Case 1:17-cv-02113-LTS Document 24 Filed 06/02/17 Page 1 of 21

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

ROBERT HUIZENGA,
Plaintiff,
No. 17-CV-2113-LTS-GWG
-against-
Oral Argument Requested
NYP HOLDINGS d/b/a/ THE NEW YORK
POST, JOELLE GWYNN and DOES 1-20,

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT JOELLE GWYNNS

MOTION TO DISMISS PURSUANT TO RULE 12(b)(6)

MILLER KORZENIK SOMMERS RAYMAN LLP

Mona Houck
David S. Korzenik
488 Madison Avenue, Suite 1120
New York, New York 10022-5702
(212) 752-9200

Attorneys for Joelle Gwynn

 Case 1:17-cv-02113-LTS Document 24 Filed 06/02/17 Page 2 of 21

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

BACKGROUND ............................................................................................................................ 1

LEGAL STANDARD..................................................................................................................... 3

ARGUMENT .................................................................................................................................. 3

I. PLAINTIFFS COMPLAINT AGAINST DEFENDANT GWYNN SHOULD BE

DISMISSED BECAUSE HE HAS NOT ADEQUATELY PLEADED AND
CANNOT ESTABLISH ACTUAL MALICE .............................................................. 4

A. Plaintiff Is Undeniably a Public Figure ............................................................... 4

B. Plaintiff Failed to Plead Facts Supporting Actual Malice ................................... 7

II. THREE OF THE ALLEGED DEFAMATORY STATEMENTS DO NOT PERTAIN

TO PLAINTIFF SO CANNOT SUPPORT A DEFAMATION CLAIM................... 10

III. PLAINTIFFS COMPLAINT BASED ON ALLEGED STATEMENT NO. 4

SHOULD BE DISMISSED AS NON-ACTIONABLE OPINION ............................ 11

IV. PLAINTIFFS CLAIM FOR INTENTIONAL INTERFERENCE WITH

PROSPECTIVE ECONOMIC RELATIONS MUST BE DISMISSED .................... 13

A. Plaintiffs Intentional Interference Claim Should Be Dismissed

as Duplicative..................................................................................................... 13

B. Plaintiff Failed to Allege Facts That Could Establish Intentional Interference . 15

CONCLUSION ............................................................................................................................. 16

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TABLE OF AUTHORITIES
Rules
Federal Rule of Civil Procedure 12(b)(6) ....................................................................................... 3

Cases

Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328 (2d Cir. 2006) .................................. 3

AIDS Counseling & Testing Ctrs. v. Group W. Television, Inc., 903 F.2d 1000 (4th Cir.1990).. 11

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................................................... 3, 8

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................... 8

Biro v. Conde Nast, 807 F.3d 541 (2d Cir. 2015) ........................................................................... 8

Biro v. Conde Nast, 963 F. Supp. 2d 255 (S.D.N.Y. 2013) .................................................... 6, 7, 9

Carvel Corp. v. Noonan, 3 N.Y. 3d 182 (2004)............................................................................ 15

Curtis Publg Co. v. Butts, 388 U.S. 130 (1967) ............................................................................ 7

Diario El Pais, S.I. v. Nielsen Co. (US), No. 07 Civ. 11295(HB), 2008 WL 4833012 (S.D.N.Y.
Nov. 6, 2008) ............................................................................................................................ 10

Egiazaryan v. Zalmayev, No. 11 Civ. 2670(PKC), 2011 WL 6097136 (S.D.N.Y. Dec. 7, 2011) . 9

Fonar Corp. v. Magnetic Resonance Plus, Inc., 957 F. Supp. 477 (S.D.N.Y. 1997) ................... 15

Four Finger Art Factory, Inc. v. Dinicola, No. 99 Civ. 1259, 2000 WL 145466 (S.D.N.Y. Feb.9,
2000) ......................................................................................................................................... 15

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) .......................................................................... 5

Goldman v. Barrett, No. 15 CIV. 9223 (PGG), 2016 WL 5942529 (S.D.N.Y. Aug. 24, 2016) .. 14

Hengjun Chao v. Mount Sinai Hosp., 476 F. Appx 892 (2d Cir. 2012) ...................................... 14

Holy Spirit Assn for Unification of World Christianity v. Harper & Row, Publishers, Inc., 101
Misc. 2d 30 (Sup.Ct. 1979) ....................................................................................................... 13

Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235 (1991) ................................................... 4, 11, 12

James v. Gannett Co., 40 N.Y.2d 415 (1976) ................................................................................. 5

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Karedes v. Ackerley Grp., Inc., 423 F.3d 107 (2d Cir. 2005) ..................................................... 4, 7

Krepps v. Reiner, 588 F. Supp. 2d 471 (S.D.N.Y. 2008).............................................................. 14

Lerman v. Flynt Distrib. Co., 745 F.2d 123 (2d Cir. 1984) ........................................................ 6, 7

Lesesne v. Brimecome, 918 F. Supp. 2d 221 (S.D.N.Y. 2013) ..................................................... 14

Levin v. McPhee, 119 F.3d 189 (2d Cir. 1997) ....................................................................... 11, 12

Mann v. Abel, 10 N.Y.3d 271 (2008) ............................................................................................ 12

Milkovich v. Lorain Journal, 497 U.S. 1 (1990)........................................................................... 12

N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) ........................................................................ 4, 7

Orenstein v. Figel, 677 F.Supp.2d 706 (S.D.N.Y.2009)................................................................. 9

Pasqualini v. MortgageIT, Inc., 498 F. Supp. 2d 659 (S.D.N.Y. 2007) ....................................... 15

Purgess v. Sharrock, 33 F.3d 134 (2d Cir.1994) .......................................................................... 15

Pusey v. Bank of Am., N.A., No. 14-CV-04979 FB LB, 2015 WL 4257251 (E.D.N.Y. July 14,
2015) ......................................................................................................................................... 14

Restis v. Am. Coal. Against Nuclear Iran, Inc., 53 F. Supp. 3d 705 (S.D.N.Y. 2014) ................. 14

Three Amigos SJL Rest., Inc. v. CBS News Inc., 28 N.Y.3d 82 (2016) ........................................ 10

Yiamouyiannis v. Consumers Union, 619 F.2d 932 (1980). ........................................................... 8

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Defendant Joelle Gwynn submits this memorandum of law in support of her motion to

dismiss Plaintiffs First Amended Complaint against her.

This defamation action stems from New York Post articles published in 2016 about the

NBC reality show The Biggest Loser. The articles explored the public controversy over weight-

loss methods employed on the show, including discussion of a National Institutes of Health study

that addressed why some former contestants regained weight lost on the show. Among the

sources for the Posts articles was Defendant Joelle Gwynn, a former contestant on The Biggest

Loser who shared her experiences and opinions with the Post reporter.

Plaintiff Robert Huizenga, a widely known sports doctor who has appeared in dozens of

news and entertainment programs, including The Biggest Loser, sued both the Post and Ms.

Gwynn. In complaining of five statements attributed to Ms. Gwynn in the Post articles, Plaintiff

fails to plead any facts that could support a finding of actual malice, as he must to pursue a

defamation claim as a public figure. He also complains of statements that do not refer to him and

are no more than an expression of opinion. Neither can be the basis for a defamation claim.

Additionally, Plaintiff brings a claim for intentional interference with prospective business

relations that is both duplicative of his defamation claims and inadequately pleaded. His

Complaint against Ms. Gwynn should be dismissed.

BACKGROUND

Plaintiff Huizenga is a famous health expert and sports doctor whose approach to weight

loss has been featured for 17 seasons on the reality show The Biggest Loser. Compl. 1. He has

been the team physician for the Los Angeles Raiders and a national medical correspondent on

FOX and ABC programs. Id. 18. He has repeatedly been interviewed as a health expert on

numerous national news programs and had roles in dozens of entertainment productions. Id. 21.

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In May 2016, The New York Post published three articles about The Biggest Loser. Id.

2. The articles addressed public controversy over the shows methods, including discussion of

reaction to a study conducted by the National Institutes of Health that measured long-term

changes in metabolic rate and body composition among former contestants. Compl. Ex. A, B and

C. Defendant Gwynn was among the sources for the articles, sharing her first-hand account of

her experiences as a contestant on The Biggest Loser. Id.

Plaintiff brought this action against The New York Post and Ms. Gwynn, alleging

defamation and intentional interference with prospective economic relations. Plaintiff identifies

in two paragraphs the material he claims is defamatory and attributable to Ms. Gwynn. Compl.

29(g) and (l).1 (These paragraphs are repeated in the statements of the first cause of action (

44(g) and (l)) and the second cause of action ( 55(g) and (l).) For ease of reference in this

motion, the challenged material attributable to Ms. Gwynn is identified as five separate

statements:

1. Gwynn claims that she took an illicit yellow and black pill supposedly given to her by
a Show staff member, stating I felt jittery and hyper. ( 29(g))
2. I went and told the sports medicine guy. ( 29(g))
3. The next day, Dr. H gave us some lame explanation of why they got added to our
regimen and that it was up to us to take them. ( 29(g))
4. People chastise Bill Cosby for allegedly offering meds to women, but its acceptable
to do to fat people to make them lose weight. I feel like we got raped, too. ( 29(g))
5. Joelle Gwynn, of Season 7, said of the shows doctor, Rob Huizenga, told them it was
up to us to take [the illicit drugs]. ( 29(l))

Plaintiffs Complaint alleges, without explanation or support, that these statements were

published with knowledge of falsity of the statements and/or reckless disregard for the truth of

the statements ( 49, 60) and that the published statements constitute egregious conduct

1 Plaintiffs
Complaint improperly includes in the challenged statements words not spoken by
Ms. Gwynn. For the purposes of this motion, however, Defendant Gwynn addresses the
statements as presented in the Complaint.

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constituting malice. ( 51, 62.) These allegations are not specifically addressed to the five

statements attributed to Ms. Gwynn. The Complaint also alleges, again without explanation or

support, that Defendants intentionally interfered with Plaintiffs business relationships. ( 67,

68.) It lacks any required details as to which relationships were affected and how.

LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure requires dismissal of a complaint

that fails to state a claim upon which relief can be granted. To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).

A complaint is not adequately pleaded if it tenders naked assertion[s] devoid of

further factual enhancement, Id. at 678 (quoting Twombly, 550 U.S. at 557), and

[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not

suffice to [defeat] a motion to dismiss. Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d

328, 337 (2d Cir. 2006) (citation omitted) (alteration in original).

ARGUMENT

Plaintiff has failed to adequately plead either his defamation claims or his claim for

intentional interference with prospective economic relations. In addition, his intentional

interference claim is wholly duplicative of the defamation claims. His Complaint against

Defendant Gwynn should therefore be dismissed.

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I.
PLAINTIFFS COMPLAINT AGAINST DEFENDANT GWYNN
SHOULD BE DISMISSED BECAUSE HE HAS NOT ADEQUATELY PLEADED
AND CANNOT ESTABLISH ACTUAL MALICE

To state a claim for defamation in New York, a public figure must establish that the

statements ... complain[ed] of were (1) of and concerning [the plaintiff], (2) likely to be

understood as defamatory by the ordinary person, (3) false, and (4) published with actual

malice. Karedes v. Ackerley Grp., Inc., 423 F.3d 107, 113 (2d Cir. 2005) (citation omitted)

(alteration in original). This standard is a requirement under both the United States and New

York Constitutions, reflecting the broad interest in encouraging vigor and variety in public

debate. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279 (1964). See also Immuno AG. v. Moor-

Jankowski, 77 N.Y.2d 235, 249 (1991) (Noting that the protection afforded by the guarantees of

free press and speech in the New York Constitution is often broader than the minimum required

by the Federal Constitution.) (citations omitted).

The facts as presented by Plaintiff, and accepted as true in a motion to dismiss, leave no

room for dispute that Plaintiff is a public figure. He must therefore both plead and prove actual

malice in other words, that Defendant knew her statements were false or demonstrated reckless

disregard for their falsity to prevail on a defamation claim. Times v. Sullivan, 376 U.S. at 279

80. The actual malice showing must be made with convincing clarity, or by clear and

convincing proof. Karedes, 423 F.3d at 114, citing Phila. Newspapers v. Hepps, 475 U.S. 767,

773 (1986). Plaintiff has pleaded no facts plausibly supporting or even pointing toward actual

malice as to Ms. Gwynn, and his defamation claims should therefore be dismissed.

A. Plaintiff Is Undeniably a Public Figure

Plaintiff alleges that he is famously known as Dr. H; that he is a world renowned

health expert and that he is one of the most esteemed sports doctors of all time. Compl. 1.

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He claims he has a reputation as the best in his field. Id. 17. The Complaint states that he has

been the team doctor for the Los Angeles Raiders ( 18); he wrote a groundbreaking book that

was adapted into the feature film Any Given Sunday ( 18); he was the national medical

correspondent for programs on the FOX and ABC television networks ( 18); he has been

repeatedly interviewed on national television programs, including the ABC Evening News, the

Today Show, Nightline and Larry King Live, as well as in national print media such as The New

York Times and The Los Angeles Times ( 21); he has had recurring roles as writer,

correspondent, advisor and doctor on numerous TV shows and movies, including 26 such

shows and movies identified in the Complaint ( 21); he lectures throughout the country ( 23);

and he runs a fat-loss facility bearing his name, The Clinic by Dr. H, in Southern California (

23).

In short, Plaintiff is, by his own description, famous, even world renowned. Compl.

1. He is sought after for appearances on news and entertainment programs. He is a person who

has assumed roles of especial prominence in the affairs of society, the Supreme Courts

definition of a public figure. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). Plaintiffs

claims to fame are so broad that he is surely a public figure for all purposes. At a minimum,

however, he is a limited-purpose public figure, or one who has thrust himself to the forefront of

particular public controversies in order to influence the resolution of the issues involved. Id.

The core requirement for each type of public figure is indisputably found in Plaintiffs

actions: In either event, they invite attention and comment. Id. Or, as the New York Court of

Appeals has explained, [t]he essential element underlying the category of public figures is that

the publicized person has taken an affirmative step to attract public attention. James v. Gannett

Co., 40 N.Y.2d 415, 422 (1976). Whether a person is a public figure is a question of law for the

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court, and one that can be determined at the motion to dismiss stage. Biro v. Conde Nast, 963 F.

Supp. 2d 255, 270 (S.D.N.Y. 2013), affd, 807 F.3d 541 (2d Cir. 2015), and affd, 622 F. Appx

67 (2d Cir. 2015) (citations omitted).

The Second Circuit has synthesized the case law on limited-purpose public figures into a

four-part test. A limited-purpose public figure is a plaintiff who has (1) successfully invited

public attention to his views in an effort to influence others prior to the incident that is the

subject of litigation; (2) voluntarily injected himself into a public controversy related to the

subject of the litigation; (3) assumed a position of prominence in the public controversy; and (4)

maintained regular and continuing access to the media. Lerman v. Flynt Distrib. Co., 745 F.2d

123, 13637 (2d Cir. 1984).

Plaintiffs actions easily satisfy all four prongs. He has sought and received public

attention to his views on the subject of the challenged articles: extreme weight loss, and, in

particular, the kind of extreme weight loss featured on The Biggest Loser. Plaintiff highlights this

in his Complaint, touting his 2008 book, Where Did the Fat Go? The Wow! Prescription to

Reach Your Ideal Weight and Stay There, which he describes as being about the radical

exercise-centric obesity treatment he first pioneered in over 766 overweight applicants to NBCs

The Biggest Loser and resulting in over 20 published peer-reviewed medical abstracts, articles

or major medical conference presentations. ( 22). Plaintiff also voluntarily injected himself

into the public controversy by collaborating on the National Institutes of Health study cited by

the Post articles. Compl. 29(d). He claims a position of prominence on the subject of extreme

weight loss, having written multiple scientific papers on his approach and presenting them at

national medical conferences. Compl. 15. And he undoubtedly has maintained regular access to

the media, as demonstrated by his repeated appearances in the national media. Compl. 21.

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Plaintiff must, therefore, be held to be at least a public figure with respect to accounts about this

subject, including the articles challenged in this action.

B. Plaintiff Failed to Plead Facts Supporting Actual Malice

As a public figure, Plaintiff is subject to the actual malice standard. To prevail on his

defamation claim he must adequately plead and prove facts demonstrating that each defendant

acted knowing that the allegedly defamatory statements were false or with reckless disregard as

to the statements falsity. See, e.g., Times v. Sullivan, 376 U.S. at 27980 (public officials);

Curtis Publg Co. v. Butts, 388 U.S. 130, 15455 (1967) (public figures); Lerman v. Flynt

Distrib. Co., 745 F.2d 123, 137, 139 (2d Cir. 1984) (limited-purpose public figures). Because

Plaintiff has failed to plead any such facts, his claim against Ms. Gwynn must be dismissed.

The pleading standard in defamation actions must necessarily be rigorous, in line with the

constitutionally required proof standard in these actions. A defamation plaintiff must establish

actual malice by clear and convincing proof (Karedes, 423 F.3d at 114 (citations omitted)),

and a complaint that lacks any factual support for its allegations cannot meet that bar. When that

is the case, dismissal is the proper course. [T]here is, according to the New York Court of

Appeals, particular value in resolving defamation claims at the pleading stage, so as not to

protract litigation through discovery and trial and thereby chill the exercise of constitutionally

protected freedoms. Biro, 963 F. Supp. 2d at 264 (quoting Armstrong v. Simon & Schuster,

Inc., 85 N.Y.2d 373 (1995) (internal quotations omitted).

The concern over protracted litigation and chilled speech are of particular concern in a

case such as this one, involving an individual defendant offering a first-hand account of her own

experiences and opinions. Plaintiff has not come forward with a single fact supporting any

showing of actual malice, and Ms. Gwynn should not be subjected to the demands of discovery

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and protracted litigation as he fishes for support he can never find. Pleading requirements are

intended to avoid that very situation.

The Supreme Court has clearly identified those requirements for civil actions. To survive

a motion to dismiss, a complaint must allege enough facts to state a claim to relief that is

plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Where a particular

state of mind is an element of a claim as actual malice is here it must be plausibly pleaded

and supported by factual allegations. Iqbal, 556 U.S. at 68687. A claim is plausible when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. Id. at 678. [N]aked assertions or conclusory

statements are not enough. Id. (quotations omitted).

The Second Circuit long ago stated that [d]efamation actions are, for procedural

purposes, ... to be treated no differently from other actions. Yiamouyiannis v. Consumers Union,

619 F.2d 932, 940 (1980). And that Court recently emphasized that this rule applies to pleading

standards in defamation cases requiring actual malice. Biro v. Conde Nast, 807 F.3d 541, 545

(2015), cert. denied, 136 S. Ct. 2015 (2016).

To meet this standard, Plaintiff must plead facts that could lead to a reasonable inference

that Ms. Gwynn entertained serious doubts as to the truth of her challenged statements. Id. at

546, citing St. Amant v. Thompson, 390 U.S. 727, 731 (1968). Plaintiff has failed to do so.

Plaintiffs Complaint lacks any specific facts alleging actual malice on the part of Ms.

Gwynn. The only related allegations that could be interpreted as applying to Ms. Gwynn are the

general, broad-brush and conclusory statements that: Defendants knew the statements to be

false at the time the May 22, 2016 Post was published. ( 27); Defendants knew the statements

were false at the time the First May 23, 2016 and Second May 23, 2016 Post were published. (

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28); and The foregoing false statements of fact were made by defendants with the intention and

knowledge that they were false and were likely to harm Dr. Hs personal and professional

reputation, and/or with reckless disregard for the truth of the statements. ( 30).

Though they contain actual malice buzzwords, these are simply conclusory allegations

for which Plaintiff pleads no supporting facts with regard to Ms. Gwynn. The allegations are no

more than bare legal conclusions, not the well-pleaded facts the Supreme Court requires in

Twombly and Iqbal.

The District Court in Biro (affirmed by the Second Circuit) followed a First Circuit

roadmap for determining whether actual malice has been adequately pleaded: To begin, the

court must strip away and discard the complaints conclusory legal allegations. Next, the court

must determine whether the remaining factual content permits the reasonable inference that the

defendant is liable for the misconduct alleged. Biro, 963 F. Supp. 2d at 280 (citing Shay v.

Walters, 702 F.3d 76, 8283 (1st Cir. 2012)). Once the conclusory allegations of this complaint

are stripped away, nothing remains to support any inference that Ms. Gwynn could have acted

with actual malice.

Other courts in the Southern District have also dismissed claims where allegations of

actual malice were conclusory and lacked plausibility. See, e.g., Egiazaryan v. Zalmayev, No. 11

Civ. 2670(PKC), 2011 WL 6097136, at *8 (S.D.N.Y. Dec. 7, 2011) (Egiazaryans repeated

assertion that Zalmayev acted with malice is unavailing because it is a legal conclusion not

entitled to presumption of truth, and he alleges no facts plausibly supporting that conclusion.

(citing Iqbal, 556 U.S. at 67879)); Orenstein v. Figel, 677 F.Supp.2d 706, 711 (S.D.N.Y.2009)

(Orenstein alleges that Figel ... acted knowingly, recklessly, and maliciously in writing the

March 20, 2009 letter .... The Complaint provides neither factual support for these conclusions

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nor any explanation of why either Figel or his law firm would have an interest in acting

maliciously toward Orenstein.); Diario El Pais, S.I. v. Nielsen Co. (US), No. 07 Civ.

11295(HB), 2008 WL 4833012, at *67 (S.D.N.Y. Nov. 6, 2008).

Because Plaintiffs Complaint lacks any factual support for its conclusory legal

allegations that Ms. Gwynn acted with actual malice, it has failed to state a claim for defamation

and should be dismissed.

II.
THREE OF THE ALLEGED DEFAMATORY STATEMENTS
DO NOT PERTAIN TO PLAINTIFF SO CANNOT SUPPORT A DEFAMATION CLAIM

To state a claim for defamation, Plaintiff must demonstrate that the allegedly defamatory

statements are of and concerning him. Three Amigos SJL Rest., Inc. v. CBS News Inc., 28

N.Y.3d 82, 86 (2016). In other words, Plaintiff must plead and prove that the challenged

statement referred to him and that a person hearing or reading the statement reasonably could

have interpreted it as such. Id. The question of whether a statement is of and concerning a

plaintiff is one for the court to decide. Id. Although the pleading failures noted above should

result in full dismissal, statements that are not of and concerning Plaintiff should be dismissed on

this additional ground.

The bulk of the statements sourced to Ms. Gwynn in the Complaint do not refer to

Plaintiff. The challenged statements are as follows:

1. Gwynn claims that she took an illicit yellow and black pill supposedly given to her by
a Show staff member, stating I felt jittery and hyper. ( 29(g))
2. I went and told the sports medicine guy. ( 29(g))
3. The next day, Dr. H gave us some lame explanation of why they got added to our
regimen and that it was up to us to take them. ( 29(g))
4. People chastise Bill Cosby for allegedly offering meds to women, but its acceptable
to do to fat people to make them lose weight. I feel like we got raped, too. ( 29(g))
5. Joelle Gwynn, of Season 7, said of the shows doctor, Rob Huizenga, told them it was
up to us to take [the illicit drugs]. ( 29(l))

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The only reference to Plaintiff is in one sentence, repeated in Statements 3 and 5. Plaintiff is

neither the subject nor the object of any criticism in the remainder of the challenged statements

and therefore cannot claim injury from them. See AIDS Counseling & Testing Ctrs. v. Group W.

Television, Inc., 903 F.2d 1000, 1005 (4th Cir.1990) (holding that [a]llegations of defamation

by an organization and its members are not interchangeable (internal quotations omitted)).

Only statements that are of and concerning Plaintiff may be the basis of a defamation

claim. Only one sentence of the material attributable to Ms. Gwynn could reasonably be

interpreted as referring to Plaintiff. Any claim based on the remaining material should be

dismissed or that material should be stricken from the Complaint.

III.
PLAINTIFFS COMPLAINT BASED ON ALLEGED STATEMENT NO. 4
SHOULD BE DISMISSED AS NON-ACTIONABLE OPINION

A claim for defamation can be based only on a false statement of fact about the plaintiff,

not opinion or rhetorical hyperbole. This is especially so under the New York State Constitution,

which provides, under Article I 8, even greater protection to speech than does the U.S.

Constitution. Immuno AG, 77 N.Y.2d at 239, 249. [T]he thrust of the dispositive inquiry under

both New York and constitutional law is whether a reasonable [reader] could have concluded

that [the publications were] conveying facts about the plaintiff. Levin v. McPhee, 119 F.3d 189,

196 (2d Cir. 1997) (quotations omitted) (alterations in original). This determination is a matter

for the court. Id. In addition to the pleading failures noted above, Statement No. 4 contains no

assertion of objective fact about Plaintiff and therefore any claim based on it must be dismissed

or should be stricken from the Complaint.

The statement at issue is this: People chastise Bill Cosby for allegedly offering meds to

women, but its acceptable to do to fat people to make them lose weight. I feel like we got raped,

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too. Compl. 29(g). This statement is no more than Ms. Gwynns subjective opinion about her

own experience and the general treatment of people who are overweight, using colorful language

to emphasize her point. This statement falls firmly into the category of rhetorical hyperbole or

imaginative expression that the Supreme Court has ruled is not actionable because such

statements cannot reasonably [be] interpreted as stating actual facts. Milkovich v. Lorain

Journal, 497 U.S. 1, 20 (1990) (alteration in original) (citation omitted). The use of loose,

figurative, or hyperbolic language tends to negate the impression that the speaker was

seriously intending to convey facts. Id. at 21. See also Immuno AG, 77 N.Y.2d at 245 (Even

statements that contain or imply assertions of false fact are not actionable when expressed in

loose, figurative, hyperbolic language.)

New York law grants even broader protection to statements of opinion under Article 1,

Section 8 of the New York Constitution. The New York Court of Appeals has emphasized that

[e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter

how offensive, cannot be the subject of an action for defamation. Mann v. Abel, 10 N.Y.3d 271,

276 (2008). New York courts employ a three-stage inquiry to distinguish fact from opinion: 1)

whether the specific language used has a precise and readily understood meaning; 2) whether

the statements are susceptible of being proven false; and 3) whether the context of the

statements signals to the reader that what is being conveyed is likely to be opinion rather than

fact. Levin, 119 F.3d at 196.

Application of this test to Ms. Gwynns statement demonstrates that it is an expression of

opinion, not fact. The language used is the loose, hyperbolic kind that signals non-actionable

opinion, not precise facts. No reasonable reader would believe that Ms. Gwynn was claiming that

she or any other contestant was actually raped. Rather, that hyperbolic language is used to

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convey her feelings about general attitudes about overweight people and weight loss. That

expression of feeling is not one capable of being proved false. And the context makes clear to the

reader that she is sharing her opinion, not asserting facts. Further, nothing in the statement refers

in any way to Plaintiff. Nor can any comparison to Cosby be construed as a statement of fact.

Courts have treated comparisons as opinions, not as statements of fact. See, e.g., Holy Spirit

Assn for Unification of World Christianity v. Harper & Row, Publishers, Inc., 101 Misc. 2d 30,

33 (Sup. Ct. 1979) (Dismissing complaint based on comparison to Nazis and noting: Clearly,

the comparison of one organization with another and pointing out similarities between them,

expresses the opinion of the person making the comparison.).

In the absence of any factual assertion about Plaintiff, no defamation claim can survive.

Any claim based on Statement No. 4 should be dismissed, or the statement should be stricken

from the Complaint.

IV.
PLAINTIFFS CLAIM FOR INTENTIONAL INTERFERENCE
WITH PROSPECTIVE ECONOMIC RELATIONS MUST BE DISMISSED

Plaintiffs claim for intentional interference with prospective economic relations (Compl.

at 22) is both duplicative of his defamation claims and inadequately pleaded. It should therefore

be dismissed.

A. Plaintiffs Intentional Interference Claim Should Be Dismissed as Duplicative

Plaintiffs claim for intentional interference with prospective economic relations is based

entirely on assertions of reputational harm he attributes to the alleged defamatory statements. It

is therefore duplicative of his defamation claims and should be dismissed. New York law

considers claims sounding in tort to be defamation claims ... where those causes of action seek

damages only for injury to reputation, [or] where the entire injury complained of by plaintiff

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flows from the effect on his reputation. Hengjun Chao v. Mount Sinai Hosp., 476 F. Appx 892,

895 (2d Cir. 2012), citing Jain v. Sec. Indus. and Fin. Mkts. Assn., No. 08 Civ. 6463, 2009 WL

3166684, at *9 (S.D.N.Y. Sept. 28, 2009) (alteration in original).

As in Chao, the facts underlying Plaintiffs intentional interference claim are virtually

identical to the facts underlying his defamation claimnamely, that the defendants made false

statements regarding [his] ... integrity. Id. In addition, the harm he asserts in this claim flows

from the effect on his reputation caused by defendants alleged defamatory statements. Id.

Indeed, Plaintiffs Complaint states as much: The only act Plaintiff points to as creating such

intentional interference is that of making false, fabricated, fictitious and outright libelous

statements. Compl. 67, 68. That is the basis for a defamation claim, not an intentional

interference claim. Courts have consistently dismissed intentional interference claims that are

based only on allegations of harm to reputation from defamatory statements. See, e.g., Restis v.

Am. Coal. Against Nuclear Iran, Inc., 53 F. Supp. 3d 705, 726 (S.D.N.Y. 2014) (Dismissing

claim because the entire injury pleaded in relation to the tortious interference with prospective

economic advantage cause of action flows from the effect of the defamatory comments on

Plaintiffs reputation.); Krepps v. Reiner, 588 F. Supp. 2d 471, 485 (S.D.N.Y. 2008), affd, 377

F. Appx 65 (2d Cir. 2010) (Plaintiff is not permitted to dress up a defamation claim as a claim

for intentional interference with a prospective economic advantage.); Lesesne v. Brimecome,

918 F. Supp. 2d 221, 224 (S.D.N.Y. 2013) (Moreover, courts in New York have also kept a

watchful eye for claims sounding in defamation that have been disguised as other causes of

action.); Goldman v. Barrett, No. 15 CIV. 9223 (PGG), 2016 WL 5942529, at *7 (S.D.N.Y.

Aug. 24, 2016) (causes of action for tortious interference dismissed as duplicative of plaintiffs

defamation claims); Pusey v. Bank of Am., N.A., No. 14-CV-04979 FB LB, 2015 WL 4257251,

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at *4 (E.D.N.Y. July 14, 2015) (same); Pasqualini v. MortgageIT, Inc., 498 F. Supp. 2d 659, 670

(S.D.N.Y. 2007) (In the present case, plaintiff's claim is based wholly on [defendants]

dissemination of negative statements about her and the resulting harm to her professional

reputation. It is thus, in essence, a defamation claim.).

Because the only injury Plaintiff cites flows from the alleged defamatory statements

which are themselves the only acts Plaintiff alleges his claim for tortious interference with

prospective economic relations must be dismissed.

B. Plaintiff Failed to Allege Facts That Could Establish Intentional Interference

Even were Plaintiffs claim for tortious interference not duplicative of his defamation

claims, it must be dismissed because the Complaint fails to allege facts supporting it. To state a

claim for tortious interference with prospective economic advantage, a plaintiff must show (1)

business relations with a third party; (2) defendants interference with those business relations;

(3) defendants acted with the sole purpose of harming the plaintiff or used dishonest, unfair, or

improper means, and (4) injury to the relationship. Purgess v. Sharrock, 33 F.3d 134, 141 (2d

Cir.1994). Plaintiff must allege relationships with specific third parties and state how the

defendant interfered with those relationships. Four Finger Art Factory, Inc. v. Dinicola, No. 99

Civ. 1259, 2000 WL 145466, at *7 (S.D.N.Y. Feb.9, 2000). Vague claims of indirect interference

are not enough: in order for a party to make out a claim for tortious interference with

prospective economic advantage, the defendant must interfere with the business relationship

directly; that is, the defendant must direct some activities towards the third party and convince

the third party not to enter into a business relationship with the plaintiff. Fonar Corp. v.

Magnetic Resonance Plus, Inc., 957 F. Supp. 477, 482 (S.D.N.Y. 1997). See also Carvel Corp. v.

Noonan, 3 N.Y.3d 182, 192 (2004) (As federal courts applying New York law have recognized,

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conduct constituting tortious interference with business relations is, by definition, conduct

directed not at the plaintiff itself, but at the party with which the plaintiff has or seeks to have a

relationship.)

Plaintiffs claim does not meet these requirements. He makes only the most general

allegations regarding any affected relationships, identifying them only as his role on The

Biggest Loser, a role as a medical expert on a national network news show and a production

deal for a reality TV show. Compl. 67. Only one of those specifically identifies any third

party, and, most important, Plaintiff fails to allege any fact showing that Ms. Gwynn directed any

activity toward any third party or convinced any third party not to enter a business relationship

with Plaintiff. In fact, the only third party the Complaint alleges Ms. Gwynn had any contact

with at all is The New York Post, and the only activity it alleges is her interview with the Post.

These allegations are insufficient to state a claim for tortious interference with prospective

economic advantage.

CONCLUSION

Plaintiffs Complaint fails to provide the constitutionally required factual support for its

allegations, relying instead on bare legal conclusions. It alleges injury in non-actionable

expressions of opinion and statements of fact that do not refer to Plaintiff. It seeks to assert

duplicative causes of action even while failing to properly plead them. All of this poses the risk

of unjustly forcing Defendant Joelle Gwynn to face the significant burdens of litigation while

also chilling protected speech. Defendant therefore respectfully asks this Court to dismiss

Plaintiffs Complaint against her and to award such further relief as it deems just and proper.

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DATED: June 2, 2017 Respectfully submitted,

MILLER KORZENIK SOMMERS RAYMAN LLP

By: _s/Mona Houck________

Mona Houck
mhouck@mkslex.com
David S. Korzenik
dkorzenik@mkslex.com
488 Madison Avenue, Suite 1120
New York, New York 10022-5702
(212) 752-9200

Attorneys for Defendant Joelle Gwynn

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