874 F.3d 54 (1st Cir. 2017), 17-1256, McKee v. Cosby

Docket Nº:17-1256
Citation:874 F.3d 54
Opinion Judge:LYNCH, Circuit Judge.
Party Name:KATHRINE MAE MCKEE, Plaintiff, Appellant, v. WILLIAM H. COSBY, JR., Defendant, Appellee
Attorney:F. William Salo for appellant. Alan A. Greenberg, with whom Angela Agrusa and Liner LLP were on brief, for appellee.
Judge Panel:Before Lynch, Stahl, and Thompson, Circuit Judges.
Case Date:October 18, 2017
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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874 F.3d 54 (1st Cir. 2017)

KATHRINE MAE MCKEE, Plaintiff, Appellant,


WILLIAM H. COSBY, JR., Defendant, Appellee

No. 17-1256

United States Court of Appeals, First Circuit

October 18, 2017

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[Copyrighted Material Omitted]

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McKee v. Cosby, 236 F.Supp.3d 427, (D. Mass., Feb. 16, 2017)

F. William Salo for appellant.

Alan A. Greenberg, with whom Angela Agrusa and Liner LLP were on brief, for appellee.

Before Lynch, Stahl, and Thompson, Circuit Judges.


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LYNCH, Circuit Judge.

Kathrine McKee sued William H. Cosby, Jr., whom she had accused in a 2014 interview published in the New York Daily News of raping her, for defamation after the content of a purportedly confidential letter penned to the paper by Cosby's attorney in Cosby's defense was disseminated and reported on by news outlets and websites worldwide. The district court granted Cosby's motion to dismiss, primarily on First Amendment grounds, see McKee v. Cosby, 236 F.Supp.3d 427 (D. Mass. 2017), and McKee appealed. We affirm.


We accept as true the well-pleaded factual allegations from McKee's amended complaint and draw all reasonable inferences in McKee's favor. See Stanton v. Metro Corp., 438 F.3d 119, 123 (1st Cir. 2006). McKee is a performer and actress who has been working in the entertainment industry for over fifty years. Cosby is an internationally renowned celebrity and entertainer. McKee met Cosby around 1964, while she was a showgirl in Las Vegas. In 1971, McKee appeared as an actress on the " Bill Cosby Show," and then socialized with Cosby and his wife on several occasions between 1971 and 1974. In 1974, Cosby invited McKee to meet him in his hotel room in Detroit, Michigan, before heading out to a party. Immediately after McKee arrived and entered the hotel room, Cosby forcibly raped her.

In December 2014, after more than twenty other women had publicly accused Cosby of sexual assault, McKee revealed the rape during an interview with Nancy Dillon, a reporter for the New York Daily News. On December 22, 2014, the Daily News published an article describing the rape as McKee had recounted it. Later that same day, Cosby's attorney, Martin Singer, e-mailed a six-page letter to the Daily News' New York office, addressing the article (the " Singer Letter" or " Letter" ).

The Singer Letter, which bears prominent " Confidential Legal Notice" and " Publication or Dissemination Is Prohibited" disclaimers on its front page, admonishes the Daily News for its decision to publish an article disclosing McKee's rape allegations against Cosby. The Letter asserts repeatedly that the newspaper " maintains virtually no journalistic standard[s] or credibility threshold" for its stories, as illustrated by its willingness to publish McKee's " never-before-heard tale" while deliberately ignoring or inexcusably failing to investigate " [a]mple . . . readily available" " evidence undermining [McKee's] reliability." Referencing " [e]asily available public information" that " belie[s] the Daily News' Story" and demonstrates that McKee's rape " story lacks credibility," the Letter lists, in a string of bullet points, statements that McKee allegedly made pertaining to her social relationship with Cosby, as well as her past life as a Las Vegas showgirl. Each set of attributed statements is accompanied by a footnote with a citation to a news article or other source. Then, asserting that " the Daily News is not alone," the Letter goes on to more broadly bemoan the " reckless[ness]" of " irresponsible media" that " blindly ignores the dubious background of

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sources," including inter alia the " [c]riminal backgrounds of various accusers." In closing, the Letter demands " [p]ublication of a retraction and correction" of the Daily News' " malicious defamatory article."

According to McKee, on the same day Singer sent the Letter to the Daily News, he leaked copies of it to the media. Within hours, excerpts and quotes appeared in news outlets around the world and were further reported on by various news organizations and websites. McKee alleges that the rapid and widespread dissemination of the statements contained in the Letter defamed her, causing harm to her reputation nationally within " days, weeks or even months."

In December 2015, McKee sued Cosby for defamation in federal court in Massachusetts, invoking diversity jurisdiction. In July 2016, McKee filed an amended complaint in which she asserted twenty-four defamation counts pertaining to various portions of the Singer Letter. Cosby moved to dismiss McKee's amended complaint for failure to state a claim. In February 2017, the district court granted Cosby's motion. See McKee, 236 F.Supp.3d at 454. The court held that the " gist" of the Letter was the author's opinion that McKee lacked credibility and that the Daily News improperly ignored or failed to investigate publicly available information undermining her rape allegations. Id. at 439-40. The court deemed non-actionable the opinion as to McKee's credibility because it was " not capable of being objectively verified or disproven" and, in any event, the Letter " adequately disclosed the non-defamatory facts underlying the opinion[]." Id. at 440. The court then individually addressed each of the allegedly false and defamatory statements singled out in the twenty-four counts of McKee's complaint, and found all of them to be non-actionable under First Amendment principles and/or under Michigan defamation law. See id. at 444-54. McKee appeals from entry of judgment against her, arguing that her claims should go to trial.


We review de novo the district court's grant of a motion to dismiss a defamation suit. Stanton, 438 F.3d at 123. We accept as true the complaint's well-pleaded factual allegations, and draw all reasonable inferences in favor of the non-moving party. Id. Before turning to the merits, we describe the applicable law that will guide our analysis, and address lingering disputes about that law.

A. Choice of Law

The parties disagree as to which state's defamation law should apply. McKee advocates for the law of Massachusetts, asserting that Massachusetts has " the most compelling interest in this action." Cosby maintains that " either Michigan or Nevada law applies," emphasizing that although McKee was living in Michigan at the time the Singer Letter was published and its allegedly defamatory content disseminated, she later moved to Nevada. The district court applied Michigan law, and did not err in doing so.

In deciding which state's substantive law applies, federal courts follow the forum state's choice of law rules. In re Volkswagen & Audi Warranty Extension Litig., 692 F.3d 4, 14 (1st Cir. 2012). In Massachusetts, courts resolve choice-of-law questions " 'by assessing various choice-influencing considerations,' including those provided in the Restatement (Second) of Conflict of Laws (1971)." Cosme v. Whitin Mach. Works, Inc., 417 Mass. 643, 632 N.E.2d 832, 834 (Mass. 1994) (citation omitted) (quoting Bushkin Assocs. v. Raytheon Co., 393 Mass. 622, 473 N.E.2d 662, 668 (Mass. 1985)); see also Bushkin, 473 N.E.2d at 669

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(treating the Restatement as an " obvious source of guidance" for choice of law questions). When a defamatory statement is published in multiple states, the Restatement applies the law of the state with the " most significant relationship to the occurrence and the parties," Restatement (Second) of Conflict of Laws § 150(1) (1971), which " will usually be the state where the [defamed] person was domiciled at the time, if the matter complained of was published in that state," id. § 150(2).

Almost immediately after Singer emailed the Letter to the Daily News in New York on December 22, 2014, its content was disseminated and reported on by news outlets nationally and " around the world," causing, McKee alleges, reputational harm in all fifty states within " days, weeks, or even months." At that time, McKee's state of domicile was Michigan. McKee resided in Michigan from 1994 until July 2015. McKee alleges in her brief that she " incurred damages for personal humiliation, mental anguish and suffering in Michigan" from December 22, 2014 through July 2015. To be sure, other states are also implicated in this case in one way or another: the Letter was initially sent to the Daily News in New York; McKee permanently moved to Nevada approximately six months after the Letter was published; and Cosby was domiciled in Massachusetts when the Letter was written. But we agree with the district court that the state with the " most significant" relationship to this suit is that in which McKee resided when the Letter was published and for decades preceding the alleged " impairment of [her] reputation and standing in the community," Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Since Michigan was McKee's longstanding state of domicile when she was allegedly defamed, the district court soundly chose to apply Michigan law.

B. Legal Principles

Under Michigan law, the elements of a defamation claim are: (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by publication.

Mitan v. Campbell, 474 Mich. 21, 706 N.W.2d 420, 421 (Mich. 2005) (citations omitted). A statement is " defamatory" if " it...

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