Rich v. Fox News Network, LLC
| Decision Date | 13 September 2019 |
| Docket Number | August Term, 2018,No. 18-2321-cv,18-2321-cv |
| Citation | 939 F.3d 112 |
| Parties | Joel RICH and Mary Rich, Plaintiffs-Appellants, v. FOX NEWS NETWORK, LLC, Malia Zimmerman, in her individual and professional capacities, and Ed Butowsky, in his individual and professional capacities, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Arun Subramanian (Elisha Barron, Susman Godfrey LLP, New York, NY; Leonard A. Gail, Eli Kay-Oliphant, Suyash Agrawal, Massey & Gail LLP, Chicago, IL, on the brief), Susman Godfrey LLP, New York, NY, in support of Plaintiffs-Appellants.
Joseph M. Terry (Kevin T. Baine, Katherine Moran Meeks, Katherine A. Petti, Williams & Connolly LLP, Washington, DC; David H. Stern, Katherine M. Wyman, Dechert LLP, Los Angeles, CA, on the brief), Williams & Connolly LLP, Washington, DC, in support of Defendants-Appellees Fox News Network and Malia Zimmerman.1
Before: Calabresi and Droney, Circuit Judges, and Underhill, District Judge.*
Three years ago, Seth Rich was murdered during a botched robbery. He was a 27-year-old staffer for the Democratic National Committee ("DNC"). Soon after Seth's murder, uncorroborated theories—contradicted by official U.S. intelligence reports—surfaced on the web. Seth had leaked thousands of DNC emails to WikiLeaks, the theories asserted, and that is why he had been assassinated.
Malia Zimmerman (a Fox News reporter) and Ed Butowsky (a Fox News commentator) allegedly set out "to take the conspiracy theory from the fringe to the front pages and screens of the mainstream media." Compl. ¶ 24. Over the course of several months, Zimmerman and Butowsky recruited a Fox News contributor, Rod Wheeler, to help them infiltrate the Rich family. They convinced the Plaintiffs, Seth's parents, to hire Wheeler as a private investigator to look into the circumstances of Seth's death. And they then exploited Wheeler's connection to the Riches to give credence to what Zimmerman and Butowsky knew were false accusations against Seth—which Zimmerman and Butowsky widely disseminated through Fox News. They did this, it is claimed, with full knowledge of the harm it would do to Seth's parents.
We conclude that these allegations plausibly state claims for intentional infliction of emotional distress and tortious interference with contract, and that they are capable of supporting claims of negligent supervision. Accordingly, we VACATE the district court's judgment dismissing the complaint and REMAND the case for further proceedings consistent with this opinion.
On July 10, 2016, Seth Rich—a 27-year-old DNC staffer—was shot and killed a few hundred feet from his home in Washington, D.C. The Metropolitan Police Department determined, and continues to believe, that his unsolved murder stemmed from a botched robbery.
Soon after Seth's death, a "conspiracy theory" emerged among "fringe" political groups. The theory was that "Seth had leaked thousands of DNC emails to WikiLeaks" and was murdered as a result. Compl. ¶¶ 3, 22.3 Seth's parents, the Riches, objected to this theory and issued a statement asking the public to "refrain from pushing unproven and harmful theories about Seth's murder." Id. ¶ 23. Despite this statement, the Appellees in the case before us set out "to take the conspiracy theory from the fringe [and move it] to the front pages and screens of the mainstream media." Id . ¶ 24.4 To do this, they allegedly orchestrated a plan to turn the Riches into unwitting collaborators in their scheme. Over the course of six months, between December 2016 and May 2017, the Appellees succeeded.
Specifically, in December 2016, Ed Butowsky, a guest commentator on Fox News, contacted Seth's parents, Joel and Mary Rich. Butowsky "posted on Facebook that he was ‘looking to connect with anyone Jewish in Omaha Nebraska.’ " Id . ¶ 25. Through that religious connection, he befriended the Riches and asked them about Seth and WikiLeaks. Malia Zimmerman, a Fox News investigative reporter in close communication with Butowsky, also made purportedly independent contacts with the family.
In early 2017, after these initial conversations with the Riches, Zimmerman and Butowsky planted a source inside the family. Rod Wheeler, a former detective turned private investigator, had just signed a contract with Fox News as a paid contributor, for both on-air appearances and "off-air assistance, as requested by Fox." Id . ¶ 33. Butowsky, explaining how he did a lot of work for Fox News, contacted Wheeler on February 23, 2017, saying that he was "looking for some assistance on something that happened in Washington." Id . ¶ 34. Then, over the course of multiple phone calls and at least one in-person meeting, Butowsky and Zimmerman asked for Wheeler's help, as the complaint alleges, to "advance and further publicize the sham story that Seth was responsible for giving the DNC emails to WikiLeaks." Id . ¶ 36.
On the same day as his meeting with Wheeler and Zimmerman, Butowsky emailed the Riches offering to hire an "independent private investigator" on the family's behalf. Id . ¶ 41. Butowsky then set up an introductory meeting between Wheeler and the Riches. He instructed Wheeler to "make sure to play down Fox News, [and] don't mention [Wheeler] know[s] Zimmerman." Id. ¶ 42. Wheeler met with Joel and Mary, in early March, and behaved as instructed. Butowsky then proposed to the Riches that they sign a draft engagement agreement for Wheeler's investigative services. The draft gave Wheeler authority to speak to the media on behalf of the family. The Riches declined.
Playing on the Riches' need to "to get closure, as a family," Butowsky urged them to allow him to pay for Wheeler's services. Id. ¶ 49. Butowsky falsely assured the Riches that, "although he would finance Joel and Mary's retention of Wheeler, Butowsky would respect Wheeler's legal obligation not to speak to him [ ] or anyone other than Joel and Mary about the investigation." Id. ¶ 54. In the end, Joel and Mary were persuaded. Significantly, though, the final agreement that the family signed with Wheeler expressly prohibited "media representation, unless otherwise permitted by the [Riches] in writing," and stated that Wheeler "shall not release any information regarding the investigation ... without prior authorization." Id. ¶ 57. The Appellees allegedly knew these terms, precisely.
Notwithstanding his contract with the Riches, Wheeler continued to work with Butowsky and Zimmerman in furthering the false Seth-WikiLeaks story. In April 2017, Wheeler and Butowsky met with the White House Press Secretary. They shared materials related to the investigation and promised to keep the White House informed. Moreover, with the help of Zimmerman and relying on information provided by her, Wheeler met with the lead detective on Seth's case, who—as Butowsky told Wheeler—would either "help[ ] us or we will go after him as being part of the coverup." Id. ¶ 67.
On May 10, in order to bring the untrue story to publication, Butowsky and Zimmerman called Wheeler "to falsely inform him that they had developed an FBI source supposedly confirming" that Seth had been in contact with WikiLeaks. Id. ¶ 69. Then Zimmerman and Butowsky began to put pressure on Wheeler to go on the record as a named source for the Seth-WikiLeaks story. On May 14, Zimmerman informed Wheeler that President Trump wanted her article published "immediately." Id. ¶ 73. The next day, Zimmerman told Wheeler that "bosses at Fox want her to go" with the story on May 16, and Butowsky encouraged Wheeler to "close this deal, whatever you got to do." Id. ¶ 74. That same day, Zimmerman also sent a text to Wheeler, asking if he was with Butowsky, because Butowsky was "supposed to get more info on Seth [R]ich today," and "if [Butowsky] does we need to figure out what [Wheeler] can say on the record." Id. ¶ 81.
Soon after, Wheeler became the named source in the Fox News articles about Seth's murder. Thus, on May 16, Fox News published two pieces—both penned by Zimmerman.
The first article was titled: "Slain DNC Staffer Had Contact with WikiLeaks Say Multiple Sources." Id. ¶ 87. The article attributed a quote to an anonymous federal investigator: "I have seen and read the emails between Seth Rich and WikiLeaks." Id . The article continued: "The revelation is consistent with the findings of Rod Wheeler, former DC homicide detective and Fox News contributor and whose private investigation firm was hired by Rich's family to probe the case." Id. ¶ 88 (emphasis in original). The article closed: J.A. 92.
The second article was titled: "Family of slain DNC staffer Seth Rich blasts detective over report of WikiLeaks link." Id. at 101. It read: "Rod Wheeler, a retired Washington homicide detective and Fox News contributor investigating the case on behalf of the Rich Family , made the WikiLeaks claim, which was corroborated by a federal investigator who spoke to Fox News." Compl. ¶ 90 (emphasis added). The article clarified that, although Wheeler was paid by a third party, the Riches were Wheeler's clients and Joel had signed the contract for Wheeler's services. It also added: "[A] spokesman for Rich's family on Tuesday said Wheeler was not authorized to speak for the family." Id.
Allegedly, Fox News was aware of the scheme all along. Specifically, Butowsky had represented to Fox News that he was one of the key players behind the story. It is alleged that, on the eve of publication, Butowsky wrote an email to Fox News producers stating: "If you have any questions about the story or more information is needed, call me" because "I'm actually the one who's been putting this together but as you know I keep my name out of things because I have no...
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