Isaly v. Bos. Globe Media Partners LLC

• Decision Date: 23 September 2020
• Docket Number: No. 18 CV 9620-LTS-GWG,18 CV 9620-LTS-GWG
• Parties: SAMUEL D. ISALY, Plaintiff, v. BOSTON GLOBE MEDIA PARTNERS LLC, Defendant.
• Court: U.S. District Court — Southern District of New York

SAMUEL D. ISALY, Plaintiff, v. BOSTON GLOBE MEDIA PARTNERS LLC, Defendant.

No. 18 CV 9620-LTS-GWG

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 23, 2020

MEMORANDUM ORDER

Plaintiff Samuel Isaly ("Plaintiff") brings this defamation action against Defendant Boston Globe Media Partners LLC ("Defendant"), asserting that he was defamed by statements in an article published by Defendant in STAT, an online news website, on December 5, 2017. (Second Amended Complaint ("SAC"), Docket No. 32, at ¶ 1.) Before the Court is Defendant's motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff's Second Amended Complaint for failure to state a claim upon which relief can be granted. (Docket Entry No. 39.) The Court has jurisdiction of this matter pursuant to 28 U.S.C. section 1332.

The Court has reviewed all of the parties' submissions carefully and, for the following reasons, grants Defendant's motion to dismiss the SAC in its entirety.

BACKGROUND

The following is a summary of the material facts as alleged in the SAC, unless otherwise indicated. Plaintiff's well pleaded factual allegations are assumed true for the purposes of this motion practice.

Plaintiff is the founder and former Managing Partner of OrbiMed Advisors, LLC ("OrbiMed"), a hedge fund that invests in healthcare and biotechnology companies. (SAC, at ¶ 4.) Plaintiff is quadriplegic due to an athletic injury suffered when he was a teenager. (Id. at ¶ 5.) He has been confined to a wheelchair since the injury, and the use of his extremities is limited. (Id.) While Plaintiff retains limited use of his arms and hands, he requires extensive medical treatment to improve the functioning of his shoulders and other limbs "to enable what little movement he can achieve when necessary to transfer out of his wheelchair or use his arms and hands." (Id. at ¶ 13.) Plaintiff also requires the assistance of a personal aide to engage in many of the physical movements of daily activities, which includes help with operating electronic devices such as the telephone, the computer keyboard, and the computer mouse. (Id. at ¶¶ 5, 10, 12)

Defendant is a Massachusetts limited liability corporation that publishes STAT, an online news website that covers the fields of health, medicine, and biotechnology. (Id. at ¶ 6.) Damian Garde ("Garde") is an employee of Defendant and author of the article at issue in this case (the "Article"). (Id.) Garde sought information for the Article from former OrbiMed employees and interviewed Plaintiff and some of his business associates at OrbiMed's offices. (Id.) On December 5, 2017, STAT published the Article, which was headlined "Biotech hedge fund titan Sam Isaly harassed, demeaned women for years, former employees say." (SAC, Ex. A, (the "Article"), at 2.)¹ The Article reports that five former OrbiMed employees stated thatPlaintiff "has for years perpetuated a toxic culture of sexual harassment . . . routinely subjecting young female assistants to pornography in the workplace, lewd jokes, and pervasive sexist comments." (Id.) The five sources are also reported to have stated that Plaintiff "wantonly demeaned and verbally abused female employees," and that Plaintiff kept a set of breast implants at his desk, "palpating them like stress balls during idle conversation." (Id.)

The Article described four of the sources as women who worked at OrbiMed as executive assistants between 2000 and 2015, and one source as a male investment professional. (Id. at 5.) Delilah Burke ("Burke") is the only source who spoke to STAT on the record. (Id.) Burke served as Plaintiff's executive assistant between 2009 and 2010, a role that required extensive personal interaction with Plaintiff. (SAC, at ¶¶ 10, 13.) In the Article, Burke is cited as the source of a number of allegations concerning specific incidents that directly implicate Plaintiff in workplace misconduct. Burke stated that Plaintiff would "embed pornographic images or videos in seemingly innocent emails on an almost daily basis" and that he would "sprinkle his to-do lists for [Burke] with dirty jokes and cryptic setups that would expose Burke to something lewd on the internet," such as an instruction to look up a term that is a euphemism for masturbation. (SAC, at ¶¶ 9(g)-(h); Article at 6.) Burke also described an incident in which Plaintiff called her into his office to retrieve a document, and "beamed" at her reaction to seeing a pornographic video playing on his computer monitor. (SAC, at ¶ 9(f).) Burke reportedly stated that she quit her job at OrbiMed after an incident in August 2010, in which Plaintiff asked her to retrieve a file from his briefcase, in which she found a "flesh-colored vibrator" on top of Plaintiff's effects, and Plaintiff laughed. (SAC, at ¶ 9(i).) The Article reports that Burke documented some of Plaintiff's actions in contemporaneous emails to herself, and that STAT reviewed at least 10 of these emails to corroborate Burke's statements. (Article, at 6.) TheArticle also reports that "[a] person who has heard Burke talk about these incidents over the years confirmed to STAT that she has long been troubled by them." (Id.)

On December 4, 2017, the day before Defendant published the article, Garde conducted a lengthy interview of Plaintiff at OrbiMed's offices in New York. (SAC, at ¶ 6, 24).² Three of Plaintiff's colleagues and a professional "crisis-management consultant" joined Plaintiff at the interview. (Article, at 3.) During the interview, Garde asked a number of specific questions about the allegations of misconduct that would eventually appear in the article, all of which Plaintiff denied. (Lewis Decl., Ex. 1, at 15-17.) The published Article included Plaintiff's repeated denials of misconduct, as conveyed at the interview. (Article, at 3, 6, 8.) The Article also included comments from two of OrbiMed's partners that they "had never received complaints about Isaly's behavior" and that some of the allegations, like those involving the breast implants on Plaintiff's desk, amounted to "normal workplace behavior." (Id. at 4.) In addition, the Article reported that "[n]one of the five former employees who spoke with STAT alleged that Isaly touched them physically in a sexual way." (Id. at 3.)

The article noted that an OrbiMed partner emailed STAT before the article was published, stating "[i]f this article proceeds I hope that you will be fair and focus on the personresponsible, not the entire firm." (Id. at 3.) An updated version of the Article included a statement by OrbiMed, which read "[t]he incidents cited are concerning and OrbiMed has retained the services of an outside independent law firm to investigate the matter. OrbiMed takes gender equality seriously and wishes to encourage a supportive work environment and equal opportunity for all employees." (Id. at 3.)

In the SAC, Plaintiff asserts that all of the allegations of misconduct reported in the Article are false and that Defendant "acted in a grossly irresponsible manner in that Defendant disseminated the defamatory statements without having employed standards of information gathering that a responsible publisher would ordinarily follow before publishing defamatory statements of this nature." (SAC, at ¶ 3.) He alleges that his "physical limitations made it (and continue to make it) physically impossible for him to have committed the acts that the Article falsely accuses him of committing in 2009-2010, particularly factual allegations whose apparent source is his former assistant, Delilah Burke." (SAC, at ¶ 5.) He denies that the acts alleged by Burke were "part of his ADL," and alleges that "Burke was the person whose job it was to operate Plaintiff's computer keyboard and mouse to display financial data, conduct internet searches, or use other communications devices." (SAC, at ¶ 12.) The SAC continues:

Whatever imagery appeared on [Plaintiff's] personal computer monitor ... was the result of Burke's operation of their controls, not Plaintiff's. Plaintiff did not have the ability to 'embed pornographic images or videos' in his emails, which Burke prepared, or 'sprinkle his to-do lists' for her with dirty jokes and cryptic 'set ups' involving 'lewd' content on the internet, or to have 'routinely sexualized the [OrbiMed] workplace' by such actions.

(Id.) Plaintiff alleges that, rather than identifying the alleged vibrator incident as precipitating her resignation from OrbiMed (as the Article reports), Burke informed OrbiMed that "her decision to quit was motivated by what she perceived as the heavy demands of the job as well as circumstances of her personal life." (SAC, at ¶13; see also id. at ¶ 16 (criticizing as irresponsibleGarde's failure to inquire at the interview with Plaintiff as to the circumstances of Burke's departure).)

Plaintiff asserts that the following statements in the Article are defamatory:

"a. Five people who once worked at investing giant OrbiMed Advisors said Sam Isaly, the firm's 72-year-old managing partner, kept a set of breast implants on his desk, palpating them like stress balls during idle conversation. He wantonly demeaned and verbally abused female employees, they said.

b. One woman said on several occasions, she glimpsed hardcore pornography playing on the large screens that dominated the trading room floor of the $15 billion fund.

c. Four women said they repeatedly complained about Isaly's behavior to senior executives at OrbiMed, getting sympathy, but no action. Though their jobs paid well and came with many perks, the boorish environment eventually drove each to quit, the women said.

d. 'I'm scarred,' Delilah Burke, who was Isaly's assistant for about 18 months beginning in 2009, said in an interview with STAT. 'I still have anxiety from that job-now, years later.'

e. And the assistants, young and replaceable compared with investment professionals, said they felt they had no recourse as Isaly routinely sexualized the workplace and harassed them, seeming to

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