Stern v. Cosby

Decision Date12 August 2009
Docket NumberNo. 07 Civ. 8536(DC).,07 Civ. 8536(DC).
Citation645 F.Supp.2d 258
PartiesHoward K. STERN, Plaintiff, v. Rita COSBY, Hachette Book Group USA, Inc. d/b/a Grand Central Publishing, and John or Jane Doe, Defendants.
CourtU.S. District Court — Southern District of New York

Bryan Cave LLP, by L. Lin Wood, Esq., John C. Patton, Esq., Amy Stewart, Esq., Atlanta, GA, and Eric M. Sauerberg, P.A. by M. Krista Barth, Esq., Palm Beach Gardens, FL, and Gilberti Stinziano Heintz & Smith, P.C. by William J. Gilberti, Jr., Esq., Lisa DiPoala Haber, Esq., Belina Anderson, Esq., Syracuse, NY, for plaintiff Howard K. Stern.

Davis Wright Tremaine LLP by Elizabeth A. McNamara, Esq., Elisa Miller, Esq., Deborah Adler, Esq., New York, NY, for defendant Rita Cosby.

Akin Gump Strauss Hauer & Feld LLP by Douglass B. Maynard, Esq., Deborah J. Newman, Esq., and Karen E. Andrews, Esq., Hachette Book Group USA, Inc., New York, NY, for defendant Hachette Book Group USA, Inc.

Thomas W. Ude, Jr., Esq., Lambda Legal Defense and Education Fund, Inc., New York, NY, for Amicus Curiae Lambda Legal Defense and Education Fund, Inc.


CHIN, District Judge.

In this libel case, plaintiff Howard K. Stern, the former lawyer for and companion of the late Anna Nicole Smith, sues defendants Rita Cosby and Hachette Book Group USA, Inc. ("Hachette"), the author and publisher, respectively, of the bestselling book Blonde Ambition: The Untold Story Behind Anna Nicole Smith's Death (the "Book"). Stern contends that defendants defamed him in the Book by falsely stating or suggesting, among other things, that he had engaged in sex with the father of Smith's child, "pimped" Smith to as many as fifty men a year, and played a role in Smith's death.


Cosby and Hachette deny that they have libeled Stern. First, they argue that Stern is "libel-proof"—that is, they contend that his reputation is already so bad that it cannot be further damaged. Second, they contend that the statements in question are not defamatory, and argue in particular that, in this day and age, statements suggesting that someone is homosexual are no longer libelous per se, as they no longer connote shame, contempt, or ridicule. Third, they argue that Stern has failed to present evidence from which a jury could find that they acted with actual malice.

Before the Court are defendants' motions for summary judgment. For the reasons set forth below, I conclude that a reasonable jury could find that Cosby, but not Hachette, is liable for defamation for certain of the statements in the Book. Accordingly, Hachette's motion is granted and Cosby's motion is granted in part and denied in part.

A. The Facts

On a motion for summary judgment, the Court construes all facts in the light most favorable to Stern, as the non-moving party. The following facts are drawn from the deposition transcripts, affidavits, declarations, and exhibits1:

1. The Participants

a. Anna Nicole Smith

Smith was a model and actress who attained notoriety in 1994 when, at the age of 26, she married an 89-year-old billionaire named J. Howard Marshall III. From then until her untimely death in 2007, she was frequently the subject of tabloids, celebrity gossip magazines, and entertainment shows. (See generally 12/15/08 McNamara Decl. Ex. Y (Smith obituary); Abby Goodnough and Margalit Fox, Anna Nicole Smith Is Found Dead in Florida, N.Y. Times, Feb. 9, 2007 (observing that "[f]or gossip columnists and supermarket tabloids, Ms. Smith's life provided endless fodder.")). When Marshall died in 1995, Smith became embroiled in litigation over the Marshall estate with one of Marshall's sons. Stern was one of Smith's attorneys. (Stern Decl. ¶ 4).

Smith had two children, Daniel, born in 1986, and Dannielynn, born in 2006. (Id. ¶¶ 6-8). Daniel died, apparently of a prescription drug overdose, in the Bahamas just a few days after Smith gave birth to Dannielynn in 2006. (Id. ¶ 9).

From 2002 to 2003, Smith starred in a reality TV show on E! Entertainment called The Anna Nicole Show. Stern and Smith's son, Daniel, regularly appeared on the show. Both Smith and Stern often appeared to be intoxicated on the show, to the point where, in one episode, Stern appeared to lose consciousness. Often Smith and Stern behaved in a bizarre manner, and in one episode Stern appears in drag after losing a bet. (See Littlefield Decl. Ex. B (DVD of first season)). According to Stern, many aspects of the show were staged. (Stern Decl. ¶ 56).

Smith died of a prescription drug overdose on February 8, 2007 at a hotel in Florida. (Id. ¶ 14; see generally Abby Goodnough, Anna Nicole Smith's Death Is Ruled an Accidental Drug Overdose, N.Y. Times, Mar. 27, 2007).

b. Howard K. Stern

Stern, an attorney, began doing legal work for Smith in 1997, and was co-counsel in her litigation regarding the Marshall estate. (Stern Decl. ¶ 4). His relationship with Smith became romantic in 2000, but they kept the romantic aspect of the relationship a secret until 2006. (Id. ¶ 5).

Stern was present when Smith gave birth to Dannielynn in the Bahamas, and at the time he believed he was her father. (Id. ¶ 8). After a lengthy and contentious paternity dispute with Larry Birkhead, Smith's former boyfriend, Stern learned that Birkhead was actually Dannielynn's father. (Id. ¶ 20).

Stern was also present in Florida when Smith died, and he was subsequently made the executor of her estate. (Id. ¶¶ 14, 16).

After Daniel and Smith died, Stern was subjected to an onslaught of media criticism, including the following representative examples:

▄ On March 27, 2007, the New York Post ran an article intimating that Stern was involved in Smith's death, and referring to Stern as Smith's "devious companion." (Cosby Decl. Ex. 16).2

▄ On April 1, 2007, Geraldo Rivera said the following on his show: "Like the entourage of sycophants and enablers who surrounded Elvis Presley, most of the people living off Anna Nicole did nothing to save her from herself. And worse than enabling, people like lawyer turned companion Howard K. Stern facilitated her untimely demise by ensuring she had all the drugs she needed to die from." (Id. Ex. 84).

▄ On April 2, 2007, a guest on Nancy Grace's CNN show said that "everyone points the finger at Howard Stern" vis-a-vis the death of Daniel Smith. (Id. Ex. 34).

On March 12, 2009, the Los Angeles District Attorney filed a felony complaint against Stern and two of Smith's doctors. (3/13/09 McNamara Decl. Ex. 9). The sixcount complaint alleges, inter alia, that Stern conspired with the doctors to provide Smith with excessive quantities of prescription drugs even though they knew she was addicted to the drugs. (Id.). The next day, the California Attorney General held a press conference in which he referred to Stern as Smith's "principal enabler." (4/6/09 McNamara Decl. Ex. 1).

c. Rita Cosby

Cosby has been a journalist for more than twenty years, working as a correspondent and host for CBS, MSNBC, and Fox News. During that time she conducted a number of high-profile interviews, including of several heads of state, and has received three Emmy awards. (Cosby Decl. ¶¶ 1-8).

Cosby started covering Smith around 2006, when she was a reporter for MSNBC. (Id. ¶¶ 10, 13). After Daniel Smith's death, Cosby began to devote much of her time to reporting on the events surrounding Smith—the Bahamian coroner's investigation into the cause of Daniel's death, Smith's commitment ceremony to Stern,3 Smith's own death, the paternity dispute between Stern and Birkhead, and the various court proceedings. (Id. ¶¶ 15).

In the spring of 2007, Cosby began to consider leaving MSNBC to write a book. (Id. ¶ 37). She discussed with Bruce Littlefield, a writer she knew from college, the possibility of collaborating on a book together, and decided that a book about Smith and the media frenzy surrounding her life and death was the logical choice. (Id.; Littlefield Decl. ¶ 8).

2. The Book

Cosby and Littlefield wrote the Book together, based on Cosby's reporting. (Cosby Decl. ¶ 38; Littlefield Decl. ¶ 9).

On April 10, 2007, Todd Shuster, Cosby's agent, sent an email to Amy Einhorn, an editor at Hachette, pitching a book Cosby planned to write, then entitled Fame and Miss Fortune: Secrets from Inside the Anna Nicole Smith Media Storm. (Einhorn Aff. Ex. B). The email described Cosby's "one-of-a-kind work of investigative journalism" as follows:

Drawing on her unique access to all of the major players in this widely followed tale of sex, drugs, and unbridled personal ambition, Cosby will reveal the tabloid media jockeying and closed-door shenanigans to which she alone has been witness in connection with this case. She will also offer rare insight into what exactly makes the death of Anna Nicole Smith compelling to so many millions of people worldwide.

(Id.). Einhorn was impressed with the proposal and thought that it had the potential to be a popular book, in part because she anticipated that the Book would contain previously unpublished information about Smith. (Einhorn Aff. ¶ 10).

Schuster also sent Einhorn background materials on Cosby, including her curriculum vitae and a summary of her career, all of which impressed Einhorn and convinced her that Cosby was an accomplished journalist. (Id. ¶ 9).

On April 12, 2007, Einhorn, along with several other Hachette employees, met with Cosby and Shuster to discuss the Book. At this meeting Cosby revealed that the Book "would have a number of previously unreported explosive news items," but Cosby would not reveal what these items were, because she was still shopping the Book to other publishers. (Id. ¶¶ 12-13). Hachette was not interested in publishing the Book unless it contained previously unreported information, however, so Einhorn arranged for...

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