California appeals court affirms denial of Bill Cosby’s anti-SLAPP motion seeking to strike defamation claims brought by television personality Janice Dickinson, ruling that Cosby could be held directly liable for defamatory statements in press releases issued by his attorney denying Dickinson’s rape accusations.
In an interview that aired on Entertainment Tonight on November 14, 2014, model and television personality Janice Dickinson accused comedian Bill Cosby of drugging and raping her in 1982. After the airing, Cosby’s attorney Martin Singer sent demand letters to various media outlets and, over the course of the next three days as more women went public with accusations of Cosby’s sexual misconduct, issued press releases stating that the accounts by Dickinson and the other women were fabricated. Dickinson’s attorney subsequently demanded retractions of Singer’s demand letters and press releases. Neither Cosby nor Singer retracted the statements.
Dickinson sued Cosby for defamation and later amended her complaint to name Singer as a defendant, alleging that Singer’s statements defamed her and that Cosby was both directly and vicariously liable for the defamation. Both Cosby and Singer filed anti-SLAPP motions. The trial court granted Singer’s motion to strike, holding that Dickinson could not prove that Singer acted with actual malice. Singer had no direct knowledge as to whether Dickinson’s accusations were true because he was not present during the 1982 incident, and any communications with Cosby that might show Singer’s secondhand knowledge were privileged and not discoverable. The trial court, in relevant part, denied Cosby’s anti-SLAPP motion, rejecting Cosby’s argument that he could not be held liable for the statements of his attorney.
On Cosby’s appeal, the Court of Appeal affirmed the denial of his motion to strike. Cosby argued that he could not be held directly liable for the statements released by Singer, because there was no evidence that he had any role in publishing the statements and any evidence that he had would be protected by the attorney-client privilege. The court disagreed, pointing to Singer’s declaration that he had a general practice of getting a client’s approval before he issued a press release. Moreover, even if Cosby had not authorized the press releases, his direct liability could be established by his ratification of the statements through his failure after the publication of the statements to either fire Singer or issue a retraction. As the court explained, “the evidence shows Cosby did not immediately terminate the agency relationship with Singer after he issued the press releases; nor did Cosby issue a retraction or clarification.” In so holding, the court rejected Cosby’s argument that post-publication silence can never be sufficient to show a defendant played a responsible part in the publication of defamatory material. Rather, the court explained, ratification of an agent’s defamatory statements can be established not only by “confirmatory conduct,” but also by “conduct inconsistent with disapproval.”
The court also rejected Cosby’s arguments that the specific press releases at issue were not about Dickinson. Even though two of the releases did not identify her by name, they did refer to “people coming out of the woodwork with fabricated or unsubstantiated stories about [Cosby]” and “women who have come forward in the past two weeks … .” The court determined that, given the issuance of the press releases in the immediate aftermath of Dickinson’s public accusation and the public attention given to the story, a reasonable fact finder could find by reasonable implication that the statements referred to Dickinson (as well as others). Finally, the court rejected Cosby’s contention that the statements in Singer’s press releases were non-actionable opinions.
Accordingly, the Court of Appeal affirmed the denial (in part) of Cosby’s anti-SLAPP motion. While the decision would have cleared the way for the case to move forward, Dickinson’s attorney announced the day before the ruling that Cosby’s insurance company had reached a settlement with Dickinson for an undisclosed sum, bringing the suit to an end.
Summary prepared by Wook Hwang and Kyle Petersen