DiBella v. Hopkins
| Decision Date | 04 April 2005 |
| Docket Number | Docket No. 03-9095.,Docket No. 03-7012. |
| Citation | 403 F.3d 102 |
| Parties | Lou DIBELLA and Dibella Entertainment, Inc., Plaintiffs-Appellants-Cross-Appellees, v. Bernard HOPKINS, Defendant-Appellee-Cross-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Judd Burstein, New York, New York (Peter B. Schalk, Matthew G. DeOreo, Law Office of Judd Burstein, P.C., New York, New York, of counsel), for Plaintiffs-Appellants-Cross-Appellees.
Stephen A. Cozen, Philadelphia, Pennsylvania (Robert W. Hayes, Marlo Pagano-Kelleher, Cozen O'Connor, P.C., Philadelphia, Pennsylvania; Edward Hayum, New York, New York, of counsel), for Defendant-Appellee-Cross-Appellant.
Before: CARDAMONE, McLAUGHLIN, and WESLEY, Circuit Judges.
Plaintiff Lou DiBella sued defendant Bernard Hopkins, a former business associate, for libel. DiBella alleged that Hopkins made four libelous statements about him. After a jury trial in the United States District Court for the Southern District of New York before Judge Denny Chin in November 2002, the plaintiff was awarded a substantial verdict based on one of Hopkins' libelous statements. DiBella appeals from the judgment of that award entered December 2, 2002, on the grounds that the jury did not find that Hopkins' other three statements were libelous. Defendant cross-appeals from the same judgment challenging several evidentiary rulings, the amount of compensatory and punitive damages awarded plaintiff, and the finding that one of the allegedly libelous statements actually amounted to libel. By its verdict, the jury confirmed the insightful truth that "he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed." William Shakespeare, Othello, act 3, sc. 3, l. 159-61 (W.J. Craig ed., Oxford Univ. Press 1928). For the reasons set forth below, we affirm.
Plaintiff DiBella, a former executive with the cable network Home Box Office (HBO), was a "principal architect" of HBO's successful boxing programming. He is now the head of DiBella Entertainment, Inc., an independent boxing promotions and television packaging company. Defendant Hopkins is the current undisputed middleweight boxing champion of the world, holding titles from the International Boxing Federation (IBF), the World Boxing Association (WBA), and the World Boxing Conference (WBC).
DiBella began negotiations to terminate his employment contract with HBO in January 2000. On May 12, 2000 DiBella and HBO executed a final termination agreement. Under that agreement HBO agreed to give DiBella several HBO "dates" for broadcasting fights he arranged. Such dates are extremely valuable because appearing in a fight on HBO — a venue that gives a boxer significant public exposure — is considered a pinnacle of success in the boxing world.
While DiBella was still with HBO, another HBO executive recommended that he put Hopkins (then the IBF middleweight champion) on the "undercard" of an upcoming middleweight fight between Roy Jones and Richard Hall. DiBella agreed and put Hopkins on the undercard, allowing Hopkins to fight on HBO immediately before the Jones-Hall "main event."
After signing Hopkins to the undercard, DiBella initiated discussions with him about representing and promoting Hopkins after DiBella left HBO. In February 2000 the parties concluded a handshake agreement. DiBella agreed to advise Hopkins and assist in marketing him. Hopkins agreed to pay DiBella $50,000 as an advance fee for services that DiBella was expected to perform once he left HBO. The jury found that the $50,000 fee was not in consideration of HBO's decision to put Hopkins on the Jones-Hall undercard. Moreover, senior executives at HBO — including HBO's senior counsel, general counsel, and the head of HBO Sports — were aware of DiBella's contacts with Hopkins and had no objection to them. In late March or early April 2000 — while still an HBO employee — DiBella agreed to advance Hopkins a $30,000 interest-free loan to cover Hopkins' training expenses. HBO executives were also advised of this loan and did not object to it.
DiBella officially left HBO employment on May 12, 2000. Hopkins fought in the undercard fight on May 13 and defeated his opponent, Syd Vanderpool. Hopkins and his lawyer, Arnold Joseph, Esq., met with DiBella on May 19, 2000, at which time Hopkins repaid DiBella the $30,000 loan and prepared a check for $50,000 as payment to DiBella of the advance marketing fee. Issuance of the check was deferred because DiBella was a potential witness in a lawsuit pending in the United States District Court for the District of Colorado (Kane, J.), brought by Hopkins' former promoter America Presents, Ltd. (America Presents, Ltd. v. Hopkins or America Presents), and Hopkins' lawyer wanted to avoid the appearance of paying a witness.
Upon leaving HBO, DiBella went to work advising Hopkins on his public image and negotiating future fights for him. This included a fight with Antwun Echols in December 2000 that was broadcast on HBO using one of DiBella's valuable HBO dates. Hopkins won that fight and paid DiBella the $50,000 marketing fee in January 2001. DiBella then began negotiations with famed boxing promoter Don King to arrange a middleweight title unification match between three of King's fighters (William Joppy, the WBA title holder; Keith Holmes, the WBC title holder; and Felix Trinidad, a celebrated middleweight boxer) and Hopkins, the IBF title holder. DiBella agreed to use another of his HBO dates to broadcast this tournament. He also pressed Hopkins to accept a long-term contract with King, which King had made a precondition to agreeing to the match. Hopkins eventually signed a contract with King and the tournament was held on September 29, 2001. Hopkins won and became the undisputed world middleweight champion.
During the months following this victory, Hopkins stopped communicating with DiBella. In an interview with boxing reporter Steve Kim, reprinted in an article Kim published in the online boxing magazine MaxBoxing.com on December 20, 2001 (Kim article), Hopkins stated
Understand, every time I fought (the past couple of years), Lou DiBella got paid, even when he was with HBO which is f* *king wrong. What I'm saying is that the bottom line is, the Syd Vanderpool fight, should an HBO employee accept $50,000 while he's still working for HBO? ... So if they want the cat out [of] the bag, then let's let the f* *king cat out of the bag.
Ask HBO why an employee of their company asked me to give him $50,000? And I paid him too. Now, is that ethically right? You think Time Warner [the parent company of HBO] wants to hear about that? What I'm telling you right now is some serious, serious allegations, but these guys here try to make it seem like I'm the bad guy and Lou is probably whispering stuff around too, probably, but he probably isn't saying anything openly. And that influence can hurt me when I get to HBO, [DiBella] being friends with the people over there....
... [I]t was me taking out of my career before I even fought Trinidad, that paid to get on a card. Was the money wired, or the checks sent prior, yeah, that was a way of not being discovered. The bottom line is, where did the $50,000 come from? It wasn't a gift. I didn't know him that well to give him $50,000. Way before he started establishing his relationship with me as far as an advisor. So what I'm saying is that every time Lou DiBella did something for Bernard Hopkins or played a role for Bernard Hopkins, even when he was with HBO, he got paid....
... I can back up every damn thing I'm saying and it's going to make certain people who are wrong run under the covers and wish I never said it. Because other people are going to ask questions and they're going to start digging.
Steve Kim, As the World of Bernard Hopkins Turns, MaxBoxing.com, Dec. 20, 2001, at http://www.maxboxing.com/kim/kim122001.asp.
Hopkins repeated these allegations in other media outlets. In an article by Ron Borges published in the Boston Globe on December 24, 2001, Hopkins stated
This is a filthy, filthy game and you gotta be filthy to be in it. That's why I'm going to get out as soon as I can. Nobody is excluded from being led the wrong way by greed. Greed has proven through history to be man's worst enemy. You [DiBella] already received money, whether you should or you shouldn't, so you should keep your mouth shut and go about your business. Don't try and make me feel like an ingrate. They're all against me. When the truth comes out, you'll be shocked.
Nobody in this game does anything for nothing. I'm 36. I got no HBO contract. I can get on a card to make $500,000 if I give him $50,000. Why not? I didn't really see anything wrong with it. It's boxing.... I got the evidence right here on my coffee table. The wire transfers. The voided check. I know I ain't crazy. To get on that [HBO] card the fee was $50,000.
Ron Borges, Hopkins Hops Around, Boston Globe, Dec. 24, 2001, at D9 (alterations in original).
In another article by Bernard Fernandez published in the Philadelphia Daily News on January 10, 2002, Hopkins said of DiBella Bernard Fernandez, Hopkins Faces Lawsuit, Philadelphia Daily News, Jan. 10, 2002, at 90. And, in an interview with Rich Marotta broadcast on ESPN Radio on February 1, 2002, Hopkins said I paid [DiBella] $50,000 to get on the Roy Jones undercard in Indianapolis to fight Syd Vanderpool or I wouldn't have been on the card.... So my thing was is that, hey did you or did you not give $50,000 to an employee from HBO to be an undercard?...
To continue reading
Request your trial
-
Gleason v. Smolinski, SC 19342
...law, and that this issue remains an open question as a matter of federal law, including within the Second Circuit. See DiBella v. Hopkins, 403 F.3d 102, 110 (2d Cir.), cert. denied, 546 U.S. 939, 126 S. Ct. 428, 163 L. Ed. 2d 326 (2005); see also id., 114-15 (applying clear and convincing s......
-
Upstate Jobs Party v. Kosinski
...and deciding issues beyond the understanding of a layperson.’ " Marvel Characters, Inc. , F.3d at 135 (quoting DiBella v. Hopkins , 403 F.3d 102, 121 [2d Cir. 2005] ). Additionally, the proposed expert must be "qualified" to give the proffered opinion. Daubert v. Merrell Dow Pharm., Inc. , ......
-
Stern v. Cosby
...courts are "helpful indicators of how the state's highest court would rule," but they are not binding on me. See DiBella v. Hopkins, 403 F.3d 102, 112 (2d Cir.2005). Only one of the Appellate Division cases considers the issue in any depth; the others fail to discuss the evolving social att......
-
Khan v. Yale University
...proceedings, we must endeavor, in the first instance, to "predict" how that court would resolve these questions. DiBella v. Hopkins , 403 F.3d 102, 111 (2d Cir. 2005). Toward that end, we consider the highest court's decisions in related cases, as well as relevant decisions of the state's l......