • Media
  • Nominate
    • Top 100
    • Top 40
    • Specialty Association
    • Trial Lawyer Hall of Fame
    • Trial Lawyer of the Year
    • Trial Team of the Year
    • America’s Most Influential Trial Lawyer
    • America’s Most Influential Law Firm
    • Lifetime Achievement Award
  • Shop
  • Magazine
    • A-List
  • Education and Networking Agenda
    • Trial Lawyers Summit
      • Summit Sponsors
    • Top 40 Under 40 Trial Academy Boot Camp
    • Mass Torts Made Perfect
    • The Lanier Master Class 5.0 Trial Academy 2021
    • Webinars
  • Hall of Fame
    • Trial Lawyer Hall of Fame

2nd Circ. Rules for Publishers in Art Sleuth Case Against New Yorker

Posted on December 17, 2015 by Larry Bodine

new yorker paul biroBy Andreas Becker and Lee Brenner of Kelley Drye & Warren LLP

In Biro v. Condé Nast, et al., the Second Circuit recently determined that, in a defamation action, limited-purpose public figures must plead in a “plausible way” that the defendants acted with actual malice, citing Federal Rule of Civil Procedure 8 and the Supreme Court’s decisions in Iqbaland Twombly.

Plaintiff Paul Biro sued Condé Nast, among others, after its publication The New Yorker published an article (the “Article”) about Biro in 2010, which he claimed was defamatory.  According to the court, Biro is “a controversial figure known in the art world for using fingerprint analysis to authenticate art in an effort to insert a measure of objectivity into a previously subjective process.”  The article questioned the trustworthiness of Biro’s methods and his authentication of paintings, contained interviews of persons critical of Biro, and suggested that he stood to profit from the allegedly dubious authentications.

False or inaccurate?

Biro alleged that Condé Nast, among others, “either knew or believed or had reason to believe that many of the statements of fact in the Article were false or inaccurate, and nonetheless published them” and that it “acted with actual malice, or in reckless disregard of the truth, or both.”

Although the district court found that Biro adequately alleged an “actionable defamatory false statement of fact, or false implication,” it dismissed Biro’s defamation claim because “Biro, as a limited-purpose public figure, failed to plead sufficient facts to give rise to a plausible inference of actual malice[,]” citing Iqbal’s “instructions that, where a particular state of mind is an element of a claim, Rule 8 requires that it be plausibly pleaded and supported by actual allegations.”

Biro appealed.

The Second Circuit Court of Appeal reviewed the dismissal de novo.  The Court’s opinion is available here. The Court of Appeal noted that, in order to survive a motion to dismiss or a motion for judgment on the pleadings, a complaint must contain enough facts to state a claim for relief that is plausible on its face, citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

More than “naked assertions”

In turn, to be plausible, a claim must contain more than “naked assertions” or “conclusory statements” – rather, a claim is plausible when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

A limited-purpose public figure – and public figures generally – suing for defamation must show that the allegedly defamatory statements were made with actual malice, a.k.a. knowledge that the statements were false or with reckless disregard as to their falsity.   Biro argued that Federal Rule of Civil Procedure 9(b) allows malice to “be alleged generally[.]”

Rejecting that argument, and citing opinions from the First, Fourth, and Seventh Circuits, the Court determined that, Rule 9(b)’s language notwithstanding, malice must be alleged plausibly in accordance with Rule 8.  The Court held that a public-figure plaintiff must plead plausible grounds to infer actual malice by alleging enough facts to raise a reasonable expectation that discovery will reveal evidence of actual malice.

Applying this standard, the Second Circuit determined that, because Biro’s allegations failed to plausibly allege actual malice, dismissal was proper. Accordingly, it affirmed the District Court’s ruling.

Simply put, this means that limited-purpose public figures – and public figures generally – have a high burden in defamation lawsuits, and federal courts have significant leeway to dismiss such claims.  Absent plausible factual allegations of actual malice, defamation claims brought by such public figures will be dismissed for failing to meet the heightened pleading requirements of Rule 8,Iqbal, and Twombly.  This is a good result for publishers.

Posted in Blog, Personal Injury

Comments are closed.

News Categories

Subscribe to Blog and VFJ via Email

Enter your email address to subscribe to this blog, the Voice for Justice and receive notifications of new posts by email.

Read about other Top Jury Verdicts

Pharmaceutical Giant Johnson & Johnson is Preparing $3.9B for Talc Settlements

Pharmaceutical Giant Johnson & Johnson is Preparing $3.9B for Talc Settlements

Pharmaceutical giant Johnson & Johnson has set aside $3.9 billion for talc-related litigation, according to a regulatory [Read More...]
Alaska Airlines Will Pay $3.19M Following the Death of a Passenger

Alaska Airlines Will Pay $3.19M Following the Death of a Passenger

Seattle-based Alaska Airlines has been ordered to pay more than $3 million to the family of a passenger of reduced mobility w[Read More...]
No thumbnail available

Keith Givens on the Trial Lawyers Summit and Lanier Trial Academy

https://vimeo.com/515910581 Michelle Swanner, Executive Director of The National Trial Lawyers, interviews Keith Givens[Read More...]
A $220M Settlement Reached in National Milk Producers' Herd Retirement Program

A $220M Settlement Reached in National Milk Producers' Herd Retirement Program

ST. LOUIS, Feb. 22, 2021 /PRNewswire/ -- A $220 million settlement has been reached in a class-action law[Read More...]
Mountaire Farms Proposes a $65M Settlement for Contaminating the Millsboro-Area Groundwater and Air

Mountaire Farms Proposes a $65M Settlement for Contaminating the Millsboro-Area Groundwater and Air

It’s a lawsuit that’s been years in the making, but the class-action suit against Mountaire Farms may be approach[Read More...]

#LegalNews

@@TheNTLtop100

Contact Us | Terms of Use | Privacy Policy

Attorney information and content provided on this website is provided for the benefit of members of The National Trial Lawyers and as a public service by Legal Associations Management, Inc. The website and all data are the property of Legal Associations Management, Inc. Data, including without limitation attorney information and content, on the site may not be mined, sold, or used commercially for any purpose without the explicit written consent of Legal Associations Management, Inc. This site may not be accessed by any automated program for extracting data for any use. By accessing and using the site you agree that you will not develop, support or use software, devices, scripts, robots, or any other means or processes (including crawlers, browser plug-ins and add-ons, or any other technology) to scrape data or otherwise copy profiles and other data. Unauthorized use or attempted unauthorized use of this system may subject you to both civil and criminal penalties.