19-3632
Wexler v. Dorsey & Whitney LLP
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 9th day of July, two thousand twenty.
PRESENT:
JON O. NEWMAN,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
Shimshon Wexler,
Plaintiff-Appellant,
v. 19-3632
Dorsey & Whitney LLP, Artin Betpera,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT: SHIMSHON WEXLER, pro se, Atlanta,
GA.
FOR DEFENDANTS-APPELLEES: JONATHAN M. HERMAN (Krista
Bolles, Helen Jiang on the brief),
Dorsey & Whitney LLP, New York,
NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Bulsara, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Appellant Shimshon Wexler, an attorney proceeding pro se, sued Dorsey &
Whitney LLP (“Dorsey”) and its former associate, Artin Betpera, for defamation
under New York state law for Betpera’s authorship and Dorsey’s publication of a
blog post. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
I.
In 2015, plaintiff Shimshon Wexler brought a Telephone Consumer
Protection Act (“TCPA”) class action in the Eastern District of New York against
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AT&T, with his wife, Dr. Eve Wexler, as the proposed lead plaintiff. AT&T filed
a letter seeking a conference on a contemplated motion to strike, writing that
“unless and until Shimshon Wexler both withdraws as counsel and renounces any
interest in any future award of attorney’s fees in this case, Dr. Wexler is an
inadequate class representative as a matter of law.” J. App. at 49 (internal
quotation marks omitted). In response, Wexler’s co-counsel (who joined the case
a month after filing) explained that Wexler would withdraw as counsel and would
not be entitled to attorney’s fees recovered in the case but that he may seek payment
on quantum meruit grounds for the work done prior to his withdrawal. AT&T
moved to strike the class allegations on the ground that Dr. Wexler was not an
adequate representative of the class; the district court (Block, J.) granted the motion.
In granting the motion, the district court explained that Dr. Wexler, as class
representative, should act to maximize recovery to the class and that her interest in
a fee award to her husband—who Judge Block noted “intend[ed] to seek fees for
his work based on quantum meruit,” J. App. at 52—gives an opposite incentive.
Dorsey is a law firm that defends companies sued for violations of the TCPA
and has a consumer financial services blog. In 2018, Dorsey published a “Legal
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Update” article written by Betpera both on the blog and on a website called
JDsupra. The headline for the article stated “TCPA Class Certification Denial
Exposes Major Spousal Scheme.” The text of the article read:
There are plenty of things I’d like to do with my wife one day. Take a
trip to Greece. Finally convince her to go camping with me (never
going to happen). But filing a class action with her as a class
representative is definitely not one of them.
That’s exactly what one husband-and-wife duo tried to pull in the
Eastern District of New York. Senior Judge Frederic Block made
quick work of the scheme.
In Wexler v. AT&T Corp., No. 15 CV-0686 (FB) (PK), 2018 U.S. Dist.
LEXIS 20157 (E.D.N.Y. Feb. 5, 2018), the Court granted AT&T’s
motion to strike class allegations based on the inadequacy of the class
representative. The class representative was Dr. Eve Wexler, who
was the wife of class counsel Shimshon Wexler. After AT&T alerted
the Court to their relationship, Mr. Wexler quickly withdrew and
was replaced by class counsel who had no relation to Plaintiff.
However, Mr. Wexler made it clear that he still intended to pursue an
award of feeds for his work on the case prior to withdrawal.
Plaintiff argued that Mr. Wexler’s withdrawal “mooted” the issue.
Not so, said Judge Block. There’s no disputing Plaintiff would have
an interest in a potential fee award to her husband, had he been
appointed class counsel. “Courts have long found that a familial (or
any other) relationship creates a conflict if it gives the class
representative an interest in the fees class counsel might recover.”
And that conflict didn’t just vanish after Mr. Wexler withdrew,
especially because he was still planning to seek an award of fees for
his work prior to withdrawal.
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The Court astutely observed that “[a]s class representative, Dr.
Wexler should act to maximize [class] recovery and, by extension,
minimize reductions to it. But her interest in the fee award supplies
the opposite incentive.” The Court emphasized that because the
“very nature of a class creates conflicts of interest between the class,
class counsel and the class representative,” the requirements of Rule
23 must be “scrupulously enforced.”
And enforced they were. The Court held that because Plaintiff had an
interest in a possible fee award to her husband, “she cannot
adequately represent the interests of absent class members,” and
granted AT&T’s motion to strike. Maybe the Wexlers should try
salsa dancing instead.
J. App. at 11-12.
Wexler thereafter sued Dorsey and Betpera contending that the headline and
article were defamatory. The defendants moved to dismiss the complaint for failure
to state a claim and for lack of personal jurisdiction over Betpera. Magistrate
Judge Bulsara dismissed Wexler’s complaint for failure to state a claim on the basis
that the headline was non-actionable opinion and that Wexler had abandoned any
claims that the text of the article constitutes defamation. Magistrate Judge Bulsara
declined to reach the question of whether the court had personal jurisdiction over
Betpera.
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II.
We have jurisdiction over this appeal as one taken from a final decision of a
magistrate judge where the parties consented to a disposition by a magistrate
judge. See 28 U.S.C. § 636(c)(1); 28 U.S.C. § 1291. By letter dated June 24, 2020,
Betpera consented to personal jurisdiction in this case.
“We review de novo a district court’s dismissal of a complaint pursuant to
Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in
the complaint as true, and drawing all reasonable inferences in the plaintiff’s
favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The
complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Although a court must accept as true all the factual
allegations in the complaint, that requirement is “inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678.
III.
“Under New York law a defamation plaintiff must establish five elements:
(1) a written defamatory statement of and concerning the plaintiff, (2) publication
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to a third party, (3) fault, (4) falsity of the defamatory statement, and (5) special
damages or per se actionability.” Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d Cir.
2019). On appeal, Wexler argues that when the headline is viewed together with
the article, it is obvious that it is “of and concerning” him, that the words “exposes”
a “major spousal scheme” are reasonably susceptible to conveying a defamatory
meaning, and that the headline is not protected as an opinion.
“Since falsity is a sine qua non of a libel claim and since only assertions of fact
are capable of being proven false, we have consistently held that a libel action
cannot be maintained unless it is premised on published assertions of fact.” Brian
v. Richardson, 87 N.Y.2d 46, 51 (1995); see also Mr. Chow of New York v. Ste. Jour Azur
S.A., 759 F.2d 219, 225 (2d Cir. 1985). “[T]he determination of whether a statement
is opinion or rhetorical hyperbole as opposed to a factual representation is a
question of law for the court.” Mr. Chow, 759 F.2d at 224. Distinguishing
between opinion and fact requires a consideration of the following factors: “(1)
whether the specific language in issue has a precise meaning which is readily
understood; (2) whether the statements are capable of being proven true or false;
and (3) whether either the full context of the communication in which the statement
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appears or the broader social context and surrounding circumstances are such as
to signal readers or listeners that what is being read or heard is likely to be opinion,
not fact.” Richardson, 87 N.Y.2d at 51 (internal quotation marks and alterations
omitted); see also Mr. Chow, 759 F.2d at 226 (considering context in which statements
are made, how the language is used (precise and literal, or loose or hyperbolic), and
capability of a statement being proven true or false). The “context” factor includes
not only “the immediate context in which the disputed words appear,” but also
“the nature of the particular forum.” Richardson, 87 N.Y.2d at 51. Even if a
statement is deemed to be opinion, there may be liability for defamation where
there is “a clear but false implication that the author is privy to facts about the
person that are unknown to the general reader.” Mr. Chow, 759 F.2d at 225
(citation omitted).
We agree with the magistrate judge that the headline in this case constitutes
opinion and is therefore not actionable. The tenor of the article reflects that it is
meant to be not only informative but also amusing and entertaining, making
hyperbole in the headline expected and reasonable. The article’s placement on a
law firm’s blog also suggests that it is informed, at least in part, by the firm’s and
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its author’s opinions. The context of the statement therefore cuts against a
determination that it is an assertion of fact meant to be taken literally. The
language “exposes major spousal scheme” also does not have a readily understood
precise meaning of the nefarious sort that is advanced by Wexler – it could just as
easily mean exactly what happened here, that the TCPA decision brought to light
an ethically questionable arrangement by a married couple (here, to represent both
the attorney’s and the class’s fiscal interests in a class action). The use of “major”
does not change this analysis, as that is a relative term, the applicability of which is
a matter of opinion. An average reader would not understand the headline to be
“an attempt to convey with technical precision literal facts about” Wexler. Mr.
Chow, 759 F.2d at 229. And because the statement does not have a readily
understood precise meaning, it is not capable of being proved true or false. See id.
(explaining that, because a reasonable reader would not take literally the language
used, the statements read reasonably are not capable of being proved false). Nor
do we think that a reasonable reader would think that the headline was based on
facts other than those disclosed in the article, which accurately describes the ruling
of the court. Cf. Levin v. McPhee, 119 F.3d 189, 197 (2d Cir. 1997) (explaining that
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statements of opinion “may yet be actionable if they imply that the speaker’s
opinion is based on the speaker’s knowledge of facts that are not disclosed to the
reader”). The headline is therefore properly read as non-actionable opinion rather
than fact, and Wexler’s defamation claim fails.
* * *
We have reviewed the remainder of Wexler’s arguments and find them to be
without merit. For the foregoing reasons, the judgment of the district court is
AFFIRMED.
It is further ORDERED that within 14 days of the issuance of this order,
Wexler show cause why sanctions should not be imposed for filing a frivolous
appeal.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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