Hollander v. PressReader, Inc.

Background

Roy Den Hollander, an attorney proceeding without a lawyer, sued Pressreader, Inc., which the opinion describes as a digital newspaper and magazine distribution and publishing company. He challenged Pressreader’s publication of two articles by journalist Tory Shepherd: “Collision Course,” published in 2014, and “Misplaced fear of gay revenge,” published in 2018. The articles discussed subjects including a university male-studies course, LGBTQ rights, and religious liberty, and referred to Hollander as a self-described or self-professed anti-feminist lawyer.

Hollander’s First Amended Complaint asserted two claims. First, he alleged that the articles violated his right to publicity under New York Civil Rights Law §§ 50 and 51. Second, he alleged that the publications were acts of wire fraud serving as racketeering predicates for a civil claim under the Racketeer Influenced and Corrupt Organizations Act, commonly called civil RICO. He sought $21,000 in damages. After the case was removed to federal court, Hollander moved for leave to file a Second Amended Complaint adding claims for defamation, injurious falsehood, and negligence. He also filed two motions seeking sanctions against Pressreader.

Motion to Dismiss

The court applied the standard for a Rule 12(b)(6) motion, which asks whether the complaint states a legally sufficient claim. It accepted the complaint’s factual allegations as true for purposes of the motion and read Hollander’s filings liberally because he was representing himself.

Civil RICO claim. The court held that Hollander’s civil RICO claim failed for two independent reasons discussed in the opinion. First, the challenged articles concerned matters of public concern and therefore received strong First Amendment protection. Hollander argued that the First Amendment did not protect speech integral to a crime, but the court found that he had not adequately alleged that the publications were integral to any crime.

Second, the court held that the complaint did not allege the required racketeering activity. Wire fraud requires, among other things, a scheme seeking money or property and use of communications to further that scheme. Hollander alleged that the articles harmed his law practice and business consultancy by misleading the public about them, but the court found that these allegations described reputational or professional harm rather than injury to property. The court characterized the allegations as defamation claims presented as a civil RICO theory and concluded that they did not establish a predicate act supporting civil RICO liability.

New York right-of-publicity claim. New York Civil Rights Law §§ 50 and 51 generally require unauthorized use of a person’s name, portrait, picture, or voice for advertising or trade purposes. The statutes do not apply to reports of newsworthy events or matters of public interest, and the court stated that this exception should be applied liberally. The court held that the 2018 article was newsworthy, that Hollander’s name had a real relationship to the article’s discussion, and that the article was not an advertisement in disguise. It therefore held that the right-of-publicity claim failed as a matter of law.

Because both claims failed to state a claim, the court GRANTED Pressreader’s motion to dismiss the First Amended Complaint.

Motion for Leave to Amend

The court DENIED without prejudice Hollander’s motion for leave to amend. It found that amendment would be futile, meaning that the proposed changes would still not produce a legally sufficient claim.

The proposed amendment left the civil RICO and right-of-publicity allegations almost unchanged. The proposed defamation claim also failed because the statements Hollander identified as defamatory did not refer to him; the article referred to him only in a sentence he did not challenge as defamatory. The proposed injurious-falsehood claim failed because it did not concern the quality of his businesses’ services, duplicated the defamation theory, and did not allege special damages with the required specificity. The proposed negligence claim was futile because Hollander did not identify a false statement that could constitute a breach of a duty owed to him.

The court stated that Hollander could file a letter motion and proposed Second Amended Complaint by July 10, 2020 if he believed he could state valid claims. It further stated that if he did not do so, or provide good cause for an extension, the case would be dismissed with prejudice at that time.

Sanctions Motions

The court DENIED Hollander’s first sanctions motion under Rule 11. Hollander based it on Pressreader’s removal of the case to federal court, its service but not filing of a sanctions motion, and its reference to that motion in a letter seeking additional response time. The court concluded that these acts did not provide a proper basis for Rule 11 sanctions.

The court also DENIED Hollander’s second sanctions motion under 28 U.S.C. § 1927 and the court’s inherent authority. That motion challenged Pressreader’s service of a revised sanctions motion and its statement that it would not file the motion if Hollander withdrew his proposed amended pleading within 21 days. The court found no clear evidence that Pressreader acted in bad faith and concluded that its conduct complied with Rule 11’s 21-day period for withdrawing or correcting a challenged filing.

Disposition

Judge Alison J. Nathan GRANTED Pressreader’s motion to dismiss, DENIED without prejudice Hollander’s motion for leave to amend, and DENIED Hollander’s two sanctions motions. The opinion did not immediately dismiss the case with prejudice; it stated that dismissal with prejudice would occur if Hollander did not timely seek permission to file another amended complaint or show good cause for an extension.