939 F.3d 112
2d Cir.2019Background
- Seth Rich, a 27-year-old DNC staffer, was murdered in July 2016; a false conspiracy theory arose that he leaked DNC emails to WikiLeaks and was killed for it.
- Fox commentator Ed Butowsky and Fox reporter Malia Zimmerman allegedly recruited Rod Wheeler (a Fox contributor and private investigator) and induced the Rich family to retain him, despite a confidentiality clause barring media representation.
- Butowsky allegedly financed Wheeler’s retention and, with Zimmerman, fed Wheeler fabricated sources (an anonymous federal investigator) to secure on-the-record statements that would support the conspiracy story.
- On May 16, 2017 Fox News published two Zimmerman articles repeating Wheeler’s claims; the Riches demanded retraction, Fox retracted the story days later, but related media references persisted.
- The Riches sued in diversity court alleging IIED, tortious interference with contract (against all defendants), and negligent supervision/retention (against Fox); the district court dismissed all claims with prejudice.
- On appeal, the Second Circuit vacated and remanded: it held the complaint plausibly alleged IIED and tortious interference, and that negligent-supervision allegations could likely be cured by amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants’ conduct pleads extreme and outrageous conduct for IIED | Rich: cumulative campaign plus knowledge of family’s vulnerability amounted to extreme, outrageous conduct causing severe distress | Fox/Smith: individual acts not outrageous; claim is disguised defamation and protected speech; require defamation elements or specific intent | Court: pleadings suffice — a deliberate malicious campaign and knowledge of susceptibility plausibly plead extreme and outrageous conduct; IIED survives pleading stage |
| Whether defendants tortiously interfered with the Riches’ contract with Wheeler | Rich: Butowsky/Zimmerman intentionally procured Wheeler’s breach (by deception and pressure), causing publication and damages | Defs: Wheeler was predisposed to breach before contract; no but-for causation; plaintiffs fail to identify damages attributable to interference | Court: complaint plausibly alleges but-for causation, intent to procure breach, damages causally linked to breach, and lack of justification; claim survives pleading stage |
| Whether negligent supervision/retention was adequately pleaded against Fox News | Rich: Fox is liable for negligent hiring/supervision or vicarious liability for Zimmerman/Wheeler | Fox: complained-of acts were personal or in scope of employment; insufficient allegations of employer knowledge of propensity | Court: dismissal with prejudice was premature; allegations are unclear but an amended complaint could plead negligent supervision or vicarious liability; remand and leave to amend instructed |
| Whether First Amendment/defamation doctrines bar the IIED claim | Rich: IIED is distinct from defamation; where speech is false and made with actual malice IIED may proceed | Defs: IIED is an attempt to circumvent defamation limits (and public-figure/"of and concerning" rules); protected speech defense | Court: IIED is not categorically barred; when speech includes false statements of fact made with actual malice, IIED based on that conduct is actionable at pleading stage; defendants’ First Amendment arguments fail on pleadings |
Key Cases Cited
- Howell v. N.Y. Post Co., 612 N.E.2d 699 (N.Y. 1993) (adopts Restatement approach to IIED; outlines elements and privileged-conduct caveat)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state a claim plausibly on its face)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal conclusions not entitled to presumption; plausibility standard)
- Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (IIED claim based on speech requires false statement of fact made with actual malice to be actionable)
- Lama Holding Co. v. Smith Barney Inc., 668 N.E.2d 1370 (N.Y. 1996) (elements of tortious interference with contract)
- Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 406 N.E.2d 445 (N.Y. 1980) (damages in interference claims include consequential damages and emotional harm)
- Galella v. Onassis, 487 F.2d 986 (2d Cir. 1973) (First Amendment does not provide blanket immunity for newsgathering conduct)
- Riviello v. Waldron, 391 N.E.2d 1278 (N.Y. 1979) (scope-of-employment test for respondeat superior)
- Snyder v. Phelps, 562 U.S. 443 (2011) (First Amendment can bar some tort claims arising from speech, discussed in IIED context)