Cortes v. Twenty-First Century Fox Am., Inc.

• Decision Date: 09 January 2018
• Docket Number: 17 Civ. 5634 (RWS)
• Citation: 285 F.Supp.3d 629
• Parties: Francisco CORTES, Plaintiff, v. TWENTY–FIRST CENTURY FOX AMERICA, INC., 21st Century Fox America, Inc., Twenty–First Century Fox, Inc., John Doe, and Jane Doe, Defendants.
• Court: U.S. District Court — Southern District of New York

285 F.Supp.3d 629

Francisco CORTES, Plaintiff,

v.TWENTY–FIRST CENTURY FOX AMERICA, INC., 21st Century Fox America, Inc., Twenty–First Century Fox, Inc., John Doe, and Jane Doe, Defendants.

17 Civ. 5634 (RWS)

United States District Court, S.D. New York.

Signed January 9, 2018

THE LAW OFFICES OF J.A. SANCHEZ–DORTA, P.C., 225 Broadway, Suite 1901, New York, NY 10007, By: J.A. Sanchez, Esq., Attorneys for Plaintiff.

DECHERT LLP, 1095 Avenue of the Americas, New York, NY 10036, By: Andrew J. Levander, Esq., Linda C. Goldstein, Esq., Nicolle L. Jacoby, Esq., Attorneys for Defendants.

OPINION

Sweet, D.J.Defendants Twenty–First Century Fox, Inc. and 21st Century Fox America, Inc. ("21CFA" and, collectively, the "Defendants"¹ ) have moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the First Amended Complaint ("FAC") of Francisco Cortes ("Cortes" or the "Plaintiff"). Based on the conclusions set forth below, Defendants' motion is granted and Plaintiff's FAC is dismissed with prejudice.

Prior Proceedings

On July 25, 2017, Plaintiff filed his Complaint, which was amended on August 7, 2017. See Dkt. Nos. 1, 8. Plaintiff's FAC alleges seven causes of action: breach of contract, fraudulent misrepresentation, civil conspiracy to defraud, intentional interference with contractual relationships, defamation per se, libel per se, and slander per se. See FAC ¶¶ 117–60.

On October 6, 2017, Defendants filed the instant motion to dismiss. Dkt. No. 22. The motion was heard and marked fully submitted on November 29, 2017.

Facts

The Complaint sets forth the following facts, which are assumed true for the purpose of this motion to dismiss. See Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012). As part of a motion to dismiss, a "court may consider any written instrument attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as documents upon which the complaint relies and which are integral to the complaint." N.Y. Life Ins. Co. v. U.S., 724 F.3d 256, 258 n.1 (2d Cir. 2013) (quoting Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir. 2005) ); see also Chapman v. N.Y.S. Div. for Youth, 546 F.3d 230, 234 (2d Cir. 2008) (stating that a court may consider "undisputed documents, such as a written contract attached to, or incorporated by reference in, the complaint").

Prior to his termination, Cortes was a vice president of Fox News Latino, a division of Fox News Network, LLC ("Fox News"), which in turn was a subsidiary of Defendants. See FAC Ex. A (attaching Emily Steel, Fox Is Said to Settle With Former Contributor Over Sexual Assault Claims, THE N.Y. TIMES, Mar. 8, 2017, https://www.nytimes.com/2017/03/08/business/fox-news-roger-ailes-sexual-assault-settlement.html). While Cortes was at Fox News, Tamara Holder ("Holder") was a Fox News contributor. Id. In February 2015, Cortes made sexual advances on Holder in his office; Holder has stated Cortes sexually assaulted her, while Cortes has stated the interaction was consensual. FAC ¶¶ 7, 33, 92, Ex. A; see also Carol Felsenthal, Former Fox News Pundit Who Accused Exec of Sexual Assault Returns to Chicago, CHICAGO MAGAZINE, May 2, 2017, http://www.chicagomag.com/Chicago-Magazine/Felsenthal-Files/April-2017/Tamara-Holder/ (describing the encounter from Holder's perspective and noting that afterward, Holder "remained silent for more than a year").

In July 2016, as part of The New York Times' reporting of sexual harassment allegations against then-Fox News Chairmen Roger Ailes, Times reporter Emily Steel ("Steel") reached out to Holder to inquire whether Holder had ever been harassed by Ailes. FAC ¶¶ 42, 83. Holder described her interactions with Steel at that time in relation to her own alleged sexual harassment as follows:

I had been suppressing this. I had been boiling up. Emily Steel sent me a direct message on Twitter. She wanted to know if there were other stories about Roger. I answered her that I have nothing to say about Roger, but I know somebody who was sexually assaulted by a Fox News executive. Describing what happened to me in Cortes' office felt like letting the cat out of the bag. I said, holy shit, I'm going to be quoted in the New York Times. That was in July 2016 and it led to the worst six months of my life.

FAC ¶ 83 (quoting Felsenthal, supra ). Steel did not publish any about Holder at this time, and Holder continued to keep her allegations secret from Fox News. See Felsenthal, supra (noting that the Times first published an article about Holder in early 2017); FAC ¶ 53 (quoting Yashir Ali, Top Talen Agency Discouraged Fox News Contributor From Reporting Alleged Sexual Assault, HUFFINGTON POST, May 2, 2017, https://www.huffingtonpost.com/entry/tamara-holder-icm-fox-news_us_590792c4e4b02655f83f4a8c) (describing how Holder held back from informing Fox News of her allegations in early September 2016 during employment contract negotiations).

In late September 2016, Holder informed Fox News for the first time of her sexual assault allegations and, on October 21, 2016, provided additional details of the encounter, including Cortes' identity. See Steel, supra; Felsenthal, supra. On October 21, 2016, Cortes was terminated. See FAC ¶¶ 1, 25, 47; Steel, supra; Felsenthal, supra.

On November 11, 2016, as part of Cortes' termination, Cortes and Fox News signed a severance and general release agreement (the "Severance Agreement") that contained, of relevance to the instant litigation, the following provision:

Non-disparagement: Cortes and Fox each agree not to disparage, trade libel, or otherwise defame the other, and in the case of Fox, Cortes agrees not to disparage, trade libel, or otherwise defame Fox, and/or any of its officers and/or any of its current and/or former employees.

Amended Declaration of Linda C. Goldstein dated November 29, 2017 ("Goldstein Decl."), Ex. 1; see FAC ¶ 113 (describing "contractual obligations" between Cortes and Fox News in December 2016).

Around the same time as Cortes' termination, Holder drafted and presented to Defendants a complaint that contained claims against Fox News and Cortes. FAC ¶¶ 19, 113. Attorneys from Paul, Weiss, who represented Defendants, met with Plaintiff to see if he would testify against Holder in a mediation between Fox News and Holder; Plaintiff refused to do because he believed it would violate the non-disparagement provision of the Severance Agreement. See FAC ¶ 113.

Holder's claims were resolved in February 2017 when Holder, 21CFA, and Cortes signed a settlement agreement (the "Holder Settlement Agreement"), to which Cortes, with advice of counsel, signed assent "as to Paragraph 6c and 12." FAC ¶¶ 20–22, Ex. B. Portions of the Holder Settlement Agreement to which Cortes did not assent upon signing, which included other signatories to the agreement, were redacted. FAC ¶¶ 29–30, see FAC Ex. B.

Paragraph 6c of the Holder Settlement Agreement provided that:

Cortes, on behalf of himself and the Cortes Released Parties, hereby knowingly and voluntarily releases and discharges the Holder Released Parties from any and all Claims whatsoever in law, admiralty or equity, whether now known or unknown, suspected or unsuspected, vested or contingent, accrued or yet to accrue, against the Holder Released Parties which Cortes had, has, or hereafter can, shall or may have up until Effective Date.

FAC Ex. B, at 5. Paragraph 12 of the Holder Settlement Agreement provided that:

Non–Disparagement. Holder agrees not to disparage, malign, or defame any Released Party, or to publish or cause to be published any statements portraying any Released Party in an unfavorable light. The Company [21CFA], [redacted], and Cortes agree not to disparage, malign or defame Holder, or to publish or cause to be published any statements portraying Holder in an unfavorable light. A statement by a Party that violates this provision subjects that Party to liquidated damages under Paragraph 11(n) of this Agreement.

FAC Ex. B, at 9; see also FAC ¶¶ 64, 77.

On March 8, 2017, The New York Times published an article by Steel that described the alleged sexual assault of Holder by Cortes (the "NYT Article"). FAC ¶¶ 41, 61, 62, 96, Ex. A. See generally Steel, supra. Included in the NYT Article was a joint statement by Fox News and Holder released contemporaneously with the article, reflected in the article as follows:

Fox News released a joint statement with Ms. Holder saying that in September 2016 she "reported an incident of sexual assault at Fox News headquarters from the prior year."

"Immediately after Ms. Holder notified Fox News of the alleged incident, the company promptly investigated the matter and took decisive action, for which Ms. Holder thanks the network," the statement continued. "Fox News is grateful to Ms. Holder for her many contributions during her tenure at the network and wishes her continued success."

FAC Ex. A, at 4–5 (the "Joint Statement"). Holder provided assistance to Steel in Steel's preparation of the NYT Article, which was based on the corroboration of others of Holder's account. FAC ¶¶ 93, 100; see FAC Ex. A.

Applicable Standards

On a Rule 12(b)(6) motion to dismiss, all factual allegations in the complaint are accepted as true and all inferences are drawn in favor of the pleader. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). A complaint must contain "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). In other words, the factual allegations must "possess...