Bordes, Jr. v. Deveaux

Background

Peter Bordes, Jr. sued Marc Deveaux under New York law for libel per quod, libel per se, and intentional infliction of emotional distress. The claims arose from three comments Deveaux posted on LinkedIn on August 20, 2023: “Peter Bordes is currently being sued for Wage Theft”; “Peter Bordes’ company reported to SEC for Accounting Fraud”; and “Peter Doo-Doo head, know shit about AI.” Bordes alleged that the comments harmed his reputation and caused stress, anxiety, and sleeplessness.

Deveaux moved for summary judgment on all of Bordes’s claims. Bordes filed a partial summary-judgment motion seeking judgment on his libel per se claims. The court applied New York law because the parties agreed it governed and because the relevant choice-of-law rules pointed to New York law.

Court’s Analysis

The court analyzed each comment separately.

For the “Wage Theft” comment, the court held that the statement was substantially true because Deveaux had filed a pending lawsuit against Bordes concerning unpaid wages under New Jersey’s Wage Payment Law. Under New York law, substantial truth is a complete defense to defamation. The court also rejected Bordes’s argument that the statement qualified as libel per se because it accused him of a serious crime, explaining that New York’s recognized libel per se categories do not include that category. The court further concluded that the comment did not constitute the extreme and outrageous conduct required for an intentional-infliction-of-emotional-distress claim.

For the “Accounting Fraud” comment, the court held that the statement was substantially true because Deveaux had submitted a complaint to the Securities and Exchange Commission alleging accounting problems at Fernhill, and Bordes was a Fernhill board member. The court concluded that the comment was close enough to the underlying facts that it caused no legally actionable harm. It also concluded that the comment was not extreme and outrageous enough to support an emotional-distress claim.

For the artificial-intelligence comment, the court held that the statement was non-actionable opinion. The wording had no precise, readily understood meaning, and its angry tone, grammatical errors, and juvenile insult would lead a reasonable LinkedIn reader to view it as an opinion rather than a factual assertion. The court also concluded that the comment did not meet the extreme-and-outrageous standard for an emotional-distress claim.

The court additionally stated that Bordes’s emotional-distress claims were duplicative because they relied on the same underlying facts as his libel claims. Under New York law, an emotional-distress claim generally cannot proceed when it duplicates a defamation claim.

Recommendation and Disposition

Magistrate Judge Jennifer E. Willis recommended that Deveaux’s motion for summary judgment be GRANTED and that Bordes’s motion for summary judgment be DENIED. For each of the three comments, the recommendation granted summary judgment to Deveaux on the libel per quod claim and dismissed it, granted summary judgment to Deveaux on the libel per se claim, and denied Bordes’s motion on the libel per se claim. For each comment, the recommendation also granted summary judgment to Deveaux on the intentional-infliction-of-emotional-distress claim and dismissed it.

This was a report and recommendation rather than the final ruling by the assigned district judge. The parties had fourteen days after service to file written objections with Judge John P. Cronan. The recommendation stated that failing to object within that period would waive objections and preclude appellate review.