Green v. Cosby
138 F. Supp. 3d 114
D. Mass.2015Background
- Three plaintiffs (Green, Serignese, Traitz) allege Cosby, via agents/publicists/attorneys, made false public statements denying or disparaging their decades-old sexual-assault allegations, causing reputational harm.
- Plaintiffs filed in federal court invoking diversity jurisdiction; court found complete diversity and amount in controversy satisfied.
- Plaintiffs amended complaints; defendants moved to dismiss the second amended complaint (SAC) under Rule 12(b)(6).
- Key contested statements: a Newsweek responder calling Green’s accusation "discredited," two November 2014 press releases from Cosby’s lawyer (one naming Traitz and citing her criminal record; one broadly denouncing recent accusers), and a Washington Post article/response involving a 2005 statement attributed to Cosby’s counsel.
- Defendants argued (inter alia) statute-of-limitations (single-publication rule), statements were nonactionable opinion or not "of and concerning," lack of requisite fault, privilege of self-defense, and incremental-harm/libel-proof defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations / single-publication rule (Washington Post statement) | Green alleges either the statement was given to WP in 2014 or that a 2005 statement was published with intent/foreseeability of republication in 2014 | Single-publication rule bars claim because statement first issued in 2005 | Court denied dismissal: reasonable inference of republication or foreseeability; single-publication rule inapplicable to separate 2014 publication or foreseeable republication |
| Falsity / actionable content (Newsweek; Nov. 20 & 21 releases) | Statements imply provably false facts (e.g., accusations were "discredited"/"fabricated") and are defamatory "of and concerning" plaintiffs | Statements are non-actionable opinion/rhetorical hyperbole or truthful/contextual reaction (predictable opinion) | Court held statements may imply false, provable facts and could be defamatory; these issues are for factfinder, so claims pleaded adequately |
| Fault / agency (respondeat superior & direct liability) | Plaintiffs allege agents acted within scope and at defendant's direction; Cosby knew statements were false | Allegations are threadbare as to agents' fault and Cosby’s direct approval | Court found negligent-fault standard for private plaintiffs plausibly pleaded as to agents; respondeat superior and direct liability sufficiently alleged |
| Privilege / incremental harm defenses | Plaintiffs: no applicable self-defense privilege; incremental-harm not recognized in Florida | Cosby asserts self-defense privilege and that challenged language caused no incremental reputational harm beyond other truthful matters | Court rejected self-defense privilege (not recognized under CA/FL and abused if statements known/pled false); incremental-harm/libel-proof doctrines not invoked to dismiss (Florida hasn’t adopted incremental-harm and factual issues remain) |
Key Cases Cited
- Shively v. Bozanich, 31 Cal.4th 1230 (Cal. 2003) (republication by new party or new edition can give rise to new libel cause of action; original author may be liable for foreseeable repetitions)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (defamation analysis must determine whether statement implies provable false facts rather than merely being opinion)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (U.S. 1974) (constitutional requirement that defamation law include an element of fault; higher fault for public figures)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standard: courts accept well-pleaded facts and draw reasonable inferences; disregard threadbare conclusions)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (complaint must state a plausible claim for relief above speculative level)
- Taus v. Loftus, 40 Cal.4th 683 (Cal. 2007) (elements of defamation under California law)