Robert Davis, et al., Appellants,v.James Boeheim, et al., Respondents.BriefN.Y.September 9, 2014To Be Argued By: HELEN V. CANTWELL Time Requested: 30 Minutes APL-2013-00303 Onondaga County Clerk’s Index No. 2012-EF-1 Court of Appeals of the State of New York ROBERT DAVIS and MICHAEL LANG, Plaintiffs-Appellants, —against— JAMES BOEHEIM and SYRACUSE UNIVERSITY, Defendants-Respondents. BRIEF FOR DEFENDANTS-RESPONDENTS d MARY BETH HOGAN HELEN V. CANTWELL ANDREW M. LEVINE MIRANDA H. TURNER DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, New York 10022 Telephone: (212) 909-6000 Facsimile: (212) 909-6836 Counsel for Defendant-Respondent Syracuse University C. JAMES ZESZUTEK DINSMORE & SHOHL LLP One Oxford Centre 301 Grant Street, Suite 2800 Pittsburgh, Pennsylvania 15219 Telephone: (412) 281-5000 Facsimile: (412) 281-5055 —and— JANET D. CALLAHAN TIMOTHY P. MURPHY HANCOCK ESTABROOK, LLP 1500 AXA Tower I 100 Madison Street Syracuse, New York 13202 Telephone: (315) 565-4500 Facsimile: (315) 565-4600 Counsel for Defendant-Respondent James Boeheim January 23, 2014 TABLE OF CONTENTS Page QUESTION PRESENTED............................................................................. 1 PRELIMINARY STATEMENT .................................................................... 1 COUNTERSTATEMENT OF FACTS .......................................................... 3 POINT I: BOTH LOWER COURTS APPLIED THE APPROPRIATE STANDARD OF REVIEW............................................. 10 POINT II: AS THE APPELLATE DIVISION PROPERLY CONCLUDED, THE CONTENT OF BOEHEIM’S STATEMENTS DEMONSTRATES THAT HE WAS STATING AN OPINION................ 12 A. Boeheim’s Statements Denying Plaintiffs’ Allegations Indicated He Was Conveying His Opinion................................... 13 B. Boeheim’s Statements Suggesting Plaintiffs Were Financially Motivated Were Classic Opinion. .............................. 16 POINT III: THE COURTS BELOW CORRECTLY DETERMINED THAT THE IMMEDIATE AND BROADER CONTEXT OF BOEHEIM’S STATEMENTS SIGNALED TO THE REASONABLE READER THAT HE WAS EXPRESSING CONSTITUTIONALLY PROTECTED OPINION.............................................................................. 19 A. The Immediate Context – The Full Articles In Which The Statements Appear – Reflected That Boeheim Was Expressing An Opinion. ................................................................ 19 1. Defensive Posture ............................................................... 19 2. Long-Time Relationship ..................................................... 21 3. Emotional State Of Mind .................................................... 22 ii B. The Broader Context Likewise Reflected That Boeheim Was Expressing An Opinion. ................................................................ 23 1. Penn State............................................................................ 24 2. Ongoing, Vigorous Public Debate ...................................... 27 3. Reputation For Bluntness.................................................... 28 POINT IV: BOEHEIM’S STATEMENTS, WHEN TAKEN AS A WHOLE AND READ IN THEIR FULL CONTEXT, ARE NOT ACTIONABLE AS ANY TYPE OF MIXED OPINION. ........................... 29 A. Boeheim’s Statements Did Not Imply A Basis In Undisclosed Facts.......................................................................... 29 B. Plaintiffs’ Selective Criticism Of Non-Material Facts Does Not Alter The Protected Nature Of Boeheim’s Views. ................ 33 iii TABLE OF AUTHORITIES CASES 600 West 115th St. Corp. v. Von Gutfield, 80 N.Y.2d.130 (1992) ..............13, 23, 27 Armstrong v. Simon & Schuster, 85 N.Y.2d 373 (1995)...................................10, 16 Aronson v. Wiersma, 65 N.Y.2d 592 (1985) .....................................................11, 12 Biro v. Condé Nast, 883 F. Supp. 2d 441 (S.D.N.Y. 2012) ....................................10 Bonanni v. Hearst Communications, Inc., 58 A.D.3d 1091 (3d Dep’t 2009).........................................................................................................26 Brach v. Congregation Yetev Lev D’Satmar, 265 A.D.2d 360 (2d Dep’t 1999)...................................................................................................16 Brian v. Richardson, 87 N.Y.2d 46 (1995)......................................12, 19, 21, 23, 28 Bruno v. New York Daily News Co., 89 A.D.2d 260 (3d Dep’t 1982)....................29 Caffee v. Arnold, 104 A.D.2d 352 (2d Dep’t 1984) ................................................18 Cappellino v. Rite-Aid, 152 A.D.2d 934 (4th Dep’t 1989)......................................16 Chalpin v. Amordian Press, 128 A.D.2d 81 (1st Dep’t 1987) ....................33, 34, 35 Couloute v. Ryncarz, No. 11 CV 5986(HB), 2012 WL 541089 (S.D.N.Y. Feb. 17, 2012)..................................................................11, 14, 16, 23 El-Amine v. Avon Products, Inc., 293 A.D.2d 283 (1st Dep’t 2002) ......................15 Farber v. Jefferys, 33 Misc. 3d 1218(A), 941 N.Y.S.2d 537 (Sup. Ct. N.Y. Cnty. Nov. 2, 2011) ..............................................................26, 27 Gardner v. Martino, 563 F.3d 981 (9th Cir. 2009)..................................................28 Gentile v. Grand Street Medical Associates, 79 A.D.3d 1351 (3d Dep’t 2010).............................................................................................17, 20, 25 iv Gisel v. Clear Channel Communications, Inc., 94 A.D.3d 1525 (4th Dep’t 2012).........................................................................................................31 Geraci v. Probst, 15 N.Y.3d 336 (2010) .................................................................18 Goetz v. Kunstler, 164 Misc. 2d 557 (Sup. Ct. N.Y. Cnty. 1995) ...............10, 17, 22 Golub v. Enquirer/Star Group, 89 N.Y.2d 1074 (1997) .........................................12 Greenbelt Cooperative Publishing Association, Inc. v. Bresler, 398 U.S. 6 (1970).......................................................................................................17 Gross v. New York Times Co., 82 N.Y.2d 146 (1993) ................................13, 16, 25 Hollander v. Cayton, 145 A.D.2d 605 (2d Dep’t 1988)..........................................17 Huggins v. Povitch, No. 131164/94, 1996 WL 515498 (Sup. Ct. N.Y. Cnty. Apr. 19, 1996) ...........................................................................................21 Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235 (1991)............................10, 23, 25 Independent Living Aids, Inc. v. Maxi-Aids, Inc., 981 F. Supp. 124 (E.D.N.Y. 1997)............................................................................................15, 20 Kaminester v. Weinstraub, 131 A.D. 2d 440 (2d Dep’t 1987)................................16 Karaduman v. Newsday, Inc., 51 N.Y.2d 531 (1980) .............................................36 Lapine v. Seinfeld, 31 Misc. 3d 736 (Sup. Ct. N.Y. Cnty. 2011) ......................28, 29 Leder v. Spiegel, 31 A.D.3d 266 (2d Dep’t 2006), aff’d 9 N.Y.3d 836 (2007)..................................................................................................................11 Lenz Hardware v. Wilson, 94 N.Y.2d 913 (2000)...................................................12 Mann v. Abel, 10 N.Y.3d 271 (2008) ..............................................11, 13, 19, 21, 25 Mase v. Reilly, 206 A.D. 434 (1st Dep’t 1923) .......................................................16 McGill v. Parker, 179 A.D.2d 98 (1st Dep’t 1992).................................................33 v McNamee v. Clemens, 762 F. Supp. 2d 584 (E.D.N.Y. 2011) ....................17, 22, 23 OFSI Fund II, LLC v. Canadian Imperial Bank of Commerce, 82 A.D.3d 537 (1st Dep’t 2011) ..............................................................................35 Petrus v. Smith, 91 A.D.2d 1190 (4th Dep’t 1983) .................................................16 Ram v. Moritt, 205 A.D.2d 516 (2d Dep’t 1994) ..............................................14, 16 Rizzuto v. The Nexxus Products Co., 641 F. Supp. 473 (S.D.N.Y. 1986) ...................................................................................................................15 Rossi v. Attanasio, 48 A.D.3d 1025 (3d Dep’t 2008)..............................................32 Sabratek Corp. v. Keyser, No. 99 Civ. 8589 (HB), 2000 WL 423529 (S.D.N.Y. Apr. 19, 2000) .............................................................................14, 16 Silsdorf v. Levine, 59 N.Y.2d 8 (1983) ..............................................................10, 34 Steinhilber v. Alphonse, 68 N.Y.2d 283 (1986).....................................12, 13, 25, 26 Stroup v. Nazzaro, 91 A.D.3d 1367 (4th Dep’t 2012).............................................14 Thomas H. v. Paul B., 18 N.Y.3d 580 (2012) .........................................................18 Trustco Bank of New York v. Capital Newspaper Division of Hearst Corp., 213 A.D.2d 940 (3d Dep’t 1995) ............................................................17 Varrenti v. Gannett Co., Inc., 33 Misc. 3d 405 (Sup. Ct. Monroe Cnty. 2011) ...................................................................................................................14 Wilcox v. Newark Valley Central School District, 74 A.D.3d 1558 (3d Dep’t 2010)...................................................................................................26 Zulawski v. Taylor, 63 A.D.3d 1552 (4th Dep’t 2009)............................................32 vi OTHER AUTHORITIES John O’Brien, Mike Lang Speaks, Syracuse.com, Syracuse Post- Standard (May 17, 2012, 12:30 AM), http://www.syracuse.com/ news/index.ssf/2012/05/mike_lang_speaks_glad_he_lost.html.........................22 Robert D. Sack, Sack on Defamation § 2.4.7 (4th ed. 2010) ..................................15 QUESTION PRESENTED Where Plaintiffs-Appellants challenge statements by Defendant-Respondent James Boeheim that constituted an impassioned defense of his long-time friend and of himself – within the broader context of a heated public debate and while noting his limited knowledge – did the Appellate Division and trial court correctly conclude that these statements are protected opinion and not defamatory as a matter of law? This question must be answered in the affirmative. PRELIMINARY STATEMENT As required under New York law, the lower courts carefully analyzed Coach Boeheim’s challenged statements – both as a whole and in their surrounding context – ultimately determining that the statements, as a matter of law, were not capable of defamatory meaning. Both courts below properly concluded that Boeheim’s statements, which expressed doubt about Plaintiffs’ allegations of abuse and questioned their motives in coming forward, constituted the expression of Boeheim’s constitutionally protected opinion. Such protection applies no matter how controversial or offensive statements might be and applied equally to Coach Boeheim’s initial comments, alleged by Plaintiffs to have been defamatory, as to his comments ten days later, when he apologized publicly to Plaintiffs. 2 The lower courts’ review of Boeheim’s statements comported fully with this Court’s direction regarding the importance of analyzing – in a manner that is both flexible and protective of speech – statements alleged to be defamatory. On their face, Boeheim’s challenged statements conveyed palpable surprise, emotion, and disbelief in response to distressing allegations of abuse by a long-time friend and colleague. These allegations also implicated Boeheim directly, and the basketball program he leads, and did so in the immediate aftermath of a sex-abuse scandal at Penn State that involved its head football coach. In defending his colleague and himself, the words Boeheim used and the broader setting in which he spoke them strongly signaled to the reasonable reader that he was communicating his opinion and not asserting facts. The doctrine of mixed opinion does not alter the legal protection afforded to Boeheim’s statements in this context. Significantly, Boeheim disclosed the facts (and lack of knowledge of the facts) underlying his opinion, which included the prior Syracuse University (the “University”) statement noting that it had placed Fine on administrative leave and detailing the 2005 investigation. Plaintiffs’ arguments to the contrary rely on parsing of language and selective reading, both flatly prohibited under New York law and squarely rejected by the courts below. For example, Plaintiffs’ objection to Boeheim’s description of the investigation of Davis’s earlier allegations, his memories of Davis, and his suspicion of Davis’s 3 motives certainly did not amount to a gross or material distortion of fact, even accepting all of the allegations in Plaintiffs’ Complaint as true. Furthermore, dismissal of Plaintiffs’ Complaint was entirely appropriate in this procedural posture: this case turns solely on the narrow legal question of whether Boeheim’s challenged statements communicated opinion or facts. No discovery is necessary for a court to conclude that Boeheim’s allegedly defamatory statements – based on their plain language and read as a whole and in context – constituted non-actionable opinion. Indeed, this dismissal is in keeping with the principle that, where possible, defamation cases should be resolved at the pleading stage to avoid the chilling of individual expression. Defendants therefore respectfully submit that this Court should affirm the decision of the Appellate Division upholding the trial court’s dismissal of Plaintiffs’ Complaint. COUNTERSTATEMENT OF FACTS Initial Reporting On November 17, 2011, ESPN first reported on allegations of sexual abuse by Bernie Fine, then the long-time Associate Head Coach of the men’s basketball team of Defendant-Respondent Syracuse University. (R92 ¶ 5; R102 ¶ 41.) This reporting described Fine as allegedly having used the University’s basketball program to obtain influence over Plaintiff-Appellant Robert Davis, dating back over decades. (R192; R194.) Initial reporting also contained Davis’s assertion that 4 Boeheim, the head coach, had seen Davis in Fine’s hotel room on team road trips. (R166; R170; R186; R192; see also R99 ¶ 31.) Plaintiffs’ claims were publicized in the immediate wake of serious allegations involving Penn State University and its head football coach, Joe Paterno, where a former assistant football coach (Jerry Sandusky) was accused of having gained access to children through the school’s football program in order to abuse them. (R183; R196.) Paterno was alleged to have covered up the abuse. (R168; see also R183.) Starting with the first story that ESPN published on Davis’s allegations, ESPN and all other media outlets referenced the Penn State scandal as well. (R162.) As was widely reported by the press in many articles, including those in which the allegedly defamatory statements appear, Davis previously had raised claims of abuse. In 2002, Davis contacted the Syracuse Police Department and was told that the Department would not investigate the allegations because “the statute of limitations had run.” (R100 ¶ 33.) In 2002 and 2003, Davis contacted the Syracuse Post-Standard and ESPN, respectively, but both news outlets decided not to publish his claims. (R101-102, ¶¶ 39-40.) As noted in the University’s official statements, in 2005, Davis reported the alleged abuse to the University, which launched an investigation, interviewing Davis and other individuals whom 5 Davis identified. (R177.) As ESPN reported, those named by Davis “denied any knowledge of wrongful conduct” by Fine. (R177; R193.) Reaction in November 2011 to Davis’s Allegations The same night that ESPN’s initial story aired, the University placed Fine on administrative leave and released a statement describing the University’s four- month long investigation in 2005, including “a number of interviews with people [Davis] said would support his claim,” at the conclusion of which the University was unable to corroborate Davis’s allegations. (R177; R184-85; R193.) Boeheim released his own statement later that night expressing his “full support” for Fine, whom he had known for over 40 years. (R159.) He also commented to various news media outlets regarding the story. (R165; R180; R186.) A fierce public debate about the veracity of the allegations ensued, which was also reported by the media. Many, “if not all,” Central New Yorkers had “chosen sides” within only a few days. (R190.) Some immediately sided with Plaintiffs, calling the allegations against Fine “chilling” and potentially the “ultimate abuse of power,” “eerily similar” to Penn State, and even “Sandusky- like.” (R161-62; R167-68.) Others defended Fine, including a former Syracuse basketball player who said that Fine would be “cleared, as he’s been cleared before.” (R190.) One reporter wrote that the case against Fine appeared “shaky,” 6 while another questioned ESPN’s decision to air the story when it “didn’t nearly have enough evidence.” (R196; R203.) Allegedly Defamatory Statements Plaintiffs identify the allegedly defamatory statements in their Complaint at paragraphs 47 to 52, which were published on November 17 and 18, 2011 in the Syracuse Post-Standard, ESPN (also published by Sporting News), and The New York Times. (R103-04 ¶ 47-52; see also R192-95.) The authors of these articles described Boeheim’s shock and disbelief at the allegations, observing that he seemed “perplexed,” “upset,” and unable to “connect the dots” about his “friend’s alleged dark side.” (R187.) Plaintiffs do not allege that Boeheim’s official statement (released on November 17, 2011), in which he stated that the University had fully investigated Davis’s earlier allegations, was defamatory. In its article, ESPN acknowledged that it initially had chosen not to publish Davis’s allegations until a second accuser, who was inspired by coverage of the Penn State case, came forward. (R194.) In this context of the Penn State scandal, Boeheim’s statements were defensive: “I’m not Joe Paterno. Somebody didn’t come and tell me Bernie Fine did something and I’m hiding it. I know nothing. If I saw some reason not to support Bernie, I would not support him . . . . But until then, I’ll support him until the day I die.” (R189-90 (emphasis added).) 7 Media outlets reported that Boeheim “adamantly defended” his long-time friend (R165), characterizing the allegations as “a bunch of a thousand lies that [Davis] had told.” (R181.) Invoking the University’s statement of November 17, Boeheim stated that Davis previously had “supplied four names to the university that would corroborate his story. None of them did.” (R181; R104 ¶ 49.) Boeheim also strongly denied Davis’s claim that Boeheim had seen him in Fine’s hotel room back in 1987: This is alleged to have occurred . . . what? Twenty years ago? Am I in the right neighborhood? It might be 26 years ago? So we are supposed to do what? Stop the presses 26 years later? For a false allegation? For what I absolutely believe is a false allegation? I know [Davis is] lying about me seeing him in his hotel room. That’s a lie. If he’s going to tell one lie, I’m sure there’s a few more of them.” (R186; R103 ¶ 47 (alteration in original).) To underscore his personal disbelief, Boeheim asked: “You don’t think it is a little funny that his cousin (relative) is coming forward?” (R104 ¶ 50.) He suggested the timing of Plaintiff-Appellant Michael Lang’s allegation was “a little suspicious” (R104 ¶ 51), questioning Plaintiffs’ motives for raising these claims when they did. With reference to the Penn State scandal unfolding in the news at the same time, Boeheim speculated that Plaintiffs were motivated by money. Specifically, Boeheim said: 8 “The Penn State thing came out and the kid behind this [Davis] is trying to get money. He’s tried before. And now he’s trying again. If he gets this, he’s going to sue the university and Bernie. What do you think is going to happen at Penn State? You know how much money is going to be involved in civil lawsuits? I’d say about $50 million. That’s what this is about. Money.” (R187.) “Why wouldn’t he come to the police (first this time)? Why would he go to ESPN? What are people looking for here? I believe they are looking for money. I believe they saw what happened at Penn State and they are using ESPN to get money. That is what I believe. You want to put that on the air? Put that on the air.” (R193.) In the days following ESPN’s broadcast of the allegations, Boeheim continued to express his support for Fine, believing that what he had said “was the right statement,” though he readily conceded: “I really don’t have any facts.” (R104 ¶ 52; R199.) On November 27, 2011, ten days after the initial ESPN article, and after new information regarding Fine emerged, Boeheim apologized for his earlier comments and admitted that he had spoken “out of loyalty” at a moment when he “couldn’t believe what [he] was hearing.” (R211-12.) He expressed regret for any harm he might have caused by “question[ing] what the accusers [Davis and Lang] expressed or their motives” and acknowledged that his statements were “insensitive” to the overall issue of child abuse. (R211; R105 ¶ 55.) Lawsuit On December 13, 2011, Plaintiffs brought this defamation action against Boeheim and the University. Defendants moved to dismiss Plaintiffs’ Complaint 9 on the ground that Boeheim’s statements were not defamatory as a matter of law, given that Boeheim was expressing his opinion and did not make any defamatory statements of fact. On April 27, 2012, the New York Supreme Court granted Defendants’ motion, issuing a 30-page opinion that concluded that Plaintiffs’ claim failed because Boeheim’s statements, as a matter of law, were not defamatory, “but rather constituted personal opinion and rhetorical hyperbole rather than objective fact.” (R76.) Because Plaintiffs’ claims against the University were based entirely on the theory of vicarious liability, the claims against the University were dismissed as well. (R86.) Judge DeJoseph evaluated Boeheim’s statements in the immediate context of the articles in which they appeared and in the broader context, including contemporaneous reporting on Penn State, concluding that the context would have informed the reasonable reader that Boeheim was stating his opinion. (R76.) To the extent Boeheim’s statements alluded to facts, the court concluded that they were materially accurate and were disclosed, allowing the reader to assess the basis for Boeheim’s view. (R85-86.) Defendants motion was granted on May 25, 2012. On June 14, 2012, Plaintiffs filed a notice of appeal to the Fourth Department. (R2.) Oral arguments were heard on September 3, 2013, and the Fourth Department issued its decision on October 3, 2013, with Presiding Justice Scudder and Justices Centra and Peradotto affirming the lower court’s dismissal 10 after concluding that “the content of the statements, together with the surrounding circumstances,” signaled that the statements were opinion. (R8a.) Two justices dissented, and Plaintiffs appealed to this Court on October 10, 2013. (R2a.) POINT I: BOTH LOWER COURTS APPLIED THE APPROPRIATE STANDARD OF REVIEW. On a motion to dismiss, when confronted with allegations “that statements are false and defamatory, the legal question for [a] court . . . is whether the contested statements are reasonably susceptible of a defamatory connotation.” Armstrong v. Simon & Schuster, 85 N.Y.2d 373, 380 (1995). This well-established gatekeeper function of courts – determining whether “statements complained of are reasonably susceptible of a defamatory connotation, thus warranting submission to the trier of fact” – is an integral part of protecting free speech. Silsdorf v. Levine, 59 N.Y.2d 8, 12-13 (1983) (internal citations and quotations omitted). As courts have held, there is “particular value in resolving defamation claims at the pleading stage, so as not to protract litigation through discovery and trial and thereby chill the exercise of constitutionally protected freedoms.” Biro v. Condé Nast, 883 F. Supp. 2d 441, 457 (S.D.N.Y. 2012) (internal citations and quotations omitted); see also Goetz v. Kunstler, 164 Misc. 2d 557, 565 (Sup. Ct. N.Y. Cnty. 1995) (underscoring that “[i]t is a paramount interest of a free society to assure that open and spirited discussion of matters of public concern will not be chilled by the threat of litigation”). Statements of opinion, like Boeheim’s, are afforded “the broadest 11 possible protection” in New York. Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 249 (1991). Even if insensitive or “offensive,” such statements “cannot be the subject of an action for defamation.” Mann v. Abel, 10 N.Y.3d 271, 276 (2008). In challenging the lower courts’ decisions, Plaintiffs wrongly suggest that the trial court and the Appellate Division applied an incorrect standard of review. Both courts properly accepted the facts pled in the complaint as true and carefully followed this Court’s instruction that challenged “words must be construed in the context of the entire statement or publication as a whole, tested against the understanding of the average reader.” Aronson v. Wiersma, 65 N.Y.2d 592, 593- 94 (1985). The lower courts’ refusal to accept conclusory assertions and illogical assumptions set forth by Plaintiffs, including the unpled and unfounded suggestion that Boeheim deliberately “injected” himself into the story (compare Pls.’ Br. 43, 49, with R102-03 ¶ 44), is not a misapplication of the standard of review. See, e.g., Leder v. Spiegel, 31 A.D.3d 266, 267 (2d Dep’t 2006) (“factual allegations . . . inherently incredible or unequivocally contradicted by documentary evidence . . . not entitled to” deference), aff’d 9 N.Y.3d 836 (2007); Couloute v. Ryncarz, No. 11 CV 5986(HB), 2012 WL 541089, at *2 (S.D.N.Y. Feb. 17, 2012) (noting that a court “need not accord legal conclusions, deductions or opinions couched as factual allegations . . . a presumption of truthfulness”) (internal citations omitted). 12 Although Plaintiffs repeatedly underscore that the dismissal of their Complaint was “pre-answer,” that should come as no surprise: the question presented to the court was purely legal and therefore properly considered as a matter of law. Moreover, dismissals of defamation claims at this procedural stage have been routinely upheld by this Court. See, e.g., Lenz Hardware v. Wilson, 94 N.Y.2d 913 (2000); Golub v. Enquirer/Star Group, 89 N.Y.2d 1074 (1997); Brian v. Richardson, 87 N.Y.2d 46 (1995); Steinhilber v. Alphonse, 68 N.Y.2d 283 (1986); Aronson v. Wiersma, 65 N.Y.2d 592 (1985). Such dismissals make particular sense in this procedural context, where there are no claims or defenses at issue before the court that require discovery. It is entirely appropriate to uphold the dismissal of Plaintiffs’ Complaint where the only question is the legal one of whether the courts below properly concluded that Boeheim’s statements were not reasonably susceptible of defamatory meaning. POINT II: AS THE APPELLATE DIVISION PROPERLY CONCLUDED, THE CONTENT OF BOEHEIM’S STATEMENTS DEMONSTRATES THAT HE WAS STATING AN OPINION. The Appellate Division correctly ruled “that the content of the statements” demonstrated that Boeheim was communicating an essentially uninformed opinion denying the accusations against his long-time friend. (R8a (emphasis added).) Embracing the longstanding prohibition against hyper-technical parsing of language, the Appellate Division analyzed “the content of the communication as a 13 whole, as well as its tone and apparent purpose” to determine how to understand Boeheim’s words. (R7a (citing Mann, 10 N.Y.3d at 276) (emphasis added); Gross v. N.Y. Times Co., 82 N.Y.2d 146, 156 (1993)). This wholistic approach is antithetical to the selective reading that Plaintiffs continuously urge on the Court and demonstrates from the perspective of the reasonable reader that Boeheim’s statements were opinion. Steinhilber, 68 N.Y.2d at 291 (“The infinite variety of meanings conveyed by words – depending on the words themselves and their purpose, the circumstances surrounding their use, and the manner, tone and style with which they are used – rules out . . . a formalistic approach.”). A. Boeheim’s Statements Denying Plaintiffs’ Allegations Indicated He Was Conveying His Opinion. Boeheim’s statements provided every indication to the reasonable reader that he was expressing an opinion, albeit an arguably insensitive and controversial one. His comments were replete with rhetorical questions, sarcastic commentary, and hyperbole, all of which signaled to the reasonable reader that he was not stating facts. (R181, 186, 103 ¶ 47.) For example, Boeheim exaggerated Plaintiffs’ allegations as “a bunch of a thousand lies” and asked sarcastically whether the media should “[s]top the presses 26 years later” for what he “absolutely believe[d]” was a “false allegation.” (R103-04.) The “general tenor” of these denials, in addition to word choice and sarcasm, are all indications of a strongly- held yet non-actionable opinion. 600 West 115th St. Corp. v. Von Gutfeld, 80 14 N.Y.2d 130, 144 (1992) (dismissing an “angry, unfocused diatribe” as non- actionable hyperbole); Varrenti v. Gannett Co., Inc., 33 Misc. 3d 405, 412 (Sup. Ct. Monroe Cnty. 2011) (concluding that a series of rhetorical questions was non- actionable opinion due to the “sarcastic [and] hyperbolic” tone); see also Stroup v. Nazzaro, 91 A.D.3d 1367, 1368 (4th Dep’t 2012) (finding that the defendant’s statement that the plaintiff was an “abuser” was “no more than name-calling or a general insult, a type of epithet not to be taken literally and not deemed injurious to reputation”). As part of his fierce denial of the allegations against Fine, Boeheim used the term “liar,” which, when used as an epithet, is another expression of opinion. Courts have held that statements calling plaintiffs “liar,” “pathological liar,” “dirty liar,” and “great at lying and covering it up,” were all entitled to constitutional protection. Ram v. Moritt, 205 A.D.2d 516, 517 (2d Dep’t 1994) (accusing the plaintiff of being a “liar” and a “debtor” not susceptible of a defamatory meaning); Sabratek Corp. v. Keyser, No. 99 Civ. 8589 (HB), 2000 WL 423529, at *6 (S.D.N.Y. Apr. 19, 2000) (calling the plaintiff “pathological liar,” “dirty liar,” and a “fraud” were all hyberbole and opinion); Couloute, 2012 WL 541089, at *6 (statement by defendants, represented by the same counsel as Plaintiffs here, that the plaintiff was “great at lying” was “clearly hyperbolic”). Boeheim’s use of the 15 word “liar” as part of his “adamant[]” defense of his friend (R165) – in the midst of an emotional public debate – was plainly a hyperbolic expression of opinion. Moreover, Plaintiffs’ allegations directly suggested that Boeheim was aware of and complicit in Fine’s conduct. Boeheim’s response, in calling Plaintiffs “liars,” was also intended to defend himself – to convey his opinion that those individuals making allegations against him “could not be telling the truth.” Indep. Living Aids, Inc. v. Maxi-Aids, Inc., 981 F. Supp. 124, 128 (E.D.N.Y. 1997) (internal citations and quotations omitted); see also El-Amine v. Avon Prods., Inc., 293 A.D.2d 283, 283 (1st Dep’t 2002) (concluding that a statement that a claim against the speaker was without merit “constituted mere opinion, and was therefore nonactionable”); Rizzuto v. The Nexxus Prods. Co., 641 F. Supp. 473, 481 (S.D.N.Y. 1986) (holding that references to “unscrupulous sales people lying” and a “lying sales person” made in direct response to a competitor’s statements were non-actionable hyperbole). The purportedly defamatory connotation of Boeheim’s statements (Br. at 25) is simply inconsistent with a plain reading of what Boeheim said. Moreover, the cases Plaintiffs cite in support of their argument do not involve the use of the term “liar” as an epithet, as Boeheim was using it – a usage that is constitutionally protected. Robert D. Sack, Sack on Defamation § 2.4.7, at 2-44 (4th ed. 2010) (“Common law tradition has combined with constitutional principles to clothe the 16 use of epithets, insults, name-calling, and hyperbole with virtually impenetrable legal armor.”). Neither Armstrong v. Simon & Schuster nor Cappellino v. Rite-Aid actually involves the term “liar”; nor did either court analyze the law protecting the expression of opinion. 85 N.Y.2d 373 (1995); 152 A.D.2d 934 (4th Dep’t 1989).1 Nor do the other cases cited by Plaintiffs demonstrate how Boeheim’s use of “liar” as an epithet could be susceptible of a defamatory meaning. See Brach v. Congregation Yetev Lev D’Satmar, 265 A.D.2d 360 (2d Dep’t 1999) (permitting the plaintiff’s action to proceed, but failing to detail the content or context of the statements with respect to the term liar); Petrus v. Smith, 91 A.D.2d 1190, 1190-91 (4th Dep’t 1983) (analyzing qualified immunity questions without quoting or describing the statements at issue). Plaintiffs do not address Ram (“liar”), Sabratek (“dirty liar” and “pathological liar”), or Couloute (“great at lying”), all of which involved protected name-calling and vigorous epithets, as did Boeheim’s statements. See Gross, 82 N.Y.2d at 155. B. Boeheim’s Statements Suggesting Plaintiffs Were Financially Motivated Were Classic Opinion. In speculating about Plaintiffs’ possible motivation for making their allegations, Boeheim did not assert facts reasonably susceptible to defamatory 1 Kaminester v. Weintraub and Mase v. Reilly are similarly unhelpful to Plaintiffs’ claim. Kaminster is a one-paragraph order stating simply that an accusation of personal dishonesty was not protected opinion (without so much as describing the words used); Mase is a 1923 case lacking any analysis of modern opinion doctrine. 131 A.D.2d 440 (2d Dep’t 1987); 206 A.D. 434 (1st Dep’t 1923). 17 meaning. As an initial matter, Boeheim’s “loose and generalized” statements questioning Plaintiffs’ motives are not capable of being proven true or false. Gentile v. Grand St. Med. Assocs., 79 A.D.3d 1351, 1353 (3d Dep’t 2010) (“want[ing] to make easy money” held to be classic opinion); see also McNamee v. Clemens, 762 F. Supp. 2d 584, 604 (E.D.N.Y. 2011) (accusation of a “shake down” constitutionally protected). In fact, statements about motivation are classic examples of opinion and are “intrinsically unsuited as a foundation for defamation” because they simply cannot be confirmed or denied. Goetz, 164 Misc. 2d at 564; see also Hollander v. Cayton, 145 A.D.2d 605, 606 (2d Dep’t 1988) (finding statements that the plaintiff was “immoral,” “unethical,” and had “mismanaged cases” were “incapable of being objectively characterized as true or false”). Nor can Plaintiffs’ argument that Boeheim accused them of the crime of extortion be credited. The reasonable reader would have understood Boeheim’s statement to be rhetorical hyperbole, not a suggestion that Plaintiffs actually had committed the crime of extortion. Trustco Bank of N.Y. v. Capital Newspaper Div. of Hearst Corp., 213 A.D.2d 940, 942 (3d Dep’t 1995) (use of the word “extortion” not actionable); see also Greenbelt Coop. Publ’g Ass’n, Inc. v. Bresler, 398 U.S. 6, 14 (1970) (the term “blackmail” used to describe a bargaining position was not defamatory because the term would have been perceived to be “rhetorical hyperbole, a vigorous epithet”). As the trial court noted, “Boeheim never claimed 18 knowledge of any demand for money, but . . . simply surmised, with the use of generalized speculation and suspicion that Plaintiffs’ claims were possibly financially motivated.” (R76.) Similarly, Boeheim’s statements cannot be read reasonably as accusing Plaintiffs of falsely reporting a crime. In order to be defamatory, a statement must generally contain a specific description of “clear and unambiguous” conduct that would be understood by the reasonable reader as criminal. See Thomas H. v. Paul B., 18 N.Y.3d 580, 585-86 (2012) (statements graphically describing defendant sneaking into a young girl’s room and sexually assaulting her); Geraci v. Probst, 15 N.Y.3d 336, 340, 344-45 (2010) (statement made to a targeted audience with sufficient precision to be understood as a violation of General Municipal Law). Neither the content of Boeheim’s words, which made no reference to the law prohibiting the filing of false police reports, nor the context in which they were made support any inference of criminality. See Caffee v. Arnold, 104 A.D.2d 352, 353 (2d Dep’t 1984) (affirming dismissal of defamation action because the content and the context of the statements did not permit the inference that the plaintiff had stolen money). Boeheim’s expressed skepticism regarding Plaintiffs’ allegations simply does not support a reasonable inference that the crime of false reporting of child abuse had been committed. 19 POINT III: THE COURTS BELOW CORRECTLY DETERMINED THAT THE IMMEDIATE AND BROADER CONTEXT OF BOEHEIM’S STATEMENTS SIGNALED TO THE REASONABLE READER THAT HE WAS EXPRESSING CONSTITUTIONALLY PROTECTED OPINION. Following this Court’s well-established precedent, both the trial court and the Appellate Division properly examined both (i) the immediate context of Boeheim’s statements – the full text of the articles in which they appeared; and (ii) the broader context – the fact that Boeheim, just hours after the news broke and in the wake of the Penn State scandal, spoke in defense of his long-time friend and himself. A. The Immediate Context – The Full Articles In Which The Statements Appear – Reflected That Boeheim Was Expressing An Opinion. The immediate context of an allegedly defamatory statement, i.e., here the full article in which it appeared, must be examined to develop a complete understanding of how the statement was presented and how it would have been understood by the reasonable reader. Mann, 10 N.Y.3d at 277; Brian, 87 N.Y.2d at 51. The articles containing Boeheim’s statements all described an emotional and defensive Boeheim reacting to accusations of wrongdoing against a friend, clearly indicating to the reasonable reader that Boeheim’s statements were opinion. 1. Defensive Posture Any reasonable reader objectively would have understood that Boeheim was “react[ing] to plaintiffs’ implied allegation . . . that [he] knew or should have 20 known of Fine’s alleged improprieties.” (R69.) This accusation was included explicitly in the articles (and in Plaintiffs’ verified complaint). (R169; R172; R107 ¶ 65.) Specifically, Boeheim’s statements appeared alongside Davis’s allegation that, many years earlier, Boeheim had seen Davis in Fine’s hotel room when traveling with the basketball team. (R166, R186.) That Plaintiffs’ allegations put Boeheim on the defensive is the objective context in which his statements appeared, not Boeheim’s subjective view. (Pls.’ Br. at 46, 49.) Furthermore, a dispute involving allegations of sexual abuse “is by its nature contentious,” making the “defensive posture” of anyone implicated by those allegations indisputably part of the relevant context. Gentile, 79 A.D.3d at 1353. Statements denying such contentious allegations are understood reasonably to be “the product of passionate advocacy.” Id. Plaintiffs wrongly complain that “a defendant’s defensive or protective posture, standing alone” is not enough to “transform factual statements into protected opinion.” (Pls.’ Br. at 38.) But that was precisely the ruling in Independent Living, where the court analyzed the use of the term “liar” only in connection with the plaintiff’s denial of wrongdoing and concluded that the statements at issue there were opinion. Indep. Living, 981 F. Supp. at 128. In any event, as both the Appellate Division and trial court recognized, in these circumstances, the defensive posture of Boeheim’s challenged statements is only 21 one element of the relevant surrounding context. (R8a; R67-68.) Both courts appropriately considered other contextual factors, such as Boeheim’s support for his long-time friend and colleague and the Penn State scandal, in addition to Boeheim’s understandable defensiveness. (R8a, citing Mann at 276; R67-68.) 2. Long-Time Relationship As most of the articles mentioned, Boeheim had a personal and professional relationship with Fine that spanned decades. The three articles containing Boeheim’s allegedly defamatory statements informed the reasonable reader that he was “adamantly defend[ing]” his “trusted basketball aide for going on 50 years now” (R165; R186; R328) and therefore was far from a “disinterested observer.” Brian, 87 N.Y.2d at 53 (statements deemed opinion, in part, because at the outset of the article in question, speaker signaled to readers that he was biased). Even the titles of each of the articles in which the statements appear – “Syracuse basketball coach Jim Boeheim risks everything to defend his friend Bernie Fine,” “Syracuse’s Boeheim Stands By Assistant Accused of Abuse,” and “Syracuse coach Jim Boeheim defends Bernie Fine, says accuser Bobby Davis is lying” – alerted readers, at the outset, of Boeheim’s biased perspective. (R165; R180; R186.) The speaker’s clear affiliation with the subject matter about which he speaks signals “impassioned advocacy.” Goetz, 164 Misc. 2d at 562; see also Huggins v. Povitch, No. 131164/94, 1996 WL 515498, at *6-7 (Sup. Ct. N.Y. Cnty. Apr. 19, 1996) 22 (noting that the defendant’s allegedly defamatory remarks made about the “emotionally charged topic of her divorce and its financial consequences” could not be construed as stating objective facts because it was “obvious” that they were “likely to reflect a certain personal bias”). In fact, after the trial court’s ruling, even Plaintiff-Appellant Lang agreed that Boeheim “was just sticking up for Bernie,” to the point that he was “kind of glad” his lawsuit had been dismissed. John O’Brien, Mike Lang Speaks, Syracuse.com (May 17, 2012, 12:30 AM), http://www.syracuse.com/news/ index.ssf/2012/05/mike_lang_speaks_glad_he_lost.html. 3. Emotional State Of Mind The articles informed readers that Boeheim was interviewed “late Thursday,” just hours after the story broke, and described him as “upset” and “perplexed.” One reporter noted that it appeared as though Boeheim was “reacting on the fly,” with another describing him as “adamant” that the allegations against Fine were false. (R171; R165.) Boeheim’s reaction “shortly after the troubling charges had come to light” (R189) is exactly the sort of setting in which “emotions might lead to exaggerated statements.” McNamee, 762 F. Supp. 2d at 603. The fact that these emotional statements were reported in newspaper articles, as opposed to opinion pieces, is irrelevant because Boeheim did not author the articles. Rather, these articles conveyed Boeheim’s emotional reaction and 23 signaled clearly that his statements “could not reasonably be heard as a factual presentation.” 600 W. 115th St. Corp., 80 N.Y.2d. at 144. In addition, the repeated assertion in Plaintiffs’ briefing that Boeheim deliberately inserted himself into the controversy by agreeing to be interviewed is nowhere pled in the Complaint, finds no support in the record and is, in any event, irrelevant. Boeheim’s comments were sought in connection with events relating to the basketball program he headed, and this Court should not accept Plaintiffs’ attempt to disguise baseless “deductions” and unpled “opinions” as factual allegations. Couloute, 2012 WL 541089, at *2. Boeheim’s statements were not made at “pre-scheduled . . . conferences and other pre-planned public appearances” (Pls.’ Br. at 44 (quoting McNamee, 762 F. Supp. 2d at 603) (alteration in original)), but rather were made “late Thursday,” only hours after the disturbing allegations emerged. (R165.) An emotional response was only natural and easily understood at the time. B. The Broader Context Likewise Reflected That Boeheim Was Expressing An Opinion. An assessment of “the broader social context and surrounding circumstances” is essential to the analysis and a far cry from the “boundless” standard Plaintiffs claim. Brian, 87 N.Y.2d at 51. Indeed, without this step, statements would be examined in isolation and in direct contravention of this Court’s precedent, which warns against a limited analysis that “may result in 24 identifying many more implied factual assertions than would a reasonable person encountering that expression in context.” Immuno AG., 77 N.Y.2d at 255. 1. Penn State In examining Boeheim’s statements, the fact that they were made “days after Penn State University fired its long-term football coach” is critical to the context. (R8a.) The allegations at Syracuse were simply not discussed without reference to the allegations at Penn State. From the time the story broke, the allegations were described as “Sandusky like” and a “sequel” to Penn State, with another “long- tenured Hall of Fame head coach caught in the crossfire.” (R167-68.) Reporters drew analogies, saying that “[j]ust as questions came up about what Joe Paterno knew and when he knew it . . . questions will arise about what Jim Boeheim knew and when he knew it.” (R169.) Some specified that the allegations were “eerily similar [to],” “in the wake of” and “swiftly on the heels of” the Penn State scandal. (R161; R168; R183.) One reporter called it “both natural and surreal . . . to draw comparisons between” the allegations against Fine and the Penn State scandal. (R168.) Every judge who reviewed Boeheim’s statements, including the dissenting justices in the Fourth Department, acknowledged Penn State as part of the broader context in which the statements were made. Recognition of the events at Penn State is an essential component of interpreting how the reasonable reader would have understood Boeheim’s comments. 25 Plaintiffs’ claim that Penn State should not be considered as part of the relevant context is undermined by their own Complaint, which described Plaintiffs’ allegations as made “in the wake of” Penn State and noted that ESPN ran the first story “in part as a result of the recent disclosures concerning the sex abuse scandal at Penn State.” (R92 ¶ 5; see also R102 ¶ 41.) Lang himself explained that he was “inspired to talk after seeing news coverage of the Sandusky case.” (R194.) Ignoring the backdrop of Penn State disregards this Court’s directive to consider all relevant circumstances. See Mann, 10 N.Y.3d at 276; Steinhilber, 68 N.Y.2d at 291-92. The argument that context is restricted to the “forum or setting in which the statements are made” and to only the parties at issue (Pls.’ Br. at 37, 47) is contradicted directly by precedent, including this Court’s mandate that the factors considered by a court must be “flexible” and “protective.” Gross, 82 N.Y. at 152. The relevant context is quite obviously not limited solely to the fact that the statements were printed in a newspaper article. Rather, the relevant surrounding circumstances are those that inform the reader as to the background and motivation of the speaker. E.g., Immuno AG., 77 N.Y.2d at 255 (statements by a group “committed” to animal rights); Gentile, 79 A.D.3d at 1353 (statements involving accusations of sexual harassment made “in the midst of litigation”); Mann, 10 N.Y.3d at 274 (statements made in the context of “a heated local election”). 26 Plaintiffs’ own cases make clear that context often extends beyond the forum or setting and beyond the parties to the lawsuit. (Pls.’ Br. at 47-48 (citing Steinhilber, Wilcox v. Newark Valley Cent. Sch. Dist., and Bonanni v. Hearst Commc’ns, Inc.).) See Steinhilber, 68 N.Y.2d at 294 (broader context was the delivery of a message “as part of the union’s effort to punish a former member”); Wilcox v. Newark Valley Cent. Sch. Dist., 74 A.D.3d 1558, 1561 (3d Dep’t 2010) (context was the romantic relationship between the plaintiff and another teacher); Bonanni v. Hearst Commc’ns, Inc., 58 A.D.3d 1091, 1093-94 (3d Dep’t 2009) (context included “years of television and print media coverage” by other media outlets of prior allegations by the plaintiff).2 Another striking example of the breadth of relevant context is Farber, which involved the statements that the plaintiff journalist was a “liar[] who for many years ha[s] used fraud” to deny that HIV caused AIDS. Farber v. Jefferys, 33 Misc. 3d 1218(A) at *8-*9, 941 N.Y.S.2d 537 (Sup. Ct. N.Y. Cnty. Nov. 2, 2011). The court concluded that proper analysis of the allegedly defamatory statements required consideration of the broader context, including the history of HIV/AIDS 2 Plaintiffs’ descriptions of certain cases in their brief demonstrate that context often extends beyond the forum or setting of an allegedly defamatory statement (e.g., Pls.’ Br. at 47-48 (describing Steinhilber as involving “the conflict between the plaintiff union member and defendant union” and Bonanni involving “years of widespread television and print media coverage of allegations of misconduct by plaintiff”)), and beyond the parties to the litigation (e.g., Pls.’ Br. at 47-48 (describing Wilcox as involving the plaintiff as “romantically involved with a male coach accused of raping a student”)). 27 and the “rage” inspired in HIV/AIDS researchers by deniers, Farber, 33 Misc. 3d at *8, and a listing of “typical examples of the accusations which some of the dissenters and some members of the traditional HIV/AIDS community trade back and forth,” id. at *15. As demonstrated by Farber, there is no basis whatsoever for limiting the broader context to only the traditions of the forum or those parties involved in the particular litigation. 2. Ongoing, Vigorous Public Debate Contrary to Plaintiffs’ claim that Boeheim’s statements “cannot be understood to have been part of a public debate” and were aimed to “shut[] down” public conversation about Fine (Pls.’ Br. at 42), an intense and widespread dialogue had already begun when Boeheim spoke out. Boeheim’s was one voice in this heated, “uncomfortable,” and “emotional” debate about the veracity of the allegations against Fine and the broader problem of sexual abuse in sports. (R190.) Some supported Fine, saying that he would be “cleared, as he’s been cleared before,” and pointing to the dangers of “tainting” Fine’s “unblemished reputation.” (R190; R196.) Others viewed the allegations as “chilling” and indicative of a “societal problem” with childhood sexual abuse. (R161; see also R168.) Boeheim’s comments were made in the midst of this “heated public debate,” 600 W. 115th St. Corp., 80. N.Y.2d at 141, a debate in which nearly all Central New Yorkers and the public at large had “chosen sides.” (R190.) There is nothing 28 in the Complaint or elsewhere to suggest Boeheim’s words were an “attack” made with the goal of shutting down debate (Pls.’ Br. at 42.), and Boeheim’s statements did not have that effect, as they were heavily featured in the ensuing “explosion of coverage.” (R171.) 3. Reputation For Bluntness As Plaintiffs repeatedly point out (e.g., R91 ¶ 2; Pls.’ Br. at 1-2, 5), Boeheim is a well-known figure both within the Syracuse community and nationally, recognized not only for his record as a basketball coach but also for being opinionated, outspoken, and loyal. As one reporter put it shortly after the story broke: Boeheim would “rather chew bolts than mince words,” and Boeheim’s penchant for bold talk was only “matched by the kind of loyalty for which [he] has been forever known.” (R189-90.) “[T]he identity[] and reputation” of the speaker are “clues” to the reader to interpret what is said. Brian, 87 N.Y.2d at 52; see also Lapine v. Seinfeld, 31 Misc. 3d 736, 754 (Sup. Ct. N.Y. Cnty. 2011) (taking into account defendant’s public reputation and personality in dismissing defamation claim); Gardner v. Martino, 563 F.3d 981, 988 (9th Cir. 2009) (same). Here, a loyal coach widely known for his outspokenness, bluntly defended both his close friend and himself, additional clear indications that he was stating his personal opinion. 29 POINT IV: BOEHEIM’S STATEMENTS, WHEN TAKEN AS A WHOLE AND READ IN THEIR FULL CONTEXT, ARE NOT ACTIONABLE AS ANY TYPE OF MIXED OPINION. Plaintiffs’ attempt to use the doctrine of mixed opinion as another vehicle for their hyper-literal reading and selective quotation of Boeheim’s words should be rejected. Boeheim’s statements read as a whole did not imply that his opinions were based on undisclosed facts not known to the reader; nor did Boeheim state material facts that were grossly distorted. A. Boeheim’s Statements Did Not Imply A Basis In Undisclosed Facts. In denying the allegations against Fine (and himself) and speculating that Plaintiffs were motivated by money, Boeheim relayed the following basis for his opinion: that Davis’s allegations had been investigated previously and not substantiated; that he did not remember ever seeing Davis in Fine’s hotel room; that he viewed the timing of Plaintiffs’ allegations, on the heels of the Penn State scandal, as suspicious; and that he had known Fine for decades and was not personally aware of any misconduct. “[A] proffered hypothesis that is offered after a full recitation of the facts . . . is readily understood by the audience as conjecture.” Lapine, 31 Misc. 3d at 753 (internal quotations omitted.); see also Bruno v. N.Y. Daily News Co., 89 A.D.2d 260, 264 (3d Dep’t 1982) (accusations that the plaintiff, who was in charge of the state lottery, was “gypping” and 30 “systematically cheating” the public were dismissed as protected opinion, where “supportive facts” were included). In arguing that Boeheim’s statements implied he based his opinion on undisclosed facts, Plaintiffs once again parse and isolate words within the statements, directly contravening this Court’s clear precedent. Steinhilber, 68 N.Y.2d at 293 (determining whether statements implied an undisclosed basis in fact requires that the court “first examine the content of the whole communication as well as its tone and apparent purpose”). Rather than suggesting that he had access to hidden facts, Boeheim’s statements about his long-time friendship with Fine in fact informed the reasonable reader that Boeheim was biased and therefore his statements would likely be aligned with that bias. Similarly, his statements relaying the contexts in which he knew Davis (as a ballboy and as a babysitter for Fine’s children) further communicated to the reasonable reader the basis for his disbelief of Plaintiffs’ allegations. With regard to Boeheim’s supposed “inside knowledge” of the University’s investigation, the relevant articles make clear that the University – and not Boeheim – conducted the 2005 investigation: “This matter was fully investigated by the University in 2005;” “The university investigated this, the university talked to the people he said to talk to; none of them corroborated it;” and 31 “The Post-Standard and the university talked to those other kids [other than Plaintiffs] . . . You need to go to your people down there at the paper.” (R159; R165; R187) (emphasis added). In fact, Boeheim himself specifically denied any special knowledge regarding the investigation or other potentially relevant facts: “I know nothing;” and “I really don’t have any facts.” (R189-90; R199.) Moreover, Plaintiffs’ suggestion that Boeheim’s statements implied possession of non-public information on which he based his challenged statements is undercut by the supposed “facts” that Plaintiffs cite. (Pls.’ Br. at 32-33.) First, the purportedly “non-public fact” – that the 2005 investigation lasted four months – is not something Boeheim actually said. (Pls.’ Br. at 33; see also Pls.’ Br. at 12- 13 (quoting R165)). Rather, that information was contained in the University’s publicly released statement, demonstrating that Boeheim was not the first to invoke that fact about the prior investigation. (Pls.’ Br. at 12.) As the trial court explained, “the results of the investigation had already been revealed to ESPN via Davis and therefore Boeheim was in no position to add anything unique or personal to the issue in his comments to the media.” (R81.) Boeheim was simply expressing his view on facts aired by ESPN “and used those facts to form the basis 32 for his opinion.” (Id.) Gisel v. Clear Channel Commc’ns, Inc., 94 A.D.3d 1525, 1526 (4th Dep’t 2012) (“Because [the] statements were based on facts that were widely reported by Western New York media outlets and were known to his listeners, it cannot be said that his statements were based on undisclosed facts.”). Second, Boeheim’s comment that the investigation was thorough is plainly not a factual statement, as construed by this Court, and cannot be proven true or false. The same is true of Boeheim’s speculation regarding Plaintiffs’ motivation. Third, in criticizing Boeheim’s reference to “four” individuals contacted by the University’s investigators, which was inaccurate (as Plaintiffs note), Plaintiffs essentially concede Boeheim’s lack of first-hand knowledge. (Pls.’ Br. at 33.) Additionally, there is no rule that a statement constitutes mixed opinion “based solely on the speaker’s familiarity with the plaintiff” and the cases cited by Plaintiffs do not support such a theory. (Pls.’ Br. at 30.) In Zulawski v. Taylor, the court, in a single paragraph regarding defamation, failed to consider content or context in deciding that there were undisclosed facts underpinning defendant’s vague statement to vendors that worked with the plaintiff that he “scam[med]” people. 63 A.D.3d 1552, 1553 (4th Dep’t 2009). Similarly, in Rossi v. Attanasio, a homebuyer described the plaintiff as a “crook” and a “shyster” with no details of the transaction provided. 48 A.D.3d 1025, 1026 (3d Dep’t 2008). 33 Boeheim’s statements, by contrast, are quite clear as to his meaning: he disbelieved the allegations against Fine and questioned Plaintiffs’ motives in making them. His statements do not suggest hidden facts known only to him by virtue of his longstanding relationship with Fine and, in fact, his friendship with Fine is an element of context that would have indicated to the reasonable reader that the statements were Boeheim’s opinion. Furthermore, the University’s statement, which described its four-month-long investigation in 2005, stated that it was unable to corroborate Davis’s allegations. (R177.) B. Plaintiffs’ Selective Criticism Of Non-Material Facts Does Not Alter The Protected Nature Of Boeheim’s Views. Under the second theory of mixed opinion, to render an opinion actionable the distortion of underlying fact must be a “substantial and material misrepresentation of fact.” Chalpin v. Amordian Press, 128 A.D.2d 81, 86 (1st Dep’t 1987) (emphasis added); McGill v. Parker, 179 A.D.2d 98, 108-09 (1st Dep’t 1992) (dismissing defamation claim despite a “de minimis dispute” over some of the facts included in the challenged statements). Plaintiffs attempt an end run around the materiality requirement by invoking allegedly false factual statements (Pls.’ Br. at 34-36), which focus on trivial differences in numbers and dates, misconstrue statements of opinion as provably false facts and describe statements, such as Boeheim’s official statement released November 17, 2011, that 34 were not pled as defamatory in the Complaint (Pls.’ Br. at 23). These statements concern three subjects: The 2005 investigation. Boeheim said that the University spoke to the people Davis named as witnesses, and none of them corroborated his story. As the trial court observed, it is undisputed that the University’s investigation failed to substantiate Davis’s allegations. The number of witnesses interviewed, and the fact that one witness recalled that Davis told him about the allegations, is immaterial to the crux of Boeheim’s statements: Davis’s allegations in 2005 were not corroborated. Boeheim’s memories of Davis. Boeheim recalled that Davis used to travel with the team to babysit Fine’s children and stated that he had no memory of ever seeing Davis in Fine’s hotel room. It is clear from Boeheim’s loose and rhetorical language describing his knowledge of Davis and Davis’s past allegations that Boeheim was not conveying facts. Rather, he was describing the bases for his opinion – that to his knowledge, Davis did not accompany the team in any capacity other than as a babysitter for the Fine children, and that Boeheim did not recall seeing Davis in Fine’s hotel room 26 years ago, during the 1987 Final Four. Boeheim’s view that Plaintiffs were motivated by money. Boeheim’s statements about money, read in context, expressed his opinion that Davis’s allegations (not previously substantiated to Boeheim’s knowledge) were renewed in the wake of the Penn State scandal, in an effort to win a civil suit verdict. His viewpoint is clearly an opinion not capable of being proven true or false. The gist of Boeheim’s comments, taken in context, was disbelief of the allegations and doubt as to Plaintiffs’ motives; this cannot support a claim for defamation under New York law. This Court’s precedents in Silsdorf and Chalpin are fully distinguishable. In Silsdorf, the grossly distorted facts, including the assertion that the plaintiff dissolved democratically elected institutions, were central to the allegedly 35 defamatory assertion that the plaintiff was a corrupt mayor. Silsdorf, 59 N.Y.2d at 13. Similarly, in Chalpin, the alleged misrepresentation concerned the difference between $1 in payment or a “substantial” percentage-based compensation. 128 A.D.2d at 86-87. The difference between a nominal sum and a potentially large royalty was significant and material to the statement in question in Chalpin, that the plaintiff was an “unbelievably unscrupulous” negotiator. Id. In contrast, Plaintiffs’ allegedly false factual statements” are imprecise statements at the periphery of the fundamental assertion that Boeheim did not believe Plaintiffs’ allegations of abuse. Here, even accepting all of Plaintiffs’ allegations as true, Boeheim clearly provided a “reasonably accurate version of those facts” in connection with expressing his protected opinion. Id. at 87 (emphasis added). Both courts below properly concluded that Boeheim’s statements are not actionable as mixed opinion. Last, Plaintiffs also complain that the trial court’s opinion, as affirmed by the Appellate Division, focused first on Plaintiffs’ failure to plead that Boeheim grossly distorted material facts, rather than on the facts themselves. (Pls.’ Br. at 35.) This complaint is unfounded. The trial court explicitly rejected Plaintiffs’ gross distortion argument on the merits, in addition to noting that the argument was not properly preserved, as Plaintiffs had failed to brief the issue prior to oral argument. (R82-83.) See OFSI Fund II, LLC v. Canadian Imperial Bank of 36 Commerce, 82 A.D.3d 537 (1st Dep’t 2011) (declining to consider legal argument raised for the first time at oral argument below). * * * Because Plaintiffs’ defamation claim as to Boeheim fails as a matter of law, Plaintiffs’ claim as to the University, which is based entirely on the theory of vicarious liability, similarly fails. See, e.g., Karaduman v. Newsday, Inc., 51 N.Y.2d 531, 546 (1980) (holding in a defamation suit that “it is manifest that there can be no vicarious liability on the part of the employer if the employee himself is not liable”). CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court affirm the dismissal of Plaintiffs' Complaint for failure to state a cause of action. Dated: January 23,2014 DEBEVOISE & PLIMPTON LLP BY~ 'L= Mary Beth Hogan Helen V. Cantwell Andrew M. Levine Miranda H. Turner 919 Third Avenue New York, New York 10022 Telephone: (212) 909-6000 Facsimile: (212) 909-6836 Counsel to Defendant Syracuse University Respectfull y, DINSMORE & SHOHL LLP By ______________________ ___ C. James Zeszutek One Oxford Centre 301 Grant Street, Suite 2800 Pittsburgh, Pennsylvania 15219 Telephone: (412) 281-5000 Facsimile: (412) 281-5055 HANCOCK ESTABROOK, LLP By ______________________ ___ Timothy P. Murphy 1500 AXA Tower I 100 Madison Street Syracuse, New York 13202 Telephone: (315) 565-4500 Facsimile: (315) 565-4600 Counsel to Defendant James Boeheim 37 CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court affirm the dismissal of Plaintiffs' Complaint for failure to state a cause of action. Dated: January 23 , 2014 DEBEVOISE & PLIMPTON LLP By _ Mary Beth Hogan Helen V. Cantwell Andrew M. Levine Miranda H. Turner 919 Third Avenue New York, New York 10022 Telephone: (212) 909-6000 Facsimile: (212) 909-6836 Counsel to Defendant Syracuse University Respectfully, DINSMORE & SHOHL LLP By .. .......... .., ... ~ """""'" ........ 1iL- {I C. Jame(jesz(;;k One Oxford Centre 301 Grant Street, Suite 2800 Pittsburgh, Pennsy Ivania 15219 Telephone: (412) 281-5000 Facsimile: (412) 281-5055 HANCOCK ESTABROOK, LLP By Timothy P. Murphy 1500 AXA Tower I 100 Madison Street Syracuse, New York 13202 Telephone: (315) 565-4500 Facsimile: (315) 565-4600 Counsel to Defendant James Boeheim 37 CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court affinn the dismissal of Plaintiffs' Complaint for failure to state a cause of action. , Dated: January 23, 2014 Respectfully, DEBEVOISE & PLIMPTON LLP DINSMORE & SHOHL LLP By By ____________________ __ Mary Beth Hogan C. James Zeszutek Helen V. Cantwell Andrew M. Levine Miranda H. Turner 919 Third Avenue New York, New York 10022 Telephone: (212) 909-6000 Facsimile: (212) 909-6836 Counsel to Defendant Syracuse University One Oxford Centre 301 Grant Street, Suite 2800 Pittsburgh, Pennsylvania 15219 Telephone: (412) 281-5000 Facsimile: (412) 281-5055 HANCOCK ESTABROOK, L r1 / ' '--I ... , --J ...0/ , If / ,// By ~t' () , I ,,/ 1500 AXA Tower I 100 Madison Street Syracuse, New York 13202 Telephone: (315) 565-4500 Facsimile: (315) 565-4600 Counsel to Defendant James Boeheim 37