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June 16, 2023

Kesha SLAPPs Back: New York Court of Appeals Ruling Settles Some Questions About New York’s 2020 Anti-SLAPP Amendments, Leaves One Unanswered


On June 13, the New York Court of Appeals decided two appeals in the sprawling, almost decade-long defamation case by music producer Lukasz Gottwald (Dr. Luke) against pop music star Kesha Rose Sebert (Kesha). First, the New York high court held that the remedies available under New York’s amended anti-SLAPP statute apply to cases that were pending on and continued after the amendments’ November 10, 2020 effective date. This is not because the amendments are retroactive (the court held that they are not), but that, by their terms, the amendments apply to cases that are “commenced or continued” after the effective date. Thus, Kesha can assert an anti-SLAPP counterclaim against Dr. Luke for costs, fees, and other damages from November 10, 2020 onward, but not going back to the beginning of the case in 2014.

Second, the court held that Dr. Luke is a limited public figure and must prove actual malice by clear and convincing evidence. Because of this ruling, the court declined to decide whether section 76(a)(2) of the anti-SLAPP amendments, which require proof of actual malice in SLAPP suits irrespective of whether the plaintiff is a public figure, should apply in Gottwald. The court also issued rulings on whether the challenged statements were privileged under the litigation, pre-litigation, and fair report privileges. While certain of Kesha’s statements were absolutely privileged under the litigation privilege, the court held that a jury should decide whether Kesha’s other allegedly defamatory statements are protected by these privileges.


The Litigation

In 2005, aspiring singer-songwriter Kesha signed a record deal with one of Dr. Luke’s recording companies, Kasz Money, Inc. (KMI). Kesha alleges that a short time after signing this deal, Dr. Luke raped her — an allegation he has denied. Kesha then unsuccessfully sought to be released from the record deal before eventually amending the agreement with KMI. Over the next few years, Dr. Luke and Kesha collaborated on several successful albums, which were published by KMI and another one of Dr. Luke’s recording companies, Prescription Songs, LLC (Prescription Songs).

In 2012, Kesha sought to once again renegotiate the terms of her agreements with Dr. Luke, but the two were unable to settle the dispute. On October 14, 2014, Kesha filed a California state-court complaint alleging that Dr. Luke raped her in 2005 and sought damages, as well as an injunction voiding her contracts with Dr. Luke, KMI, and Prescription Songs. The same day, Dr. Luke and the two recording companies filed an action against Kesha in Supreme Court, New York County, which alleges that she acted with malice in making false statements regarding the alleged rape, and that she defamed Gottwald by claiming he raped another female recording artist. Kesha later dismissed the California litigation.

After completing discovery in New York, the parties cross-moved for summary judgment. Kesha argued that Dr. Luke is a public figure and can recover for defamation only upon clear and convincing proof that the alleged defamatory statements were made with actual malice (i.e., that Kesha made the statements knowing that they were false or with reckless disregard for the truth), and that 25 of those statements are privileged and cannot serve as the basis for liability. The trial court granted partial summary judgment for Dr. Luke, found that he was not a public figure, and denied Kesha’s motion. The Appellate Division, First Department, affirmed that Gottwald was not a public figure and that issues of fact precluded summary judgment on certain defamatory statements.

The Anti-SLAPP Amendments

As the appeal was pending, New York significantly amended its anti-SLAPP statute, which was originally designed to protect citizens who participate in public affairs — namely those seeking applications requiring government approval — against retaliatory lawsuits. The amendments, which went into effect on November 10, 2020, broadened the anti-SLAPP law to include “a claim based upon: (1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition.” See N.Y. Civ. Rights § 76-a(1)(a). Under the amended law, defendants in a SLAPP suit are entitled to “maintain an action, claim, cross claim or counterclaim to recover damages, including costs and attorney’s fees, from any person who commenced or continued such action ….” Id. § 70-a(1)(a). The new law makes the award of costs and attorney’s fees to defendants mandatory rather than a matter of discretion and further allows a defendant to recover a discretionary award of compensatory and punitive damages.

After the amended anti-SLAPP statute took effect, Kesha sought permission to file a counterclaim for attorney’s fees and damages. The trial court held that the newly amended statute applied retroactively and granted Kesha leave to file a counterclaim. Dr. Luke appealed, and the Appellate Division reversed, holding that amendments were not retroactive and did not apply to the case at all. The parties appealed the two Appellate Division rulings.

The Court of Appeals’ Opinion

The Anti-SLAPP Statute Is Not Retroactive, But It Does Protect Against Conduct Occurring After Its Enactment

The Court of Appeals reversed both Appellate Division decisions. In perhaps the most closely watched part of the litigation, the majority held that the amendments to the anti-SLAPP statute are not retroactive and thus do not apply to conduct predating the amendments’ November 10, 2020 effective date. By the plain language of the statute, however, the amended anti-SLAPP statute does apply to litigations that are “commenced or continued” after the effective date, including those cases that were pending when the amendments took effect. As applied to the litigants in Gottwald, the court’s ruling permits Kesha to assert a counterclaim against Dr. Luke for costs, fees, and other damages as of November 10, 2020, but not going all the way back to the commencement of the case in 2014.

The court declined to decide, however, whether section 76-a(2) of the anti-SLAPP amendments, which requires proof of actual malice in SLAPP suits regardless of whether the plaintiff is a public figure, should apply in Gottwald. The majority did not specifically explain why they avoided answering this question, beyond stating (as explained more fully below) that Dr. Luke was a public figure who would need to establish actual malice either way.

Dr. Luke Is a Limited Public Figure

The Court of Appeals further held that Dr. Luke is a limited public figure because he “purposefully sought media attention for himself” and “purposefully and continuously publicized and promoted his business relationships with young female artists, like Sebert, to continue to attract publicity for himself and his label.” In particular, the court recognized that Dr. Luke claimed to have “written the most Number One songs of any songwriter ever” and engaged with the media in a manner “obviously designed to project his name and personality” before a wide audience to establish his reputation in the music industry. As a result, Dr. Luke will need to establish, by clear and convincing evidence, that Kesha acted with actual malice in order to prevail on his defamation claims against her.

The Litigation Privilege Protects Some of Kesha’s Statements; a Jury Must Decide Whether the Pre-Litigation and Fair-Report Privileges Apply to Some of Her Other Statements

On appeal, Kesha also claimed that 25 of her allegedly defamatory statements cannot serve as the basis for liability because they are protected by one or more of three privileges: the litigation privilege, the pre-litigation privilege, and the statutory fair-report privilege under N.Y. Civil Rights Law § 74.

Kesha argued that five of the allegedly defamatory statements — made in her California complaint, the New York counterclaims, and an affidavit supporting her motion for preliminary injunction — were protected by the litigation privilege, which provides “absolute immunity from defamation” “regardless of [the] motive” of the speaker. In considering Kesha’s litigation privilege, the Appellate Division had applied the “sham exception” that defeats the litigation privilege when it is applied to “sham action[s] brought solely to defame the defendant.”

The Court of Appeals reversed the Appellate Division and held that the sham exception is inconsistent with the litigation privilege because “the question of malice has no place” in questions falling within the absolute privilege, and all five of the statements fell “squarely within the purview of the absolute litigation privilege.”

Kesha also sent a draft copy of the California complaint to a media company and a tabloid news organization. She claimed that two of the allegedly defamatory statements in the draft were protected by the pre-litigation privilege, which shields statements made in anticipation of good-faith litigation. The Court of Appeals affirmed the courts below and held that a jury needed to decide whether the statements in the draft complaints were pertinent to a “good faith anticipated litigation” in order to be protected by the privilege.

Finally, Kesha argued that 19 other statements made to a variety of media organizations fell under the protection of the fair-report privilege under Section 74 of the New York Civil Rights Law. That privilege applies to the publication of a fair and true report of any judicial proceeding where the statement is substantially accurate, but exempts statements made by those who maliciously institute a judicial proceeding alleging false and defamatory charges. The Court of Appeals again agreed with the Appellate Division that a jury must decide whether the California litigation was brought in good faith.

The Dissent

In a well-reasoned dissent, Judge Rivera disagreed with the majority and would have held that the amendments are retroactive. In her view, the anti-SLAPP amendments were intended to correct the shortcomings of the prior anti-SLAPP statute, and thus should be applied retroactively. She argued that this would cause no unfairness nor impair Dr. Luke’s rights, as he would only have to meet a different burden of proof. She further reasoned that there are already financial consequences for filing frivolous litigation and would therefore have ruled that the financial relief available under section 70-a should be measured from the moment the suit commenced.

What’s the Bottom Line?

Companies and individuals facing defamation lawsuits in New York can definitively seek relief under the amended anti-SLAPP law if those lawsuits are pending and continued after November 10, 2020. On the other hand, plaintiffs in ongoing defamation litigations brought before November 10, 2020 need to quickly and carefully assess whether their pending claims will survive scrutiny under the law or they may be liable for paying mandatory attorneys’ fees and other discretionary damages — not only for their conduct going forward, but also for their conduct since November 10, 2020.

*Hilda Obeng contributed to this Advisory. Hilda is a graduate of the Syracuse University College of Law and is employed at Arnold & Porter’s New York office. Hilda is not admitted to the practice of law in New York.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.