Kesner v. Buhl
Docket Number | 20 Civ. 3454 (PAE) |
Decision Date | 10 March 2022 |
Citation | 590 F.Supp.3d 680 |
Parties | Harvey J. KESNER, Plaintiff, v. Teri BUHL, Defendant. Teri Buhl, Counter-Claimant, v. Harvey J. Kesner, Counter-Defendant. |
Court | U.S. District Court — Southern District of New York |
Steven S. Biss, Law Office of Steven S. Biss, Charlottesville, VA, for Plaintiff/Counter-Defendant.
Wesley Josiah Paul, Everest Schmidt, Paul Law Group, LLP, New York, NY, for Defendant/Counter-Claimant.
This case involves libel claims arising out of blog posts about plaintiff Harvey J. Kesner ("Kesner") by defendant Teri Buhl ("Buhl"). Kesner is an attorney who represented public companies embroiled in an alleged pump-and-dump stock-selling scheme that became the subject of an investigation by the Securities and Exchange Commission ("SEC"). Kesner's role in his clients’ misdeeds was the subject of various unflattering media reports. These led Kesner to bring this libel suit against Buhl, a frequent blogger and investigative journalist focused on financial reporting, Dow Jones & Company, Inc. ("Dow Jones"), and William Alpert ("Alpert"). Kesner's claims against the latter two were based on an October 2018 article Alpert wrote for the Dow Jones magazine Barron's.
The Court previously dismissed in its entirety Kesner's libel claims against Dow Jones and Alpert, and in principal part Kesner's libel claims against Buhl, for failure to state a claim. See Kesner v. Dow Jones & Co., Inc. , 515 F. Supp. 3d 149, 158 (S.D.N.Y. 2021), appeal dismissed (2d Cir. Apr. 16, 2021). The Court left standing Kesner's claims only to the extent that Buhl, in three of her many blogs and tweets on the subject, had accused Kesner of criminal activity. Before the Court now is Buhl's motion for summary judgment as to the three surviving claims against her. Also before the Court is Kesner's motion to dismiss a counterclaim that Buhl brought during discovery, asserting a violation of New York Civil Rights Law § 70-a.
For the reasons that follow, the Court grants both Buhl's summary judgment motion and Kesner's motion to dismiss.
Kesner is an attorney and a member of the New York Bar. Dkt. 36 ("Am. Compl.") ¶ 37; Pl. 56.1 ¶ 1. His legal practice focused on securities law and other financial matters. Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2. In 2018, Kesner left the law firm Sichenzia Ross Ference Kesner LLP ("SRFK"). Def. 56.1 ¶ 3; Pl. 56.1 ¶ 3.
Buhl is a blogger who styles herself an investigative journalist. Her reporting focuses on the financial and securities industry. Buhl Aff. ¶¶ 1–7. Buhl is the owner of and sole reporter on the news site: "Teri Buhl Smashmouth Investigative Journalism," which today is available at www.teribuhl.com. Id. ¶ 7; Pl. 56.1 ¶ 5. At all relevant times, Buhl was the sole user of the Twitter handle @buhlreports. Buhl Aff. ¶ 8; Pl. 56.1 ¶ 6. Buhl also works as a contributing reporter for Cannabis Law Report, a publication based in Australia and owned by Sean Hocking. Buhl Aff. ¶ 3; Pl. 56.1 ¶ 7.
On or around May 26, 2016, Buhl published on her website an article in which Kesner was mentioned for the first time. Buhl Aff. ¶ 9. The article was titled Microcap Attorney Jaclin's Co-Conspirator Turned DOJ Witness in Shell Factor Scheme ("May 2016 Article"). Id. The May 2016 Article mentions Kesner as the attorney for Barry Honig ("Honig"), who, the Article speculates, had been involved in a scheme by an attorney named Jaclin. Id. ¶ 10; id. , Ex. A. Kesner was quoted in the article opining on whether Jaclin had improperly signed opinion letters in 2011 and 2012. Id. ¶ 10.
Consistent with her growing number of blogs about these subjects beginning in mid-2016, Buhl states that, over time, she learned more about Honig and his investor group, which, she asserted, engaged in questionable stock transactions, specifically, alleged "pump-and-dump" schemes relating to the stock of publicly traded companies. Id. ¶ 12. She increasingly reported about this group, which included Honig's attorney, Kesner, and which she called "Team Honig" in her reporting. Id.
On November 8, 2016, Buhl published an article titled California DOJ investigating Honig and The Frost Group ("November 2016 Article").2 Id. ¶ 13. The November 2016 Article reported that the DOJ was "sniffing around" the investing and trading activities of Honig and Philip Frost. Id. , Ex. B. Specifically, Buhl reported, the DOJ was investigating whether trading activity in the company Biozone Pharmaceuticals, Inc. ("Biozone") was part of an illegal pump-and-dump scheme. Id. The November 2016 Article included the following passage about Kesner:
Rumors have been swirling around the microcap space for a while now that attorney Kesner's work with Honig could place him in the hot seat with the SEC but the Biozone investor is the first person I've interviewed who said the SEC probed him about Kesner's role with Honig. Kesner has not been publicly named in any SEC enforcement actions. Kesner was fired from big law Haynes and Boone, where he worked before joining SRFF [sic].
Id. The November 2016 Article was the subject of a separate defamation suit brought by Kesner against Buhl that was eventually dismissed with prejudice. Id. ¶ 13.
Buhl explains that at some point, she became aware of a statement made by Daniel Fisher ("Fisher") challenging an aspect of her November 2016 Article. Id. ¶ 14.3 In a sworn statement, Fisher surmised that he was the anonymous "Biozone investor" referenced in the article. Fisher denied telling Buhl that the SEC was investigating Kesner or that Fisher had been interviewed by the SEC about Kesner. Buhl Aff., Ex C. Fisher stated that he told Buhl only that Kesner was the deal lawyer for a transaction he reported to the SEC, and which had resulted in a private lawsuit brought by Fisher, Id.
On September 7, 2018, the SEC filed a civil complaint against Honig and certain alleged associates, in this District, alleging numerous violations of securities laws related to three public companies (the "SEC Action"). Buhl Aff. ¶ 16; id. , Ex. D; Pl. 56.1 ¶ 11. These three companies are Biozone (to which the SEC's complaint referred as "Company A"); MabVax Therapeutics ("Company B") ("MabVax"); and MGT Capital ("Company C") ("MGT Capital"). Paul Decl. ¶ 8; id. , Ex. D; Pl. 56.1 ¶ 12. Kesner was not named or referenced in the SEC's original complaint.
Buhl states that, as of this point, her earlier reporting had confirmed the following with respect to Kesner:
On March 8, 2019, the SEC filed its First Amended Complaint. Buhl Aff. ¶ 17; id. , Ex. E ("SEC FAC"); Pl. 56.1 ¶ 13. The SEC FAC made allegations concerning "Issuer's Counsel," and "Issuer's Counsel Partner." Pl. 56.1 ¶ 14; id. , Ex. E; Buhl Aff. ¶ 17. Issuer's Counsel was the law firm SRFK. Pl. 56.1 ¶ 14. Issuer's Counsel Partner was Kesner. Id. ; Buhl Aff. ¶ 17. The SEC FAC included the following allegations, which Buhl understood to refer to Kesner and SRFK:
To continue reading
Request your trial-
CDC Newburgh Inc. v. STM Bags, LLC
...of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition.” Id. Court agrees with Plaintiff that it should deny Defendant's request to file an anti-SLAPP counterclaim. Numerous other courts in this Circuit have c......
-
LoanStreet, Inc. v. Troia
...1910247, at *12, and Friedman v. Bloomberg, L.P., No. 15-cv-443, 2022 WL 1004578, at *1 (D. Conn. Apr. 4, 2022), and Kesner v. Buhl, 590 F.Supp.3d 680, 701 (S.D.N.Y. 2022), and Carroll, 2022 WL 748128, at *7, and Brady NYP Holdings, Inc., No. 21-cv-3482, 2022 WL 992631, at *11 (S.D.N.Y. Mar......