Judge Allows Professors’ Libel Case Against Ex-Students to Go Forward

From Judge Alvin K. Hellerstein’s opinion last week in Cojocaru v. CUNY (S.D.N.Y.):

Claudia Cojocaru and Naomi Haber (collectively, “Plaintiffs”) brought this suit alleging that several professors, Defendants Ric Curtis, Anthony Marcus, Leonardo Dominguez, and Barry Spunt (collectively, the “Individual Defendants”), subjected them to gender discrimination, retaliation, and for some Individual Defendants, gender-based violence. They further allege that their university, City College of New York d/b/a John Jay College of Criminal Justice (“John Jay”), failed to investigate properly and take corrective action.

Defendants Curtis, Dominguez, and Spunt (collectively, the “Counterclaim Defendants”) brought counterclaims for defamation, and Curtis brought an additional counterclaim for tortious interference with contract and business relations. Plaintiffs move to dismiss the counterclaims….

Plaintiffs were undergraduate students at John Jay, Cojocaru, between 2012 and 2014, and Haber, between 2013 and 2017. Cojocaru also served as an adjunct professor from 2017 to 2019. During Plaintiffs’ time at John Jay, Defendants Curtis, Marcus, and Spunt were professors, and Defendant Dominguez was an adjunct professor.

The offices of Curtis, Marcus, and Dominguez were located in a suite professors called the “Swamp.” In the Swamp, professors allegedly referred to students using offensive terms like “bitch” and “slut,” mocked students who were victims of sexual violence, made sexual comments about students, and openly sold and used illegal drugs. Plaintiffs claim that on multiple occasions they were subjected to assaults and/or unwanted sexual advances by the Individual Defendants. For example, according to Plaintiffs’ Amended Complaint, Curtis encouraged Cojocaru to drink alcohol before sexually assaulting her, Spunt groped Cojocaru, Marcus jumped onto a bed with Cojocaru and punched her multiple times, Curtis tried to pressure Haber into having sex with other professors, Curtis and Dominguez groped Haber, and Marcus raped Haber….

In 2018, Plaintiffs filed complaints with John Jay’s Title IX office …. Plaintiffs say the resulting investigation was biased, incomplete, and marred by improper conduct, and caused Cojocaru to suffer trauma, causing Cojocaru’s psychiatrist to recommend that she stopped sitting for in-person interviews during the investigation. The complaint alleges that John Jay officials said they would accommodate Cojocaru but then said that her failure to appear for interviews damaged her credibility. At the conclusion of the investigation, John Jay announced that it would initiate disciplinary procedures to terminate the Individual Defendants.

In the Amended Complaint, Plaintiffs bring claims against John Jay for gender discrimination and retaliation …. [and] for disability discrimination …. Plaintiffs bring claims against all Individual Defendants for aiding and abetting gender discrimination in violation of the NYSHRL and NYCHRL; against Curtis, Marcus, and Dominguez for violation of the Gender Motivated Violence Act (“GMVA”); and against Curtis, Spunt, and Dominguez for retaliation in violation of the NYSHRL and NYCHRL.

In their respective answers to the Amended Complaint, Curtis, Dominguez, and Spunt deny Plaintiffs’ allegations and bring counterclaims against Plaintiffs. The Counterclaim Defendants say that Plaintiffs have initiated sexual conversations with professors, that Cojocaru has a long history of making complaints about others in academia, and that Plaintiffs had ulterior motives to fabricate allegations.

All three Counterclaim Defendants bring a claim for defamation, libel, and slander per se against Plaintiffs in connection with an interview they gave to the New York Post. The interview resulted in an article published on September 22, 2018 (the “Article”), which was titled “College professors allegedly sold drugs, ‘pimped’ out students.”

The Article contained many of the same accusations as those in the Amended Complaint, including that professors sexually assaulted Plaintiffs and encouraged them to have sex with other professors. In his first counterclaim, Curtis also highlights that Plaintiffs repeated similar allegations in meetings with the New York City Police Department’s Special Victims Unit, the New York County District Attorney’s sex crimes unit, and the New York State Inspector General’s Office, and later in an additional interview with the New York Post. The second New York Post interview resulted in an article titled “Professors accused of pimping out students got nearly $500K to study prostitution.” …

Additionally, Curtis brings a second counterclaim against Plaintiffs for defamation, libel, and slander per se in connection with Plaintiffs’ social media posts. On Instagram and Twitter, Cojocaru allegedly made statements such as “serial sexual predator and fake PhD gets to be suspended without pay while his victims struggle to make ends meet.” In reaction to a news story about Jeffrey Epstein, Cojocaru wrote, “We only have to look at cases where men in positions of power gain trust-men like catholic priests, university professors …. These men have power and privileges, complete with a network of enablers and accomplices, shielding them from accountability for decades. Some even have institutional legitimacy, like the disgraced @JohnJayCollege professors.”

Finally, Curtis brings a counterclaim against Plaintiffs for tortious interference with contractual and business relations. He alleges that Plaintiffs’ false accusations led John Jay to suspend him and commence termination proceedings, in breach of his contractual, business, and professional relationship with John Jay and the City University of New York….

The court largely allowed the counterclaims to go forward, in particular mostly concluding that the statements were potentially actionable factual assertions and not pure opinions:

I hold that Counterclaim Defendants sufficiently plead that the vast majority of Plaintiffs’ alleged statements are statements of fact, or at worst statements of mixed opinion [i.e., statements of opinion that appear to be based on implied statements of fact -EV], that are subject to a defamatory meaning.

Haber’s alleged statements that Curtis encouraged her to have sex with other professors is an objective assertion that is provable as either true or false and whose meaning is readily understandable. Statements characterizing Counterclaim Defendants’ role in the alleged misconduct, describing the Swamp using terms like “deprav[ed]” and “toxic,” and comparing John Jay professors to individuals involved in the Jeffrey Epstein case are also actionable. In context, a reader would take these statements to imply sexual abuse, harassment, and other forms of misconduct that are either described in the New York Post article or undisclosed but known to the speakers…. “[O]pinions based on false facts are actionable against a defendant who had knowledge of the falsity or probable falsity of the underlying facts.” … [S]tatements of mixed opinion are actionable because of “the implication that the speaker knows certain facts, unknown to [her] audience, which support his opinion and are detrimental to the person about whom he is speaking[.]” …

The only alleged statements that are not actionable are Haber’s alleged statements that her experience at John Jay made her suicidal and that the professors “killed [her] spiritually in a way.” These statements reflect her reaction to events. Additionally, the latter statement is not susceptible to a precise meaning and is not capable of being proven as true or false.

Counterclaim Defendants sufficiently plead that all the alleged defamatory statements constitute defamation per se [as to which] {“the law presumes that damages will result, and they need not be alleged or proven”}. Statements that can constitute defamation per se are “statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman.”

Many of Plaintiffs’ challenged statements concern acts of violence or the sale of drugs. These statements “charg[e] plaintiff with a serious crime.” The remaining statements concern other forms of misconduct toward students or poor academic integrity. When directed at a group of professors, those statements tend to injure the Counterclaim Defendants in their profession.

The court also allowed the interference with contract and business relations counterclaim to go forward, because it too was based on claims of “maliciously fabricated allegations” by plaintiffs. The court did not have occasion to decide, at this point, what to do with the plaintiffs’ affirmative claims against the defendants.

Read more at Reason.com

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