Case 1:18-cv-02223-GBD Document 36 Filed 05/07/18 Page 1 of 33

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOEL RICH AND MARY RICH,
Plaintiffs,
v.

Civil Action No. 1:18-cv-02223 (GBD)

FOX NEWS NETWORK, LLC, MALIA
ZIMMERMAN, AND ED BUTOWSKY,
Defendants.
MEMORANDUM IN SUPPORT OF THE MOTION OF
FOX NEWS NETWORK, LLC, AND MALIA ZIMMERMAN
TO DISMISS FOR FAILURE TO STATE A CLAIM
DECHERT LLP
David H. Stern (pro hac vice)
Katherine M. Wyman
U.S. Bank Tower
63 West 5th Street, 26th Floor
Los Angeles, CA 90071
(213) 808-5700

WILLIAMS & CONNOLLY LLP
Kevin T. Baine
Dane H. Butswinkas
Joseph M. Terry (pro hac vice)
725 Twelfth Street, N.W.
Washington, DC 20005
(202) 434-5000

1095 Avenue of the Americas
New York, NY 10036

650 Fifth Avenue, Suite 1500
New York, NY 10019

Attorneys for Malia Zimmerman

Attorneys for Fox News Network, LLC

May 7, 2018

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TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1 
BACKGROUND .............................................................................................................................2 
ARGUMENT ...................................................................................................................................4 
I. 

II. 

III. 

IV. 

PLAINTIFFS FAIL TO STATE A CLAIM FOR INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS. ...........................................................................................4 
A. 

Plaintiffs Cannot State a Claim for Intentional Infliction of Emotional
Distress Based on the Alleged Defamation of Their Son. .......................................7 

B. 

Plaintiffs Fail To Plead Any Extreme or Outrageous Conduct..............................10 
1. 

Plaintiffs Cannot Satisfy the Outrageousness Element by
Reference to the Content of a News Story on a Matter of Public
Concern. .....................................................................................................10 

2. 

Fox’s Alleged Republication of the Seth Rich Story Was Not
Extreme or Outrageous. .............................................................................12 

3. 

Fox News’s Alleged Newsgathering Techniques Were Not
Extreme or Outrageous. .............................................................................13 

FOX NEWS CANNOT BE HELD LIABLE FOR THE CONDUCT OF
WHEELER OR BUTOWSKY. .........................................................................................16 
A. 

Fox News Is Not Vicariously Liable for the Conduct of Butowsky or
Wheeler. .................................................................................................................16 

B. 

Plaintiffs Cannot Hold Fox News or Zimmerman Liable for Wheeler or
Butowsky’s Conduct Under a Concerted Action Theory. .....................................18 

PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR TORTIOUS
INTERFERENCE WITH CONTRACT. ...........................................................................19 
A. 

The Complaint Does Not Allege an “Intentional Procurement” of a
Breach. ...................................................................................................................21 

B. 

The Complaint Does Not Allege that Fox News Acted Without
Justification for the Sole Purpose of Harming the Plaintiffs. ................................22 

C. 

The Complaint Does Not Allege Damages Arising From the Breach of the
Confidentiality Provision. ......................................................................................24 

PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR NEGLIGENT
SUPERVISION AGAINST FOX NEWS..........................................................................24 

CONCLUSION ..............................................................................................................................25 

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TABLE OF AUTHORITIES
FEDERAL CASES
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..........................................................................................24
Branzburg v. Hayes, 408 U.S. 665 (1972) .....................................................................................20
Busch v. City of New York, No. 00-cv-5211, 2003 WL 22171896 (E.D.N.Y. Sept. 11,
2003) ..........................................................................................................................................9
Chaiken v. VV Publ’g Corp., 119 F.3d 1018 (2d Cir. 1997) .......................................................6, 8
Chamberlain v. City of White Plains, 986 F. Supp. 2d 363 (S.D.N.Y. 2013) ...............................16
Chau v. Lewis, 771 F.3d 118 (2d Cir. 2014) ....................................................................................7
Cruz v. Marchetto, No. 11-cv-8378, 2012 WL 4513484 (S.D.N.Y. Oct. 1, 2012) ......................10
Desnick v. Am. Broad. Cos., 44 F.3d 1345 (7th Cir. 1995) ...........................................................14
Doe v. Alsaud, 12 F. Supp. 3d 674 (S.D.N.Y. 2014) .....................................................................25
Dowd v. Calabrese, 589 F. Supp. 1206 (D.D.C. 1984) .................................................................19
DuBoff v. Playboy Enters. Int’l, No. 06-358, 2007 WL 1876513 (D. Or. June 26, 2007) ............13
Ehrens v. Lutheran Church, 385 F.3d 232 (2d Cir. 2004) .............................................................24
Elliott Assocs., L.P. v. Republic of Panama, 975 F. Supp. 332 (S.D.N.Y. 1997) .........................22
Galella v. Onassis, 487 F.2d 986 (2d Cir. 1973) .....................................................................14, 15
Green v. City of Mount Vernon, 96 F. Supp. 3d 263 (S.D.N.Y. 2015) ..........................................25
Gym Door Repairs, Inc. v. Young Equip. Sales, Inc., 206 F. Supp. 3d 869
(S.D.N.Y. 2016) .......................................................................................................................18
Hustler Mag., Inc. v. Falwell, 485 U.S. 46 (1988) ..............................................................6, 11, 12
Interphase Garment Sols., LLC v. Fox TV Stations, Inc., 566 F. Supp. 2d 460
(D. Md. 2008) ....................................................................................................................21, 22
Levin v. McPhee, 119 F.3d 189 (2d Cir. 1997) ................................................................................9
Levin v. McPhee, 917 F. Supp. 230 (S.D.N.Y. 1996) ................................................................6, 10
Martin v. Citibank, N.A., 762 F.2d 212 (2d Cir. 1985) ................................................................8, 9

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MasterCard Int’l Inc. v. Nike, Inc., 164 F. Supp. 3d 592 (S.D.N.Y. 2016) .....................................2
Meeropol v. Nizer, 381 F. Supp. 29 (S.D.N.Y. 1974)......................................................................8
Naughright v. Weiss, 826 F. Supp. 2d 676 (S.D.N.Y. 2011) .........................................................18
Nevin v. Citibank, N.A., 107 F. Supp. 2d 333 (S.D.N.Y. 2000).......................................................5
N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) .........................................................................5, 7
Palin v. N.Y. Times. Co., 264 F. Supp. 3d 527 (S.D.N.Y. 2017) .....................................................7
Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1995) ......................................................................6
Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir. 2010) ....................2
Plasticware, LLC v. Flint Hills Res., LP, 852 F. Supp. 2d 398 (S.D.N.Y. 2012)..........................20
Ruzicka v. Conde Nast, 939 F.2d 578 (8th Cir. 1991) ...................................................................14
Snyder v. Phelps, 562 U.S. 443 (2011) ....................................................................................11, 12
Steele v. Isikoff, 130 F. Supp. 2d 23 (D.D.C. 2000).......................................................................14
Sylvester v. City of New York, 385 F. Supp. 2d 431 (S.D.N.Y. 2005) .............................................8
TC v. Valley Cent. Sch. Dist., 777 F. Supp. 2d 577 (S.D.N.Y. 2011)............................................10
Turley v. ISG Lackawanna, Inc., 774 F.3d 140 (2d Cir. 2014).............................................. passim
Weyrich v. New Republic, Inc., 235 F.3d 617 (D.C. Cir. 2001) ......................................................6
STATE CASES
Aymes v. Gateway Demolition, Inc., 817 N.Y.S.2d 233 (App. Div. 2006) ...................................16
Balderman v. Am. Broad. Cos., 738 N.Y.S.2d 462 (App. Div. 2002) ...........................................15
Bement v. N.Y.P. Holdings, Inc., 760 N.Y.S.2d 133 (App. Div. 2003) ...................................10, 11
Benjamin Goldstein Prods., Ltd. v. Fish, 603 N.Y.S.2d 849 (App. Div. 1993) ............................22
Butler v. Del. Otsego Corp., 610 N.Y.S.2d 664 (App. Div. 1994) ................................................11
Casamasina v. Worcester Telegram & Gazette, Inc., 307 N.E.2d 865
(Mass. App. Ct. 1974) ................................................................................................................8
Chanko v. Am. Broad. Cos., 49 N.E.3d 1171 (N.Y. 2016) ..............................................................5

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Curtis v. Evening News Ass’n, 352 N.W.2d 355 (Mich. Ct. App. 1984) .........................................8
Danahy v. Meese, 446 N.Y.S.2d 611 (App. Div. 1981) ................................................................18
Doe v. Am. Broad. Cos., 543 N.Y.S.2d 455 (App. Div. 1989) ................................................12, 14
Drake v. Park Newspapers of Ne. Okla., Inc., 683 P.2d 1347 (Okla. 1984) ...................................8
Dulgarian v. Stone, 652 N.E.2d 603 (Mass. 1995) ........................................................................22
EDP Hosp. Comput. Sys., Inc. v. Bronx-Lebanon Hosp. Ctr., 622 N.Y.S.2d 557
(App. Div. 1995) ......................................................................................................................22
Fischer v. Maloney, 373 N.E.2d 1215 (N.Y. 1978) .........................................................................5
Flynn v. Higham, 197 Cal. Rptr. 145 (Ct. App. 1983).....................................................................9
Freihofer v. Hearst Corp., 480 N.E.2d 349 (N.Y. 1985).................................................................5
Gleason v. Smolinski, 125 A.3d 920 (Conn. 2015)..........................................................................6
Gugliuzza v. K.C.M.C., Inc., 606 So. 2d 790 (La. 1992) .................................................................8
Howell v. N.Y. Post Co., 612 N.E.2d 699 (N.Y. 1993) ..............................................................5, 14
Huggins v. NBC, No. 119272/95, 1996 WL 763337 (N.Y. Sup. Ct. Feb. 7, 1996) .......................23
Huggins v. Povich, 1996 WL 515498 (N.Y. Sup. Ct. Apr. 19, 1996) ...........................2, 20, 22, 23
Morrison v. Nat’l Broad. Co., 227 N.E.2d 572 (N.Y. 1967) ...........................................................6
Pekelnaya v. Allyn, 808 N.Y.S.2d 590 (App. Div. 2005) ..............................................................10
Prozeralik v. Capital Cities Commc’ns, Inc., 626 N.E.2d 34 (N.Y. 1993) ...................................11
Rapp Boxx, Inc. v. MTV, Inc., 642 N.Y.S.2d 228 (App. Div. 1996)..............................................22
Reader’s Digest Ass’n v. Superior Court, 690 P.2d 610 (Cal. 1984) ..............................................6
Rose v. Daily Mirror, Inc., 31 N.E.2d 182 (N.Y. 1940) ..................................................................8
Saini v. Tonju Assocs., 750 N.Y.S.2d 55 (App. Div. 2002) ...........................................................17
Sarwer v. Conde Nast Pubs., Inc., 654 N.Y.S.2d 768 (App. Div. 1997) .........................................7
Seminole Tribe of Fla. v. Times Publ’g Co., 780 So. 2d 310 (Fla. Dist. Ct. App. 2001) ..............23
Small v. Lorillard Tobacco Co., 720 N.E.2d 892 (N.Y. 1999) ......................................................18

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State Farm Ins. Co. v. Cent. Parking Sys., Inc., 796 N.Y.S.2d 665 (App. Div. 2005) ..................24
Talbot v. Johnson Newspaper Corp., 508 N.Y.S.2d 80 (App. Div. 1986) ......................................8
Williams v. Williams, 53 N.Y.S.3d 152 (App. Div. 2017) .............................................................18
OTHER AUTHORITIES
U.S. Const. amend I ............................................................................................................... passim
Don Herzog, Defaming the Dead (2017) .........................................................................................8
Eugene Volokh, The Trouble With “Public Discourse” as a Limitation on Free Speech
Rights, 97 Va. L. Rev. 567 (2011) ...........................................................................................11
Restatement of Torts § 46 ................................................................................................................5
Restatement (Second) of Torts § 560...............................................................................................8
Restatement (Second) of Torts § 614...............................................................................................9
Restatement (Second) of Torts § 766.............................................................................................22

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INTRODUCTION
Plaintiffs are the parents of Seth Rich, a Democratic National Committee (“DNC”) staffer
whose murder and possible involvement in leaking DNC emails to WikiLeaks was the subject of
a Fox News article published on May 16, 2017, and retracted a week later. Although the article
was not about the Plaintiffs, they claim damages for intentional infliction of emotional distress.
And although the report was unquestionably a matter of legitimate public interest, they seek to
hold Fox News and one of its reporters liable for tortious interference with contract based on a
confidentiality provision in an agreement the Plaintiffs had with an investigator who was quoted
in the article. These claims have no precedent in the common law and are incompatible with the
First Amendment right of the press to report on matters of legitimate public concern.
Plaintiffs allege that the source of their emotional distress is the publication of false and
defamatory news stories about their son. But it is the law of New York and elsewhere that
surviving family members have no cause of action for the libel of a deceased relative, no matter
how much emotional distress they may have suffered. Plaintiffs cannot plead around that rule
simply by styling their claim as one for intentional infliction of emotional distress. Nor can
Plaintiffs allege the kind of extreme or outrageous behavior that can support such a claim.
Plaintiffs’ tortious interference claim is based on the allegation that Rod Wheeler, a former
homicide detective investigating Seth Rich’s murder on their behalf, breached the confidentiality
clause in his contract with them when he divulged information about his investigation to Fox News
without Plaintiffs’ consent. But Plaintiffs have not sued Wheeler for this alleged breach. Nor have
they alleged the elements of a claim of tortious interference against Fox News and its reporter:
that the Fox News reporter intended to induce a breach of the confidentiality provision—or even
that she knew Wheeler would be providing information without Plaintiffs’ consent in violation of

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his agreement—and that she acted “without reasonable justification” and “for the sole purpose of
harming the plaintiff,” rather than reporting on an issue of legitimate public concern. Huggins v.
Povich, No. 131164/94, 1996 WL 515498, at *9 (N.Y. Sup. Ct. Apr. 19, 1996).

Private

confidentiality provisions cannot be invoked to impose liability in such a case without violating
the most fundamental rights of a free press to report on matters of legitimate public interest. For
these reasons and others elaborated below, the motion of Fox News Network, LLC, and Malia
Zimmerman to dismiss for failure to state a claim should be granted with prejudice.
BACKGROUND
Seth Rich was murdered on July 10, 2016. Compl. ¶ 15. Although police advanced a
“working theory . . . that the murder was a botched robbery,” they have identified “no suspects,
witnesses, or possible motives” for the killing. Id. ¶ 17.
In December 2016, Plaintiffs received a call from defendant Ed Butowsky, who told them
that “he had heard second-hand that Julian Assange said WikiLeaks received the DNC emails from
Seth.” Compl. ¶ 26. About a month later, Butowsky called Joel Rich and “encouraged him to
look into Seth’s bank account for payments from WikiLeaks.” Id. ¶ 31. On February 28, 2016,
he again contacted Joel Rich and offered to hire Rod Wheeler, a Fox News contributor and former
D.C. homicide detective, to investigate the murder. Id. ¶¶ 33, 37, 41. Plaintiffs entered into an
agreement with Wheeler for services that were paid entirely by Butowsky. Id. ¶¶ 56, 58; Ex. 4.1
Plaintiffs allege that Wheeler provided information about his investigation to Butowsky,
Fox News reporter Zimmerman, and others—including former White House press secretary Sean

1

Although Plaintiffs have not attached their agreement with Wheeler to their Complaint, the Court
may consider it on this motion because it is incorporated by reference. See Peter F. Gaito
Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010); MasterCard Int’l Inc. v.
Nike, Inc., 164 F. Supp. 3d 592, 598 (S.D.N.Y. 2016).

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Spicer—in violation of the confidentiality provision of their agreement. Compl. ¶¶ 59, 63. On
May 15, 2017, before Fox News had published anything about Seth Rich and Wikileaks, Wheeler
gave an on-camera interview about his investigation to a local, Fox-affiliated broadcast station in
Washington D.C. When the reporter asked Wheeler whether “you have sources at the FBI saying
that there is information that could link . . . Seth Rich to Wikileaks,” Wheeler responded: “For
sure. . . . Absolutely. Yeah, and that’s confirmed.” Ex. 6 (Fox 5 transcript); Ex. 5 (Fox 5 article).
On May 16, 2017, Fox News published an online article quoting sources identifying Rich
as a source of the DNC leak. Ex. 1. The article quoted an unnamed federal investigator who had
reviewed a forensic report of Rich’s computer and claimed to “have seen and read the emails
between Seth Rich and WikiLeaks.” Id. The article noted that WikiLeaks had offered a $20,000
reward for information leading to Rich’s assailants and that its founder, Julian Assange, had said:
“We’re interested in anything that might be a threat to alleged WikiLeaks sources.” Id. The article
further noted that the federal investigator’s claims were “consistent with the findings of Rod
Wheeler, a former DC homicide detective and Fox News contributor and whose private
investigation firm was hired by Rich’s family to probe the case.” Ex. 1. Wheeler was quoted as
stating: “My investigation up to this point shows there was some degree of email exchange
between Seth Rich and WikiLeaks” and that “I do believe that the answers to who murdered Seth
Rich sits [sic] on his computer on a shelf at the DC police or FBI headquarters.” Id.
Zimmerman had contacted the Rich family on several occasions before publication of the
May 16 article. On January 3, 2017, she emailed family spokesman Brad Bauman to ask “about
the circumstances of Seth’s murder.” Compl. ¶ 28. A few days later, Zimmerman asked Joel for
more information about Seth. Id. ¶ 30. Zimmerman again contacted Joel on May 15 to seek
comment on the federal investigator’s information that Seth had passed emails to Wikileaks. Id.

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¶ 78. Zimmerman was unable to reach the Rich family for comment that day. She was careful to
note in the May 16 article, however, that Joel Rich had previously told Fox News “that he didn’t
believe his son would leak the emails.” Ex. 1.
When the Rich family repudiated some of Wheeler’s comments later that day, Zimmerman
updated the article. Compl. ¶ 90. She reported that “Wheeler was not authorized to speak for the
family” and that the family rejected the allegations against Seth as “‘unsubstantiated.’” Exs. 2, 3.
Her article quoted Bauman: “Even if tomorrow, an email was found, it is not a high enough bar
of evidence to prove any interactions as emails can be altered and we’ve seen that those interested
in pushing conspiracies will stop at nothing to do so.” Id. The update ran under the headline:
“Family of slain DNC staffer Seth Rich blasts detective over report of WikiLeaks link.” Ex. 3.
On May 18, 2017, two days after the article was published, plaintiff Joel Rich wrote to
Zimmerman seeking a retraction. Compl. ¶ 98. On May 23, Fox News issued a retraction,
explaining: “The article was not initially subject to the high degree of editorial scrutiny we require
for all our reporting.” Id. ¶ 107. Fox also removed the article from its web site. Id.
On March 13, 2018, nearly a year after Fox News pulled the article, Plaintiffs filed the
instant suit for damages. In addition to claiming that all Defendants are directly liable for
intentional infliction of emotional distress and tortious interference with contract, Plaintiffs claim
they are liable under aiding and abetting and conspiracy theories. Additionally, Plaintiffs assert a
claim for negligent supervision against Fox News. They have not named Wheeler as a defendant.
ARGUMENT
I.

PLAINTIFFS FAIL TO STATE A CLAIM FOR INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS.
To state a claim for intentional infliction of emotional distress in New York, plaintiffs must

plead: (1) extreme and outrageous conduct, (2) intent to cause, or disregard of a substantial

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probability of causing, severe emotional distress, (3) a causal connection between the conduct and
injury, and (4) severe emotional distress. Howell v. N.Y. Post Co., 612 N.E.2d 699, 702 (N.Y.
1993). It is “a highly disfavored tort under New York law.” Turley v. ISG Lackawanna, Inc., 774
F.3d 140, 158 (2d Cir. 2014). Liability may be found “only where the conduct has been so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized community.” Howell, 612
N.E.2d at 702. Underscoring that the tort’s elements are “rigorous, and difficult to satisfy,” the
New York Court of Appeals has never found a defendant’s conduct sufficiently outrageous to
sustain such a claim. See Chanko v. Am. Broad. Cos., 49 N.E.3d 1171, 1179 (N.Y. 2016).
New York disfavors intentional infliction claims, in part, because they lack historical
pedigree. Like every other state, New York historically refused claims for damages premised
purely on emotional injury. See Nevin v. Citibank, N.A., 107 F. Supp. 2d 333, 345 (S.D.N.Y.
2000). The tort emerged on the scene in the mid-20th century as an invention of the legal academy.
See Howell, 612 N.E.2d at 701. Although the Restatement accepted this new theory of liability,
id. at 701-02 (citing Restatement of Torts § 46), New York’s high court did not recognize
intentional infliction as a freestanding cause of action until 1978. See Freihofer v. Hearst Corp.,
480 N.E.2d 349, 355 (N.Y. 1985); Fischer v. Maloney, 373 N.E.2d 1215, 1217 (N.Y. 1978).
Both New York courts and the U.S. Supreme Court have recognized that this arriviste tort
creates special problems when it is used to attack speech. The traditional remedy for injurious
speech is defamation—a tort that has been shaped and limited by both centuries of common law
development and the First Amendment revolution that began with New York Times Co. v. Sullivan,
376 U.S. 254 (1964). See Turley, 774 F.3d at 159. Unless courts transposed those carefully drawn

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limits onto the intentional infliction cause of action, plaintiffs could evade the constitutional and
common law restrictions on defamation actions simply by relabeling their claim.
Thus, in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988), the Supreme Court
held that a public figure cannot recover on an intentional infliction claim arising from a publication
unless he proves both falsity and actual malice—two constitutionally required elements of a
defamation claim. Accordingly, courts throughout the Second Circuit have held that, where a
plaintiff would be barred from bringing a claim for defamation, he is also barred from maintaining
an intentional infliction claim grounded in the same facts. See, e.g., Chaiken v. VV Publ’g Corp.,
119 F.3d 1018, 1034 (2d Cir. 1997); Levin v. McPhee, 917 F. Supp. 230, 242 (S.D.N.Y. 1996);
Gleason v. Smolinski, 125 A.3d 920, 933-34 (Conn. 2015).

These cases underscore that

“constitutional protection does not depend on the label given the stated cause of action,” Reader’s
Digest Ass’n v. Superior Court, 690 P.2d 610, 624 (Cal. 1984), and a plaintiff “cannot avoid the
obstacles involved in a defamation claim by simply relabeling it as a claim for intentional infliction
of emotional distress.” Chaiken, 119 F.3d at 1034. “Were liability imposed in such a situation,
the constitutional protection would be illusory.” Levin, 917 F. Supp. at 242; cf. Weyrich v. New
Republic, Inc., 235 F.3d 617, 627-28 (D.C. Cir. 2001); Partington v. Bugliosi, 56 F.3d 1147, 1160 (9th
Cir. 1995).

Those principles are dispositive here. Although Plaintiffs have framed their claim using
the language of intentional infliction, the gravamen of their injury is the publication of allegedly
false and defamatory reporting about their son. But neither the First Amendment nor the law of
New York permits family members to recover for the alleged libel of a deceased relative, and
Plaintiffs cannot plead around this limitation by restyling their claim: “We look for the reality,
and the essence of the action and not its mere name.” Morrison v. Nat’l Broad. Co., 227 N.E.2d

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572, 574 (N.Y. 1967). While that alone is reason to dismiss the claim, it also fails for the
independent reason that Plaintiffs have failed to allege any “extreme or outrageous” conduct.
A.

Plaintiffs Cannot State a Claim for Intentional Infliction of Emotional
Distress Based on the Alleged Defamation of Their Son.

The claim for intentional infliction is an impermissible attempt to hold Defendants liable
for the alleged defamation of Seth Rich. Plaintiffs’ only alleged damages in this case stem from
the publication of news reports about their son. As their Complaint alleges, “Joel and Mary are
distraught not only because their son has been killed, but also because his good name and
reputation have been irreparably harmed.” Compl. ¶ 132(C). Their alleged symptoms of posttraumatic stress disorder, obsessive compulsive disorder, and social anxiety, id. ¶¶ 129-133, are
all “triggered by the constant stream of news coverage . . . maligning their son,” id. ¶ 132(E).
Indeed, their alleged obsessive-compulsive behavior consists of a drive to monitor damaging news
coverage of their son “in order to protect and defend against attacks on his character.” Id. ¶ 130.
Neither the First Amendment nor the law of New York permit Plaintiffs to recover for
emotional distress stemming from the publication of “scurrilous allegations about their son and his
murder.” Compl. ¶ 119. To state a claim for defamation, Plaintiffs must plead and prove that the
challenged publications are actually about them—a rule known as the “of and concerning”
requirement. See Chau v. Lewis, 771 F.3d 118, 129 (2d Cir. 2014); Palin v. N.Y. Times. Co., 264
F. Supp. 3d 527, 533-34 (S.D.N.Y. 2017). The “of and concerning” element is not only a
longstanding feature of the common law; it is constitutionally required. See N.Y. Times, 376 U.S.
at 288. No matter how much pain it may cause, family members have no right of recovery for
news reporting that allegedly damages a relative’s reputation because that reporting is not of and
concerning them. See, e.g., Sarwer v. Conde Nast Publ’ns, Inc., 654 N.Y.S.2d 768, 769 (App. Div.
1997); Talbot v. Johnson Newspaper Corp., 508 N.Y.S.2d 80, 83 (App. Div. 1986).

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This principle is no less applicable when the defamed person is deceased. “In New York,
no person, not even a close relative or descendant, can bring an action for defamation of a deceased
person.” Meeropol v. Nizer, 381 F. Supp. 29, 35 n.3 (S.D.N.Y. 1974). Indeed, it is “axiomatic
that there’s no such thing as defaming the dead.” Don Herzog, Defaming the Dead ix (2017).
Courts thus dismiss defamation claims brought by surviving family members seeking to
rehabilitate their loved one’s reputation. See, e.g., Rose v. Daily Mirror, Inc., 31 N.E.2d 182, 182
(N.Y. 1940); Gugliuzza v. K.C.M.C., Inc., 606 So. 2d 790, 792 (La. 1992); Drake v. Park
Newspapers of Ne. Okla., Inc., 683 P.2d 1347, 1351 (Okla. 1984); Casamasina v. Worcester
Telegram & Gazette, Inc., 307 N.E.2d 865, 866 (Mass. App. Ct. 1974); see also Curtis v. Evening
News Ass’n, 352 N.W.2d 355, 356-57 (Mich. Ct. App. 1984) (dismissing libel claim based on false
statements in a retracted newspaper article about plaintiff’s son—a murder victim—for failure to
show article was “of and concerning” plaintiff). Indeed, the states uniformly hold that “[o]ne who
publishes defamatory matter concerning a deceased person is not liable . . . to his descendants or
relatives.” Restatement (Second) of Torts § 560.
Plaintiffs cannot circumvent these restrictions simply by framing theirs as a cause of action
for intentional infliction of emotional distress. See Chaiken, 119 F.3d at 1034. This Court and
others have dismissed similar attempts to bring a barred defamation claim in the guise of an
intentional infliction claim. In Sylvester v. City of New York, 385 F. Supp. 2d 431, 436 (S.D.N.Y.
2005), family members of a man who was shot and killed by a detective sought to hold a police
spokesman liable for falsely telling the media that multiple witnesses had seen the victim charging
at the detective with a knife. The district court held that the victim’s wife and children could not
maintain an intentional infliction claim because the “false statements” were “directed at the
plaintiffs’ family member, but not the plaintiffs.” Id. at 442; see also Martin v. Citibank, N.A.,

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762 F.2d 212, 220 (2d Cir. 1985) (holding that an intentional infliction claim can be sustained only
if defendant’s conduct is “intentionally directed at the plaintiff”); Busch v. City of New York, No.
00-cv-5211, 2003 WL 22171896, at *8 (E.D.N.Y. Sept. 11, 2003) (same).
In Flynn v. Higham, 197 Cal. Rptr. 145 (Ct. App. 1983), another case that closely parallels
the one at bar, a California appellate court dismissed an intentional infliction claim based on a
book that claimed the plaintiffs’ late father was a Nazi spy. Id. at 146. The court dismissed
plaintiffs’ defamation claim, holding that “[a] libel on the memory of a deceased person is not
deemed to inflict on the surviving relatives . . . any such legal damage as will sustain a civil action
for the defamation.” Id. at 147. It then held that plaintiffs could not state an intentional infliction
claim “based on the very same acts which were insufficient to support a cause of action for
defamation.” Id. To hold otherwise would render the limitations on libel actions “meaningless”
and simply allow plaintiffs “to do indirectly that which they could not do directly.” Id. at 148.
Plaintiffs attempt to satisfy the “of and concerning” requirement by alleging that the Fox
News article somehow “implicated” them when it identified Wheeler as a private investigator
“hired by Rich’s family.” Compl. ¶¶ 88, 136(F). But no reasonable reader would understand the
article to imply that “Joel and Mary . . . were involved in establishing” that their son passed
documents to WikiLeaks. Compl. ¶ 136(F).2 Far from suggesting that the family embraced
Wheeler’s statement that “there was some degree of email exchange between Seth Rich and
WikiLeaks,” the article noted that Joel Rich had previously denied that “his son would leak the
emails.” Ex. 1. And when a family spokesman repudiated Wheeler’s comments hours after the

2

It is for the Court to decide as a matter of law whether the article is reasonably susceptible of the
meaning plaintiffs ascribe to it. See Levin v. McPhee, 119 F.3d 189, 195 (2d Cir. 1997);
Restatement (Second) of Torts § 614(1).

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article was published, Fox News updated the story with the headline, “Family of slain DNC staffer
Seth Rich blasts detective over report of Wikileaks link.” Ex. 3; Compl. ¶ 90. That article also
reported that Wheeler was not authorized to speak for the family and that Plaintiffs rejected the
WikiLeaks reporting as “unsubstantiated.” Exs. 2, 3. No reasonable reader could understand the
piece to imply that the family endorsed Wheeler’s position.
B.

Plaintiffs Fail To Plead Any Extreme or Outrageous Conduct.

The intentional infliction of emotional distress claim should be dismissed for the
independent reason that Plaintiffs have failed to plead facts that would establish “extreme or
outrageous” conduct by Zimmerman and Fox News.
1.

Plaintiffs Cannot Satisfy the Outrageousness Element by Reference to
the Content of a News Story on a Matter of Public Concern.

Plaintiffs allege that Fox News and Zimmerman engaged in outrageous conduct when they
“knowingly published” a “sham” news report that implicated their son in the DNC email leak.
Compl. ¶ 136(F).3 These allegations, grounded entirely in the content of the article, fail to satisfy
the outrageousness element for at least two reasons.
1.

Even accepting as true the allegation that the Fox News article was a “sham,” see

Compl. ¶ 136(A), publication of a knowingly or recklessly false and defamatory statement of fact
is neither extreme nor outrageous as a matter of New York law. See Cruz v. Marchetto, No. 11cv-8378, 2012 WL 4513484, at *5 (S.D.N.Y. Oct. 1, 2012); TC v. Valley Cent. Sch. Dist., 777 F.
Supp. 2d 577, 605 (S.D.N.Y. 2011); Levin, 917 F. Supp. at 243; Bement v. N.Y.P. Holdings, Inc.,

3

Plaintiffs also charge Fox News with outrageous conduct for publishing “a false news report on
its local WTTG Fox 5 affiliate.” Compl. ¶ 136(E). But Plaintiffs have not alleged a single fact to
establish that Fox News Network, LLC, exercises control over the editorial decisions of its local
affiliate, as would be necessary for a finding of vicarious liability. See, e.g., Pekelnaya v. Allyn,
808 N.Y.S.2d 590, 597 (App. Div. 2005).

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760 N.Y.S.2d 133, 138 (App. Div. 2003); Butler v. Del. Otsego Corp., 610 N.Y.S.2d 664, 666
(App. Div. 1994); cf. Prozeralik v. Capital Cities Commc’ns, Inc., 626 N.E.2d 34, 42 (N.Y. 1993)
(holding that publication of a knowingly or recklessly false statement “does not measure up to the
level of outrage” that would justify an award of punitive damages).
2.

Where, as here, a publication addresses a matter of public concern, the First

Amendment bars plaintiffs from establishing the outrageousness element by reference to the
content of the speech. See Snyder v. Phelps, 562 U.S. 443, 457-58 (2011); Hustler, 485 U.S. at
55; see also Eugene Volokh, The Trouble With “Public Discourse” as a Limitation on Free Speech
Rights, 97 Va. L. Rev. 567, 585 (2011). Such was the holding of Snyder—a case brought by a
bereaved parent who asserted that hurtful speech had compounded his grief from the loss of his
deceased son. 562 U.S. at 448-49. The plaintiff in Snyder brought an intentional infliction claim
against members of a church group that picketed at the funeral of his son, a Marine, carrying signs
that said: “Thank God for Dead Soldiers,” “Thank God for IEDs,” “You’re Going to Hell,” and
“God Hates You.” Id. at 448. A jury awarded millions in damages. Id. at 450.
The Supreme Court vacated the verdict, finding that it was barred by the First Amendment.
The record in Snyder established that the emotional distress inflicted by the protestors stemmed
entirely from “the content and viewpoint of the message conveyed” on their signs, rather than from
any disruption of the funeral itself. Id. at 457. Because their speech addressed a matter of public
concern, liability could not be imposed simply because the jury deemed the content of these
messages “outrageous.” Id. at 458. The Court observed that “[o]utrageousness . . . is a highly
malleable standard with an inherent subjectiveness about it which would allow a jury to impose
liability on the basis of the jurors’ tastes or views.” Id. Such an open-ended standard creates “a
real danger of becoming an instrument for the suppression of” precisely the sort of “vehement,

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caustic, and sometimes unpleasant expression” that is inevitable in the realm of public affairs. Id.
(brackets omitted).
That principle bars the claim here. Although Plaintiffs assert that the Fox News article
caused them pain, other readers might well consider their son to be a hero. Far from condemning
Seth Rich for the purported leak, the Fox News article portrayed him as a whistleblower who
released the DNC emails to expose that “top party officials conspired to stop Sen. Bernie Sanders
of Vermont from becoming the party’s presidential nominee.” Exs. 1, 2, 3. Emphasizing the point,
the article contained a photo of Rich in an American flag ensemble above the cutline: “Rich was
fiercely patriotic, say family members.” Id. That readers could take markedly different views of
Rich’s alleged leak underscores that Plaintiffs cannot satisfy the outrageousness element as a
matter of law. See Snyder, 562 U.S. at 458; Hustler, 485 U.S. at 55.
2.

Fox’s Alleged Republication of the Seth Rich Story Was Not Extreme
or Outrageous.

Plaintiffs in New York can satisfy the outrageousness element “only where severe mental
pain or anguish is inflicted through a deliberate and malicious campaign of harassment or
intimidation.” Doe v. Am. Broad. Cos., 543 N.Y.S.2d 455, 455 (App. Div. 1989). In an apparent
attempt to satisfy that standard, Plaintiffs allege that Fox News engaged in outrageous conduct
when it “repeatedly discussed and referenced” the Seth Rich article before its retraction, Compl.
¶ 104, and “continued to publish and publicize the sham story” even after its retraction, id.
¶ 136(H). Neither of these allegations is sufficient to satisfy the outrageousness standard.
The fact that information regarding an issue of intense public concern is discussed in
different media platforms hardly constitutes “a deliberate and malicious campaign of harassment
or intimidation” toward plaintiffs. See Doe, 543 N.Y.S.2d at 455. Plaintiffs point to only four
statements postdating the retraction in which Fox News allegedly tied their son to WikiLeaks.

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Compl. ¶ 108. But one of these was published on Sean Hannity’s radio show—which is neither
produced nor distributed by Fox News (nor do Plaintiffs so allege)—and the remaining three were
made by Fox guests. Id. A handful of desultory statements over a seven-month period by guest
commentators hardly constitutes the type of sustained malicious conduct necessary to sustain an
intentional infliction claim. Cf. Turley, 774 F.3d at 161 (upholding claim where defendant
permitted “hate-ridden and menacing environment to persist for more than three years”).
3.

Fox News’s Alleged Newsgathering Techniques Were Not Extreme or
Outrageous.

Plaintiffs further charge that Defendants engaged in “extreme and outrageous” behavior
when they allegedly participated in a scheme to “recruit” Wheeler to work for the Riches in order
“to develop the sham story that they knew would harm Joel and Mary.” Compl. ¶ 136(B). This
allegation fails to satisfy New York’s stringent outrageousness standard.
First, Zimmerman and Fox’s only contribution to the alleged scheme consisted of
newsgathering activity. According to Plaintiffs, Zimmerman exchanged information with Wheeler
regarding their parallel investigations into the Rich murder, with Wheeler updating Zimmerman
on his conclusions and Zimmerman sharing research to help Wheeler prepare for a meeting with
police. Compl. ¶¶ 60, 68. Zimmerman also contacted the family three times over five months to
ask questions, and she gave Plaintiffs the opportunity to comment on the leak allegations before
she published her article. Id. ¶¶ 28, 30, 78. Far from establishing outrageous conduct, these
allegations reflect a news reporter’s attempt to gather information from sources likely to have
knowledge about the murder. Cf. DuBoff v. Playboy Enters. Int’l, No. 06-358, 2007 WL 1876513,
at *10 (D. Or. June 26, 2007) (“posing a question to plaintiff over email does not constitute an
extraordinary transgression of the bounds of socially tolerable conduct”).

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Plaintiffs allege that Zimmerman and Fox News engaged in “deception . . . to develop the
sham story” about Seth. Compl. ¶ 136(A). Importantly, however, Plaintiffs do not allege that
either Zimmerman or Fox News made a single deceptive representation that persuaded the family
to hire Wheeler. To the contrary, they devote an entire section of their Complaint to describing
how “Butowsky and Wheeler Induce[d] Joel and Mary to Hire Wheeler” under the false pretense
that he was working solely in the interest of the Rich family. Compl. VI (emphasis added).
But even if Zimmerman or Fox News did engage in some act of deception, courts regularly
reject claims that false promises or other unsavory conduct by reporters satisfies the “extreme and
outrageous” standard. See Howell, 612 N.E.2d at 705 (trespass onto hospital property to covertly
photograph a patient for a news story “does not remotely approach” standard); Doe v. Am. Broad.
Cos., 543 N.Y.S.2d at 456 (breach of promise that faces of rape victims would not be identifiable
in a television report not outrageous); see also Desnick v. Am. Broad. Cos., 44 F.3d 1345, 135455 (7th Cir. 1995) (false promises that reporters “would not use ‘ambush’ interviews or undercover
surveillance tactics” were not tortious); Ruzicka v. Conde Nast, 939 F.2d 578, 583 n.8 (8th Cir.
1991) (breach of promise that reporter would not identify sex abuse victim in a news story was not
outrageous); Steele v. Isikoff, 130 F. Supp. 2d 23, 36 (D.D.C. 2000) (reporter’s false promise that
interview was off the record was not outrageous, even if it violated journalistic standards).
The Fox Defendants have found only a single case under New York law in which a court
has recognized that a journalist’s newsgathering techniques constituted intentional infliction, and
that case is readily distinguishable. In Galella v. Onassis, 487 F.2d 986 (2d Cir. 1973), the Second
Circuit sustained an injunction against a paparazzo who had gone “far beyond the reasonable
bounds of news gathering” and placed the late President Kennedy’s family in physical danger as
he aggressively pursued their photographs, id. at 995. Among other conduct, the paparazzo had

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“followed [the President’s widow] and her children too closely in an automobile, [and] endangered
the safety of the children while they were swimming, water skiing and horseback riding.” Id. at
994. No remotely similar circumstances are present here.
Second, Plaintiffs cannot state a claim based on the alleged scheme to recruit Wheeler,
because they have not plausibly alleged that the recruitment scheme, as opposed to the publication
itself, caused emotional harm. Plaintiffs allege that Zimmerman and Butowsky “recruited Wheeler
. . . to develop the sham story” and “implicate[] Joel and Mary by inferring that they were involved
in establishing the (fictitious) facts contained in the . . . Article.” Compl. ¶ 136(B), (F). But an
allegation that Zimmerman recruited Wheeler in order to convey the message that the family
believed Seth was the source of the email leak is no different from attacking the content of the
article itself. And for the reasons given at pp. 9-10, supra, Plaintiffs cannot recover for intentional
infliction based on the alleged implication that the family condoned the allegations about their son.
Plaintiffs’ intentional infliction claim bears a close resemblance to the one the court
rejected in Balderman v. American Broadcasting Cos., 738 N.Y.S.2d 462 (App. Div. 2002). In
that case, the plaintiff alleged that a major news network committed intentional infliction when it
“engaged in acts of deception to induce him into participating in [a] hidden-camera interview” and
then edited the tape to make him appear untruthful. Id. at 469. The court concluded that any injury
the plaintiff suffered was “the result of the allegedly unfavorable portrayal of him in the broadcast,
not of defendant’s behind-the-scenes deception and editing.” Id. at 470. Accordingly, the
plaintiff’s intentional infliction claim was nothing more than an attempt to revive his failed
defamation claim and thus barred. The same reasoning should apply here.

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II.

FOX NEWS CANNOT BE HELD LIABLE FOR THE CONDUCT OF WHEELER
OR BUTOWSKY.
Unable to identify any tortious conduct by Fox News itself, Plaintiffs seek to hold the

network liable for the conduct of Rod Wheeler and defendant Ed Butowsky. They allege that
Wheeler and Butowsky were agents of Fox News—or that they conspired with Zimmerman to
inflict emotional distress on the Rich family.

As an initial matter, these allegations are

fundamentally inconsistent with each other: to the extent Plaintiffs have alleged that Zimmerman,
Wheeler and Butowsky are “officers, agents and employees of a single corporate entity,” they “are
legally incapable of conspiring together.” Chamberlain v. City of White Plains, 986 F. Supp. 2d
363, 388 (S.D.N.Y. 2013). These allegations are also meritless for the reasons explained below.
A.

Fox News Is Not Vicariously Liable for the Conduct of Butowsky or Wheeler.

Plaintiffs cannot hold Fox News vicariously liable for Butowsky’s or Wheeler’s actions
because they have not plausibly alleged that either was an agent of Fox News. The touchstone of
an agency relationship is the principal’s control over the agent. See, e.g., Aymes v. Gateway
Demolition, Inc., 817 N.Y.S.2d 233, 234 (App. Div. 2006). Far from showing Fox’s control over
Butowsky or Wheeler, the allegations establish that they were pursuing their own agendas and at
times acting at cross purposes with Fox News.
Although Plaintiffs assert in conclusory fashion that Fox News controlled Butowsky’s
actions, Compl. ¶ 144, there is no allegation that Fox News directed him to contact the Rich family
or to pay for Wheeler’s investigative services out of his own pocket. To the contrary, Plaintiffs
acknowledge that senior editorial staff at Fox News had no idea Butowsky was a source for the
Seth Rich story until the day before publication.4 That day, Butowsky volunteered in an email to
4

Plaintiffs do not appear to claim that Butowsky is an employee of Fox News. Although he has
appeared as a guest on Fox programs, Butowsky is “not a paid [F]ox contributor.” Compl. ¶ 34.

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Fox News producers: “If you have any questions about the story or more information needed, call
me . . . . I’m actually the one who’s been putting this together.” Id. ¶ 82. And after Fox published
its article—which made clear the Rich family denied the charges about their son—Butowsky told
other news outlets that the family had in fact confirmed that Seth was the source of the DNC emails.
Id. ¶¶ 113-116. Plaintiffs have provided no plausible basis to believe that Fox directed these
statements at odds with its own news reporting, or that it exercised any control whatsoever over
Butowsky’s tweets or his post-publication attempts to contact the Rich family. See id. ¶¶ 111-116.
As for Wheeler, Plaintiffs point to his contributor agreement with Fox News in support of
their claim that he was the network’s agent. Compl. ¶¶ 33, 40; Ex. 11. But that agreement, which
entitles Wheeler only to a per-appearance fee, shows at most that Wheeler is an independent
contractor for whose acts Fox News cannot be held vicariously liable. See, e.g., Saini v. Tonju
Assocs., 750 N.Y.S.2d 55, 56 (App. Div. 2002). Plaintiffs’ own allegations establish that Fox
News neither controlled nor directed Wheeler’s actions in connection with the Rich article. For
example, the Complaint alleges that Wheeler leaked Zimmerman’s findings to Fox 5, the local
affiliate, the day before Fox News published the story, thus short-circuiting “an exclusive” into
which the network had “invested a lot of time and money.” Compl. ¶ 85; see also id.¶ 84.
In any event, Plaintiffs cannot maintain an intentional infliction claim against Wheeler,5
much less against Fox News. In New York, intentional infliction is a claim of “last resort” that is
available only where the plaintiff would have no other remedy for the conduct at issue. See Turley,
774 F.3d at 158. But Plaintiffs, by their own lights, have an action against Wheeler for breach of

5

To be clear, the Fox Defendants take the position that any intentional infliction claim against
Wheeler or Butowsky would fail on the merits. The claim fails as to Wheeler for the additional
reason that, by their own lights, Plaintiffs have a remedy against him in contract.

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contract. That Plaintiffs have chosen not to bring such a claim against Wheeler does not give them
the right to hold Fox News liable for his alleged breach under an intentional infliction theory. “The
tort of IIED simply has no application when the actor intends to invade some other legally
protected interest, even if emotional distress results.” Id. at 159 n.18.
B.

Plaintiffs Cannot Hold Fox News or Zimmerman Liable for Wheeler or
Butowsky’s Conduct Under a Concerted Action Theory.

Plaintiffs likewise cannot succeed in holding Fox News or Zimmerman liable under either
a conspiracy or an aiding and abetting theory. Neither conspiracy nor aiding and abetting is an
independent cause of action in New York. See Small v. Lorillard Tobacco Co., 720 N.E.2d 892,
898 (N.Y. 1999). “Allegations of conspiracy are permitted only . . . to connect each defendant
with an actionable injury.” Danahy v. Meese, 446 N.Y.S.2d 611, 614 (App. Div. 1981). Because
the underlying conduct at issue in this case—publication of a “sham story” about Plaintiffs’
deceased son that allegedly “implicated” the Plaintiffs, see Compl. ¶¶ 148, 153, 158—is not an
actionable tort, the conspiracy and aiding and abetting claims necessarily fail as well. See Williams
v. Williams, 53 N.Y.S.3d 152, 153 (App. Div. 2017).
Indeed, the conspiracy and aiding and abetting claims make little sense as applied to Fox
News or Zimmerman. These theories of concerted action liability are a means of holding certain
defendants liable for “the primary actor’s conduct.” Gym Door Repairs, Inc. v. Young Equip.
Sales, Inc., 206 F. Supp. 3d 869, 913 (S.D.N.Y. 2016). But in this case the allegedly tortious
conduct involved publication of a defamatory news article about plaintiffs’ son. It is simply
inconceivable that Fox News or Zimmerman could have aided and abetted the publication of their
own news story or conspired to publish the same. Cf. Naughright v. Weiss, 826 F. Supp. 2d 676,
692 (S.D.N.Y. 2011) (dismissing conspiracy claim as a matter of law where plaintiff alleged
defendant was primarily liable for underlying tort).

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Finally, even if the conspiracy or aiding and abetting claims could otherwise be maintained
under New York law, the First Amendment would bar their application here. Proof of cooperation
between a reporter and a source “who have a common purpose to produce a news story does not
represent a sufficient basis for an actionable conspiracy,” even where both parties knew or
recklessly disregarded that the publication was false. Dowd v. Calabrese, 589 F. Supp. 1206,
1213 (D.D.C. 1984).
Collaboration between individuals with an axe to grind and reporters
eager for a story is not uncommon; rather, it is the way the news
media frequently operate. . . . But such collaboration does not,
without more, a conspiracy make, that is, an unlawful agreement
which, if proved, gives rise to civil damages.
Id. Before liability may be imposed “in this sensitive First Amendment area,” plaintiff must
present “specific evidence of a joint purpose to defame.” Id. at 1214 (emphasis added).
Plaintiffs make no plausible allegation in this case that the Fox Defendants, Butowsky, and
Wheeler had a joint purpose to inflict emotional distress on the Plaintiffs. To the contrary, the
Complaint alleges that Defendants collaborated on the Seth Rich story in pursuit of other ends:
Fox News to improve its ratings, Compl. ¶ 109, and Butowsky to promote the view that Russia
was not responsible for the leak of the DNC emails, id. ¶ 82. While Plaintiffs might have felt
emotional distress in response to the Fox News publication, the Complaint presents no basis to
believe that inflicting such injury was the purpose of any of the defendants. See Compl. ¶ 1
(asserting that Plaintiffs were mere “innocent bystanders” and “collateral damage”).
III.

PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR TORTIOUS
INTERFERENCE WITH CONTRACT.
Plaintiffs allege that Fox News and Zimmerman “intentionally and improperly procured

Wheeler’s breach” of his contract with the Riches “by seeking confidential information from
Wheeler without Joel and Mary’s consent and working with Wheeler to make media appearances

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to discuss his investigation of Seth’s murder.”

Compl. ¶ 174.

But “seeking confidential

information” and “arranging media appearances” about a newsworthy event is not a tort. And any
attempt to make it one cannot be squared with the First Amendment.
The First Amendment protects not only the right to publish the news, but also the right to
gather it in the first place. For “without some protection for seeking out the news, freedom of the
press could be eviscerated.” Branzburg v. Hayes, 408 U.S. 665, 681 (1972).
News reporting frequently involves the publication of information that one or more parties
wish to maintain as secret, and oftentimes reporters encounter sources who are under some
obligation of confidentiality. Both the common law and the First Amendment reflect these
realities. Thus, as explained below, the mere invocation of a private confidentiality agreement
does not make the publication of information a tort. Nor does the existence of a confidentiality
provision make it a tort to encourage a private party to reveal information on a matter of public
interest. The common law only prohibits inducing the breach of a contract “without reasonable
justification” and “for the sole purpose of harming the plaintiff.” Huggins v. Povich, 1996 WL
515498, at *9. It does not prohibit a reporter from “seeking confidential information” on a matter
of public interest, or from seeking to persuade individuals who possess such information “to make
media appearances.” Compl. ¶ 174. For this and other reasons, Plaintiffs cannot state a claim for
tortious interference with contract.
“Under New York law, the elements of tortious interference with contract are (1) the
existence of a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge
of the contract; (3) the defendant’s intentional procurement of the third-party’s breach of the
contract without justification; (4) actual breach of the contract; and (5) damages resulting
therefrom.” Plasticware, LLC v. Flint Hills Res., LP, 852 F. Supp. 2d 398, 404 (S.D.N.Y. 2012).

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Even assuming that Plaintiffs can satisfy the other elements, it is clear that they have not pleaded
“intentional procurement” of a breach “without justification.”
A.

The Complaint Does Not Allege an “Intentional Procurement” of a Breach.

Wheeler’s contract did not prohibit him from speaking to the press; rather, the contract
prohibited him from “releas[ing] any information regarding [his] investigation . . . without prior
authorization by [the Riches].” Compl. ¶ 57. But there is no allegation that Zimmerman knew
when Wheeler revealed information to her that the Riches had not authorized him to do so. Nor is
there any allegation that Zimmerman “specifically intended” to induce him to speak without
consent. See Interphase Garment Sols., LLC v. Fox TV Stations, Inc., 566 F. Supp. 2d 460, 465
(D. Md. 2008). Zimmerman was pursuing a news story. She had no obligation to make sure
Wheeler had authorization from the Riches to reveal the results of his investigation. To the
contrary, Plaintiffs must allege that she knew he had no consent. They do not.
The Complaint alleges, for example, that “[o]n or around April 9, 2017, Wheeler sent a
text message to Zimmerman stating, ‘I’m ready to say Seths Death was not a botched street
robbery.’” Compl. ¶ 60. That hardly put Zimmerman on notice that he was acting without the
Riches’ consent. As a journalist with no independent obligation to Plaintiffs, she was entitled to
assume that Wheeler was acting in accordance with any contractual obligation he may have had.
Indeed, even if the Complaint had alleged that Zimmerman knew Wheeler was acting
without authorization, that would not prove that she acted with the requisite intent to interfere with
his contract. To establish the intentional interference, “plaintiff must show that the defendant’s
conduct was directed at an existing or prospective economic relationship and not a mere incidental
effect of the allegedly wrongful conduct.” Interphase, 566 F. Supp. 2d at 465 (brackets omitted).
In other words, “the plaintiff must show that the defendant specifically intended to interfere with

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its business relations.” Id. (emphasis added); see also Restatement (Second) of Torts § 766 cmt.
h. Plaintiffs have failed to allege that Fox News “specifically intended” to procure the breach of
Wheeler’s contract—rather than gather news in a way that had an “incidental effect” on his
contract.
B.

The Complaint Does Not Allege that Fox News Acted Without Justification
for the Sole Purpose of Harming the Plaintiffs.

“[F]or an action for tortious interference with contract to be sustained, the defendant’s
actions must be improper and without reasonable justification . . . . The plaintiff must prove that
the defendant actively and intentionally procured the breach for the sole purpose of harming the
plaintiff through wrongful means such as physical violence, fraud, misrepresentation, . . . or
economic pressure.” Povich, 1996 WL 515498, at *9 (emphasis added).6
There is no allegation that Fox News acted “without reasonable justification,” much less
“for the sole purpose of harming” the Riches. Id. at *9. To the contrary, Fox News’s reporter had
a clear journalistic purpose for seeking information from Wheeler: a news story concerning a leak
of DNC emails that may have affected a presidential election, as well as an unsolved murder that
might have been related to that leak. This was classic “reporting on an issue of public concern,”
and there is no basis whatsoever to suggest that any purpose, much less the sole purpose, was to
harm the parents of the murder victim. See Dulgarian v. Stone, 652 N.E.2d 603, 609 (Mass. 1995)
(tortious interference action could not be sustained where there was “no indication that the report
was broadcast for any reason other than the reporting on an issue of public concern”). Plaintiffs

See also Elliott Assocs., L.P. v. Republic of Panama, 975 F. Supp. 332, 341-42 (S.D.N.Y. 1997);
Rapp Boxx, Inc. v. MTV, Inc., 642 N.Y.S.2d 228, 228 (App. Div. 1996); EDP Hosp. Comput. Sys.,
Inc. v. Bronx-Lebanon Hosp. Ctr., 622 N.Y.S.2d 557, 558 (App. Div. 1995); Benjamin Goldstein
Prods., Ltd. v. Fish, 603 N.Y.S.2d 849, 851 (App. Div. 1993).
6

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disparage the reporting as a “sham story based on [a] fringe conspiracy theory,” Compl. ¶ 39, but
even that allegation does not establish that Fox News’s sole purpose was to harm Rich’s parents.
In this case, as in Povich, Fox News’s “first amendment right to [report on] an issue of
public importance, its lack of any motive to harm the plaintiff[s], and the obvious societal interest
in encouraging freedom of the press, negate essential elements of the tort.” Povich, 1996 WL
515498, at *9. Other cases are to the same effect. In Huggins v. NBC, No. 119272/95, 1996 WL
763337 (N.Y. Sup. Ct. Feb. 7, 1996), the court dismissed claims for tortious interference against a
news organization based upon the alleged breach of a confidentiality provision contained in a
divorce settlement. There, the court found that “[a]ny interference that occurred was merely
incidental to defendants’ exercise of their constitutional right to broadcast newsworthy information
about . . . a public figure.” Id. at *4. “Defendants’ purpose was a legitimate one,” the court
observed, “and did not involve an intent to unjustifiably interfere with the confidentiality
agreement.” Id. Here, too, the purpose of reporting on the murder investigation and email leak
was “legitimate,” and any interference with the confidentiality provision of Plaintiffs’ contract
with Wheeler was entirely incidental to Fox News’s reporting. See also Seminole Tribe of Fla. v.
Times Publ’g Co., 780 So. 2d 310, 312, 316-18 (Fla. Dist. Ct. App. 2001) (affirming dismissal of
tortious interference claim based on reporters’ asking sources “to reveal confidential and
proprietary documents and information”).
So too here, the mere invocation of a confidentiality agreement does not support a claim of
intentional interference against a reporter engaged in newsgathering on a matter of public interest.
Indeed, the Fox Defendants are not aware of a single case in which a reporter has been subjected
to liability for tortious interference with contract for what is alleged here—“seeking confidential
information” or arranging “media appearances” on a matter of public interest.

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 Case 1:18-cv-02223-GBD Document 36 Filed 05/07/18 Page 30 of 33

C.

The Complaint Does Not Allege Damages Arising From the Breach of the
Confidentiality Provision.

The tortious interference claim also fails because the conclusory allegation that Plaintiffs
have “suffered significant damage as a result of th[e] interference with their contract,” Compl.
¶ 176, is insufficient to state a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 67879 (2009). Plaintiffs plainly have no economic damages, as Butowsky agreed to pay the entire bill
for Wheeler’s services. Compl. ¶¶ 49, 58; Ex. 4. And their claimed emotional damages flow from
the alleged implication in the Fox News article that Plaintiffs were “involved in establishing” that
their son passed documents to WikiLeaks. Compl. ¶ 136(F).7 But, for the reasons stated at pp. 910, supra, the Fox News article cannot fairly be understood to convey any such implication.
IV.

PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR NEGLIGENT
SUPERVISION AGAINST FOX NEWS.
Negligent supervision is a theory that enables a plaintiff to recover damages from an

employer based on an intentional tort of its employee for which the employer would not ordinarily
be liable. See State Farm Ins. Co. v. Cent. Parking Sys., Inc., 796 N.Y.S.2d 665, 666 (App. Div.
2005). “To state a claim for negligent supervision or retention under New York law, in addition
to the standard elements of negligence, a plaintiff must show: (1) that the tort-feasor and the
defendant were in an employee-employer relationship; (2) that the employer knew or should have
known of the employee’s propensity for the conduct which caused the injury prior to the injury’s
occurrence; and (3) that the tort was committed on the employer’s premises or with the employer’s
chattels.” Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004) (affirming dismissal);
7

To the extent Plaintiffs also assert damages from the publication of “scurrilous allegations about
their son,” Compl. ¶ 119, those damages cannot be attributed to the alleged breach of Wheeler’s
confidentiality agreement because, wholly apart from Wheeler, Fox News had an independent
source—the federal investigator—who claimed to “have seen and read the emails between Seth
Rich and WikiLeaks.” Ex. 1.

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 Case 1:18-cv-02223-GBD Document 36 Filed 05/07/18 Page 31 of 33

Doe v. Alsaud, 12 F. Supp. 3d 674, 680 (S.D.N.Y. 2014) (dismissing claim). Plaintiffs cannot
assert a claim of negligent supervision in this case for two reasons.
First, for the reasons stated above, there is no basis for any underlying claim of intentional
tort by a Fox News employee—or by Wheeler, for that matter.8 Second, Plaintiffs do not allege
any facts that would show that Fox News knew or should have known that its reporter (or Wheeler)
had a propensity to commit the torts that are alleged. Plaintiffs allege in broad terms that “Fox
News knew or should have known of the tortious propensities of Zimmerman and Wheeler prior
to their tortious conduct that inflicted emotional distress.” Compl. ¶ 181. But such a conclusory
recitation of this element of the claim does not suffice. To survive a motion to dismiss, plaintiffs
must set forth “specific allegations of the employee’s past wrongdoing to provide a basis from
which to infer the employer’s knowledge.” Alsaud, 12 F. Supp. 3d at 682 (emphasis added).
Plaintiffs have failed to allege a single instance of past wrongdoing by Wheeler or Zimmerman.
For that reason, their claim for negligent supervision fails. See Green v. City of Mount Vernon, 96
F. Supp. 3d 263, 297 (S.D.N.Y. 2015) (dismissing claim for negligent supervision, because
plaintiffs failed to plead “any facts that could plausibly state a claim” that the city knew of its
police officers’ propensity for the conduct at issue).
CONCLUSION
For the reasons stated above, the Court should grant the motion of Fox News Network,
LLC, and Malia Zimmerman to dismiss for failure to state a claim.

8

Moreover, as to Wheeler, the Complaint fails to allege any facts establishing that Fox News had
a duty of supervision. The vague and conclusory allegation that he was “an employee and/or an
independent contractor,” Compl. ¶ 180 (emphasis added), does not establish that Fox News
exercised any control over his actions.

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 Case 1:18-cv-02223-GBD Document 36 Filed 05/07/18 Page 32 of 33

Respectfully submitted,
s/ Kevin T. Baine
Kevin T. Baine
Dane H. Butswinkas
Joseph M. Terry (pro hac vice)
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, DC 20005
650 Fifth Avenue
Suite 1500
New York, NY 10019
Tel: (202) 434-5000
Fax: (202) 434-5029
kbaine@wc.com
dbutswinkas@wc.com
jterry@wc.com
Attorneys for Fox News Network, LLC
With Consent,
David H. Stern (pro hac vice)
Katherine M. Wyman
Dechert LLP
U.S. Bank Tower
633 West 5th Street, 26th Floor
Los Angeles, CA 90071
Tel: (213) 808-5700
Fax: (213) 808-5760
1095 Avenue of the Americas
New York, NY 10036
Attorneys for Malia Zimmerman
DATED: May 7, 2018

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 Case 1:18-cv-02223-GBD Document 36 Filed 05/07/18 Page 33 of 33

CERTIFICATE OF SERVICE
I hereby certify that on May 7, 2018, I electronically filed the foregoing Memorandum in
Support of the Motion of Fox News Network, LLC, and Malia Zimmerman to Dismiss For
Failure to State a Claim with the Clerk of the Court using the CM/ECF system, which will send
notification of such filing to all counsel of record in this matter who are on the CM/ECF system.
s/ Kevin T. Baine
Kevin T. Baine

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