Gottwald v. Sebert

40 N.Y.3d 240

220 N.E.3d 621

197 N.Y.S.3d 694

Lukasz GOTTWALD, Professionally Known as Dr. Luke, et al., Plaintiffs/Counterclaim Defendants-Respondents,

v.Kesha Rose SEBERT, Professionally Known as Kesha, Defendant/Counterclaim Plaintiff-Appellant, et al., Defendants.

Professionally Known as Kesha, Defendant/Counterclaim Plaintiff-Appellant, et al., Defendants.

v.Kesha Rose Sebert, Professionally Known as Kesha, Appellant, et al., Defendants.

Nos. 32 & 33

Court of Appeals of New York.

Decided June 13, 2023

O'Melveny & Myers LLP, New York City (Anton Metlitsky and Leah Godesky of counsel) and Los Angeles, California (Daniel M. Petrocelli, admitted pro hac vice, of counsel), for appellant/counterclaim plaintiff-appellant in the first above-entitled action.

Mitchell Silberberg & Knupp LLP, New York City (Christine Lepera, Jeffrey M. Movit and Bradley J. Mullins of counsel), for respondents/counterclaim defendants-respondents in the first above-entitled action.

Steptoe & Johnson LLP, New York City (Joseph M. Sanderson, Nicholas Peterson and María Esperanza Ortiz of counsel) and San Francisco, California (Stephanie Sheridan, admitted pro hac vice, of counsel), and Legal Momentum, New York City (Jennifer M. Becker and Dorea Kyra Batté of counsel), for Legal Momentum and others, amici curiae in the first above-entitled action.

Carter Ledyard & Milburn LLP, New York City (Alan S. Lewis of counsel), for Samuel D. Isaly, amicus curiae in the first above-entitled action.

Davis Wright Tremaine LLP, New York City (Katherine M. Bolger and Amanda B. Levine of counsel), for Advance Publications, Inc. and others, amici curiae in the first above-entitled action.

Baker & Hostetler LLP, New York City (Katherine L. McKnight of counsel), and Bailen Law, New York City (Mark I. Bailen and A. Mackenna White of counsel), for María Kim Grand, amicus curiae in the first above-entitled action.

O'Melveny & Myers LLP, New York City (Anton Metlitsky, Leah Godesky and Yaira Dubin of counsel) and Los Angeles, California (Daniel M. Petrocelli, admitted pro hac vice, of counsel), for appellant in the second above-entitled action.

Mitchell Silberberg & Knupp LLP, New York City (Christine Lepera, Jeffrey M. Movit and Bradley J. Mullins of counsel), for respondents in the second above-entitled action.

Carter Ledyard & Milburn LLP, New York City (Alan S. Lewis and John J. Walsh of counsel), for Samuel D. Isaly, amicus curiae in the second above-entitled action.

Latham & Watkins LLP, New York City (Samir Deger-Sen, Michael Bosworth, Mateo de la Torre and Lydia Franzek of counsel), and National Women's Law Center, Washington, D.C. (Emily Martin, Sunu P. Chandy and Elizabeth Tang of counsel), for National Women's Law Center and others, amici curiae in the second above-entitled action.

Holwell Shuster & Goldberg LLP, New York City (Eileen Monaghan DeLucia, Brian T. Goldman and Prishika Raj of counsel), and First Amendment Clinic, UCLA School of Law, Los Angeles, California (Eugene Volokh, admitted pro hac vice, of counsel), for The Reporters Committee for Freedom of the Press and others, amici curiae in the second above-entitled action.

OPINION OF THE COURT

GARCIA, J.

Plaintiff in this defamation suit, Lukasz Gottwald ("Gottwald"), is a music producer known as "Dr. Luke." Defendant Kesha Rose Sebert ("Sebert") is a singer and songwriter known as "Kesha." Sebert signed a recording contract with one of Gottwald's companies in 2005 and the arrangement produced several successful albums. However, in 2014, Sebert sought to void her contractual arrangement with Gottwald by filing an action in California, alleging that Gottwald raped her shortly after she signed the original recording deal. In response, Gottwald brought this action in New York alleging that statements made by Sebert and her agents with respect to the alleged sexual assault were defamatory. We hold that Gottwald is a limited public figure who must prove by clear and convincing evidence that Sebert acted with actual malice; that five of the allegedly defamatory statements are privileged as a matter of law while the issue of privilege as to the remaining 20 statements must be resolved by a jury; and that certain provisions of the 2020 amendments to Civil Rights Law §§ 76-a and 70-a apply to this action.

I.

Gottwald, in addition to being a music producer, also owns several companies, including plaintiffs Kasz Money, Inc. ("KMI") and Prescription Songs, LLC. In 2005, Gottwald signed Sebert, an aspiring singer and songwriter, to a record deal through KMI. Sebert alleges that a short time later Gottwald raped her—an allegation he has denied. Through her representatives, Sebert subsequently attempted to gain her release from the KMI agreement based on the alleged sexual assault. Those efforts were unsuccessful. Instead, in 2008, the parties amended the KMI agreement and entered into separate publishing and recording agreements. In 2010, Gottwald and KMI released two commercially successful albums with Sebert, and in 2012, Gottwald and Sebert released a third album through another of Gottwald's record labels.

By 2012, however, Sebert sought to renegotiate the terms of her agreements with Gottwald but attempts to settle the dispute were once more unsuccessful. Sebert then commenced an action against Gottwald and his various companies in California, alleging that Gottwald had raped her in 2005 and seeking damages as well as an injunction voiding her contracts with plaintiffs. Gottwald filed this action in Supreme Court, New York County, that same day. The operative complaint pleads two counts of defamation against Sebert. The first asserts that she acted with malice in making false statements regarding the alleged rape. The second count is based on a statement made by Sebert alleging Gottwald raped another female recording artist.¹

The California court granted Gottwald's motion for a stay of that action, while Sebert filed counterclaims here based on the same allegations contained in her California complaint. She then moved in Supreme Court for a preliminary injunction asking the court to enjoin Gottwald and his companies from interfering with her attempts to work with others and to prevent them from enforcing any contractual exclusivity and ownership provisions. The court denied the injunction. In 2016, Supreme Court granted Gottwald's motion to dismiss Sebert's counterclaims as, inter alia , time-barred and outside Supreme Court's subject matter jurisdiction (2016 N.Y. Slip Op. 32815 [U], 2016 WL 1365969 [Sup. Ct., N.Y. County 2016] ). Sebert appealed the denial of the injunction and dismissal of her counterclaims but later withdrew both appeals and voluntarily dismissed her California action.²

After completing discovery, the parties cross-moved for summary judgment. As relevant here, Sebert argued that Gottwald is a public figure and can recover for defamation only upon proof that the alleged defamatory statements were made with actual malice, and that 25 of those statements cannot serve as the basis for liability in any event because they are privileged. Supreme Court granted partial summary judgment in favor of Gottwald and denied Sebert's motion (2020 N.Y. Slip Op. 30347 [U], at *5, 2020 WL 587348 [Sup. Ct., N.Y. County 2020] ). Sebert appealed.

In 2020, while that appeal was pending, the Legislature amended a 1992 statute designed to protect certain individuals who face targeted litigation for their participation in public affairs, i.e., Strategic Lawsuits Against Public Participation ("SLAPP" suits). The 1992 law—New York's anti-SLAPP statute (L 1992, ch 767)—is codified in Civil Rights Law § 76-a and § 70-a. Sebert moved in Supreme Court for a ruling that the 2020 amendments to the anti-SLAPP statute apply to this action and for leave to assert a counterclaim for attorney's fees, damages for emotional distress, and punitive damages, as permitted by the amended statute. That court agreed, holding that the amendments applied retroactively to pending claims and granting Sebert leave to file a counterclaim. Gottwald appealed that decision.

The Appellate Division, in two separate opinions, reversed on the application of the anti-SLAPP statute, holding that the amendments were not retroactive and so did not apply to this litigation, and affirmed Supreme Court's holding that Gottwald was not a public figure and that issues of fact precluded the grant of summary judgment on certain defamatory statements ( 203 A.D.3d 488, 165 N.Y.S.3d 38 [1st Dept. 2022] ; 193 A.D.3d 573, 148 N.Y.S.3d 37 [1st Dept. 2021] ). The respective panels granted Sebert leave to appeal, certifying in each case the question of whether the orders were properly made. We answer each question in the negative.

II.

We first consider whether Gottwald is a public figure such that he must prove the allegedly defamatory statements were made with "actual malice" (see Huggins v. Moore, 94 N.Y.2d 296, 301, 704 N.Y.S.2d 904, 726 N.E.2d 456 [1999] ). If subject to that standard, Gottwald would be required to prove by clear and convincing evidence that each statement was made "with either knowledge that it was false or reckless disregard for the truth" ( id. ; see also New York Times Co. v. Sullivan , 376 U.S. 254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686 [1964] ). This actual malice standard need not apply to private figures (see Wolston v. Reader's Digest Ass'n, Inc. , 443 U.S. 157, 164, 99 S.Ct. 2701, 61 L.Ed.2d 450 [1979] ); rather, "the States may define for themselves the appropriate standard of liability" for those individuals ( Gertz v. Robert Welch, Inc. , 418 U.S. 323, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 [1974] ). In New York, the accepted standard for private figures is negligence (see Krauss v. Globe Intl., Inc., 251 A.D.2d 191, 194, 674 N.Y.S.2d 662 [1st Dept. 1998] ; see also Kesner v. Buhl , 590 F.Supp.3d 680, 692 [S.D.N.Y. 2022] ).

"The category of public figures is of necessity quite broad" ( James v. Gannett Co., 40 N.Y.2d 415, 422, 386 N.Y.S.2d...