INDEX NO.

153252/2016

FILED: NEW YORK COUNTY CLERK 08/31/2016 05:58 PM

NYSCEF DOC. NO. 23

RECEIVED NYSCEF: 08/31/2016

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
------------------------------------------------------------------X
CHERYL JACOBUS,

Motion Seq. 001

Index No.: 153252/16

Plaintiff,
-againstDONALD J. TRUMP, COREY LEWANDOWSKI,
and DONALD J. TRUMP FOR PRESIDENT, INC.
Defendants.
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REPLY MEMORANDUM OF LAW IN FURTHER

SUPPORT OF DEFENDANTS MOTION TO DISMISS

LAROCCA HORNIK ROSEN

GREENBERG & BLAHA LLP
The Trump Building
40 Wall Street, 32nd Floor
New York, New York 10005
Attorneys for Defendants

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TABLE OF CONTENTS
TABLE OF AUTHORITIES.

ii - iii

PRELIMINARY STATEMENT

ARGUMENT

I.

II.

THE ALLEGED UNDERLYING STATEMENTS OF FACT

ARE NEITHER FACTUAL NOR DEFAMATORY...

i.

Statement by Mr. Lewandowski.

ii.

The Two Tweets by Mr. Trump.

THE IMMEDIATE AND BROADER SOCIAL CONTEXT OF THE

STATEMENTS FURTHER DEMONSTRATES THAT THEY ARE
PROTECTABLE OPINION..

12

CONCLUSION

16

i
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TABLE OF AUTHORITIES

Armstrong v. Simon & Schuster, Inc.,

197 A.D.2d 87, 610 N.Y.S.2d 503 (1st Dept. 1994) 10
Biro v. Conde Nast,
807 F.3d 541 (2d Cir. 2015) n. 6
Bordoni v. New York Times, Inc.,
400 F.Supp. 1223 (S.D.N.Y. 1975). 12
Borzellieri v. Daily News, LP,
2013 WL 1734778 (Sup. Ct. Queens Cty. April 22, 2013). n. 2, 8
Brian v. Richardson,
87 N.Y.2d 46, 637 N.Y.S.2d 347 (1995) 12, 15
Chang v. Fa-Yun,
265 A.D.2d 265, 697 N.Y.S.2d 31 (1st Dept. 1999) 9
Coliniatis v. Dimas,
848 F.Supp. 462 (S.D.N.Y. 1994) n. 8
Corporate Training Unlimited, Inc. v. National Broadcasting Co., Inc.,
981 F.Supp. 112 (E.D.N.Y. 1997) 13
Davis v. Boeheim,
24 N.Y.3d 262, 998 N.Y.S.2d 131 (2014) fn. 5
Dworin v. Deutsch,
2008 WL 508019 (S.D.N.Y. February 22, 2008) 7, 10
Dillon v. City of New York,
261 A.D.2d 34, 704 N.Y.S.2d 1 (1st Dept. 1999) 8
Farber v. Jefferys,
941 N.Y.S.2d 537 (Sup. Ct., New York Cty. 2011) 15
Flamm v. American Assn. of University Women,
201 F.3d 144 (2d Cir. 2000) 11
Gross v. New York Times Co.,
82 N.Y.2d 146, 603 N.Y.S.2d 813 (1993) 11, n. 4
H & R Industries, Inc. v. Kirshner,
899 F.Supp. 995 (E.D.N.Y. 1995) 11

ii
3 of 21

Huggins v. National Broadcasting Company, Inc.,

1996 WL 763337 (Sup. Ct. New York Cty., February 7, 1996).. 15
Huggins v. Povitch,
1996 WL 515498 (Sup. Ct. New York Cty. April 19, 1996) 15
Immuno AG. v. Moor-Jankowski,
77 N.Y.2d 235, 66 N.Y.S.2d 906 (1991) 12
Jewell v. NYP Holdings, Inc.,
23 F.Supp.2d 348 (S.D.N.Y. 1998). 11
Parks v. Steinbrenner,
131 A.D.2d 60, 520 N.Y.S.2d 374 (1st Dept. 1987). 7, 14
Rinaldi v. Holt, Rinehart & Winston, Inc.,
42 N.Y.2d 369, 397 N.Y.S.2d 943 (1977) 11
Rosenthal v. Roberts,
2005 WL 3334272 (Sup. Ct. New York Cty. October 11, 2005). 14
Sandals Resorts Intern. Ltd. v. Google, Inc.,
86 A.D.3d 28, 987 N.Y.S.2d 37 (1st Dept. 2011). 16
School of Visual Arts v. Kuprewicz,
771 N.Y.S.2d 804 (Sup. Ct. New York Cty. 2003). 9
Silsdorf v. Levine,
59 N.Y.2d 8, 462 N.Y.S.2d 822 (1983) 10
Stepanov v. Dow Jones & Co., Inc.,
120 A.D.3d 28, 987 N.Y.S.2d 37 (1st Dept. 2014)... n. 7

iii
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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
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CHERYL JACOBUS,

Motion Seq. 001

Index No. 153252/16

Plaintiff,
-againstDONALD J. TRUMP, COREY LEWANDOWSKI,
and DONALD J. TRUMP FOR PRESIDENT, INC.,
Defendants.
---------------------------------------------------------------------X
REPLY MEMORANDUM OF LAW IN SUPPORT
OF DEFENDANTS MOTION TO DISMISS
Defendants Donald J. Trump, Corey Lewandowski, and Donald J. Trump for President,
Inc., by their attorneys, LaRocca Hornik Rosen Greenberg & Blaha LLP, submit this reply
memorandum of law in further support of their motion, pursuant to CPLR 3211(a)(7), to dismiss
each and every cause of action contained in plaintiffs Verified Complaint (the Complaint) with
prejudice.
PRELIMINARY STATEMENT
Recognizing that the alleged defamatory statements constitute nothing more than
subjective and hyperbolic opinions about plaintiffs state of mindwhich, as a matter of law,
cannot provide the basis for a defamation claimplaintiff, in her opposition to this motion,
engages in a hyper-technical parsing of the opinion statements in search of any underlying
statement of fact that will save her defamation claims from dismissal. More specifically, she now
boils her 27-page Complaint down to two alleged issues of fact: (i) whether the statement that
she begged the Trump Campaign for a job is true or false; and (ii) whether the statement that the
Trump Campaign turned her down for a job is true or false. However, in doing so, plaintiff fails

L:\18591.01\Mot Dismiss\Reply\Reply Brief-Final-08-31-16.docx

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to recognize that neither of these underlying statements can be objectively verified as true or false,
as they too turn directly on the subjective points of view and influences of the parties (i.e. the issue
of who wanted who or who did not want who is simply a matter of each partys perspective
in the context of a job solicitation, interview, and overall hiring process). As such, these
statements, which are also far too vague, hyperbolic, and imprecise on their face to constitute
statements of fact, are nothing more than opinions themselves and, as such, are not actionable
under New York law.
The salient facts, as admitted by plaintiff in her own Complaint,1 are that: (i) plaintiff went
to the Campaigns office in Trump Tower twice (on May 19 and June 9, 2015) to interview with
Mr. Lewandowski and discuss the position of Communications Director for the Campaign; (ii) that
on May 19, 2015, immediately following her first interview, she sent an email to Corey
Lewandowski of the Campaign expressing her interest in working for the Campaign on an
independent contractor basis as its Communications Director; (iii) in her May 19th email, she even
made a fee/salary proposal of $18,000 to $19,000 per month; and, (iv) she offered to meet with
Mr. Trump IF the Campaign was interested in moving forward (an offer that was never
accepted). More importantly, plaintiff also admits in her Complaint that the Campaign never
accepted her fee/salary proposal and also admits that the Campaign never made any offer of
employment to her at all (not after the first interview, second interview, or ever).
To be sure, plaintiff is not alleging in her lawsuit that there is an issue of fact to be
determined as to whether the Campaign made her a legally enforceable offer under New York
contract law, which she then rejected; she acknowledges that no such offer was ever made by the

For the purposes of this motion to dismiss, the allegations of the Complaint are deemed to be true. See Borzellieri
v. Daily News, LP, 2013 WL 1734778, *2 (Sup. Ct. Queens Cty. April 22, 2013)

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Campaign.2 Rather, she is asserting that the parties subjective points of view as to who wanted
who or who didnt want who in connection with an amorphous hiring process that never even
resulted in a response to her $18,000 to $19,000 per month fee/salary proposal (much less an offer
of employment by the Campaign) can be objectively proven as true or false. However, as
demonstrated in defendants moving papers, the New York courts have repeatedly upheld the longstanding principle that the subjective inner processes of a persons mind cannot be objectively
verified as true or false, and thus cannot form the basis for a defamation claim.
Here, the issue of whether the Campaign felt that plaintiff was begging for a job (a wholly
imprecise and hyperbolic statement on its face about plaintiffs interest in the position) or she felt
that the Campaign was soliciting her for a job is completely a matter of each partys subjective
point of view. Similarly, the matter of who turned down who (an equally vague and imprecise
term) cannot be objectively verified as true or false under the facts alleged because it too turns on
the subjective mindset of each party. In the minds of Mr. Lewandowski and Mr. Trump, the
Campaign may very well have turned down plaintiff by, among other things, not offering her
employment after two interviews with Mr. Lewandowski and never accepting her fee/salary
requirements. Similarly, in plaintiffs own mind, she may have turned down the Campaign. In
any event, there is absolutely nothing defamatory about a statement that a person was turned
down for a job, as any reasonable person recognizes that there could be a plethora of reasons for
such a decision (e.g. when parties cannot reach a meeting of the minds on salary, agree on hours,
etc.).

2
If anything, plaintiff made an offer to work for the Campaign when, by her own admission, she submitted her
written fee/salary proposal of $18,000 to $19,000 per month to the Campaign. This offer was never accepted by the
Campaign and, therefore, would effectively constitute a rejection under New York contract law.

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Finally, plaintiffs hyper-technical analysis of the statements completely ignores the

overall context in which the statements were madewhich the New York courts have found to be
the most significant factor in determining whether a defamation claim should be dismissed as
opinion. This case involves two tweets and a brief telephone-interview comment that are laden
with opinion and that were made in the sea of vitriolic comments and criticisms surrounding the
heated debate of the race for the Republican presidential nomination. By her own admission,
moreover, plaintiff was not some innocent private citizen in this debate; rather, she was a national
public media figure who regularly broadcasted her own criticisms and hotly-charged comments as
a political pundit on fiery political talk shows on Fox News, CNN and other networks, as well as
through her own active posts on Twitter. During these appearances, she openly and admittedly
attacked Mr. Trump and the Campaign as liars (among other things), and, in response, Mr. Trump
and Mr. Lewandowski made three vague and speculative comments challenging her own
motivations for these attacks. There is simply nothing about Mr. Lewandowskis and Mr. Trumps
comments or the overall context in which they were made that would suggest to the listening public
that they were anything but their own subjective opinions about plaintiffs motivations for
attacking and criticizing Mr. Trump and the Campaign. As such, they cannot form the basis for a
defamation claim under New York law.
For these reasons (and the reasons set forth below and in defendants moving brief),
plaintiffs defamation claims must be dismissed in their entirety.

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ARGUMENT
I.
THE ALLEGED UNDERLYING STATEMENTS OF FACT
ARE NEITHER FACTUAL NOR DEFAMATORY
The key alleged facts from the Complaint relating to plaintiffs interviews and
communications with the Campaign for the position of Communications Director consist of the
following:

On May 19, 2015, plaintiff met with Mr. Lewandowski at Trump Tower to discuss
her potentially joining the Campaign as the Communications Director. See Verified
Complaint, annexed as Exhibit A to the moving affirmation of Lawrence S. Rosen
(Rosen Moving Aff.), at 23-24.

There is no allegation in the Complaint that any offer of employment was extended
to plaintiff at that May 19th meeting or afterwards. Rosen Moving Aff., Exh. A.

Later that same day of the May 19th meeting, plaintiff sent an email to Mr.
Lewandowski stating that she was very intrigued about the [Communications
Director] position and that it would be a welcome endeavor to work on the
Campaign.

She also provided a written proposal to become an independent

contractor of the Campaign, setting forth in an email a monthly fee/salary in the

$18k-19k (per month) range [as] appropriate. She further offered to meet with
Mr. Trump if Mr. Lewandowski] wanted to move forward and wanted her to
meet with Mr. Trump. Rosen Moving Aff., Exh. A at 29.

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There is no allegation in the Complaint that the Campaign ever accepted her work
offer or made any offer to her in response to her fee/salary proposal. Rosen Moving
Aff., Exh. A.

There is no allegation in the Complaint that plaintiff ever met with Mr. Trump (she
did not) or even that her offer to meet personally with Mr. Trump was accepted (it
was not). Rosen Moving Aff., Exh. A.

On June 9, 2015, plaintiff met with Mr. Lewandowski a second time at Trump
Tower. Rosen Moving Aff., Exh. A at 30.

There is no allegation in the Complaint that an offer to work for the Campaign as
an independent contractor or employee was ever extended to plaintiff following the
June 9th meeting or any time thereafter. Rosen Moving Aff., Exh. A.

An analysis of each of the alleged defamatory statements in these admitted facts and
circumstances only serves to reinforce the fact that all three of these statements constitute pure
opinion.
i.

Statement by Mr. Lewandowski

Mr. Lewandowski merely states, in relevant part, as follows:

[Plaintiff] came to the office on multiple occasions trying to get a job from the
Trump Campaign, and when she wasnt hired clearly she went off and was upset
by that.
Here, the issue of whether plaintiff was trying to get a job is completely a matter of Mr.
Lewandowskis subjective opinion as to plaintiffs interest in the position. For one thing, plaintiff
specifically admits in her Complaint that she met with Mr. Lewandowski twice at Trump Tower,
so she did, in fact, come to the office on multiple occasions. Further, not only did she meet with

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Mr. Lewandowski twice, but she also sent him an email expressing her interest in the position and
setting forth a monetary proposal of $18,000 to $19,000 per month. Rosen Moving Aff., Exh. A at
23-24, 29-30. Mr. Lewandowskis subjective belief as to whether these actions constituted her
trying to get a job simply cannot be objectively verified as true or false as it constitutes Mr.
Lewandowskis subjective opinion about plaintiffs intent and state of mind. See Dworin v.
Deutsch, 2008 WL 508019, *5 (S.D.N.Y. February 22, 2008) (statements about the subjective
state of mind of plaintiff [are] not susceptible of objective verification).
As for the portion of the statement that plaintiff wasnt hired, there is no factual issue
hereshe was not hired by the Campaign as an employee or as an independent contractor. It is as
simple as that. In fact, she was never offered a position with the Campaign nor did the Campaign
ever even respond to her May 19, 2015 fee proposal of $18,000 to 19,000 per month. Finally, as
set forth in defendants moving papers, the remaining vague and hyperbolic portion of Mr.
Lewandowskis statement that she went off and was upset as a result of not being hired are
again simply Mr. Lewandowskis opinion about plaintiffs state of mind and motivations for
attacking the Campaign, which as a matter of law in New York cannot form the basis for a
defamation claim. See e.g. Parks v. Steinbrenner, 131 A.D.2d 60, 66, 520 N.Y.S.2d 374, 378 (1st
Dept. 1987) (baseball club owners statements that umpire made incompetent and biased calls
because he had it in for the Yankees ever since [the owner] labeled him a scab during a prior
umpires strike held to be nonactionable expressions of opinion).
For all of these reasons, Mr. Lewandowskis statement does not form the basis for an
actionable defamation claim.

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ii.

The Two Tweets by Mr. Trump

An analysis of the two tweets from Mr. Trump results in the same conclusion. The text
of the two tweets is set forth below:
Great job @donlemon tonight @kayleighmcenany @cherijacobus begged us for a
job. We said no and she went hostile. A real dummy! @CNN
Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice
and she went hostile. Major loser, zero credibility.
First, the portion of the statement that plaintiff begged for a job is simply a vague and
hyperbolic point of view. It is nothing more than a subjective interpretation of plaintiffs interest
in the position (i.e. her state of mind), which, in any event, is supported by plaintiffs own
allegations in the Complaint that she: (i) met twice with the Campaign (ii) expressed her interest
in the position by email, (iii) offered to meet with Mr. Trump, and (iv) submitted a written fee
proposal for the position. See Borzellieri v. Daily News, LP, 2013 WL 1734778, *3 ([s]ubjective
characterizations of [a] plaintiffs behaviorare nonactionable opinion). Plaintiffs belief that
the Campaign was pursuing her is nothing more than her own subjective point of view.
Similarly, the statements that we said no and turned her down twice are similarly
protectable opinions. As an initial matter, these terms are far too vague and imprecise to constitute
statements of fact. See Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1, 5 (1st Dept.
1999) (loose, figurative or hyperbolic statements, even if deprecating to the plaintiff, are not
actionable). In the context of a potential hiring process that never reached any legal offer of
employment to the applicant, there are various means by which an employer could have said no
or turned the applicant down: for instance, the employer could never have responded to a resume
submission; never responded to a salary proposal by the applicant; never offered the applicant
employment; or sent a written rejection letter or email.

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Here, the facts, as alleged and admitted by plaintiff in her Complaint, are that plaintiff met
or interviewed with the Campaign twice; she was not given a job offer after either interview (or
ever); she was never invited to interview with Mr. Trump; and she submitted a written fee proposal
that was never accepted by the Campaign (and, therefore, was rejected as a matter of contract law).
Any or all of these facts can constitute saying no or turning an applicant down. It is simply a
matter of the subjective interpretation and opinion of Mr. Trump and the Campaign. The fact that
plaintiff here has a differing viewpoint of the vague facts and circumstances surrounding her
interview process, which never even resulted in an offer of employment, is nothing more than her
own subjective point of view, which likewise cannot be objectively verified as true or false.3 For
these reasons, neither of Mr. Trumps tweets can possibly be interpreted as anything but
statements of opinion.
Finally, there is nothing defamatory about a statement that a person was not hired for a
position, as any reasonable reader or listener of such a statement understands that there could be a
variety of reasons as to why a person was not hired for a position. See e.g. Chang v. Fa-Yun, 265
A.D.2d 265, 697 N.Y.S.2d 31, 32 (1st Dept. 1999) ([t]he mere statement of discharge or
termination from employment, even if untrue, does not constitute libel); School of Visual Arts v.
Kuprewicz, 771 N.Y.S.2d 804, 809 (Sup. Ct. New York Cty. 2003) ([e]ven if one were to read
the job postings as implying that [plaintiff] was terminated, the postings would still not be

Plaintiffs allegations regarding her communications with Jim Dornanwho she does not even allege was an
employee of the Trump Campaign, but simply identifies as acting on behalf of the nascent Trump Campaigndoes
nothing to change the analysis here. Plaintiffs allegation that Mr. Dornan reached out to her about the position does
not mean that, in Mr. Lewandowski and Mr. Trumps subjective opinions, plaintiff was not trying or begging for
a job with the Campaign. The same is true for plaintiffs allegations that she turned down the Campaign by
purportedly communicating to Mr. Dornan after her second interview that she did not believe she could work with
Mr. Lewandowski. Beside the fact that she was never even offered a position, this too does not change the fact that
Mr. Trump or Mr. Lewandowski subjectively believed that they had turned her down by not responding to or accepting
her fee proposal, not offering her a position after two interviews, etc.

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defamatory because the mere fact of ones removal from a job carries no imputation of dishonesty
or lack of professional capacity) (internal quotations and alterations omitted); Dworin v.
Deutsch, 2008 WL 508019 at *7 (even if the statement that it took a couple of years and he was
gone from there too suggested that plaintiff was terminated from a job, it could not form the basis
of a defamation claim as statements of discharge or termination from employment, even if untrue,
do not constitute libel) (internal alterations omitted).
In direct contrast to the alleged defamatory statements set forth in this action, the statements
in the case law cited by plaintiff all involved serious, precise, and provable assertions of fact
regarding criminal or corrupt conduct, which, if proven false could be defamatory on their own.
For instance, in Silsdorf, which plaintiff mistakenly asserts involves precisely the same
situation as this case, a Mayor running for re-election was accused by the defendant in an open
letter to village residents of corruption and illegal activity while in office. This allegation of
corruption and illegal activity was further supported by specific allegations that the Mayor: (i)
unethically represented clients whose interests were adverse to the village residents; (ii) flagrantly
disregarded the authority of the village board of trustees by relieving the elected members of the
Board of their assigned duties; (iii) granted authorizations and permissions in violation of village
ordinances and board determinations; and, (iv) improperly sought to issue a commercial building
permit to one of his private clients, i.e. all serious factual allegations, which unlike the statements
here, could not only be objectively verified as true or false, but were also defamatory on their own.
See Silsdorf v. Levine, 59 N.Y.2d 8, 11, 462 N.Y.S.2d 822, 824 (1983).
The other cases relied upon by plaintiff similarly involved serious, precise, provable, and
defamatory factual allegations and, as such, are wholly distinguishable from the case at bar. See
e.g. Armstrong v. Simon & Schuster, Inc., 197 A.D.2d 87, 90, 610 N.Y.S.2d 503, 505 (1st Dept.

10

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1994) (statement that attorney criminally suborned perjury and violated attorneys ethics rules by
deliberately preparing a false affidavit to aid one client and asking another client to assist with the
lies); Coliniatis v. Dimas, 848 F.Supp. 462, 466 (S.D.N.Y. 1994) (letter written by airline law firm
accused former airline employee of being involved in criminal kickback scheme, included specific
allegations regarding plaintiffs alleged attempt to defraud airline in the amount of $500,000
through kickbacks to be received in New York real estate transactions); Gross v. New York Times
Co., 82 N.Y.2d 146, 149-150, 603 N.Y.S.2d 813, 814 (1993) (accusation that plaintiff, a Chief
Medical Examiner, was engaged in cover-ups to help the police department, was accompanied by
specific criminal allegations that he created false autopsy reports and was guilty of illegal conduct
in instituting a policy of special handling for police-custody cases);4 Rinaldi v. Holt, Rinehart &
Winston, Inc., 42 N.Y.2d 369, 375-376, 397 N.Y.S.2d 943, 947 (1977) (accusation that plaintiff, a
Judge, committed illegal and unethical actions, included specific allegations that plaintiff accorded
no or lighter sentences to defendants with political influence while [b]lacks and Puerto Ricans
got high bail and long sentences); Flamm v. American Assn. of University Women, 201 F.3d 144,
151 (2d Cir. 2000) (allegation that plaintiff, an attorney, was unethical was accompanied by
specific, serious, and provable allegations that plaintiff engaged in unethical solicitations); Jewell
v. NYP Holdings, Inc., 23 F.Supp.2d 348, 357 (S.D.N.Y. 1998) (involving allegations that plaintiff,
a security guard, was directly involved with a bombing during the Olympic games in Atlanta that
killed one and injured 110 others); H & R Industries, Inc. v. Kirshner, 899 F.Supp. 995, 1000

Notably, the Gross case (relied upon by plaintiff) specifically underscores the principle that a plaintiff is required to
sufficiently allege defamatory statements of fact. Gross v. New York Times Co., 82 N.Y.2d at 149, 603 N.Y.S.2d at
815 (emphasis added). As noted above, there is nothing remotely defamatory about someone either seeking a position
of employment or not becoming hired for such position.

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(E.D.N.Y. 1995) (memorandum containing unambiguous statements accusing plaintiff, officer of

corporation, of impersonating New York City Stationary Engineer attempting to entrap and
harass building managers).5
For all of these reasons, plaintiffs defamation claims must be dismissed in their entirety.
II.
THE IMMEDIATE AND BROADER SOCIAL CONTEXT OF THE STATEMENTS
FURTHER DEMONSTRATES THAT THEY ARE PROTECTABLE OPINION
The Court of Appeals has specifically mandated against the precise type of hypertechnical parsing of the alleged defamatory statements engaged in by plaintiff in her opposition
papers. Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 256, 66 N.Y.S.2d 906, 918 (1991); See
also Bordoni v. New York Times Co., Inc., 400 F.Supp. 1223, 1228 (S.D.N.Y. 1975) (rejecting
plaintiffs attempt to fragmentize and dissect the article rather than to read it as a whole and in
context); Brian v. Richardson, 87 N.Y.2d 46, 51, 637 N.Y.S.2d 347, 350 (1995) (rejecting an
analysis that would first search a publication for specific factual assertions and then hold those
assertions actionable unless they were couched in figurative or hyperbolic language). Rather, the

Plaintiff also cites to Davis v. Boeheim, 24 N.Y.3d 262, 998 N.Y.S.2d 131 (2014) in her opposition papers, which
too is completely distinguishable. In Davis, the court found the defendants statements to be actionable mixed
opinion because the defendants opinions implied that they were based on facts that were unknown to those reading
or hearing the opinions. Id., 24 N.Y.3d at 269, 998 N.Y.S.2d at 136. Specifically, the Court found that Mr. Boeheims
statements that the plaintiffs were neither credible nor victims of sexual abuse communicated to readers that his
statements were based on undisclosed confidential information to which he was privy through his exposure to the
investigation conducted by Syracuse University. Id., 24 N.Y.3d at 272-73, 998 N.Y.S.2d at 139 (Boeheims assertions
that [plaintiffs] previously made the same claims, for the same purpose, communicated that Boeheim was relying on
undisclosed facts that would justify Boeheims statements that [plaintiffs] were neither credible nor victims of sexual
abuse). Here, plaintiff is not alleging that the statements imply that they are based on any unknown or
undisclosed facts. Further, the statements here cannot be objectively verified as true or false for the reasons stated
above.

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proper inquiry is to analyze the content of the whole communication, its tone and apparent
purpose and in particular the overall context in which the statements were made. Id.
Here, despite having filed a nearly 30-page complaint, plaintiff entirely ignores both the
immediate context of the alleged statements and the broader social context in which the alleged
defamatory statements were made. The reason for this is obvious: any such analysis only further
serves to demonstrate that the statements are pure opinion which cannot form the basis for a
defamation claim.
By her own account, plaintiff is a national public media figure who regularly engages in
the heated back and forth national political debates that dominate the 24-hour news cycle. She
provides her political opinions as an analyst on political talk shows on Fox News, CNN, and other
media outlets, and also participates actively in the American political arena through posts on
Twitter. Rosen Moving Aff., Exh. A at 9. Suffice it to say, in this public role she is a ready,
willing, and able participant in this rough-and-tumble arena and certainly has the access to the
media and ability to respond to any criticisms or attacks against her. As such, she has an increased
burden on this defamation claim. See e.g. Corporate Training Unlimited, Inc. v. National
Broadcasting Co., Inc., 981 F.Supp. 112, 118 (E.D.N.Y. 1997) (public figures have a greater
burden in defamation cases because[they] have greater access to the media to counteract the
damaging effects of any defamatory statements).6

As set forth in defendants moving papers, plaintiff, as a public figure, can also not meet the standard of actual
malice. This is because statements of opinion, by their very nature, cannot be objectively verified as either true or
false, and, therefore, cannot be made with knowledge of their falsity. The courts have held that to demonstrate actual
malice, plaintiff must show that the alleged statements were made with knowledge that [they] were false or with
reckless disregard as to their falsity. See Biro v. Conde Nast, 807 F.3d 541, 544 (2d Cir. 2015). Further, there is also
no allegation in the Complaint that plaintiff was ever given any offer of a job by the Campaign, much less that she
communicated a rejection of any such job offer to Mr. Trump or Mr. Lewandowski. As such, there are insufficient
factual allegations in the Complaint to support any finding that Mr. Trump and Mr. Lewandowskis statements were
made with knowledge that they were false, even assuming the statements were not pure opinion.

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In fact, plaintiff admittedly triggered the responsive statements from Mr. Lewandowski
and Mr. Trump by first criticizing Mr. Trump and the Campaign on national public talk shows,
even asserting that Mr. Trump and the Campaign were liars. Specifically, she admits that while a
guest on the Don Lemon show, she attacked Mr. Trump as a bad debater; accused him of
manufacturing an excuse to skip a debate; asserted that he was afraid of facing the voters, facing
the press, and facing his opponents; and claimed that he comes off like a third grader faking his
way through an oral report on current affairs. See Rosen Moving Aff., Exh. A at 45 - 49. She
further accused Mr. Trump and the Campaign of lying about the Campaigns financing. Id. She
made these statements, of course, in the broader context of the heated national public debate
regarding Mr. Trumps campaign to become the Republican nominee for President of the United
States. See e.g. Parks v. Steinbrenner, 131 A.D.2d at 65, 520 N.Y.S.2d at 377 (press release by
baseball team owner accusing umpire of incompetence and bias for certain calls made during
games held to constitute pure opinion especially when viewed within the dynamics of the
baseball world and its customs);7 Rosenthal v. Roberts, 2005 WL 3334272, *2 (Sup. Ct. New
York Cty. October 11, 2005) (statements made in the heat of a highly-charged and contentious
union election regarding plaintiffs motivations for supporting defendants opponent were
protected opinion).
The statements made by Mr. Lewandowski and Mr. Trump in response to these attacks do
nothing more than question plaintiffs motivations and biases for the attacks, which, as discussed

7
Moreover, plaintiffs very role as a political pundit refutes any allegation that the statements could have been
defamatory. Political pundits, like umpires, are regularly subjected to public contempt and ridicule by the public
and others given the very nature of their professions. See Stepanov v. Dow Jones & Co., Inc., 120 A.D.3d 28, 34, 987
N.Y.S.2d 37, 41 (1st Dept. 2014).

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in defendants moving papers, is protectable opinion. See defendants moving memorandum of

law at pp. 9-11. To be sure, the statements are literally dominated by vague and imprecise
language of opinion: trying, went off, was upset, begged, we said no, went hostile,
a real dummy, really dumb, turned her down, major loser, and zero credibility.
There can simply be no reading of these statements in their full and complete context, which would
suggest to any reasonable person that they are anything but opinion. See Farber v. Jefferys, 941
N.Y.S.2d 537, *13 (Sup. Ct., New York Cty. 2011), aff'd, 103 A.D.3d 514, 959 N.Y.S.2d 486 (1st
Dept. 2013) ([h]yperbolic rhetoric which intends to discredit a rival also is not actionable).
Furthermore, the mediums in which the statements were made clearly demonstrate to any
listener or reader that the statements constitute opinions. Mr. Lewandowskis statement was made
as part of a remark to a question calling for his reaction (i.e. opinion) to certain criticisms of Mr.
Trump and the Campaign on a morning talk show well known for political debate and opinions.
See e.g. Huggins v. National Broadcasting Company, Inc., 1996 WL 763337, *3 (Sup. Ct. New
York Cty. February 7, 1996) (statements made during unscripted, unrehearsed live interview on
televised news show were non-actionable statements of opinion where the loose structure and
conversational tone signaled to the viewers that they were hearing [the defendants] own beliefs
and perspective); Brian v. Richardson, 87 N.Y.2d at 53, 637 N.Y.S.2d at 351
(statements made in an article that was published in Op Ed page of a newspapera forum
traditionally reserved for the airing of ideas on matters of public concernwere non-actionable
opinion); Huggins v. Povitch, 1996 WL 515498, *7 (Sup. Ct. New York Cty. April 19, 1996)
(statements made as part of the give and take of a television talk show were non-actionable
opinion).

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Similarly, Mr. Trumps tweets were made on Twitter, an internet based social media
platform limited to messages of 140 characters or less, which messages are commonly known for
their impulsive, imprecise and emotive nature.8 See e.g. Sandals Resorts Intern. Ltd. v. Google,
Inc., 86 A.D.3d 32, 43-44, 925 N.Y.S.2d 407, 415 (1st Dept. 2011) (the defamatory import of
[internet] communication[s] must be viewed in light of the fact that [they] are often the repository
of a wide range of casual, emotive, and imprecise speech, and that the online recipients of offensive
statements do not necessarily attribute the same level of credence to the statements [that] they
would accord to statements in other contexts) (internal alterations and quotations omitted).
To sum up, every single aspect of the statements themselves; the immediate and broader
context in which they were made; and the mediums through which they were communicated,
demonstrate to any reasonable listener or reader that they are protectable opinion.

CONCLUSION
Based on the foregoing, it is respectfully requested that plaintiffs Verified Complaint be
dismissed in its entirety with prejudice and that the Court grant the defendants any and all such
further relief as the Court may deem just and proper.

8
Compare Coliniatis v. Dimas, 848 F.Supp. 462 (a case relied upon by the plaintiff) where the letter containing the
allegedly defamatory statements [gave] the impression that it was written after lengthy deliberation and was
prepared in the context of an attorney-client relationship. Id. at 469 (emphasis added). Under these circumstances,
the Court [found] that a reasonable reader would believe that the letter was conveying facts about the plaintiff. Id.

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Dated: New York, New York

August 31, 20 16

By:

ce S. Rosen
Patrick McPartland
Jonathan Tabar
40 Wall Street, 32nd Floor
New York, New York 10005
T: (212) 530-4822, 483 7
E: LROSEN@LHRGB.COM
PMCPARTLAND@LHRGB.COM
JTABAR@LHRGB.COM

Attorneys for Defendants

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