Lemelson et al v. Bloomberg L.P. et alMOTION TO DISMISS FOR FAILURE TO STATE A CLAIMD. Mass.February 2, 20171 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS Rev. Fr. Emmanuel Lemelson and Lemelson Capital Management, LLC, Plaintiffs, v. Bloomberg LP, Matthew Robinson, as an individual and as an agent of Bloomberg LP, and Jesse Westbrook, as an individual and as an agent of Bloomberg LP, Defendants. Case No. 16-cv-11650-TSH ORAL ARGUMENT REQUESTED MOTION OF MATTHEW ROBINSON AND JESSE WESTBROOK TO DISMISS THE SECOND AMENDED COMPLAINT Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, defendants Matthew Robinson and Jesse Westbrook (collectively, the “Individual Defendants”) respectfully join with co-defendant Bloomberg L.P. (“Bloomberg”) and move to dismiss, with prejudice, Plaintiffs’ Second Amended Complaint (the “Complaint”) for failure to state a claim upon which relief can be granted. As grounds for this motion, the Individual Defendants rely on, and join in, the memorandum of law submitted to this Court by Bloomberg on December 28, 2016, in support of Bloomberg’s Motion to Dismiss the Second Amended Complaint (“Bloomberg’s Motion to Dismiss”), as well as the Affidavit of Robert A. Bertsche submitted therewith. (The Individual Defendants did not initially join in Bloomberg’s Motion to Dismiss because they had not yet been served with process or presented with a request to waive service. Both Individual Case 4:16-cv-11650-TSH Document 22 Filed 02/02/17 Page 1 of 4 2 Defendants waived service, pursuant to Fed. R. Civ. P. 4(d), in response to Plaintiffs’ counsel’s subsequent request, on January 18, 2017.) In further support of this motion, the Individual Defendants state as follows: 1. This action was filed by Emmanuel Lemelson (“Lemelson”), a hedge fund manager and an ordained priest, and his eponymous investment firm, Lemelson Capital Management, LLC (“Lemelson Capital,” and together with Lemelson “Plaintiffs”). The claims arise out of Bloomberg’s reports, on March 18, 2016, that Lemelson was being investigated by the Securities and Exchange Commission (“SEC”) for possible stock manipulation. (Compl. Ex. A (the “Article”), Ex. B (the “Interview”).) Plaintiffs are asserting claims for defamation, commercial disparagement, negligence, and tortious interference. 2. Count I, alleging defamation, should be dismissed for two reasons. First, nothing that Bloomberg or the Individual Defendants said was defamatory. The article and interview 1 reported that Lemelson was being investigated by the SEC, but made clear that Lemelson “hasn’t been accused of wrongdoing” and that the investigation was merely “a preliminary step” that might never result in an SEC enforcement action. The Massachusetts Supreme Judicial Court has held, as a matter of law, that it is not defamatory merely to report that someone has been arrested-because reasonable readers do not equate arrests with guilt. See Foley v. Lowell Sun Publishing Co., 404 Mass. 9, 11-12 (1989). A fortiori, reporting that someone is the subject of a civil investigation is not defamatory, either. 3. Second, Count I must be dismissed because Plaintiffs do not (and cannot) allege that Bloomberg or the Individual Defendants published with the requisite degree of fault. 1 The Complaint does not allege that individual defendant Jesse Westbrook played any role whatsoever in the interview. In fact, the only allegations relating to Mr. Westbrook are that, as an editor, he “approved of” the article and declined to retract it. (Compl. ¶¶ 5, 58, 72.) Case 4:16-cv-11650-TSH Document 22 Filed 02/02/17 Page 2 of 4 3 Plaintiffs affirmatively concede that they are world famous, with regular appearances in a host of publications and ready access to the media. As “public figures,” they can prevail on a defamation claim only if they establish that the defendants published with “actual malice.” Plaintiffs, however, have invoked mere actual malice “buzzwords,” without any factual detail plausibly suggesting that Bloomberg or the Individual Defendants harbored any doubts-let alone the “serious doubts” required to establish a defamation claim under New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and subsequent cases-about the truth of what they were publishing or knew it to be false. 4. Count II, alleging commercial disparagement, must be dismissed for the same reason: because Plaintiffs have not plausibly alleged actual malice, which is a required element of the claim. 5. Count III, alleging negligence, must be dismissed because the First Amendment of the United States Constitution precludes public figures, like the Plaintiffs, from recovering for publication of an allegedly false statement on a mere negligence standard. The law is settled that Plaintiffs cannot rescue a defective defamation claim by recasting it as “negligence.” 6. Count IV, alleging intentional interference with prospective economic advantage, fails for similar reasons. In particular, Plaintiffs do not identify any specific “advantageous relationship” that was injured as a result of the defendants’ statements, nor do Plaintiffs plausibly allege that Bloomberg or the Individual Defendants acted with a “spiteful, malignant purpose.” 7. In addition, Counts II, III, and IV simply repackage Plaintiffs’ defective defamation claim, and must be dismissed. WHEREFORE, the Individual Defendants join Bloomberg L.P. in requesting that Plaintiffs’ Second Amended Complaint be dismissed in its entirety, with prejudice. Case 4:16-cv-11650-TSH Document 22 Filed 02/02/17 Page 3 of 4 4 REQUEST FOR ORAL ARGUMENT Defendants believe that oral argument on this motion will assist the court, and therefore request the opportunity to be heard. Respectfully submitted, MATTHEW ROBINSON, JESSE WESTBROOK, and BLOOMBERG L.P. By: /s/ Robert A. Bertsche Robert A. Bertsche (BBO #554333) PRINCE LOBEL TYE LLP One International Place, Suite 3700 Boston, MA 02110 rbertsche@PrinceLobel.com (617) 456-8018 Jeffrey B. Korn (pro hac vice) Jonathan D. Waisnor (pro hac vice) WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, NY 10019 jkorn@willkie.com (212) 728-8000 Dated: February 2, 2017 Attorneys for Defendants L.R. 7.1(a)(2) CERTIFICATE I, Jeffrey B. Korn, certify that on January 18, 2017, I conferred by telephone with Thomas Mason, attorney for the Plaintiffs, with respect to the issues raised by this motion and Bloomberg’s Motion to Dismiss. Despite good-faith attempts, counsel were unable to resolve or narrow the issue. /s/ Jeffrey B. Korn Jeffrey B. Korn CERTIFICATE OF SERVICE I hereby certify that this document, electronically filed with the Clerk of Court through the CM/ECF system on February 2, 2017, will be sent electronically to the registered participants, including Plaintiffs’ counsel, as identified on the Notice of Electronic Filing. /s/ Robert A. Bertsche 2604750.1 Robert A. Bertsche Case 4:16-cv-11650-TSH Document 22 Filed 02/02/17 Page 4 of 4
