Case 1:17-cv-04853-JSR Document 83 Filed 01/21/20 Page 1 of 6
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

SDNY
ITMENT

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ELECTRONICALLY FILED
DOC#:

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SARAH PALIN,

DATEr . '1:

0

Plaintiff,
17-cv-4853 (JSR)
-vMEMORANDUM ORDER
THE NEW YORK TIMES COMPANY and JAMES
BENNET,
Defendants.
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JED S. RAKOFF, U.S.D.J.
Familiarity with all prior proceedings in this matter is
here assumed. As relevant here, on June 27, 2017, plaintiff
Sarah Palin brought a single defamation claim against The New
York Times Company ("The Times") and James Bennet, arising from
The Times' editorial on June 14, 2017 titled America's Lethal
Politics (the "Editorial"). When the Court dismissed the action
on August 29, 2017 based on the finding that Palin had not
adequately pleaded actual malice, ECF No. 45, at 1, it did not
reach the alternative ground on which the defendants had moved
to dismiss the portion of the claim seeking disgorgement, ECF
No. 25, at 22-25. The Court of Appeals for the Second Circuit
reversed this Court's dismissal and remanded the case for
further proceedings. ECF Nos.

64, 65. Subsequently, Palin filed

an amended complaint on December 30, 2019. First Amended
Complaint, ECF No. 7 0 ( "FAC") .

 Case 1:17-cv-04853-JSR Document 83 Filed 01/21/20 Page 2 of 6

Now before the Court is the defendants' renewed motion for
partial judgment on the pleadings regarding Palin's claim for
disgorgement damages under Fed. R. Civ. P. 12(c). ECF No. 76;
Defendants' Memorandum of Law in Support of Their Motion for
Partial Judgment on the Pleadings, ECF No. 77

("Defs. Mem.").

Palin opposes. Plaintiff's Memorandum of Law in Opposition to
Defendants' Motion for Partial Judgment on the Pleadings, ECF
No. 80

("Palin Opp."). For the reasons set forth below, the

Court grants the defendants' motion.
Allegations in the First Amended Complaint
The following relevant allegations are taken from the FAC
and are assumed true for the purposes of assessing the
defendants' motion for partial judgment on the pleadings.
Palin alleges that the defendants, in the Editorial,
"falsely assert[ed] that

. Mrs. Palin was clearly and

directly responsible for inciting a mass shooting at a political
event in January 2011." FAC

~

1. This, Palin alleges, was driven

in part by the defendants' perception of Palin as "a convenient
target for attacks against conservative politics and a subject
likely to spark readership interest" and their desire to
increase traffic to media websites, thereby bringing economic
benefit to their business. Id.

~~

75-79. The online version of

the Editorial included several advertisements, which generated
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 Case 1:17-cv-04853-JSR Document 83 Filed 01/21/20 Page 3 of 6

revenue for The Times. Id. , 120. Palin further alleges that The
Times actively promoted the Editorial on social media, including
on its Twitter feed that had over 38 million followers, as did
The Times' Editorial Board, whose Twitter account had nearly
600,000 followers.

Id. ,

195.

Accordingly, in addition to monetary and punitive damages,
Palin seeks "restitution in the form of The Times' advertising
revenues attributable to" the Editorial. Id. , , 218-19. 1
Specifically, Palin alleges that the defendants published in the
Editorial knowing "that stories attacking Mrs. Palin inflame
passions, which drives viewership and Web Clicks" and therefore
the defendants "knowingly and voluntarily exploited and retained
a benefit conferred by Mrs. Palin" by writing the Editorial. Id.
'214.
Analysis

1

Although the FAC uses the term "restitution" rather than
"disgorgement," FAC, 219, Palin is actually asserting a claim
for the equitable remedy of disgorgement. See Dolmetta v. Uintah
Nat' l Corp., 712 F.2d 15, 19 (2d Cir. 1983) (" [C]ourts look at
the essence of the state claim and not the label by which a
plaintiff chooses to identify it."). Oisgorgement focuses on how
much the alleged wrongdoer gained as a result of unlawful
conduct, whereas restitution focuses on restoring the victim to
the position she would have been in absent the conduct, by
compensating her. In any event, as per Ventura discussed below,
the Court's ruling on the instant motion does not depend on
whether Palin's claim at issue is labeled as restitution or
disgorgement.
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 Case 1:17-cv-04853-JSR Document 83 Filed 01/21/20 Page 4 of 6

"The standard for addressing a Rule 12(c) motion for
judgment on the pleadings is the same as that for a Rule
12(b) (6) motion to dismiss for failure to state a claim." Hogan
v. Fischer, 738 F.3d 509, 514-15 (2d Cir. 2013) . 2 "To survive a
Rule 12(c) motion, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face." Johnson v. Rowley, 569 F.3d 40, 44
Cir . 2 0 0 9 )

(2d

(per cur i am) .

A recent Eighth Circuit case, which reversed an unjustenrichment judgment in a defamation action and vacated the
accompanying damages award, supports the defendants' position.
See Ventura v. Kyle, 825 F.3d 876 (8th Cir. 2016), cert. denied,
137 S. Ct. 667

(2017). The Ventura court explained that, even if

plaintiff had proven the elements of unjust enrichment, the
equitable remedy would still not be available because, as a
matter of law, money damages for defamation is an adequate
remedy at law. Id. at 887; see also SEG Sport Corp. v. State
Athletic Comm'n,

952 F. Supp. 202, 204

(S.D.N.Y. 1997)

("Equitable relief requires a showing that there is no adequate
remedy at law"). The Eighth Circuit further noted that

Unless otherwise indicated, in quoting cases all internal
quotation marks, alterations, emphases, footnotes, and citations
are omitted.

2

4

 Case 1:17-cv-04853-JSR Document 83 Filed 01/21/20 Page 5 of 6

"[n]either the district court nor [plaintiff] cited any case
awarding profits in a defamation case under an unjust-enrichment
theory, or even suggesting money damages are an inadequate
remedy in a public-figure defamation case.n Id. at 887. And the
Ventura court itself found no such case. Id. at 887-88; see also
Organovo Holdings, Inc. v. Dimitrov, 2017 WL 2417917 at *20
(Del. Ch. Ct. June 5, 2017)

("While theoretically a plaintiff

might seek disgorgement or another restitution remedy as an
alternative to damages, the handful of cases to consider the
issue have rejected these requests.n).
Although Ventura concerned Minnesota law, the Court finds
its reasoning persuasive. Indeed, while New York's 0ighest court
does not seem to have addressed this precise issue, the case law
in lower New York courts and in lower courts in other
jurisdictions is consistent with the holding in Ventura. See,
e.g.,. Alharbi v. TheBlaze, Inc., 199 F. Supp. 3d 334, 361-62 (D.
Mass. 2016); Hart v. E.P. Dutton

&

Co., 197 Misc. 274, 275, 283

(Sup. Ct. Oneida Cnty. 1949), aff'd, 277 A.O. 935 (4th Dep't
1950).
By contrast, Palin fails to put forth any case that
supports her position - whether predicated on a theory of
restitution, unjust enrichment, or disgorgement - that such
equitable remedy is available as a matter of law in a defamation
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 Case 1:17-cv-04853-JSR Document 83 Filed 01/21/20 Page 6 of 6

case, when money damages serve as an adequate remedy. Put
another way, Palin is attempting to obtain an additional remedy
that bears no relation to the injury she suffered, because she
does not claim that she would have been entitled to receive a
portion of The Times' advertising revenues if she had not been
defamed. See Defs. Mem. 4.
For these reasons, the Court grants the defendants' motion
for partial judgment on the pleadings dismissing Palin's claim
for disgorgement damages. The Clerk is directed to close the
entry bearing the docket number 76.
SO ORDERED.
Dated:

New York, NY
January
2020

./f,

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