INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU X ERL PARTNERS LLC and ERIC LEARNER, Plaintiffs, - against JESSICA N. PELLETIER, Defendant. : : : : : : : : : Index No. 602710/2017 (Galasso, J.) NOTICE OF APPEAL X PLEASE TAKE NOTICE that non-party Daily News, L.P. (the “Daily News”) hereby appeals to the Appellate Division of the Supreme Court of the State of New York, Second Department, from an Order of the Supreme Court, Nassau County (Honorable John M. Galasso), dated April 11, 2017 (the “Order”), which granted a temporary restraining order on behalf of plaintiffs ERL Partners LLC and Eric Lerner enjoining Daily News from publishing and ordering Daily News to remove certain news reporting from its website. Attached is a true copy of the Order and a transcript of the hearing relating thereto, which was held on April 11, 2017 before Justice Galasso. Since the Order purports to seal the file in the above-captioned action, the copy of the Order attached hereto will be filed under seal in an abundance of caution and since the scope of that portion of the Order is unclear. Dated: New York, New York April 12, 2017 DAVIS WRIGHT TREMAINE LLP By: /s/ Laura R. Handman Laura R. Handman John M. Browning 1251 Avenue of the Americas New York, New York 10020 (212) 489-8230 Attorneys for Non-Party Daily News, L.P. NYC 156320v1 3930027-8 1 of 34 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 TO: RECEIVED NYSCEF: 04/12/2017 Clerk Supreme Court of the State of New York Nassau County Mineola, New York 11501 (516) 493-3401 Jonathan I. Edelstein, Esq. Edelstein and Grossman 501 Fifth Avenue, Suite 514 New York, New York 10017 (212) 871-0571 Attorneys for Plaintiffs ERL Partners LLC and Eric Lerner Daniel J. Kaiser, Esq. Kaiser, Saurborn & Mair, P.C. 111 Broadway New York, NY 10006 (212) 338-9100 Attorneys for Defendant Jessica N. Pelletier NYC 156320v1 3930027-8 INDEX NO. 602710/2017 2 2 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 AFFIRMATION OF SERVICE The undersigned, an attorney admitted to practice before the Courts of the State of New York and this Court, affirms that on April 12, 2017, I caused to be served a true and correct copy of the foregoing Notice of Appeal and Request for Appellate Division Intervention, with the Clerk of Court via the NYSCEF electronic system for the following: Jonathan I. Edelstein, Esq. Edelstein and Grossman 501 Fifth Avenue, Suite 514 New York, New York 10017 (212) 871-0571 Attorneys for Plaintiffs ERL Partners LLC and Eric Lerner In addition, I caused to be served a true and correct copy of the foregoing Notice of Appeal and Request for Appellate Division Intervention on the following via U.S. Mail, postage prepaid: Daniel J. Kaiser, Esq. Kaiser, Saurborn & Mair, P.C. 111 Broadway New York, NY 10006 (212) 338-9100 Attorneys for Defendant Jessica N. Pelletier Dated: April 12, 2017 /s/ John M. Browning John M. Browning 1 3 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 ERL PARTNERS LLC and ERIC LEARNER, Plaintiffs, -againstJESSICA PELLETIER, Defendant. x x x 4 of 34 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 INDEX NO. 602710/2017 RECEIVED NYSCEF: 04/12/2017 x Supreme Court of the State of New York April 11, 2017 Nassau County John M. Galasso 602710/17 x x x This appeal is from an Order issued pursuant to Plaintiffs' Order to Show Cause granting an temporary restraining order instructing non-party Daily News, L.P. to remove plaintiff Eric Lerner's name from an online article reporting on an ongoing civil lawsuit in which Mr. Lerner is a named defendant. This appeal will raise the following issues: (i) whether the Order is an unconstitutional prior restraint, (ii) whether the Order is barred under the equitable principle that libel cannot be enjoined because there is an adequate remedy at law, (iii) whether laches precludes enforcement of the Order, (iv) whether Plaintiffs met the required threshold of demonstrating likelihood of success on the merits, irreparable harm and a balance of hardship in favor of Plaintiffs, (v) whether the Order should be stayed pending a hearing on a related 5 of 34 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 INDEX NO. 602710/2017 RECEIVED NYSCEF: 04/12/2017 preliminary injunction, (vi) whether the preliminary injunction hearing should be stayed pending appeal, (vii) whether the order sealing the action below was proper absent any filings, (viii) whether it is proper to issue an injunction against a non-party who is not affiliated with or controlled by any party to the action. ERL Partners, LLC Plaintiff Eric Lerner Jessica N. Pelletier Plaintiff Defendant Non-Party Daily News, L.P. 6 of 34 Respondent Respondent Appellant Appellant INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 Edelstein and Grossman 501 Fifth Avenue, Suite 514 New York x NY 10017 212-871-0571 1 2 Kaiser Sauerborn & Mair, P.C. 111 Broadway NY New York x 10006 212-338-9100 3 Davis Wright Tremaine LLP 1251 Avenue of the Americas, 21st Floor NY New York x 10020 212-489-8230 4 7 of 34 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 INDEX NO. 602710/2017 RECEIVED NYSCEF: 04/12/2017 8 of 34 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 INDEX NO. 602710/2017 RECEIVED NYSCEF: 04/12/2017 9 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 1 1 2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: TRIAL TERM: PART 22 ----------------------------------------X ERL PARTNERS, LLC and ERIC LEARNER, 3 Index No. 602710-17 Plaintiffs, 4 -against5 JESSICA N. PELLETIER, 6 7 Defendant. ----------------------------------------X 8 April 11, 2017 9 Mineola, New York 10 11 12 B E F O R E: THE HONORABLE JOHN M. GALASSO, 13 Justice of the Supreme Court 14 A P P E A R A N C E S: 15 BY: EDELSTEIN & GROSSMAN, ESQS. Attorneys for Plaintiffs 501 Fifth Avenue, Suite 514 New York, New York 10017 JONATHAN EDELSTEIN, ESQ. BY: KAISER SAURBORN & MAIR, P.C. Attorneys for Defendant 111 Broadway New York, New York 10006 DANIEL J. KAISER, ESQ. 16 17 18 19 20 21 22 23 24 25 Dorothy H. London, RPR - 516 493-3366 10 of 34 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 INDEX NO. 602710/2017 RECEIVED NYSCEF: 04/12/2017 2 1 A P P E A R A N C E S: 2 3 4 5 BY: DAVIS WRIGHT TREMAINE LLP Attorneys for The Daily News 1251 Avenue of the Americas 21st Floor New York, New York 10020 JOHN M. BROWNING, ESQ. 6 7 8 9 10 11 ALSO PRESENT: ERIC LEARNER 12 13 DOROTHY H. LONDON, RPR OFFICIAL COURT REPORTER 14 15 16 17 18 19 20 21 22 23 24 25 DHL 11 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 3 Proceedings 1 THE CLERK: Come to order. Part 22 of the 2 Nassau County Supreme Court is now in session, the 3 Honorable John M. Galasso is now presiding. 4 Good morning, Judge. 5 THE COURT: Good morning. 6 THE CLERK: This is an Order to Show Cause 7 that came up for special term. 8 MR. EDELSTEIN: 9 THE CLERK: Is it ERL or Erl? ERL. ERL Partners, LLC, Eric 10 Learner and Jessica Pelletier, also non-party on the 11 case from New York Daily News. 12 Counsel, your appearances, please? 13 MR. EDELSTEIN: 14 For the plaintiff, Jonathan Edelstein of Edelstein & Grossman. 15 Good morning, your Honor. 16 THE COURT: 17 MR. KAISER: 18 MR. BROWNING: 23 For non-party Daily News, John Browning, Davis Wright Tremaine. 21 22 For the defendant, Jessica Pelletier, Daniel Kaiser, your Honor. 19 20 Good morning. THE COURT: Cause. This is an Order to Show Does the petitioner wish to be heard? MR. EDELSTEIN: Yes, your Honor. This 24 is -- relates to a defamation action by Eric 25 Learner, who is with me at counsel table, against DHL 12 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 4 Proceedings 1 Jessica Pelletier. 2 Ms. Pelletier was terminated. 3 termination is widely disputed. 4 that it's absenteeism, incompetency, says that it's 5 retaliation. 6 individuals in the company for inter alia, 7 harassment and retaliation. 8 litigated in the New York County Supreme Court. 9 They used to be co-workers. The reason for her The company says She has sued the company and various That lawsuit is being The way it hinges here is that after 10 filing the lawsuit, it is our allegation that 11 Ms. Pelletier and her counsel went to Barbara Ross, 12 a reporter at The Daily News, tipped her off about 13 the lawsuit, gave her a copy of the complaint, gave 14 her various quotes, photographs, other materials and 15 that as a result of that, The Daily News published 16 an article containing false allegations against 17 Mr. Learner, including but not limited to, that he 18 was a drug addict, that he harassed Ms. Pelletier 19 for pills, that he stole pills from Ms. Pelletier 20 and other individuals. 21 It is Ms. Pelletier's position via her 22 counsel that she didn't talk to the press, that the 23 reporter picked this up all on her own. 24 position is we believe that there is a likelihood 25 that we will prove otherwise, given some of the Our DHL 13 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 5 Proceedings 1 documentation in the complaint, including 2 Ms. Pelletier bragging about her press connections, 3 Ms. Pelletier mentioning a friend, that she had 4 taken a screen shot of an embarrassing photograph of 5 the third party and is going to use it for 6 blackmail, the fact that Ms. Pelletier's attorney 7 has previous other -- or the same reporter at The 8 Daily News has previously reported on two other 9 lawsuits filed by Ms. Pelletier's counsel. 10 So there's a relationship there. 11 In addition, there are text messages from 12 Ms. Pelletier which we do not have at this time but 13 which we know to exist and which we believe can be 14 obtained through discovery in which she's informed 15 Scott Levinson (ph.) and Chris Byron (ph.) that this 16 article was published as a result of her efforts and 17 her contact with the press. 18 Now, that's critical in that of course a 19 lawsuit is privileged from defamation; however, 20 contact with the press regarding the lawsuit is not. 21 And we've cited case law from the Appellate Division 22 and the Court of Appeals, and we believe based on 23 that, that case law and on the documentation that's 24 attached to the complaint which is very detailed 25 regarding all of these allegations and all of these DHL 14 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 6 Proceedings 1 contacts with the press, that we've shown a prima 2 facie likelihood which is what has to be shown for a 3 preliminary injunction that we will prevail at the 4 end of the day on the defamation action. 5 addition, by the way, there are allegations in the 6 complaint that Ms. Pelletier had explicitly 7 threatened Mr. Learner to ruin his career. 8 9 10 11 THE COURT: In What stage is the litigation in? MR. EDELSTEIN: The underlying litigation or this litigation? 12 THE COURT: The underlying. 13 MR. EDELSTEIN: Issue has been joined. I 14 believe Mr. Kaiser could speak to that because he's 15 counsel in the underlying litigation and I'm not; 16 but my understanding is issue has been joined, the 17 discovery is being taken, and there are discussions 18 of settlement. 19 20 21 THE COURT: All right, the other side wish to be heard? MR. KAISER: Good morning, your Honor. 22 terms of the procedural posture in the other case, 23 issue has been joined, written discovery demands 24 have been exchanged. 25 process of producing written discovery with the The parties are now in the DHL 15 of 34 In INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 7 Proceedings 1 anticipation that depositions could be scheduled 2 sometime in May of the defendant, of Ms. Pelletier. 3 I would just say in terms of the 4 underlying case, and I don't want to dwell on that 5 because I don't think it's really relevant to this 6 TRO, these are very serious sexual harassment 7 allegations. 8 years, and this is among the most serious I've ever 9 seen. 10 I've been in employment law for 25 It is gross harassment on a daily basis in 11 terms of comments about her body, an overture of -- 12 sexual overtures to her constantly. 13 cancer victim, her diagnosis, making fun of what 14 would happen to her breasts because of the cancer 15 surgery. 16 She was a I mean, this is really bad stuff that we 17 expect will be corroborated by a witness who I've 18 spoken to, another woman who sued them for sexual 19 harassment and settled. 20 your Honor, the truth is, and if we had to, we'd put 21 in affidavits, we didn't contact the press. 22 But in terms of this TRO, As your Honor may know, Daily News has 23 reporters down in court. And it was an interesting 24 story. 25 I didn't initiate any story about this. They do a story about the filed pleadings. DHL 16 of 34 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 INDEX NO. 602710/2017 RECEIVED NYSCEF: 04/12/2017 8 Proceedings 1 Ms. Pelletier had no conversations with 2 the press. 3 saying, don't do a story about this, I don't want a 4 story about this in the newspaper. 5 to litigate it, but none of that is even relevant 6 because there is a privilege, an absolute litigation 7 privilege on the complaint. 8 9 In fact, I have an e-mail where she's THE COURT: She just wanted It sounds like she -- according to you, it sounds like she wants what the 10 petitioner wants, no publication of the dirty 11 laundry in public. 12 MR. KAISER: Right, but that may be true, 13 your Honor, but what she also doesn't want, which is 14 what the petitioner seems to be asking for, is an 15 order saying when she communicated about it and when 16 she republished the story and when she communicated 17 about it. 18 There is the First Amendment in this 19 country, and she's allowed to speak about her 20 allegations in any manner in which she wants to 21 speak about them. 22 republishing anything. 23 her story told in a courtroom ultimately and have 24 that resolved; but at the same time, she is not 25 going to acquiesce in any kind of gag order on how She has no present intention of I think she wants to have DHL 17 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 9 Proceedings 1 she could speak about what happened to her, 2 including getting publishing of a story that 3 happened to appear in The Daily News. 4 absolutely -- that would be -- 5 THE COURT: 6 7 She's The issue should be resolved in court, not in the public atmosphere. MR. KAISER: Correct, the courts have been 8 very clear about that, you cannot have -- the courts 9 cannot impose a prior restraint about how we are to 10 speak about anything except in certain circumstances 11 involving actual security. 12 issue here. 13 That's certainly not an And so yes, she wants to resolve it in the 14 court, but she is certainly not going to acquiesce 15 about how she could speak about this lawsuit. 16 fact, your Honor, the lawsuit, the article that was 17 published was only on the complaint, meaning, she 18 didn't speak -- although she had every right to -- 19 by the way, your Honor, if she wanted to speak to 20 the press, she could have, and there could be no way 21 to restrain her ability to do that; but in fact, 22 here she didn't. In 23 And the underlying defamation claim is 24 premised upon a filed lawsuit in which there's a 25 litigation privilege. You can't sue someone for DHL 18 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 10 Proceedings 1 defamation based on what they put into a filed 2 lawsuit. 3 separate and apart from that filed lawsuit that they 4 are basing this on, that's a whole other matter. 5 They could prove they're false. 6 If there were communications from her I don't believe that there is anything 7 else, so I didn't do the opening before they dismiss 8 just as a matter of law on the defamation claim as 9 it relates to the filed pleading; but here this is 10 asking the Court to ask The Daily News and asking 11 her -- they're asking her to direct The Daily News 12 to take it down. 13 direct The Daily News to take the story down. 14 They're asking Ms. Pelletier to She obviously can't dictate to what The 15 Daily News or any media outlet says about her story. 16 She doesn't have the authority to do it nor the 17 support as per the First Amendment to cover anything 18 about it. 19 do what she wants in terms of communicating with the 20 press. 21 They can do what they want, and she could We're involved in settlement discussions 22 now, as he rightly points out. I made a 23 counteroffer to their last demand. 24 back from them. 25 in -- if they want to settle this case for a number, I haven't heard If they want to settle this case DHL 19 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 11 Proceedings 1 that's acceptable. 2 resolution as to directing her what she can say and 3 not say in terms of not disparaging, 4 confidentiality, that's another matter. 5 In the context of an overall We could have those discussions, but in 6 terms of a court ordering her what she could speak 7 about with respect to her allegation, that's a whole 8 other matter that both the Federal Constitution and 9 the State Constitution have clearly spoken about. 10 That's all I have, your Honor. 11 THE COURT: 12 MR. BROWNING: You wish to speak? Good morning, I represent 13 The Daily News. 14 between the parties here is very complicated, but 15 the First Amendment issues are quite simple. 16 put, Mr. Learner is seeking a primary injunction 17 that would have The Daily News remove his name from 18 the article about the ongoing lawsuit and perhaps 19 make other changes, if not, take it down; and that 20 is a remedy that the First Amendment will not allow. 21 Whereas the underlying dispute Simply I'd just like to set the table a little 22 bit here, if you wouldn't mind, with regard to the 23 article. 24 article reports entirely on the complaint 25 Ms. Pelletier filed against Mr. Learner. This hasn't been made clear yet, but the As such, DHL 20 of 34 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 INDEX NO. 602710/2017 RECEIVED NYSCEF: 04/12/2017 12 Proceedings 1 it is absolutely protected by Section 74 of the New 2 York Civil Rights Law which grants leeway for the 3 press to report on ongoing civil litigation, 4 particularly in matters of great importance such as 5 workplace harassment and discrimination as was 6 alleged here. 7 Another important detail to note is that 8 this article was published on October 7, 2016, 9 nearly six months or more than six months ago. The 10 Daily News is therefore perplexed as to why this 11 extraordinary relief and Order to Show Cause has 12 been brought because it's not apparent how there 13 could be the kind of immediate and irreparable harm 14 that would warrant preliminary injunctive relief for 15 defendant -- for plaintiff. 16 has been aware of the article for six months. 17 Plaintiff in this case That notwithstanding and notwithstanding 18 the fact that this issue clearly implicates the 19 Daily News' First Amendment interests, my client was 20 informed of this temporary restraining order 21 yesterday. 22 prepare for it. 23 4:30 in the afternoon on the day before Passover 24 when many of my colleagues -- I hadn't yet spoken 25 to. We have had less than 24 hours to Frankly, I saw these papers at DHL 21 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 13 Proceedings 1 And a final general point, before, your 2 Honor, I get to the law on the merits, the purpose 3 of a temporary restraining order and this kind of 4 drastic relief is to maintain the status quo before 5 trial. 6 its article before a finding can be made as to 7 whether these statements are defamatory -- and I 8 take the position that they are not -- runs squarely 9 contrary to that, the purpose of a temporary However, compelling The Daily News to censor 10 restraining order, because it would radically change 11 the status quo in this case. 12 find no precedent for making that kind of 13 alteration. 14 And I've been able to I will go through the law as quickly as I 15 can. 16 are a lot of issues to be addressed. 17 18 19 I apologize if I go on a little bit. THE COURT: That's all right. There There's going to be a hearing in the future. MR. BROWNING: I can accept that. The 20 First Amendment -- under the First Amendment, prior 21 restraint such as these are unconstitutional. 22 prior restraint rule applies to any preliminary 23 injunction that would enjoin speech. 24 includes an injunction that would force The Daily 25 News to take down or edit its article before a The So that DHL 22 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 14 Proceedings 1 finding as to the lawfulness of the statements which 2 have been issued is made. 3 A second well established principle is 4 that the law or equity will not allow an injunction 5 against a libel. 6 Department authority on point. 7 defamation case was tried. 8 found to be defamatory that had appeared online. 9 The Court issued an injunction ordering the I actually have binding Second In that case a Certain statements were 10 defendants to take the remaining statements down 11 from their web sites. 12 The Second Circuit reversed and found that 13 even though the statements had been found to be 14 defamatory by a jury, prior restraint or equity 15 would not allow an injunction of a libel absent 16 exceptional circumstances which were not present 17 there. 18 Those exceptional circumstances are also 19 not present here. The crux of Mr. Learner's 20 argument is that the article has a negative impact 21 on his professional reputation, but that is 22 precisely the kind of harm that existing libel law 23 is designed to remedy with damages. 24 of the kind that he seeks here are simply not 25 permissible. And injunctions DHL 23 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 15 Proceedings 1 I briefly discussed the latches issue, 2 but, your Honor, preliminary relief is not 3 appropriate here because Mr. Learner has waited six 4 months since the article was published to bring his 5 complaint. 6 the three elements Mr. Learner would be required to 7 prove to entitle himself to a preliminary 8 injunction, the first being likelihood of success on 9 the merits. 10 And finally, I'd just like to talk about Again, The Daily News is perplexed as to 11 the settlement as it is not named as a party in the 12 suit. 13 conceivably be libel for the statements we have 14 published, Mr. Learner has absolutely no likelihood 15 of success on the merits. 16 To the extent that we might be named or could As I said, Section 74, Paragraph 4, 17 privilege, absolutely protects The Daily News, any 18 libel by those with regard to its reporting on the 19 ongoing legal lawsuit between Ms. Pelletier here and 20 Mr. Learner. 21 Second element is irreparable harm, and 22 again, that goes back to the latches issue. We find 23 it difficult to believe that Mr. Learner will be 24 able to make the cognizable showing of irreparable 25 harm given that he's waited six months to bring DHL 24 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 16 Proceedings 1 these proceedings when the article was first 2 published if the harm was really so immediate and 3 irreparable to commence an action at any time before 4 now. 5 Third and perhaps most overwhelming -- 6 third is the balance of hardships. 7 matter, any court-enforced editing or censorship of 8 an article has been deemed to be a serious intrusion 9 on basic press proceedings. 10 THE COURT: As a threshold The issue here too is that the 11 Internet has changed dissemination of information. 12 It's always there. 13 somebody, it comes up all the time. 14 newspaper article is printed, that was the end of 15 it. 16 it to try to get that out. 17 formation stage, and I think it's for appellate 18 courts to decide all of this and not me. If people want to check Prior, a You had to go to a library or try to research 19 MR. BROWNING: So all of this is in a Your Honor, if I may 20 address it because it's a very interesting and 21 perceptive question. 22 worked in the U.K. and in Europe -- 23 THE COURT: In other countries, and I've Well, in the U.K. nothing is 24 published until after the trial. 25 standard. That's been their That's why we deviated from that when we DHL 25 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 17 Proceedings 1 2 came over here. MR. BROWNING: Right. I think I would 3 quibble with that somewhat, but the principle in the 4 U.K. is ask permission first, publish later. 5 it's the other way around. 6 law as it stands gives The Daily News the right to 7 keep its defensible rights article online at the 8 very least until a judgment is -- 9 THE COURT: Here Again, you're right, the And you know that the Court of 10 Appeals is considering a lot of things of these 11 secret docket numbers. 12 because you want to try to protect people's rights 13 from not getting hurt permanently. 14 in juxtaposition of the First Amendment. 15 MR. BROWNING: We seal certain cases So all it is is I'm not unsympathetic to 16 those rights. 17 First Amendment. 18 conversation right now because it's interesting. 19 And it is a juxtaposition of the Again, I'm mostly having this The law is very clear that the balance on 20 this side errs on the side of the First Amendment. 21 I am unaware of new decisions that would allow 22 Mr. Learner to have the kind of protection that he 23 requests, particularly, and I think this is 24 important, during the pendency of a civil action in 25 which he is involved. DHL 26 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 18 Proceedings 1 He is a named party in that suit. He's 2 entering discovery. 3 or not, the allegations against him, but even if 4 those allegations are ultimately proven to be false 5 and Mr. Learner is found not libel, The Daily News 6 still has a right under existing law to keep its 7 article that was accurate at the time it was 8 reported on a libel legal issue online. 9 We will see whether it's proven The applicable court will need to change 10 the law if that stage is closed. 11 summation, The Daily News -- 12 THE COURT: In a brief Even on other aspects, 13 Facebook, something gets published on Facebook or 14 Twitter or something like that, even if it's false, 15 people are harassed out of their houses, they are 16 chanted in stores. 17 about, and it has to be decided by a higher 18 authority, all of this set aside. 19 limit the First Amendment rights from freedom of 20 speech, but you don't want chaos either. 21 This is not what America is MR. BROWNING: Nobody wants to Just to tie things up, 22 though, a temporary restraining order is not 23 appropriate in this case. 24 status quo. 25 injunction is also not appropriate. That would change the We would argue that a preliminary DHL 27 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 19 Proceedings 1 2 THE COURT: It's temporary until things are decided. 3 MR. BROWNING: But the status quo is that 4 The Daily News has the right under the First 5 Amendment under Section 74 to report what it does. 6 I am aware of no decision to take down a defendant's 7 libel suit action name pending the outcome of this 8 case. 9 might be a good idea, this seems to be the kind of 10 If your Honor would like, and I think this issue that we write for briefing or not or -- 11 THE COURT: Oh, absolutely. 12 MR. BROWNING: -- summary disposition 13 here. So we could negotiate a reasonable briefing 14 schedule when we go down that route. 15 THE COURT: 16 MR. EDELSTEIN: Thank you. Anyone else wish to be heard? Your Honor, if I may 17 briefly address the latches and speech aspects of 18 this which I didn't have a chance to get to before. 19 With regard to the six months, there are a number of 20 reasons why this application is being brought now. 21 First of all, Mr. Learner was hoping he 22 wouldn't have to go to court. He was hoping that 23 this would become old news, that the underlying 24 lawsuit would settle and that this would no longer 25 affect him; but as your Honor observed, in these DHL 28 of 34 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 INDEX NO. 602710/2017 RECEIVED NYSCEF: 04/12/2017 20 Proceedings 1 days of the Internet, once an article is up, the 2 article is up forever. 3 And recently -- the trigger for this 4 action actually is that recently, his company 5 attempted to raise money and because of this article 6 was unable to raise a great deal of money. 7 facing licensing applications. 8 this is an article that is continuing to damage him, 9 that at this point is an imminent threat to his job. It is This is a medical -- 10 It wasn't an imminent threat to his job six months 11 ago because everyone was hoping it would go away, 12 but it is now. 13 latches. 14 So I would submit that there's no Second of all, as to the status quo, the 15 status quo was that Mr. Learner has a job. 16 status quo could be preserved by a temporary 17 restraining order and a preliminary injunction. 18 That Now, we have done everything we can to 19 minimize the impact on the First Amendment. I mean, 20 originally, we were planning to bring an Order to 21 Show Cause seeking an order that the article be 22 taken down from the Internet. 23 with The Daily News general counsel's office and 24 with my client, we've agreed to -- we've decided to 25 tone it down, that all we want is the removal of And after discussion DHL 29 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 21 Proceedings 1 Mr. Learner's name and his photograph from the key 2 words -- from the article and also from the key 3 words that enable people who search his name in 4 Google to find that article. 5 Now, we are not saying that The Daily News 6 can't report on that lawsuit. In fact, there is 7 another individual who is named in the lawsuit but 8 who is described in The Daily News article as the 9 chief operating officer. So there is certainly 10 precedent in this article for them referring to 11 people other than by name; and they certainly would 12 be entitled to do that with Mr. Learner and to leave 13 all of the other texts of the article up. 14 In addition, I would submit that there are 15 exceptional circumstances here. 16 versus Raimist, R-A-I-M-I-S-T, it's a Court of 17 Appeals case, 255 N.Y. 307; Bingham versus Struve, 18 S-T-R-U-V-E, 184 A.D.2d 85, which is a First 19 Department case which says that although, as counsel 20 said, equity will not ordinarily enjoin the 21 publication of libel, it will do so where the 22 publication is part and parcel of a tortious course 23 of conduct. 24 25 This case, Nann And we have documented in the complaint that there is a multi-month campaign by DHL 30 of 34 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 INDEX NO. 602710/2017 RECEIVED NYSCEF: 04/12/2017 22 Proceedings 1 Ms. Pelletier to ruin Mr. Learner's professional 2 life and career. 3 fall into the circumstances where an injunction can 4 lie, where a temporary restraining order can lie and 5 that in light of the fact that we are asking for 6 very narrowly tailored relief. 7 So I would submit that this would We are not asking for Ms. Pelletier not to 8 comment at all. We are just requesting an order for 9 her not to republish this article. We are not 10 asking for The Daily News to take the article down. 11 We are just asking The Daily News to remove part of 12 it, the name, the photograph and the key words that 13 damage Mr. Learner. 14 In fact, as my client just pointed out, 15 there were photographs that were initially part of 16 the article that were removed which we believe was 17 done at the request of Ms. Pelletier which is 18 actually the reason why we are seeking an order 19 asking Ms. Pelletier to make another request. 20 would be prepared to prove that in a lawsuit. 21 We For all of those reasons, I would submit 22 that the TRO should issue, that the Court set a 23 reasonable briefing schedule for the temporary -- 24 for the preliminary injunction and that -- whether 25 Mr. Learner is entitled to the preliminary DHL 31 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 23 Proceedings 1 injunction should be decided at a later date. 2 THE COURT: All right, anything further? 3 MR. BROWNING: So a couple of points on 4 that. The relief that Mr. Learner seeks, while he 5 frames it to be narrow and reasonable, is 6 unprecedented to my mind, which is an injunction 7 ordering censorship of an otherwise defensible 8 article before a finding of defamation can be made. 9 At the very least, this issue is not ripe for a 10 temporary restraining order, and I cannot think of 11 any new precedent for it. 12 Second, I'll keep this brief, even if The 13 Daily News was to take Mr. Learner's name out of the 14 article, that runs contrary to basic principles of 15 justice in this country. 16 not conducted in secret even at the request of those 17 on trial or those prosecuting; and removing 18 Mr. Learner's name from the article would be a 19 serious chipping away at that principle of open 20 justice. 21 other factual points, but essentially, my -- 22 23 Trials and civil cases are And I think I could rehash some of the THE COURT: I fully understand your position, I really do. 24 MR. BROWNING: 25 THE COURT: Right. But I'm going to sign a DHL 32 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 24 Proceedings 1 temporary restraining order in the interest of 2 safety, and we'll set a hearing date. 3 would you want? 4 over to May since you're both here. 5 submitted from both sides. 6 What date They said April 19 but we can go MR. EDELSTEIN: I want briefs I know that Daily News 7 wanted some time to brief this. 8 long as I have a week or so to reply to their brief. 9 10 11 12 13 14 THE COURT: Just set a date and I'll be here in May. MR. EDELSTEIN: Can we do May 16 or 17, your Honor? THE COURT: Is that all right with everybody, a full hearing? 15 MR. KAISER: 16 THE COURT: 17 MR. EDELSTEIN: 18 THE COURT: 19 MR. BROWNING: 20 I'm open to that as Full hearing to be set -The 16th. The 16th or 17th? Is that all right? That's fine. I'm going to have to discuss this with my client. 21 THE COURT: 22 I'm giving you time. 23 enough time? I understand. So that's why The 16th or the 17th, is that 24 MR. BROWNING: 25 THE COURT: That's fine. All right, the 16th. DHL 33 of 34 INDEX NO. 602710/2017 FILED: NASSAU COUNTY CLERK 04/12/2017 10:56 AM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/12/2017 25 Proceedings 1 THE CLERK: May 16, Judge? 2 THE COURT: Yes. 3 Stay available because we are going to make a copy of this. 4 o0o 5 6 CERTIFICATE 7 8 9 I, Dorothy H. London, do hereby certify that the within transcript is a 10 true and accurate record of the 11 proceedings. 12 13 14 ________________________ DOROTHY H. LONDON, RPR Senior Court Reporter 15 16 17 18 19 20 21 22 23 24 25 DHL 34 of 34