PlainSite :: William Moran II v. Newsweek LLC et al, Supreme Court of the State of New York, New York County Case No. 151179/2017 Document 6: AFFIDAVIT OR AFFIRMATION IN SUPPORT (Motion #001)

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FILED: NEW YORK COUNTY CLERK 03/24/2017 12:30 PM
NYSCEF DOC. NO. 6
INDEX NO. 151179/2017
RECEIVED NYSCEF: 03/24/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

------------------------------------------------------------------X :

WILLIAM MORAN II,

Plaintiff, :

-against:

NEWSWEEK LLC and IBT MEDIA, INC., :

Defendants.

------------------------------------------------------------------X Index No.: 151179/2017 AFFIRMATION IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT DAVID S. BRALOW, an attorney duly admitted to practice in the State of New York, affirms the following under penalty of perjury:

I am Of Counsel at Pepper Hamilton, LLP attorneys for Newsweek LLC and IBT Media, Inc.

I am fully familiar with the facts and circumstances of this case and make this Affirmation in Support of Defendants’ Motion to Dismiss the Complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7).

Plaintiff William Moran II, a writer and editor for Sputnik News, sued Newsweek, LLC, and its parent, IBT Media, Inc., for defamation, intentional infliction of emotional distress, and invasion of privacy by giving publicity to private facts, seeking injunctive relief and damages. The action arises from Plaintiff’s false report, published by the Russia-supported media outlet, that Sidney Blumenthal, a well-known Hillary Clinton supporter, criticized Clinton for failing to prevent the attack on the U.S. Embassy in Benghazi. The Plaintiff called this revelation an “October surprise,” meaning such a revelation could affect the course of the Presidential election. Then candidate Donald Trump, in fact, referred to the false 1 of 4

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information, on the campaign trail, declaring to a crowd that “sleazy Sidney” was “now admitting that they could have done something about Benghazi.” 4.

The truth was that Blumenthal never made the statement. He quoted Newsweek writer Kurt Eichenwald’s piece decrying the politicization of the Benghazi tragedy. Eichenwald read the Sputnik article and posted two articles about the Plaintiff’s misattribution of his words.

This action is Plaintiff’s attempt to manufacture a recovery because of Eichenwald’s two articles.

The Court should dismiss the Complaint against Defendants for the following reasons, as set forth more fully in the accompanying Memorandum of Law: a.

Plaintiff’s defamation claim fails because Eichenwald did not state what Plaintiff contends and, even if Plaintiff’s interpretation of the article was supportable, such statements would be substantially true or protected opinion.

Plaintiff’s intentional infliction of emotional distress claim fails because it is duplicative of his defamation claim and because he does not allege the level of extreme and outrageous conduct that the tort requires.

Plaintiff’s publicity given to private life claim fails because New York does not recognize such a cause of action.

Attached as Exhibit A is a true and correct copy of the Plaintiff’s 8.

Attached as Exhibit B is a true and correct copy of “A Powerful Russian Complaint.

Weapon: The Spread of False Stories,” an article published by the New York Times, available at https://www.nytimes.com/2016/08/29/world/europe/russia-sweden-disinformation.html. -22 of 4

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Attached as Exhibit C is a true and correct copy of a letter issued by the Office of the Director of National Intelligence to Congressmen Devin Nunes and Adam B. Schiff.

10.

Attached as Exhibit D is a true and correct copy of “Russia Could ‘Doctor’ Hacked Emails, U.S. Officials Warn,” an article published by Yahoo! News, and the letter issued by sixteen national security experts to which the article links, available at https://www.yahoo.com/news/russia-could-doctor-hacked-emails-u-s-officials-warn151623905.html. 11.

Attached as Exhibit E is a true and correct copy of “Dear Mr. Putin, I Am Not Sidney Blumenthal,” an article written by Kurt Eichenwald, originally published by Defendant Newsweek LLC, and republished by MSN News, available at https://www.msn.com/en-us/news/opinion/dear-mr-putin-i-am-not-sidney-blumenthal/arBBxgxMx. 12.

Attached as Exhibit F is a true and correct copy of “Intentional Misreporting of Facts by Ordinarily Credibly Journalists and Mainstream Outlets Can Have Far Reaching Human Impacts – Here’s My Story,” an article written by Plaintiff and published by Sputnik News, available at https://sputniknews.com/analysis/201610171046431086-NewsweekEichenwald-Moran-Putin-Trump. 13.

Attached as Exhibit G is a true and correct copy of a Sputnik News webpage describing and linking to an episode of the radio show “Loud & Clear,” titled “Exposed: How Newsweek Fabricated a Putin-Trump Conspiracy Theory,” available at https://sputniknews.com/radio_loud_and_clear/201610181046435797-exposed-how-newsweekfabricated-a-putin-trump-conspiracy-theory. -33 of 4

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14.

Attached as Exhibit H is a true and correct copy of “Dear Donald Trump and Vladimir Putin, I Am Not Sidney Blumenthal,” an article written by Kurt Eichenwald and published by Defendant Newsweek LLC, available at http://www.newsweek.com/vladimirputin-sidney-blumenthal-hillary-clinton-donald-trump-benghazi-sputnik-508635. 15.

Attached as Exhibit I is a true and correct copy of “How I Got Slimed By Russian Propagandist Site Sputnik,” an article written by Kurt Eichenwald and published by Defendant Newsweek LLC, available at http://www.newsweek.com/russia-propaganda-sitesputnik-donald-trump-sidney-blumenthal-vladimir-putin-512271. 16.

Attached as Exhibit J is a true and correct copy of “Assessing Russian Activities and Intentions in Recent US Elections,” a governmental report issued by the Office of the Director of National Intelligence, National Intelligence Council, available at https://www.dni.gov/files/documents/ICA_2017_01.pdf.

17.

WHEREFORE, for the reasons set forth above and in the accompanying memorandum of law, Defendants respectfully request that the Motion to Dismiss be granted in its entirety for failure to state a cause of action pursuant to CPLR 3211(a)(7). Dated: New York, New York March 24, 2017 Respectfully submitted, __________________________ David S. Bralow PEPPER HAMILTON LLP The New York Times Building 620 Eighth Avenue New York, NY 10018-1405

(212) 808-2710 Counsel for Defendants Newsweek LLC and IBT Media, Inc.

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PDF Page 2	FILED: NEW YORK COUNTY CLERK 03/24/2017 12:30 PM NYSCEF DOC. NO. 6 INDEX NO. 151179/2017 RECEIVED NYSCEF: 03/24/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------X : WILLIAM MORAN II, : : Plaintiff, : : -against: : NEWSWEEK LLC and IBT MEDIA, INC., : : Defendants. : ------------------------------------------------------------------X Index No.: 151179/2017 AFFIRMATION IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT DAVID S. BRALOW, an attorney duly admitted to practice in the State of New York, affirms the following under penalty of perjury: 1. I am Of Counsel at Pepper Hamilton, LLP attorneys for Newsweek LLC and IBT Media, Inc. 2. I am fully familiar with the facts and circumstances of this case and make this Affirmation in Support of Defendants’ Motion to Dismiss the Complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7). 3. Plaintiff William Moran II, a writer and editor for Sputnik News, sued Newsweek, LLC, and its parent, IBT Media, Inc., for defamation, intentional infliction of emotional distress, and invasion of privacy by giving publicity to private facts, seeking injunctive relief and damages. The action arises from Plaintiff’s false report, published by the Russia-supported media outlet, that Sidney Blumenthal, a well-known Hillary Clinton supporter, criticized Clinton for failing to prevent the attack on the U.S. Embassy in Benghazi. The Plaintiff called this revelation an “October surprise,” meaning such a revelation could affect the course of the Presidential election. Then candidate Donald Trump, in fact, referred to the false 1 of 4

PDF Page 3	FILED: NEW YORK COUNTY CLERK 03/24/2017 12:30 PM NYSCEF DOC. NO. 6 INDEX NO. 151179/2017 RECEIVED NYSCEF: 03/24/2017 information, on the campaign trail, declaring to a crowd that “sleazy Sidney” was “now admitting that they could have done something about Benghazi.” 4. The truth was that Blumenthal never made the statement. He quoted Newsweek writer Kurt Eichenwald’s piece decrying the politicization of the Benghazi tragedy. Eichenwald read the Sputnik article and posted two articles about the Plaintiff’s misattribution of his words. 5. This action is Plaintiff’s attempt to manufacture a recovery because of Eichenwald’s two articles. 6. The Court should dismiss the Complaint against Defendants for the following reasons, as set forth more fully in the accompanying Memorandum of Law: a. Plaintiff’s defamation claim fails because Eichenwald did not state what Plaintiff contends and, even if Plaintiff’s interpretation of the article was supportable, such statements would be substantially true or protected opinion. b. Plaintiff’s intentional infliction of emotional distress claim fails because it is duplicative of his defamation claim and because he does not allege the level of extreme and outrageous conduct that the tort requires. c. Plaintiff’s publicity given to private life claim fails because New York does not recognize such a cause of action. 7. Attached as Exhibit A is a true and correct copy of the Plaintiff’s 8. Attached as Exhibit B is a true and correct copy of “A Powerful Russian Complaint. Weapon: The Spread of False Stories,” an article published by the New York Times, available at https://www.nytimes.com/2016/08/29/world/europe/russia-sweden-disinformation.html. -22 of 4

PDF Page 4	FILED: NEW YORK COUNTY CLERK 03/24/2017 12:30 PM NYSCEF DOC. NO. 6 INDEX NO. 151179/2017 RECEIVED NYSCEF: 03/24/2017 9. Attached as Exhibit C is a true and correct copy of a letter issued by the Office of the Director of National Intelligence to Congressmen Devin Nunes and Adam B. Schiff. 10. Attached as Exhibit D is a true and correct copy of “Russia Could ‘Doctor’ Hacked Emails, U.S. Officials Warn,” an article published by Yahoo! News, and the letter issued by sixteen national security experts to which the article links, available at https://www.yahoo.com/news/russia-could-doctor-hacked-emails-u-s-officials-warn151623905.html. 11. Attached as Exhibit E is a true and correct copy of “Dear Mr. Putin, I Am Not Sidney Blumenthal,” an article written by Kurt Eichenwald, originally published by Defendant Newsweek LLC, and republished by MSN News, available at https://www.msn.com/en-us/news/opinion/dear-mr-putin-i-am-not-sidney-blumenthal/arBBxgxMx. 12. Attached as Exhibit F is a true and correct copy of “Intentional Misreporting of Facts by Ordinarily Credibly Journalists and Mainstream Outlets Can Have Far Reaching Human Impacts – Here’s My Story,” an article written by Plaintiff and published by Sputnik News, available at https://sputniknews.com/analysis/201610171046431086-NewsweekEichenwald-Moran-Putin-Trump. 13. Attached as Exhibit G is a true and correct copy of a Sputnik News webpage describing and linking to an episode of the radio show “Loud & Clear,” titled “Exposed: How Newsweek Fabricated a Putin-Trump Conspiracy Theory,” available at https://sputniknews.com/radio_loud_and_clear/201610181046435797-exposed-how-newsweekfabricated-a-putin-trump-conspiracy-theory. -33 of 4

PDF Page 5	INDEX NO. 151179/2017 FILED: NEW YORK COUNTY CLERK 03/24/2017 12:30 PM NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/24/2017 14. Attached as Exhibit H is a true and correct copy of “Dear Donald Trump and Vladimir Putin, I Am Not Sidney Blumenthal,” an article written by Kurt Eichenwald and published by Defendant Newsweek LLC, available at http://www.newsweek.com/vladimirputin-sidney-blumenthal-hillary-clinton-donald-trump-benghazi-sputnik-508635. 15. Attached as Exhibit I is a true and correct copy of “How I Got Slimed By Russian Propagandist Site Sputnik,” an article written by Kurt Eichenwald and published by Defendant Newsweek LLC, available at http://www.newsweek.com/russia-propaganda-sitesputnik-donald-trump-sidney-blumenthal-vladimir-putin-512271. 16. Attached as Exhibit J is a true and correct copy of “Assessing Russian Activities and Intentions in Recent US Elections,” a governmental report issued by the Office of the Director of National Intelligence, National Intelligence Council, available at https://www.dni.gov/files/documents/ICA_2017_01.pdf. 17. WHEREFORE, for the reasons set forth above and in the accompanying memorandum of law, Defendants respectfully request that the Motion to Dismiss be granted in its entirety for failure to state a cause of action pursuant to CPLR 3211(a)(7). Dated: New York, New York March 24, 2017 Respectfully submitted, __________________________ David S. Bralow PEPPER HAMILTON LLP The New York Times Building 620 Eighth Avenue New York, NY 10018-1405 (212) 808-2710 Counsel for Defendants Newsweek LLC and IBT Media, Inc. -44 of 4

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William Moran II v. Newsweek LLC et al Document 6: AFFIDAVIT OR AFFIRMATION IN SUPPORT (Motion #001)