No, Not That David Sackler; No, Not That State Law

From Sackler v. ABC, Inc., decided Wednesday by N.Y. trial judge Franc Perry:

Plaintiff brought this action for libel per se/slander per se and defamation per/se against multiple defendants. The action is based on the defendants’ mistaken use of a photograph and sketch of the plaintiff, David Sackler, while reporting on the OxyContin endemic. The plaintiff is not the David Sackler of the Sackler family and Purdue Pharma. The defendant, NYP HOLDINGS, INC., publishes the “N.Y. Post” which is a daily publication that is available worldwide in hard copy and online editions….

Plaintiff alleges that the NY. Post used a photo of him instead of the David Sackler of Purdue Pharma in an online article about the Sackler family of Purdue Pharma published on May 12, 2019. Mr. Sackler notes that the photograph utilized by the Post he is holding a bottle of Trimwater, a beverage distributed by his company, Lifestyles Beverages, Inc. The Post’s story also ran in its printed edition which featured the same photograph but had been cropped and did not show the beverage from the plaintiff’s company. Mr. Sackler also alleges reputational harm when the NY. Post published a different picture of him again holding a bottle of Trimwater in a [different] online article entitled “Met to reject gifts from the Sacklers amid the fury over the opioid crisis.” …

Mr. Sackler cites specific examples of reputational harm that occurred in California, Florida, New Jersey and New York due to the defendant’s use of his photograph when reporting on the opioid crisis. Mr. Sackler also points to phone calls and a Facebook message received from people in Maryland, Michigan and Texas regarding the use of his image in articles reporting on the David Sackler of Purdue Pharma. In addition, Mr. Sackler alleges multiple incidents of harm and steps taken to avoid additional harm. For example, being asked in business meetings about the publications or needing to make restaurant reservations under a different name or changing his appearance to avoid being accosted or attacked and that such a fear was especially heightened when out with his family.

The question is whether the court should apply New York law, or the law of New Jersey, where Sackler resides. Under New York law that existed as of the time of the publication, private figure plaintiffs could recover demonstrated compensatory damages based on a finding of gross negligence. New Jersey, however, has long required a showing of “actual malice”—i.e., knowing or reckless falsehood—for all plaintiffs, so long as the statement was on a matter of public concern. (New York has recently joined New Jersey on this, by statute, but that statute has been held not to be retroactively applicable.) The First Amendment requirement in such situations is a showing of negligence, but states can impose higher requirements.

The court concludes New Jersey law applies:

When a publication is issued nationwide as is the case here, “the tort of [defamation] essentially lacks a locus, but rather injures plaintiff every where at once. In such cases, determining which state has the most significant relationship to the litigation requires a more comprehensive analysis” [than just focusing on where the tort took place]…. New York choice of law principles instead point not to the act as the locus of the tort but instead to the injury which is the final element that would make the defendant liable.

The plaintiff … argues that because the anti-SLAPP statute is conduct regulating that this Court should apply New York law to ensure New York media comply with its provisions. The interest in regulating “future” conduct is surely lessened after the 2020 anti-SLAPP amendments which require a plaintiff to prove actual malice and not simply negligence in future actions under this statute. In addition, the state of New Jersey has an interest in protecting its residents from tortious conduct.

Also, it is important to remember with a nationwide publication especially one issued online that the defendant disseminates such to all fifty states and the plaintiff is injured everywhere such publication is consumed….

While the plaintiff alleges specific examples of reputational harm suffered in multiple states, the Court finds that the defendant’s nationwide publication of his photograph had the greatest affect to the plaintiff and his overall reputation in the state where he resides. “Under New York’s choice of law rules, if the plaintiff and the defendant are domiciled in different states, the law of the situs of the injury generally applies.”

The Court finds that the fact that the defendant produces its nationwide publication from New York does not provide New York with a greater interest or “more significant interest” in this matter than New Jersey where the plaintiff suffered the greatest reputational harm and had to alter his day-to-day life to not suffer more. In addition, the Court finds that how New Jersey chooses to handle defamation matters and protect its residents from harm arising out of defamation has a greater interest in this matter than the state housing the defendant’s physical business where it produces a nationwide publication that is available in both New York and New Jersey….

The New Jersey actual malice requirement thus applied, and the court held that it couldn’t be shown:

The plaintiff’s sole allegation is that the Post did insufficient research to determine whether the plaintiff was the David Sackler of Purdue Pharma. As this Court previously determined in the underlying motion to dismiss, such an allegation is insufficient as a matter of law to show that the defendant acted with actual malice.

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