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upholding a $4 million compensatory award, but only because emotional distress damages were coupled with significant reputational harm
Summary of this case from Turley v. Isg Lackawanna, Inc.Opinion
05 Civ. 10029 (JSR)
March 2, 2007, Decided . March 5, 2007, Filed
For Kimberly Osorio, Plaintiff: Kenneth P. Thompson, LEAD ATTORNEY, Michelle May Le Roux, Thompson Wigdor and Gilly, NY, NY.
For Michelle Joyce, Plaintiff: Kenneth P. Thompson, LEAD ATTORNEY, Thompson Wigdor and Gilly, NY, NY.
For Source Enterprises, Inc., Source Entertainment, Inc., Defendants: Mercedes Colwin, LEAD ATTORNEY, Deborah Swindells Donovan, Gordon & Reees, LLP, New York, NY; Edward Cerasia, II, Proskauer Rose LLP, Newark, NJ.
For David Mays, in his official capacity, David Mays, individual, Raymond Scott, in his official capacity also known as Benzino, Raymond Scott, individual also known as Benzino, Defendants: Scott Todd Baken, LEAD ATTORNEY, Jackson Lewis LLP, White Plains, NY; Deborah Swindells Donovan, Gordon & Reees, LLP, New York, NY.
Following a jury trial, judgment was entered on October 31, 2006 awarding plaintiff Kimberly Osorio, on her claim of unlawful retaliation, $ 4,377,604.34 in damages against all four defendants jointly and severally, and awarding plaintiff, on her claim of defamation, $ 3.5 million in damages against defendant Raymond Scott alone. Thereafter, on November 10, 2006, all defendants timely moved for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b) or, in the alternative, for a new trial or remittitur pursuant to Fed. R. Civ. P. 59. Contemporaneously, plaintiff moved, pursuant to Rule 59, for a new trial at which either the original jury or a new jury would determine the amount of punitive damages purportedly due plaintiff. Plaintiff also moved to amend the judgment to include an award of attorneys' fees and costs pursuant to 42 U.S.C. § 1988, 42 U.S.C. § 2000e-5(k), § 8-502(f) of the New York City Human Rights Law, and Fed. R. Civ. P. 54. By Order dated December 19, 2006, the Court denied the parties' respective post-verdict motions except plaintiff's motion for attorneys' fees and costs, as to which the Court, in accordance with the Court's ordinary practice, reserved decision until the expiration of any appellate practice. This Memorandum states the reasons for those rulings.
By way of brief background, plaintiff alleged that her former employers, defendants Source Enterprises, Inc. and Source Entertainment, Inc. (collectively, "The Source"), as well as two of The Source's former officers, David Mays and Raymond Scott, discriminated against her on the basis of gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL"), and the New York City Human Rights Law, N.Y. Admin. Code § 8-101 et seq. ("NYCHRL"), first by creating a hostile work environment and second by terminating her for discriminatory reasons. Plaintiff further alleged that the defendants retaliated against her for complaining about the alleged discrimination and that defendant Scott defamed her in violation of New York law.
Following extensive discovery and motion practice, the case proceeded to a nine day jury trial. At the close of all the evidence, the Court -- though indicating some doubt as to whether any claim for punitive damages had been established -- agreed to allow the jury to specially determine in its verdict form whether or not plaintiff was entitled to punitive damages, with the expectation that, if they so found, the parties would then be permitted to present additional evidence (otherwise irrelevant) bearing on what such damages should be, and the jury would then determine the amount of such damages. See trial transcript ("tr.") 10/20/06, at 1983-94. The jury thereafter returned a mixed verdict, finding that, on the one hand, none of the defendants was liable on plaintiff's discrimination claims, but that, on the other hand, all four defendants were liable on plaintiff's retaliation claim and defendant Scott was liable on plaintiff's defamation claim. On the retaliation claim, the jury awarded plaintiff $ 4 million in compensatory damages for emotional distress and harm to reputation. On the defamation claim, the jury awarded plaintiff $ 3.5 million for additional emotional distress and harm to reputation. Although the jury also found that plaintiff was entitled to punitive damages, the Court, after taking account of the finding of no-liability on the discrimination claims and the award of $ 4 million and $ 3.5 million on the remaining claims, determined that punitive damages were no longer available. See, e.g., tr. 10/23/06, at 2246.
In addition, the Court had previously determined, based on Broadnax v. City of New Haven, 415 F.3d 265, 271 (2d Cir. 2005), that any lost-wages award, whether in the form of front pay or back pay, should be determined by the Court, rather than by the jury. After receiving written submissions on this issue and hearing oral argument, the Court entered final judgment on October 31, 2006. On the retaliation claim, the final judgment held all four defendants jointly and severally liable to plaintiff in the total sum of $ 4,377,604.34, consisting of $ 4 million in compensatory damages, $ 107,969.15 in back pay, $ 5,060.19 in pre-judgment interest, and $ 264,575.00 in front pay. The judgment, in response to a request from plaintiff, allocated all but $ 1 of this award to plaintiff's claims of retaliation under New York State and New York City law, with the remaining $ 1 allocated to plaintiff's retaliation claim under federal law. See tr. 10/31/06, at 26. In addition, the final judgment held defendant Scott liable to plaintiff for $ 3.5 million on plaintiff's claim of defamation. The final judgment ordered that post-judgment interest on the awards on the retaliation and defamation claims would accrue at a rate of 9 percent and dismissed all other claims with prejudice.
Against this background, the Court turns to the various post-trial motions that the Court denied in its Order of December 19, 2006:
First, with respect to plaintiff's motion to reinstate the punitive damages claim and convene a further jury proceeding to determine the amount of such damages, the Court will not reiterate here, but simply incorporate by reference, its discussion with counsel throughout the trial as to why the Court was doubtful whether the question of punitive damages should even be submitted to the jury. See, e.g., tr. 10/19/06, at 1664; tr. 10/20/06, at 1983-94. In the end, the Court was persuaded that, taking all the evidence most favorably to the plaintiff, there was, a basis, though barely, for letting the punitive damages claim go to the jury. But the jury's verdict removed the underpinnings of this determination in at least two critical respects. First, by finding the defendants not liable for discrimination, the jury effectively found that plaintiff's allegations of years of sexual harassment -- a prime basis for letting the punitive damages claim go to the jury -- were without merit. Second, on the much more limited claims of retaliation and defamation -- the former referring to a single event and the latter to a single defendant -- the damages awarded ($ 4 million on the retaliation claim and $ 3.5 million on the defamation claim) were so comprehensive that they had the same deterrent effect that punitive damages would otherwise provide.
Recent Supreme Court decisions lend support to these conclusions. Given the jury's determination that the defendants did not in fact discriminate against plaintiff, the fact that their firing of her was motivated in part by her filing a complaint wrongly alleging such discrimination, while it might constitute retaliation (as the jury found), lacked the kind of "reprehensibility" that would underlie an award of punitive damages. See Philip Morris USA v. Williams, 127 S. Ct. 1057, 1061-65, 166 L. Ed. 2d 940 (2007). Furthermore, the very large damages awarded by the jury on the retaliation and defamation claims, not for any economic loss but for emotional distress and reputational harm, were plainly more than sufficient to serve any deterrent function that punitive damages might otherwise be asked to serve in a case where compensatory damages were much smaller.
In this latter regard, the Supreme Court has instructed district courts reviewing punitive damages awards to consider whether "[t]he compensatory damages for the injury suffered . . . were based on a component which was duplicated in the punitive award," State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003), for, as noted in the Restatement (Second) of Torts § 908, Comment c, p. 466 (1977), "In many cases in which compensatory damages include an amount for emotional distress, such as humiliation or indignation aroused by the defendant's act, there is no clear line of demarcation between punishment and compensation and a verdict for a specified amount frequently includes elements of both." Cited in State Farm, 538 U.S. at 426. In the instant case, once the jury had not only removed the discrimination claims from the equation but also had awarded very substantial compensatory damages for emotional distress and reputational harm, the compensatory damages addressed much the same components that would have been addressed by a punitive damage award on those same claims, and any further award would have been excessive under the tenets of State Farm. See tr. 10/23/06, at 2246. See also BMW of N. Am. v. Gore, 517 U.S. 559, 574-75, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1997).
Additionally, at the time the Court made its ruling dismissing the punitive damages claim, the Court was aware, though the jury was not, that the financial condition of some or all of the defendants was precarious. See, e.g., tr. 10/23/06, at 2200-04.
Tellingly, plaintiff concedes that the total amount of damages here awarded plaintiff "may well" be the appropriate "level of recovery" overall, Pl. Mem. at 4, but argues, nonetheless, that the jury should have been permitted to determine an amount of punitive damages even if, thereafter, the Court chose to reduce the amount back to $ 7.5 million. This is a strange argument, tantamount to saying that the Court erred in not putting the jury through the motions of an exercise in futility; but plaintiff purports to find support for it in Vasbinder v. Ambach, 926 F.2d 1333 (2d Cir. 1991). In particular, plaintiff relies on language in Vasbinder where the Court of Appeals stated as follows:
[W]e have no difficulty in theory with a bifurcation of the punitive damages issue, postponing the jury's consideration of the amount of such an award until a later stage in the trial. Punitive damages are to be tailored to the defendant's ability to pay, and normally that class of evidence is not admitted or desirable during the liability and compensatory damages phase of the case. . . . However, once the jury had returned its finding that punitive damages should be awarded, the court should have proceeded directly to a resolution of the amount -- taking such appropriate additional evidence as the parties wished to present, asking the jury to determine an amount, and reserving the right to set aside the award thereafter through the grant of judgment n.o.v. Had this procedure been followed, our reversal on this appeal could be followed efficiently by reinstatement of the jury's verdict. Given the court's dismissal without allowing the jury to determine the amount, however, the matter now will apparently have to go back for a duplicative presentation of the evidence as to the defendants' actions so that a new jury may assess the amount to be awarded.
Vasbinder, 926 F.2d at 1344. But while the Court notes for future reference the procedure recommended in Vasbinder, the vice in Vasbinder was ultimately a function of the district court's error in wrongly striking the punitive damages claim there. If the decision to strike the punitive damages claim had been correct, the failure to let the jury determine the amount of punitive damages would have been, at worst, harmless error. So too here, if, as plaintiff comes close to conceding, the decision to strike the punitive damages claim was substantively correct, the Court's failure to nonetheless let the jury decide punitive damages in case that claim was reinstated on appeal, was, at most, harmless error.
Second, with respect to defendants' motion for judgment as a matter of law on plaintiff's claim of unlawful retaliation, defendants argue that the evidence adduced at trial was insufficient to permit a reasonable fact-finder to conclude that plaintiff possessed a good faith, reasonable belief that she was the victim of gender discrimination when she made the complaint to that effect on which the claim of retaliation is premised and also that plaintiff's complaint of gender discrimination for which she claims she suffered retaliation was too vague to constitute protected activity as a matter of law.
As to the former, it is true that the only written complaint of gender discrimination that plaintiff submitted to The Source was an email dated February 23, 2005 that plaintiff sent to The Source's Human Resources Director, Julie Als, that stated only that "As the head of human resources, I am informing you that I have been discriminated against on the basis of my gender. This unlawful discrimination must come to an end." Def. Trial Ex. F. Defendants assert that the cursory character of this complaint, coupled with the fact that plaintiff had legal training and had in the past made detailed complaints to The Source about other allegedly unlawful activities, suggest that plaintiff's purpose in sending the email had nothing genuinely to do with redressing gender discrimination. Defendants note further that there was ample evidence from which the jury might have concluded that plaintiff was on the verge of being terminated when she sent her email complaint to Ms. Als and that she was simply using it as a bargaining device. But the jury was also presented with considerable evidence to the contrary, including, among other things, plaintiff's testimony that over a period of years she was subjected to unwelcome sexual advances from various staff members, including defendant Scott, see, e.g., tr. 10/13/06, at 482-86, 494-96, 500, and that her superiors constantly accused her of engaging in sexual relations with various staff members at The Source and with others in the industry in ways that they indicated compromised her work, see id. at 503-06. The jury could readily have concluded that, even if such evidence was not ultimately sufficient to prove all the elements of plaintiff's claims of gender discrimination, it still showed that she had a good faith, reasonable belief that she was opposing unlawful gender discrimination when she filed her complaint with The Source.
Defendants further argue that plaintiff's email complaint was too vague to constitute protected activity as a matter of law. Based principally on Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276 (2d Cir. 1998), defendants argue that such complaints must "specifically address alleged acts of discrimination," and that plaintiff's complaint in this case fell short of that requirement. Individual Def. Mem. at 9. But in Galdieri, the central problem was that plaintiff did not specify in her complaint even what kind of discrimination she was complaining about, see Galdieri, 136 F.3d at 292 (complaint "did not state" that plaintiff viewed defendant's "actions as based on her gender"), whereas plaintiff's complaint to Ms. Als clearly identified the discrimination she believed she suffered as based on her gender. Furthermore, plaintiff testified that she had previously had conversations with Ms. Als that effectively fleshed out the more general statements in her complaint. See tr. 10/13/06, at 602-08. Finally, according to plaintiff, defendants terminated her employment at The Source before she could further elaborate on the basis for her complaint. See tr. 10/16/06, at 640. Given this combination of circumstances, the standards of Galdieri were more than met.
Third, with respect to defendants' motion for a new trial on plaintiff's claim of unlawful retaliation, defendants largely rely on a potpourri of arguments and objections that were previously rejected at trial and that have gained no greater persuasiveness since. Conversely, to the extent that defendants raise new issues that were required to be raised at trial but were not there raised -- such as objections to the Court's charge that were not made previously -- those issues have plainly been waived. The only new issue properly before the Court on this motion is defendants' argument that the jury's award of $ 4 million in compensatory damages on the retaliation claim is excessive as a matter of law and that the Court should either order a new trial limited to damages or else, under the practice of remittitur, condition the denial of the motion for a new trial on plaintiff's accepting reduced damages.
There is no doubt that the $ 4 million in damages on the retaliation claim is a very full verdict, a factor that, as noted, entered into the Court's subsequent dismissal of the punitive damages claim. However, plaintiff testified at some length about the emotional distress and damage to reputation caused by the retaliation, including how defendants' retaliation caused her to feel depressed and anxious and to feel embarrassed in front of others in the industry, as well as causing her difficulty during subsequent job interviews and professional events and the like. See tr. 10/16/06, at 673-678; tr. 10/17/06, at 1062-63. Throughout the trial, defendants themselves emphasized the preeminent role that The Source enjoyed at the time in the world of "hip hop," having a readership of 2 million persons and more. See, e.g., tr. 10/11/06, at 34; tr. 10/12/06, at 380; tr. 10/20/06, at 1823-24. Plaintiff, having risen from humble beginnings to the position of Editor-in-Chief of this prominent publication, only to be summarily dismissed in retaliation for filing a complaint of gender discrimination, might reasonably have suffered, as she averred, substantial emotional distress and reputational harm -- and a jury, having found that such retaliation was intentional, could reasonably have concluded, under any standard, to award substantial damages.
Plaintiff's extraordinary claim, completely contradicted by the record, that the jury actually awarded, not $ 4 million jointly and severally against the four defendants on the retaliation claim, but rather a total of $ 12 million on that claim (consisting of $ 4 million against Mays, $ 4 million against Scott, and $ 4 million against the two Source companies collectively) was rejected by the Court shortly after trial. See tr. 10/31/06, at 30, 41. Had the jury actually awarded $ 12 million on this claim, the Court likely would have ordered remittitur to $ 4 million.
The parties' debate over whether the damages award is governed by state or federal law, as well as over what standard applies under each of these laws, is, the Court concludes, irrelevant since the damages award was justified under any of these laws and standards.
As previously stated, the jury's award was limited to non-economic damages; economic damages were left to the determination of the Court. In this regard, defendants argue that the Court's front-pay award of $ 264,575.00 (based, inter alia, on an estimate that her employment at The Source would have continued, but for the retaliation, for another five years, and that she had no reasonable prospect of obtaining equivalent alternative employment) was excessive given plaintiff's age, qualifications, minimal mitigation efforts, and performance problems at The Source. But the Second Circuit has authorized front-pay awards lasting "well over 20 years . . . when necessary to provide whole relief for victims of employment discrimination," such as where a plaintiff has "unique and narrowly focused skills." Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 126 (2d Cir. 1996). As noted, plaintiff was the Editor-in-Chief at The Source Magazine, which the evidence showed was one of only a handful of leading hip-hop magazines. The evidence showed that, as a result of defendants' conduct, plaintiff would have difficulty ever attaining a comparable editorial position at another leading hip-hop magazine, and had "no reasonable prospect of obtaining comparable alternative employment" within the next five years. Whittlesey v. Union Carbide Corp., 742 F.2d 724, 729 (2d Cir. 1984). In these circumstances, plaintiff's skills were "unique and narrowly focused" and a five-year front pay award was not unduly speculative or excessive.
Defendants also argue that the Court's front-pay calculation failed to take account of The Source's recent financial difficulties (in evidence before the Court though not in evidence before the jury) because the Court calculated plaintiff's front pay based on the salary she was receiving at the time she was terminated, before The Source's financial difficulties began. Defendants argue that the editors-in-chief at The Source who served after plaintiff received lower salaries than plaintiff had received, and that if plaintiff had not been unlawfully terminated from The Source, she would have received such a reduced salary. But in fact the Court took this evidence into account when it awarded front pay, and it contributed to the Court's decision to award front-pay for only five years and not for a longer period.
Fourth, with respect to defendant Scott's motions directed at the defamation claim, a brief recapitulation is in order. As presented to the jury, plaintiff's defamation claim rested on a statement Scott made in an interview with Clover Hope, a writer for the website AllHipHop.com. The interview was recorded and the audiotape was played for the jury. For purposes of this motion, the Court will rely on Scott's transcription of the tape, which Scott presented in his memorandum on the instant motion:
Hope: And you and Dave Mays said that you requested that [plaintiff] repeal her complaint? That's what she (inaudible)?
[Scott]: Oh uh, definitely, definitely. We, you know what I'm saying, we said yes like you know Kim your [sic] just like you know she made a complaint that we said like what it is based on, we had a little conversation and we asked her that you know what I'm saying that you know I mean basically she sh eh eh she she tried to extort us to be like listen if you keep me on I'll take -- if you promise not to fire me or or get some type of contract then I'll take the complaint away. But that's the first complaint she's ever done so isn't it kind of peculiar that she made the complaint when she know that she was gonna get fired, Clover, that's the first complaint we've ever had from her since since she's been the top t umm de umm the top person at at The Source magazine, doesn't that sound real peculiar C umm C Clover, come on now . . .
Def. Mem. at 6 (quoting Pl. Ex. 86) (emphasis added).
The Court charged the jury on the pertinent elements of a defamation claim. With respect to the requirement of "malice," the Court instructed the jury that plaintiff was required to prove, with respect to the alleged defamatory statement,
[t]hat Scott either knew that such statement or statements were false or else made such statement or statements in a grossly irresponsible manner, that is, that he had or should have had substantial reason to question the accuracy of the information communicated or the good faith of his sources.
Tr. 10/23/06, at 2177. Scott concedes that he did not object to this charge when given the opportunity to do so at the charging conference. Def. Reply Mem. at 6.
Turning first to Scott's Rule 59 motion, Scott argues that plaintiff was a public figure; that, as such, she was required to prove actual malice in order to prevail on a defamation claim; that she failed to do so; and that the Court should therefore enter judgment as a matter of law dismissing the defamation claim. Plaintiff disputes each of these assertions. Among other things, she maintains that she was not a public figure at all; but the Court need not resolve that issue, because it finds that, in any event the plaintiff proved actual malice.
In this regard, the Supreme Court has authorized district courts to conduct an independent review of the evidence of actual malice to determine if a verdict can constitutionally be sustained. Bose Corp. v. Consumers Union, 466 U.S. 485, 510-11, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984). But this review still must "accord[] traditional deference to the jury's underlying credibility determinations." DiBella v. Hopkins, 403 F.3d 102, 116 (2d Cir. 2005).
Under applicable New York law, a public figure, in order to show actual malice, must prove that the defamatory statement was "made 'with knowledge that it was false or with reckless disregard of whether it was false or not.'" Church of Scientology Int'l v. Behar, 238 F.3d 168, 173-74 (2d Cir. 2001) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)). A defendant makes a statement with reckless disregard for its truth where the defendant makes the statement "with [a] high degree of awareness of [the statement's] probable falsity." Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 101 (2d Cir. 2000) (internal quotation marks omitted).
Scott argues that plaintiff did not adduce clear and convincing evidence of actual malice at trial because the gist of Scott's defamatory statement to Clover Hope was that Scott thought plaintiff was attempting to extort him, and plaintiff did not prove that Scott did not genuinely believe that he was being extorted. This argument, however, mischaracterizes the defamatory statement at issue. Scott not only said that plaintiff was trying to extort him, but also said, specifically, that he and plaintiff "had a little conversation" in which he "asked her" about her complaint and she replied by saying "if you promise not to fire me . . . then I'll take the complaint away." Def. Mem. at 6 (quoting Pl. Ex. 86). Thus, the question of whether Scott made this statement with actual malice turns on whether this conversation actually occurred: if the conversation did not happen, then Scott could not have subjectively believed that it did, and would necessarily have made the defamatory statement at issue knowing it to be false, that is, with actual malice.
At trial, Scott testified that plaintiff had made this statement, see tr. 10/19/06, at 1360, and plaintiff testified that she had not, see tr. 10/16/06, at 661. The Court instructed the jury that it could find liability for defamation only if it found, inter alia, that Scott's statement to Clover Hope was "materially false," see tr. 10/23/06, at 2177, and the jury could only have made such a finding by crediting plaintiff's testimony that the conversation between Scott and plaintiff never happened and discrediting Scott's testimony to the contrary.
The Court must "accord[] traditional deference to the jury's underlying credibility determinations," DiBella, 403 F.3d at 116, and therefore must credit the jury's determination that Scott and plaintiff never had the conversation in question. This fact not only provides clear and convincing evidence that Scott's statement to Clover Hope was materially false, but also that Scott knew it was false and made the statement with actual malice. Scott was in a position to know from his personal knowledge whether the conversation he reported having with plaintiff actually happened and, given the jury's finding that it did not, Scott could only have made his statement to Clover Hope with actual knowledge of its falsity, i.e. with actual malice.
Turning to Scott's motion under Rule 50(b), Scott argues that the Court must order a new trial because the Court improperly instructed the jury on the law of actual malice.
As noted, the Court's charge instructed the jury that plaintiff was required to prove, with respect to the alleged defamatory statement, "that Mr. Scott either knew that such statement or statements were false or else made such statement or statements in a grossly irresponsible manner, that is, that he had or should have had substantial reason to question the accuracy of the information communicated or the good faith of his sources." Tr. 10/23/06, at 2177.
Scott argues that "[a]lthough the foregoing instruction properly incorporates the first prong of the 'actual malice' standard -- actual knowledge of falsity -- it charges in the alternative the 'gross irresponsibility' standard which governs defamation claims brought by private figure plaintiffs in New York." Def. Mem. at 12 (emphasis in original). Scott is correct that the law in New York distinguishes between the "reckless disregard" standard for actual malice in public figure cases, as set forth by the Supreme Court in New York Times v. Sullivan, and the "grossly irresponsible" standard for liability in private figure cases, as set forth by the New York Court of Appeals in Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 199, 341 N.E.2d 569, 379 N.Y.S.2d 61 (1975). If therefore, as Scott argues, plaintiff was a public figure at the time of the defamation, the Court's instruction was arguably erroneous to the extent it instructed the jury that the jury could find liability if Scott made his statement in a grossly irresponsible manner.
Scott admits, however, that he did not object to the charge at the charging conference; but he argues that the instruction was nonetheless plain error under Rule 51(d)(2) of the Federal Rules of Civil Procedure. Def. Reply Mem. at 6. However, prior to trial, Scott had raised the issue of whether plaintiff was a public or private figure -- an issue that then, as now, the Court was not obliged to resolve, see Osorio v. Source Enters., 2006 U.S. Dist. LEXIS 63032, 2006 WL 2548425, at *7 n.6 (S.D.N.Y. 2006) -- and, accordingly, Scott could hardly have been unaware that the Court's charge incorporated the private figure standard. Against this background, Scott's failure to object to the charge was tantamount to a concession that plaintiff should not be treated as a public figure for purposes of this claim, and thus there was no error whatever in the charge as given.
Alternatively, even if one were to assume arguendo that plaintiff was a public figure, there would be no plain error. The factors relevant to the "plain error" analysis in this context are "the obviousness of the mistake," "[t]he importance of the error," "[t]he costs of correcting an error," and "the impact a verdict may have on nonparties." Fed. R. Civ. P. 51, Advisory Committee Notes to 2003 Amendments at 227. Although "[t]here are situations" where a statement may satisfy either the "reckless disregard" or the "grossly irresponsible" standard, but not both, see Konikoff, 234 F.3d at 104, the facts of the instant case do not implicate any difference between the two tests that the jury would have to resolve and therefore, even accepting that the Court's error was obvious, in the circumstances of this case the error was not important to the jury's verdict.
As described above, Scott and Osorio gave sharply conflicting testimony regarding whether, as Scott said to Clover Hope, Scott and Osorio had a conversation in which Osorio offered to withdraw her complaint of discrimination in exchange for job security. Scott said that this conversation happened; Osorio said it did not. The jury's finding that Scott was liable for defamation necessarily entailed a finding that Scott's statement with respect to this conversation was false. Further, this finding necessarily implies that Scott made the statement knowing it was false because the question of whether the conversation happened was within Scott's personal knowledge; in effect, the jury found that he simply made it up. Scott admits that a finding of "actual knowledge of falsity" satisfies the Supreme Court's requirement of actual malice, Def. Mem. at 12, and the jury's verdict here, given the facts, could not have been premised on any other finding. Because the facts here did not implicate the question of whether Scott made his defamatory statement in a "grossly irresponsible manner," or with a "reckless disregard" for the truth, and because the jury effectively found that, in fact, Scott knew his statement was false, the fact that the Court also charged that liability could also be based on grossly irresponsible conduct was immaterial surplusage, and this charge was therefore not plain error.
Finally, Scott argues that he is entitled to a new trial on the ground that the jury's award of $ 3.5 million in compensatory damages on plaintiff's defamation claim is grossly excessive because it is not supported by competent evidence and because it deviates materially from approved awards in similar cases. However, while the award was undoubtedly substantial, there was adequate evidence of damage to plaintiff's reputation in the hip-hop industry following the publication of the article containing Scott's defamatory statement. See tr. 10/16/06, at 689-671; tr. 10/17/06, at 1063. In addition, the verdict was within a reasonable range for a case involving a defamatory statement that harms an individual's reputation, see, e.g., Purgess v. Sharrock, 33 F.3d 134, 142 (2d Cir. 1994) (upholding award of $ 3.5 million in compensatory damages on defamation claim), and was reasonable in this case given that plaintiff had obtained one of the highest positions available in her industry. The jury could reasonably have credited plaintiff's testimony that Scott's defamatory statement had "branded [her] as a criminal in the industry" and thereby impaired her ability to work in that industry, see tr. 10/17/06, at 1063. In these circumstances, the $ 3.5 million award does not "exceed[] the reasonable range" for recoveries. Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990).
The Court has also considered the parties' various other arguments but finds them without merit. For the foregoing reasons, the Court reconfirms in all respects its Final Judgment dated October 31, 2006 and its Order dated December 19, 2006 in all respects. The Clerk of the Court is hereby directed to close documents 135, 139, 143, and 145. Document 138 (plaintiff's motion for attorneys' fees and costs) will remain open until the expiration of any appellate practice.
JED S. RAKOFF, U.S.D.J.
Dated: New York, New York
March 2, 2007