But as the case crawls, now according to the trial date expected this fall, the ground under the feet of the parties has shifted. Last year, inspired by individuals like Donald Trump i Harvey Weinstein, New York passed a law designed to protect freedom of speech from frivolous lawsuits. There are many components to SLAPP legislation and it may work because defamation defendants are on a large string of victories.
Kesha – advised O’Melveny’s Daniel Petrocelli i Leah Godesky – hopes to use the permission of the law against SLAPP to file a counterclaim to continue damages and punitive damages, plus attorney’s fees and costs she has suffered over seven long years defending what Kesha’s legal team considers a useless defamation lawsuit.
The move is radical in several ways.
Initially, since the judge ruled that Dr. Luke is a private person, he should not have shown that Kesha made false statements with real malice – which means knowledge of a lie or reckless disregard for the truth. Inattention would come. The decision is now being appealed – and Kesha’s position that the main producer in the entertainment industry is a public figure has gained support in media legal circles. Committee of Journalists for Freedom of the Press, as well as news organizations such as The Daily Beast, Dow Jones, New York Public Radio and others filed an amicus brief in Keshina’s favor.
Although Keša still hopes that the New York Court of Appeals will overturn the summary verdict of the first instance judge, the new law against SLAPP envisages situations in which even private individuals sometimes have to show real malice. Such are the situations when freedom of speech is exercised in relation to issues of public interest.
“As this court has already found, Kesha’s statements that Dr. Luke sexually assaulted her (and another world-famous artist) qualify as a matter of public interest,” reads a new memorandum from Kesha’s team. “There could be no serious debate to the contrary. In fact, one of three courts that have already applied [the new anti-SLAPP statute] emphasizing that “sexual inappropriateness and pressure in the music industry” “indisputably” is a matter of public interest. “
(The reference refers to the decision of February 26 in which an ambitious saxophonist prevailed over an established jazz musician whom she accused of pressuring her into a sexual relationship.)
The memorandum adds: “The plaintiff’s defamation claims clearly involve a matter of public interest, and if the jury finds Keša’s reporting of Dr. Luka’s sexual assault to be true, it necessarily follows that Dr. Luka filed the lawsuit solely to harass and intimidate Keša.”
Below is the full memorandum. The two sides will appear before a judge Jennifer Schecter later this month for a decision on whether an amended amended counterclaim will be allowed. Laws against SLAPP have been passed across the country; but this would be an extremely rare case for the accused to eventually recover damages after the plaintiffs partially prevailed by summary judgment. That is, if Kesha is successful, it is hardly given.
In the meantime, Keša’s lawyers and the lawyers of others Ports are exchanging lists of witnesses and exhibits and are likely to release them in June in time for the pre-trial conference. The date of the arduous trial has yet to be determined.
The complete document can be found here.
This article was originally published by The Hollywood Reporter.