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Media Alerts - Elias et al. v. Rolling Stone, LLC et al. - Second Circuit
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September 20, 2017
  Elias et al. v. Rolling Stone, LLC et al. - Second Circuit
Headline: Second Circuit Permits Former University of Virginia Students to Proceed with a Defamation Lawsuit Against Rolling Stone

Area of Law: Defamation.

Issue(s) Presented: Whether Plaintiffs, three former University of Virginia Phi Kappa Psi fraternity members, sufficiently pled that a Rolling Stone article, subsequently retracted as fabricated by the source, about an alleged brutal gang rape at the fraternity house, stated actionable defamation claims brought individually and under a small group theory.

Brief Summary: Elias, Fowler, and Hadford, three former male University of Virginia's Phi Kappa Psi's fraternity members, commenced a lawsuit against Rolling Stone magazine claiming defamation for statements made in an article and during an interview with Erdely, the article's author, about an alleged brutal gang rape at the fraternity house. Reversing in part, the Second Circuit held that the United States District Court for the Southern District of New York erred in dismissing Elias and Fowler's individual claims and the small group defamation claim.

The link to the full opinion will be added when the opinion is reposted on the Second Circuit's website.

Extended Summary: George Elias IV, Ross Fowler, and Stephen Hadford (Plaintiffs) were active members of the University of Virginia's Phi Kappa Psi fraternity in the fall of 2012. In November, 2014, Rolling Stone magazine published an online article authored by Sabrina Rubin Erdely and titled, "A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA." Generating worldwide headlines, it recounted a brutal three-hour gang rape in the fall of 2012 of "Jackie," a woman whose interview was the primary source for the article. As a follow-up to the published piece, Erdely was interviewed as a guest on a podcast about the story. Weeks later, after it learned that the story was fabricated, Rolling Stone retracted the article and issued an apology.

Reviewing the United States District Court for the Southern District of New York's decision to dismiss Plaintiffs' complaint in its entirety, the Second Circuit reversed the holding in part, concluding that the District Court improperly rejected Plaintiffs' small group defamation claim and, although it was a close call, also erred in dismissing individual claims relating to Elias and Fowler.

To state a claim for defamation in New York, a complaint must allege a false statement that is published to a third party without privilege or authorization, and, in most cases, that causes harm. To succeed, a plaintiff must allege that the public acquainted with the party and the subject would recognize the plaintiff as a person to whom the statement refers. The Court held that based on the fact that Elias graduated the same year as the alleged perpetrators, lived in the fraternity house in the only bedroom that could fit the description of the alleged location of the rape, and some people who knew him concluded he was one of the alleged attackers, Elias sufficiently pled that the article was "of and concerning" him. The Court reached the same conclusion with Fowler's claim. The court agreed with the district court that Hadford's allegation - that because he rode his bike through campus regularly, readers would conclude that he was the person Jackie said she saw riding a bike in the article- was too speculative to support a defamation claim as to him individually.

Finding that a reader of the article could conclude that all Phi Kappa Psi members were implicated in the alleged rapes, the Court, reversing the district court, also held that Plaintiffs could proceed under a theory of small group defamation. Relying on Brady v. Ottaway Newspapers, Inc., a New York Appellate Division, Second Department case, the Second Circuit considered the small size of Phi Kappa Psi, the fact that the allegations taken as a whole could support the conclusion that many or all fraternity members participated in alleged gang rape and all members turned a blind eye to the crimes, and the prominence of the fraternity on the University's close-knit campus, to conclude that Plaintiffs plausibly alleged the article was "of and concerning" all then-members of the fraternity. Lastly, the court upheld the district court's dismissal of claims based upon Erdely's podcast statements because statements that express opinions of the speaker do not constitute defamation and Erdely's statements on the podcast were speculative.

In a separate opinion, Circuit Judge Lohier concurred with the majority's ruling on the individual claims but disagreed with the application of Brady to the small group claim. Judge Lohier contended that Brady was both factually inapposite to the present case and the only New York Appellate Division opinion to evaluate how to analyze small group defamation claims. Accordingly, he argued that the Second Circuit should certify the issue of the appropriate standard for small group defamation to the New York Court of Appeals for clarification. In the alternative, he would have affirmed dismissal of claims under that theory.

Panel: Circuit Judges Cabranes and Lohier; District Judge Forrest

Argument Date: 04/27/2017

Date of Issued Opinion: 09/19/2017

Docket Number: No. 16-2465-cv

Decided:
Affirmed in Part and Reversed in Part

Case Alert Author:
Joanna Kusio

Counsel: Alan Lee Frank, Alan L. Frank Law Associates, P.C. for Plaintiffsā€Appellants; Elizabeth A. McNamara (Samuel M. Bayard, Abigail B. Everdell, Davis Wright Tremaine LLP; Alison Schary, Davis Wright Tremaine LLP, on the brief), Davis Wright Tremaine LLP for Defendantsā€Appellees.

Author of Opinion: District Judge Forrest (majority); Circuit Judge Lohier (concurring in part and dissenting in part)

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Professor Elyse Diamond

Edited: 09/22/2017 at 08:48 AM by Elyse Diamond

    Posted By: Elyse Diamond @ 09/20/2017 11:22 AM     2nd Circuit  

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