Case 1:17-cv-09483-DAB Document 74 Filed 04/20/18 Page 1 of 26

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
RACHEL WITLIEB BERNSTEIN,
ANDREA MACKRIS, AND REBECCA
Civil Action No.: 17-cv-9483(DAB)
GOMEZ DIAMOND,

Plaintiffs,

-against-

BILL O’REILLY AND FOX NEWS

NETWORK, LLC,

Defendants.

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF

DEFENDANT BILL O’REILLY’S MOTION TO COMPEL ARBITRATION AND/OR
DISMISS THE SECOND AMENDED COMPLAINT

Fredric S. Newman
Andrew N. Bourne
HOGUET NEWMAN
REGAL & KENNEY, LLP
10 East 40th Street
New York, NY 10016
Tel: (212) 689-8808

Attorneys for Defendant

Bill O’Reilly
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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .....................................................................................................1

ARGUMENT ...................................................................................................................................3

I. MACKRIS AND DIAMOND’S CLAIMS MUST BE ARBITRATED AS AGREED ......3

A. The Question Of Arbitrability Should Be Decided By An Arbitrator ....................3

B. An Arbitrator Must Resolve Mackris And Diamond’s Assertions Of Waiver ........6

C. This Court Should Reject Any Assertion Of Litigation Conduct Waiver ...............7

D. Even If This Court Were To Consider Whether The Mackris And Diamond
Agreements Cover The Claims Here, Arbitration Is Required ................................9

E. Bernstein Provides No Reason Why Her Claims Should Proceed Until After The
Mackris and Diamond Arbitrations .......................................................................11

II. PLAINTIFFS FAIL TO STATE A CLAIM FOR DEFAMATION .........................................12

A. O’Reilly’s Statements Can Only Be Understood In Context As Non-Actionable

Opinion ..................................................................................................................12

B. O’Reilly’s Statements Were Not “Of and Concerning” Plaintiffs ........................14

C. O’Reilly’s Statements Are Not Defamatory .........................................................16

III. BERNSTEIN MAY NOT ASSERT A BREACH OF CONTRACT CLAIM AGAINST

O’REILLY BECAUSE THERE IS NO CONTRACT BETWEEN THEM ......................19

CONCLUSION ..............................................................................................................................20

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TABLE OF AUTHORITIES

Cases

Aguas Lenders Recovery Group LLC v. Suez, S.A.,

585 F.3d 696 (2d Cir. 2009) ....................................................................................................19

Bell v. Cendant Corp.,

293 F.3d 563 (2d Cir. 2002).......................................................................................................8

Brennan v. Opus Bank,

796 F.3d 1125 (9th Cir. 2015) ..................................................................................................5

Brown v. Dillard’s, Inc.,

430 F.3d 1004 (9th Cir. 2005) ...................................................................................................7

Carlucci v. Poughkeepsie Newspapers, Inc.,

57 N.Y.2d 883 (1982) ............................................................................................................. 15

Chaffin v. Lynch,
83 Va. 106 (1887) ....................................................................................................................12

Contec Corp. v. Remote Sol. Co.,

398 F.3d 205 (2d Cir. 2005).......................................................................................................4

Costanza v. Seinfeld,
279 A.D.2d 255 (1st Dep’t 2001) ............................................................................................17

Cotton v. Slone,
4 F.3d 176 (2d Cir. 1993)...........................................................................................................8

Davis v. Boeheim,
24 N.Y.3d 262 (2014) ........................................................................................................12, 13

Doctor’s Assocs., Inc. v. Distajo,

107 F.3d 126 (2d Cir. 1997).......................................................................................................8

Emilio v. Sprint Spectrum, L.P.,

508 F. App’x 3 (2d Cir. 2013) ............................................................................................... 3-4

Foretich v. Capital Cities/ABC, Inc.,

37 F.3d 1541 (4th Cir. 1994) ...................................................................................................13

Galen v. Redfin Corp.,

No. 14-cv-05229, 2015 WL 7734137 (N.D. Cal. Dec. 1, 2015)................................................6

ii
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Genesco Inc. v. T. Kakiuchi Co.,

815 F.2d 840 (2d Cir. 1987).......................................................................................................9

Howsam v. Dean Witter Reynolds, Inc.,

537 U.S. 79 (2002) .....................................................................................................................6

Impulse Mktg. Grp., Inc. v. Nat’l Small Bus. All., Inc.,

No. 05-CV-7776, 2007 WL 1701813 (S.D.N.Y. June 12, 2007) ............................................19

Jacobus v. Trump,
156 A.D.3d 452 (1st Dep’t 2017), leave to appeal denied,
2018 WL 1597479 (N.Y. Apr. 3, 2018) ...................................................................................13

JLM Indus., Inc. v. Stolt-Nielsen SA,

387 F.3d 163 (2d Cir. 2004).......................................................................................................9

Katsoris v. WME IMG, LLC,

237 F. Supp. 3d 92 (S.D.N.Y. 2017)........................................................................................11

LaRoss Partners, LLC v. Contact 911 Inc.,

874 F. Supp. 2d 147 (E.D.N.Y. 2012) ...............................................................................19, 20

Levin v. McPhee,
119 F.3d 189 (2d Cir. 1997).....................................................................................................17

LG Elecs., Inc. v. Wi-LAN USA, Inc.,

No. 13-CV-2237, 2014 WL 3610796 (S.D.N.Y. July 21, 2014)
aff’d, 623 F. App’x 568 (2d Cir. 2015) ......................................................................................4

Lismore v. Societe Generale Energy Corp.,

No. 11 CIV. 6705, 2012 WL 3577833 (S.D.N.Y. Aug. 17, 2012) ............................................5

Marchuk v. Faruqi & Faruqi, LLP,

100 F. Supp. 3d 302 (S.D.N.Y. 2015) .....................................................................................17

McNamee v. Clemens,
No. 09 CV 1647, 2013 U.S. Dist. LEXIS 107551 (E.D.N.Y. July 31, 2013)..........................13

Montgomery Ward & Co. v. Watson,

55 F.2d 184 (4th Cir. 1932) .....................................................................................................13

Nadeau v. Equity Residential Properties Management Corp.,

251 F. Supp. 3d 637 (S.D.N.Y. 2017)........................................................................................7

PaineWebber Inc. v. Bybyk,

81 F.3d 1193 (2d Cir. 1996).......................................................................................................3

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Rennaker Co. Consulting v. TLM Grp., LLC,

No. 16 Civ. 3787, 2017 WL 2240235 (S.D.N.Y. Mar. 29, 2017) ...........................................19

Republic of Ecuador v. Chevron Corp.,

638 F.3d 384 (2d Cir. 2011) ......................................................................................................6

Rush v. Oppenheimer & Co.,

779 F.2d 885 (2d Cir. 1985)...................................................................................................8, 9

Sabharwal & Finkel, LLC v. Sorrell,

117 A.D.3d 437 (1st Dep’t 2014) ...........................................................................................17

Schneider v. Kingdom of Thailand,

688 F.3d 68 (2d Cir. 2012)..................................................................................................... 4-5

Shaw Grp. Inc. v. Triplefine Int’l Corp.,

322 F.3d 115 (2d Cir. 2003).......................................................................................................3

Small Bus. Bodyguard Inc. v. House of Moxie, Inc.,

230 F. Supp. 3d 290 (S.D.N.Y. 2017)......................................................................................16

Springer v. Almontaser,
75 A.D.3d 539 (2d Dep’t 2010) ...............................................................................................17

Springer v. Viking Press,

60 N.Y.2d 916 (1983) ..............................................................................................................15

Sweater Bee by Banff, Ltd. v. Manhattan Indus., Inc.,

754 F.2d 457 (2d Cir. 1985)................................................................................................... 7-8

Three Amigos SJL Rest., Inc. v. CBS News Inc.,

28 N.Y.3d 82 (2016) ..........................................................................................................14, 15

Thyssen, Inc. v. Calypso Shipping Corp., S.A.,

310 F.3d 102 (2d Cir. 2002)................................................................................................... 8-9

Washington v. William Morris Endeavor Entm’t, LLC,

No. 10 Civ. 9647, 2011 WL 3251504 (S.D.N.Y. July 20, 2011) ..............................................5

Winter Inv’rs, LLC v. Panzer,

No. 14 Civ. 6852, 2015 WL 5052563 (S.D.N.Y. Aug. 27, 2015) ...........................................11

Yours2u Ltd. v. Blue Phoenix Media Inc.,

No. 16 Civ. 3620, 2017 WL 2562334 (S.D.N.Y. June 5, 2017) ............................................ 6-7

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Zervos v. Trump,
---N.Y.S.3d---, 2018 WL 1404883 (Sup. Ct. N.Y. Cty. Mar. 20, 2018) ...........................14, 15

Other

Prosser and Keeton on the Law of Torts, § 115, 825 (5th ed. 1984) .............................................13

William Blake Odgers, A Digest of the Law of Libel and Slander 228 (1st Am. ed. Bigelow
1881) .............................................................................................................................................12

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PRELIMINARY STATEMENT

Shortly after O’Reilly moved to dismiss the First Amended Complaint, Plaintiffs sought

leave to file a Second Amended Complaint (the “Second Amended Complaint”) and O’Reilly

consented. Because O’Reilly had already addressed the earlier Complaint, this memorandum of

law incorporates the arguments made in O’Reilly’s prior memorandum of law.1 (ECF Doc. No.

45.) The Second Amended Complaint withdrew two of the four counts pled against O’Reilly

and added six newly discovered statements that Plaintiffs now claim defamed them. The Second

Amended Complaint, however, does nothing to cure the fundamental defects of the Complaint.

The first fundamental defect: Both Mackris and Diamond executed arbitration

agreements and their defamation claims must be resolved in arbitration. Predictably, Mackris

and Diamond dispute that the defamation claims are arbitrable under the arbitration provisions in

the Mackris and Diamond Agreements. Their argument does not matter. But, under well-settled

Second Circuit precedent, the scope of the arbitration agreement and the specific claims to be

arbitrated must be resolved by the arbitrator. This is because both the Mackris and Diamond

Agreements clearly and unambiguously evince the intent to delegate this threshold question to

the arbitrator through their incorporation of arbitral rules that delegate this threshold issue to the

arbitrator.

Implicitly acknowledging this uncontroverted fact, Mackris and Diamond attempt to

construct a waiver argument based primarily upon pre-litigation conduct. But that too, under

additional well-settled Second Circuit case law, is for an arbitrator to decide. As a final gambit,

Mackris and Diamond contend that O’Reilly waived his right to arbitrate by making a merits

argument for dismissal of all the complaints – including the overlapping claims asserted by

1
The defined terms in O’Reilly’s Memorandum of Law in Support of his Motion to Compel Arbitration and/or
Dismiss the First Amended Complaint are used here.
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Bernstein. While this Court may consider substantial litigation conduct as a waiver of the right

to arbitrate, Second Circuit precedent says that O’Reilly did not waive his right to arbitrate based

upon his alternative request for dismissal.

The second fundamental defect: The Plaintiffs’ defamation claims still fail to state a

defamation claim against O’Reilly as a matter of law. While the Plaintiffs added a few more

recently discovered allegations of defamation against O’Reilly – statements that were allegedly

so injurious and described as having “viciously defamed the plaintiffs” (Plaintiffs Br. at 4), that it

took the Plaintiffs three pleadings to find and assert them – nothing O’Reilly said constitutes

actionable defamation. Like the original statements pled, nothing in the Plaintiffs’ newfound

defamatory statements can reasonably be construed to concern the Plaintiffs. Rather, they

constitute O’Reilly’s opinions concerning the unbalanced journalism that went into the stories

published about him and the advocacy groups that organized a sponsor boycott.

The third fundamental defect: Bernstein’s breach of contract claim must be dismissed

because O’Reilly is not a party to a contract with her. While Bernstein alleges that O’Reilly is a

third-party beneficiary to Bernstein’s settlement agreement, Bernstein presents no authority to

this Court for holding a third-party beneficiary to a contract liable for a breach. At best, the

authority presented by Bernstein stands for the unremarkable proposition that a party that

assumed the obligations under a contract cannot avoid a forum selection clause in the agreement.

Bernstein, however, fails to present any facts to show why the universal rule that non-parties

generally cannot be held liable for a breach of contract under New York law should not apply.

Accordingly, as discussed below, Mackris’s and Diamond’s claims must be sent to

arbitration and Bernstein’s defamation claim should be stayed pending those arbitrations; in the

alternative, the Plaintiffs’ claims must be dismissed.

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ARGUMENT

I. MACKRIS AND DIAMOND’S CLAIMS MUST BE ARBITRATED AS AGREED

A. The Question Of Arbitrability Should Be Decided By An Arbitrator

Mackris and Diamond fail to present support for why this Court, and not an arbitrator,

should decide the question of arbitrability.

Instead, Diamond briefly argues there is “no ‘clear and unmistakable’ delegation of

arbitrability to an arbitrator” because “the word ‘arbitrability’ appears nowhere in the arbitration

clauses.” (Plaintiffs Br. at 13.) Diamond asks this Court to ignore the plain language of the

Diamond Agreement that committed Diamond to arbitrate “any dispute concerning this

Agreement or anything else related to the Claims . . . .” (Declaration of Neil Mullins, dated

April 3, 2018 (“Mullins Decl.”), Ex. D at ¶ 7.) The Second Circuit has found that such broadly-

worded arbitration clauses demonstrate an intention to delegate the issue of arbitrability to the

arbitrator. See, e.g., PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1199-2000 (2d Cir. 1996); Shaw

Grp. Inc. v. Triplefine Int’l Corp., 322 F.3d 115, 121 (2d Cir. 2003) (“In PaineWebber Inc. v.

Bybyk, we held that even absent an express contractual commitment of the issue of arbitrability

to arbitration, a referral of ‘any and all’ controversies reflects such a ‘broad grant of power to the

arbitrators’ as to evidence the parties’ clear ‘inten[t] to arbitrate issues of arbitrability.’”

(alteration in original)). That the Diamond Agreement specifically refers to a JAMS arbitration,

whose applicable rules require questions of arbitrability to resolved by the arbitrator (see, e.g.,

Rule 11 of the JAMS Comprehensive Arbitration Rules & Procedures, Rule 8 of the JAMS

Streamlined Arbitration Rules & Procedures, Rule 11 of the JAMS Employment Arbitration

Rules & Procedures), further and unmistakably reflects the intent that the questions of

arbitrability be resolved by an arbitrator. See, e.g., Emilio v. Sprint Spectrum, L.P., 508 F. App’x

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3, 5 (2d Cir. 2013); LG Elecs., Inc. v. Wi-LAN USA, Inc., No. 13-CV-2237, 2014 WL 3610796,

at *6 (S.D.N.Y. July 21, 2014) (“By consenting to be governed by the JAMS rules, the parties

thus clearly and unmistakably consented to arbitrate any preliminary ‘arbitrability issues’ as well

as the ‘interpretation . . . of the agreement.’”), aff’d, 623 F. App’x 568 (2d Cir. 2015). Any issue

that Diamond has with the arbitrability of her claims against O’Reilly should be raised before the

arbitrator, just as Diamond and O’Reilly agreed.

Mackris’s argument fares no better. Mackris does not address the similarly broad

language included in the Mackris Agreement, which also incorporates the AAA rules of

arbitration. (Mullin Decl., Ex. B at ¶ 9.) This is because the language found in the Mackris

Agreement reflects the unmistakable intent that any issue with respect to arbitrability of a claim

be resolved by an arbitrator. See, e.g., Contec Corp. v. Remote Sol. Co., 398 F.3d 205, 208-09

(2d Cir. 2005). Instead, Mackris contends that her arbitration with O’Reilly “would be under the

AAA Employment Rules” and the “applicable employment rule is that it does not provide that

arbitrators decide arbitrability in employment cases.” (Plaintiffs Br. at 14.) Mackris’s entire

argument is based upon her contention that the AAA Employment Rules do not contain the

phrase “or to the arbitrability of any claim or counterclaim,” which is found in the AAA

Commercial Arbitration Rules. (Id.)

Contrary to Mackris’s assertion, the Second Circuit held the same language Mackris now

relies upon (that “‘[t]he arbitrator shall have the power to rule on his or her own jurisdiction,

including any objections with respect to the existence, scope or validity of the arbitration

agreement,’” Contec, 398 F.3d at 208 (alteration in original) (citation omitted)), required a party

to arbitrate the question of arbitrability. Id. at 211. See also Schneider v. Kingdom of Thailand,

688 F.3d 68, 72-73 (2d Cir. 2012) (finding incorporation of UNCITRAL Arbitration Rules,

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which provided, that the “arbitral tribunal shall have the power to rule on objections that it has no

jurisdiction, including any objections with respect to the existence or validity of the arbitration

clause or the separate arbitration agreement,” means that the parties “clearly and unmistakably

agreed that the tribunal would consider matters affecting its jurisdiction in the first instance”).

Additionally, numerous courts have held that the AAA Employment Rules require questions of

arbitrability be resolved by the arbitrator. See, e.g., Lismore v. Societe Generale Energy Corp.,

No. 11 Civ. 6705, 2012 WL 3577833, at *6 (S.D.N.Y. Aug. 17, 2012) (finding an “arbitrator

should decide whether the 2010 Written Agreement [which incorporates the AAA Employment

Rules] continued to remain valid, and, by extension, whether the present dispute is arbitrable

pursuant to that agreement”); Washington v. William Morris Endeavor Entm’t, LLC, No. 10 Civ.

9647, 2011 WL 3251504, at *6 (S.D.N.Y. July 20, 2011) (holding AAA Employment Rule 6(a)

“provides for the arbitrator to decide issues of arbitrability”). Accordingly, an arbitrator must

determine whether Mackris’s claims are subject to arbitration.

Finally, to the extent this Court deems Mackris (and Diamond with respect to the

incorporation of JAMS rules) to be arguing that the incorporation of the “rules of the American

Arbitration Association” without reference to either the Commercial or Employment Rules

creates an ambiguity, that argument should be rejected. The incorporation of AAA rules without

specifying a particular set of rules still reflects the clear and unmistakable intent to for an

arbitrator to resolve the question of arbitrability. See, e.g., Brennan v. Opus Bank, 796 F.3d

1125, 1128-30 (9th Cir. 2015) (finding, in an employment dispute in which the contract provided

that any dispute “shall be settled by binding arbitration in accordance with the Rules of the

American Arbitration Association,” without reference to which AAA rules, the “incorporation of

the AAA rules constitutes clear and unmistakable evidence that contracting parties agreed to

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arbitrate arbitrability”); Galen v. Redfin Corp., No. 14-cv-05229, 2015 WL 7734137, at *7 (N.D.

Cal. Dec. 1, 2015) (“[H]ere it was left ambiguous which set of rules would apply – AAA

Commercial Rules or AAA Labor and Employment Rules. However, both sets of rules include

identical delegation provisions, so this alone would not defeat the parties’ clear intent.”) (internal

citations omitted).

Accordingly, there is no merit to Mackris’s and Diamond’s attempt to avoid having the

arbitrator determine whether their claims are subject to arbitration in light of the Mackris and

Diamond Agreements’ clear and unmistakable intent to have the arbitrator make such a

determination.

B. An Arbitrator Must Resolve Mackris And Diamond’s Assertions Of Waiver

Plaintiffs’ assertion that O’Reilly waived his right to arbitrate is also misplaced. This

Court should give Plaintiffs’ waiver argument short shrift because, even if there were any merit

to their claims – which there is not – any claim of waiver asserted by Plaintiffs needs to be

decided by the arbitrator. Specifically, Plaintiffs claim that O’Reilly has “for over a year acted

as if no arbitration agreement exists,” by “violating the confidentiality requirements,” and

“failing for more than a year to file an arbitration against plaintiffs.” (Plaintiffs Br. at 11.)

Claims of pre-litigation conduct waiver are for arbitrators to decide: “the presumption is that the

arbitrator should decide allegations of waiver, delay, or a like defense to arbitrability.” Howsam

v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002) (quotation and alteration omitted);

Republic of Ecuador v. Chevron Corp., 638 F.3d 384, 394 (2d Cir. 2011) (“Both waiver and

estoppel generally fall into the latter group of issues presumptively for the arbitrator.”); Yours2u

Ltd. v. Blue Phoenix Media Inc., No. 16 Civ. 3620, 2017 WL 2562334, at *5 (S.D.N.Y. June 5,

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2017) (Batts, J.) (“To the extent that Plaintiff asserts waiver based on Defendant’s pre-litigation

conduct, this is an issue for the arbitrator to decide, not the Court.”).

Similarly, Plaintiffs’ bizarre claim that O’Reilly cannot enforce the arbitration provision

because he “breached” the contract (not the arbitration provision) is another type of claim that

must be resolved by an arbitrator. The case cited by Plaintiffs, Nadeau v. Equity Residential

Properties Management Corp., 251 F. Supp. 3d 637 (S.D.N.Y. 2017), stands for the

unremarkable proposition that an arbitration agreement was unenforceable where the defendant

breached the arbitration provision by failing to appear in an arbitration. Relying on the other

case cited by Plaintiffs, Brown v. Dillard’s, Inc., 430 F.3d 1004, 1010 (9th Cir. 2005), the district

court found that, after being served with the arbitration demand, the defendant “refused to

participate in the arbitration process at all, [and defendant’s] breach of its obligations under the

arbitration agreement deprives it of the right to enforce that agreement.” Nadeau, 251 F. Supp.

3d at 643 (alteration in original). Plaintiffs make no allegation that O’Reilly refused to

participate in an arbitration commenced by Plaintiffs. Despite promising to take their claims to

arbitration, Plaintiffs never commenced an arbitration in which O’Reilly refused to participate.

Instead, Mackris and Diamond argument consists of nothing more than “O’Reilly breached their

agreement” but, if that argument were correct, no party could ever enforce an arbitration

provision in a dispute over a breach of contract. Nadeau does not save Mackris and Diamond’s

argument. Accordingly, Plaintiffs’ waiver arguments must be resolved by an arbitrator.

C. This Court Should Reject Any Assertion Of Litigation Conduct Waiver

In any event, Plaintiffs’ waiver argument is wholly without merit. A party claiming

waiver of an arbitration provision has a “heavy burden,” Sweater Bee by Banff, Ltd. v.

Manhattan Indus., Inc., 754 F.2d 457, 466 (2d Cir. 1985), because a “waiver of the right to

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arbitration is not lightly inferred.” Cotton v. Slone, 4 F.3d 176, 179 (2d Cir. 1993) (quotation

omitted). Plaintiffs contend in passing that O’Reilly waived his right to arbitration by filing “his

merits argument for dismissal of the Complaint instead of waiting for the Court to first rule on

the arbitration issue.” (Plaintiffs Br. at 11.) To the extent that this Court can decide a litigation-

conduct waiver of a right to arbitration, see Bell v. Cendant Corp., 293 F.3d 563, 569 (2d Cir.

2002), Plaintiffs’ waiver argument is meritless because there has been no delay or inconsistency

with O’Reilly’s assertion of his arbitration rights or prejudice to the Plaintiffs in this litigation

(particularly where Plaintiffs here must respond to O’Reilly’s motion to dismiss Bernstein’s non-

arbitrable claims).

In Rush v. Oppenheimer & Co., 779 F.2d 885, 889 (2d Cir. 1985), the Second Circuit

refused to find waiver even though there was an “eight-month delay [in seeking arbitration], the

motion to dismiss, the conduct of discovery, and the answer” because there was no evidence that

such actions, even in combination, “prejudiced Rush in any sense that would support a

conclusion of waiver by defendants of their contractual right to arbitrate.” See also Doctor’s

Assocs., Inc. v. Distajo, 107 F.3d 126, 132 (2d Cir. 1997) (finding party seeking arbitration did

not waive right to arbitrate even though party appeared in action because “participation in these

suits did not constitute ‘protracted’ litigation, which could result in a waiver of its right to

arbitrate”). Of course, there was no delay by O’Reilly in seeking to compel arbitration.

Moreover, Plaintiffs fail to assert any prejudice caused by O’Reilly’s moving, in the

alternative, to dismiss the Complaint – which is fatal to their litigation waiver argument. “The

key to a waiver analysis is prejudice. ‘[W]aiver of the right to compel arbitration due to

participation in litigation may be found only when prejudice to the other party is demonstrated.’”

Thyssen, Inc. v. Calypso Shipping Corp., S.A., 310 F.3d 102, 105 (2d Cir. 2002) (quoting Rush,

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779 F.2d at 887). “Prejudice can be substantive, such as when a party loses a motion on the

merits and then attempts, in effect, to relitigate the issue by invoking arbitration, or it can be

found when a party too long postpones his invocation of his contractual right to arbitration, and

thereby causes his adversary to incur unnecessary delay or expense.” Id. (quotation omitted). It

is clear, however, that a “mere delay in seeking a stay of the proceedings without some resultant

prejudice to a party * * * cannot carry the day.” Rush, 779 F.2d at 887 (citation and quotation

omitted). Of course here, Plaintiffs do not allege any prejudice (beyond the nonsensical claim

that O’Reilly continued to breach the arbitration provisions (Plaintiffs Br. at 12)), any lost

motion by O’Reilly, or any unnecessary delay or expense incurred by Plaintiffs. Such a failure is

fatal to their assertion of a litigation conduct waiver of a right to arbitrate.

In short, Mackris and Diamond present no viable argument suggesting that O’Reilly

waived his right to arbitrate this dispute.

D. Even If This Court Were To Consider Whether The Mackris And Diamond
Agreements Cover The Claims Here, Arbitration Is Required

Plaintiffs assert that the claims asserted by Mackris and Diamond are not covered by the

arbitration clauses found in the Mackris and Diamond Agreements. In order to reach this

conclusion, Plaintiffs ignore the plain language of their contracts, the allegations asserted in their

complaints, and the words used in their brief. Because a court must “focus on the factual

allegations in the complaint rather than the legal causes of action asserted,” JLM Indus., Inc. v.

Stolt-Nielsen SA, 387 F.3d 163, 173 (2d Cir. 2004), there can be no doubt arbitration is required

here. Indeed, as long as the “allegations underlying the claims ‘touch matters’ covered by the

parties’ . . . agreements, then those claims must be arbitrated, whatever the legal labels attached

to them.” Genesco Inc. v. T. Kakiuchi Co., 815 F.2d 840, 846 (2d Cir. 1987).

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There can be no dispute that the allegations touch upon the Mackris and Diamond

Agreements. Indeed, Mackris contends that O’Reilly’s statements defamed her and labeled her

“extortionate.” (Plaintiffs Br. at 21.) And, Mackris concedes that, in order to evaluate her claim

for defamation, “the entire Settlement Agreement . . . should be addressed.” (Id.) The subject

matter of the Mackris Agreement covered O’Reilly’s then-pending claim of extortion and

Mackris’s claim for harassment. Furthermore, Mackris spends several pages of her brief trying

to distance herself from her statement that “no wrongdoing whatsoever” had occurred.

(Plaintiffs Br. 20-23.) Mackris even goes as far as to allege in her brief that she intends to use

the purported “evidence plaintiffs were required to relinquish to O’Reilly and his counsel”

pursuant to the Mackris Agreement in support of her claims. (Plaintiffs Br. at 23.) Finally, not

only does Mackris fail to refute the fact that Mackris chose not to assert the very same breach of

contract claim for disparagement asserted by Bernstein, Mackris actually claims repeatedly that

O’Reilly’s statements constituted a “material breach of an arbitration agreement.” (Plaintiffs Br.

at 9-10.) That Mackris conveniently asserts that her claim does not touch upon the Mackris

Agreement (in a desperate gambit to avoid triggering the mandatory arbitration provision in the

Mackris Agreement), belies common sense and is a farce.

Equally, Diamond’s claims should be arbitrated. Like Mackris, Diamond claims that

O’Reilly defamed her by implying that she was an extortionist. Like Mackris, Diamond intends

on presenting “evidence plaintiffs were required to relinquish to O’Reilly and his counsel” in

support of her claims. (Plaintiffs Br. at 23.) Like Mackris, Diamond repeatedly contends that

O’Reilly’s statements constituted a breach of the Diamond Agreement, even though Diamond

conveniently failed to assert a breach of contract claim. The examination into the truth or falsity

of Diamond’s allegations is the subject matter of the Diamond Agreement and covered by its

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mandatory arbitration provision. Accordingly, even if this Court considers the threshold issue of

arbitrability, which it should not, Mackris and Diamond’s claims are subject to arbitration.

E. Bernstein Provides No Reason Why Her Claims Should Proceed Until After
The Mackris and Diamond Arbitrations

Faced with clear precedent above dictating that Mackris’s and Diamond’s claims need to

be resolved in arbitration, Bernstein presents an argument that is nothing more than a red-

herring, claiming that she cannot “be denied her access to court because other parties may be

signatories to such agreements.” (Plaintiffs Br. at 24.) O’Reilly makes no such argument.

Rather, he presented this Court with well-reasoned decisions instructing that Bernstein’s

overlapping claims should be stayed pending resolution of the arbitrations involving Mackris and

Diamond. (O’Reilly Br. at 9.) In addition to the stay that is required under the FAA, Bernstein

offers no retort to the well-settled case law holding that a “discretionary stay is particularly

appropriate where there is significant factual overlap between the remaining claims and the

arbitrated claims.” Winter Inv’rs, LLC v. Panzer, No. 14 Civ. 6852, 2015 WL 5052563, at *11

(S.D.N.Y. Aug. 27, 2015) (citing cases); see also Katsoris v. WME IMG, LLC, 237 F. Supp. 3d

92, 111 (S.D.N.Y. 2017) (“In light of the factual overlap between Plaintiffs’ non-arbitrable

claims against Viacom and their arbitrable claims IMG, the Court finds it appropriate to stay all

proceedings in this action pending arbitration.”). That Bernstein finds her claims lumped

together with the arbitrable claims asserted by Mackris and Diamond is a direct result of

Bernstein’s decision to amend her complaint and add Mackris and Diamond as plaintiffs. But, in

light of the FAA and the persuasive cases from other district courts within the Southern District,

Bernstein’s claims significantly overlap with the claims to be arbitrated and therefore should be

stayed pending those arbitrations.

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II. PLAINTIFFS FAIL TO STATE A CLAIM FOR DEFAMATION

Neither Plaintiffs’ opposition brief nor their Second Amended Complaint rehabilitates

their flawed claims for defamation against O’Reilly. Plaintiffs rely almost entirely on statements

allegedly made by O’Reilly that are taken completely out of context to suit Plaintiffs’ litigation

goals. As argued in O’Reilly’s brief in support, most of the alleged statements constitute general

denials of alleged misbehavior and commentary regarding media ethics and are not “of and

concerning” Plaintiffs. These statements are opinions and cannot constitute defamation, and none

of the statements are susceptible to a defamatory meaning as against Plaintiffs. Plaintiffs’

opposition brief fails to demonstrate how their allegations are not exactly as flawed as

Defendants have established in their moving papers.

A. O’Reilly’s Statements Can Only Be Understood In Context As Non-

Actionable Opinion

Plaintiffs’ reliance upon Davis v. Boeheim, 24 N.Y.3d 262 (2014), is misplaced. It is

clear from Plaintiffs’ opening paragraph that Davis does not apply as any reasonable reader or

listener would readily appreciate because O’Reilly was merely defending himself and his

character. See, e.g., William Blake Odgers, A Digest of the Law of Libel and Slander 228 (1st

Am. ed. Bigelow 1881) (recognizing an accused’s long-established “right to defend his

character”) (quoted in Chaffin v. Lynch, 83 Va. 106 (1887)). Plaintiffs argue that O’Reilly “made

false statements intending ‘to expose plaintiffs to public contempt, hatred, ridicule, aversion or

disgrace.’” O’Reilly has already established that the statements he made cannot reasonably be

characterized as “of and concerning” Plaintiffs (O’Reilly Br. at 13-15) but, beyond that, all of

O’Reilly’s alleged statements were made in defense of his own character, discussing his own

actions or lack of actions, and not with any intent to harm Plaintiffs, who are not mentioned in

these statements. The statements are not defamatory.

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O’Reilly, like everyone else, is permitted to defend himself and deny allegations of

wrongdoing when confronted with them. See, e.g., McNamee v. Clemens, No. 09 CV 1647, 2013

U.S. Dist. LEXIS 107551, at *8 (E.D.N.Y. July 31, 2013) (“General denials of accusations are

not actionable as defamation.”). The Davis decision centers on statements made by parties other

than the accused. Neither defendant in Davis was in a position to deny allegations made against

themselves as individuals, based on first-hand knowledge, and were instead allegedly reporting

the results of investigations into the alleged abuse committed by a third-party. Davis, 24 N.Y.3d

at 265-66. As the Court of Appeals in Davis held, this type of third-party statement, explicitly

referring to and relying upon undisclosed findings of an investigation, is not viewed as an

“opinion” and therefore may be defamatory.

Plaintiffs do not allege such statements against O’Reilly in the instant action. “[A]

person under attack may properly allege, in Dean Prosser’s words, ‘that his accuser is an

unmitigated liar and the truth is not in him.’” Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541,

1562 (4th Cir. 1994) (quoting Prosser and Keeton on the Law of Torts, § 115, 825 (5th ed.

1984)). Using Plaintiffs’ own selected argument from Davis (Plaintiffs’ Opp. Br., 19), it is clear

that “a reasonable [reader, listener or viewer]” would have concluded that O’Reilly’s statements

were made out of his personal desire and right to defend his character, and not that they were

“conveying facts about the plaintiff.” Davis, 24 N.Y.3d at 269-70. None of O’Reilly’s

statements can fairly be characterized as “altogether disproportionate to the occasion.”

Montgomery Ward & Co. v. Watson, 55 F.2d 184, 188 (4th Cir. 1932). “The immediate context

in which the statements were made would signal to the reasonable reader or listener that they

were opinion and not fact.” Jacobus v. Trump, 156 A.D.3d 452, 453 (1st Dep’t 2017), leave to

appeal denied, 2018 WL 1597479 (N.Y. Apr. 3, 2018).

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Plaintiffs’ reliance on the recent decision in Zervos v. Trump, ---N.Y.S.3d---, 2018 WL

1404883, at *2 (Sup. Ct. N.Y. Cty. Mar. 20, 2018), is similarly misplaced. The complaint in

Zervos is replete with statements that the defendant made specifically about plaintiff. Defendant

went beyond merely denying the allegations to directly and repeatedly accusing the plaintiff,

specifically, of lying, being manipulated, and seeking fame and money. By contrast, O’Reilly’s

statements have mostly focused on himself and his actions, while sometimes also impugning the

motives of the media, generally, and those who may have organized a sponsor boycott against

him. A comparison of the allegations in Zervos with those of the instant case further highlights

Plaintiffs’ deficient claims. Plaintiffs have once again failed to state a claim for defamation

against O’Reilly and the Second Amended Complaint should be dismissed.

B. O’Reilly’s Statements Were Not “Of and Concerning” Plaintiffs

In their opposition brief, Plaintiffs barely address the fatal flaw in their claim: O’Reilly’s

statements were not “of and concerning” Plaintiffs and therefore cannot be the basis for

sustaining a defamation claim against him. (O’Reilly Br. at 13-16.) Rather than contend with

this glaring deficiency, Plaintiffs argue that O’Reilly statements must have been “of and

concerning” them because they appear in a news article that includes their names. The law,

however, requires much more, even at the pleading stage.

Plaintiffs’ are simply wrong when they contend that this is a jury question, as the Court

of Appeals unambiguously held in its recent decision in Three Amigos SJL Rest., Inc. v. CBS

News Inc., 28 N.Y.3d 82, 86-87 (2016):

[Plaintiffs] must plead and prove that the statement referred to them and that a
person hearing or reading the statement reasonably could have interpreted it as
such. This burden is not a light one, and the question of whether an allegedly
defamatory statement could reasonably be interpreted to be “of and concerning” a
particular plaintiff is a question of law for the courts to decide.

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Id. (emphasis added) (citations omitted). See also Springer v. Viking Press, 60 N.Y.2d 916, 917

(1983) (“[W]hether the complaint sufficiently alleges that [a book character] refers to plaintiff is

a matter for the court . . . .”); Carlucci v. Poughkeepsie Newspapers, Inc., 57 N.Y.2d 883, 885

(1982) (“[A]s a matter of law, that the article was not of and concerning the corporation.”).

Plaintiffs’ reliance upon the Zervos decision is once again misplaced. The footnote from

which Plaintiffs’ excerpted their preferred standard makes clear that in that case the defendant

“referred to ‘every woman’ who came forward” and that, “[t]he context of other statements –

some of which were made days after plaintiff’s press conference, related to allegations raised at

her press conference or mentioned plaintiff and her family” made those statements sufficiently

“of and concerning” that plaintiff. Zervos, 2018 WL 1404883, at *2-3 n.3. Plaintiffs do not

allege any statements by O’Reilly that even approach these types of statements. None of the

allegedly defamatory statements mention Plaintiffs by name, nor do they discuss any specific

allegations that Plaintiffs have made. Indeed, the new allegations in the Second Amended

Complaint make clear that O’Reilly’s statements did not concern Plaintiffs at all. (Second

Amended Complaint, ¶ 68 (“O’Reilly claimed there was a ‘left wing conspiracy that was behind

his ouster and that he had been organizing a legal team to get the truth out to the American

people . . . [and] we have physical proof that this is bullshit.’”); see also Id. at ¶ 50 (stating

O’Reilly conducted an investigation that produced “shocking results” about how “he was ‘the

latest victim’ of a progressive campaign aimed at getting him off the air”).)

Bernstein’s “of and concerning” argument is even weaker. The articles from which

Plaintiffs pull statements made by O’Reilly discuss allegations of sexual harassment. Bernstein

has never alleged sexual harassment against O’Reilly. Therefore, even if O’Reilly’s general

denials of allegations made against him, in the context of news articles about sexual harassment

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allegations, could constitute defamation – and they cannot – Bernstein cannot claim that those

statements are “of and concerning” her.

C. O’Reilly’s Statements Are Not Defamatory

As argued in O’Reilly’s initial brief (O’Reilly Br., 16-21), the statements by which

Plaintiffs allege that O’Reilly defamed them are not themselves defamatory. Plaintiffs added

additional allegations, with some new allegedly defamatory statements by O’Reilly, to their

Second Amended Complaint, but none of these do anything to save Plaintiffs’ deficient claims.

Plaintiffs continue to misconstrue statements that O’Reilly made regarding members of the

media (see, e.g. Second Amended Complaint, at ¶¶ 26, 47, 50, 68, 71-72, 78) as statements about

them, but their mistake is clear and incontrovertible. One example that glaringly demonstrates

Plaintiffs’ attempt to obfuscate their way to a viable claim can be found in Paragraph 50 of the

Second Amended Complaint, wherein Plaintiffs allege, or really surmise, that O’Reilly’s

statement about the media (“They don’t care if it’s true or not. Allegations become facts”) is

about Plaintiffs. Plaintiffs’ claim defies the plain meaning of the statement they are excerpting.

Plaintiffs also fail to establish that O’Reilly’s statements casting himself as a “target” or

“victim” are in any way defamatory. Such statements are clearly opinion. Likewise, O’Reilly’s

musings about the motivations behind those who criticize and accuse him, none of which

mention or otherwise identify Plaintiffs, are not defamatory. They are precisely the sort of

“loose, figurative, or hyperbolic” language “that is not actionable for defamation.” Small Bus.

Bodyguard Inc. v. House of Moxie, Inc., 230 F. Supp. 3d 290, 311-12 (S.D.N.Y. 2017) (quotation

omitted). Rather than attempting to remediate their flawed allegations in their Second Amended

Complaint, Plaintiffs instead doubled down, adding additional non-defamatory statements in

which O’Reilly characterizes himself, and says nothing about the Plaintiffs. Plaintiffs failed

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even to address the cases cited by O’Reilly that unequivocally demonstrate that these statements

cannot be the basis of a cause of action for defamation against O’Reilly. (O’Reilly Br. at 16-18.)

Even if Plaintiffs could twist O’Reilly’s self-referential and non-specific statements into

remarks addressed to them, they are the types of statements that are routinely found to be

hyperbole and opinion, not fact, and therefore are not actionable. See Marchuk v. Faruqi &

Faruqi, LLP, 100 F. Supp. 3d 302, 314 (S.D.N.Y. 2015) (defendant’s statement that plaintiff had

attempted to use lawsuit to extort defendants was not actionable defamation); Sabharwal &

Finkel, LLC v. Sorrell, 117 A.D.3d 437, 437-38 (1st Dep’t 2014) (plaintiff’s statement that

defendant “broached the topic of settlement with their client’s adversaries in an attempt to

‘extort’ money from them” was not actionable because “a reasonable reader would conclude that

they constitute hyperbole and convey non-actionable opinions about the merits of the lawsuit and

the motivation of [defendant’s] attorneys, rather than statements of fact”); Costanza v. Seinfeld,

279 A.D.2d 255, 256 (1st Dep’t 2001) (defendant’s statement that plaintiff was “flagrant

opportunist” who had “greatly exaggerated his relationship” with comedian was “the expression

of opinion, which is not actionable”).

As argued previously, O’Reilly’s statements that he “never mistreated anyone” are not

actionable. (O’Reilly Br. at 16-19.) Such statements are inherently subjective, as words like

“mistreated” have no “precise and readily understood meaning.” Levin v. McPhee, 119 F.3d

189, 196 (2d Cir. 1997). See also Springer v. Almontaser, 75 A.D.3d 539, 541 (2d Dep’t 2010)

(“The defendant’s statement that she was stalked and harassed was not an actionable statement of

objective fact because it did not have a precise, readily understood meaning, and would clearly

be understood by a reasonable listener to be a figurative expression of how she felt as the object

of the campaign.”)

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Examining each of Plaintiffs’ new allegations piece by piece makes clear their failure to

establish a basis for their claims against O’Reilly. In Paragraph 67 of the Second Amended

Complaint, Plaintiffs excerpt recordings of an interview that they erroneously describe as a

“press conference.” According to Plaintiffs, the statements in this excerpt were “false,

defamatory and meant to portray himself as a victim.” (Second Amended Complaint at ¶ 68.)

Leaving aside for a moment that portraying oneself as a “victim” does not give rise to a cause of

action for defamation, nothing in the excerpt is defamatory:

 “Well, it’s been a horrendous experience.” – Opinion. Not actionable.

 “I’ve been in the broadcast business, journalism business 43 years.” – Not

defamatory. Not actionable

 “I’ve never had on complaint filed against me by a coworker, in any human

resources department in 43 years.” – Not defamatory. Does not refer to
Plaintiffs. Not actionable

 “And that encompasses 12 different companies.” – Not defamatory. Not

actionable

 “So, all of a sudden, all this stuff happens, and the pain it brings my children is
indescribable. Indescribable.” – Opinion, does not refer to Plaintiffs. Not
actionable.

 “And I would give up my life to protect my children, but I find myself not able to
protect them because of things being said about me, their father.” – Opinion,
hyperbole, does not refer to Plaintiffs. Not actionable.

 “Eric Bolling’s son is dead. He’s dead. Because of allegations made, in my

opinion, and I know this to be true, against Mr. Bolling. No game.” (emphasis
added) – Opinion, not related to Plaintiffs or their claims. Not actionable.

(Second Amended Complaint at ¶ 67.) All of the additional allegations fit this mold. Neither

Plaintiffs’ opposition brief, nor their Second Amended Complaint, establish viable claims for

defamation against O’Reilly. Strikingly, though Plaintiffs allege numerous times that O’Reilly

called them liars, they fail to identify even a single statement where O’Reilly is alleged to have

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used that word. That Plaintiffs cannot even support their foundational allegation by more than

inference and linguistic contortion highlights how completely deficient this suit is on the merits.

III. BERNSTEIN MAY NOT ASSERT A BREACH OF CONTRACT CLAIM

AGAINST O’REILLY BECAUSE THERE IS NO CONTRACT BETWEEN
THEM

As set forth in O’Reilly’s initial brief (O’Reilly Br. at 10), Count One of the Second

Amended Complaint must be dismissed against O’Reilly because, under “New York law, non-

parties generally cannot be held liable for breach of contract.” Rennaker Co. Consulting v. TLM

Grp., LLC, No. 16 Civ. 3787, 2017 WL 2240235, at *3 (S.D.N.Y. Mar. 29, 2017) (Batts, J.).

There are narrow exceptions to this rule in which a stranger to the contract can be held liable if

the contract has been assumed or assigned. See Impulse Mktg. Grp., Inc. v. Nat’l Small Bus. All.,

Inc., No. 05-CV-7776, 2007 WL 1701813, at *5 (S.D.N.Y. June 12, 2007) (“It is hornbook law

that a non-signatory to a contract cannot be named as a defendant in a breach of contract action

unless it has thereafter assumed or been assigned the contract.” (quotation omitted)). Bernstein

alleges neither: O’Reilly has not been assigned, nor has assumed the obligations of, the contract.

Instead, Bernstein argues that a third-party beneficiary to a contract “is estopped to deny

any obligations, like non-disparagement, imposed by the contract.” (Plaintiffs Br. at 24 (citing

Aguas Lenders Recovery Grp. LLC v. Suez, S.A., 585 F.3d 696, 700-01 (2d Cir. 2009) and

LaRoss Partners, LLC v. Contact 911 Inc., 874 F. Supp. 2d 147, 155-56 (E.D.N.Y. 2012).)

Neither of these cases informs this Court that dismissal is inappropriate as both cases involved

the situation where the non-party assumed the obligations under the contract. For example, in

Aguas, 585 F.3d at 702-03, the Second Circuit determined that there were sufficient allegations

that the third-party was the successor in interest to the signatory of the contract (that is, “assumed

control of [the signatory]”). Similarly, LaRoss, 874 F. Supp. 2d at 145, also concerned whether a

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forum-selection clause could be enforced against a non-party to a contract. In addition to finding

that the non-party assumed the obligations under the contract, LaRoss, 874 F. Supp. 2d at 157-

59, the court found that the non-party was estopped from denying the enforceability of the forum

selection clause because the non-party directly benefited from the agreement in that: (a) the

subject of the agreement was the product of the non-party; and (b) shared in the revenue pursuant

to the revenue sharing provision of the contract. Id. at 156-57. LaRoss never held that a non-

disparagement provision of a contract is enforceable against the non-signatory and there are no

allegations that O’Reilly knowingly accepted and exploited the benefits of Bernstein’s settlement

agreement such that estoppel is appropriate. Because the Amended Complaint is devoid of any

allegation bringing Bernstein’s claim into the small universe of exceptions to the well-settled

general rule, Bernstein’s breach of contract claim must be dismissed.

CONCLUSION

For the reasons stated, Mackris and Diamond’s claims must be sent to arbitration and

Bernstein’s defamation claim should be stayed pending those arbitrations; in the alternative, the

Plaintiffs’ claims must be dismissed.

Dated: April 20, 2018 Respectfully submitted,

New York, New York
HOGUET NEWMAN
REGAL & KENNEY, LLP

By:
Fredric S. Newman
Andrew N. Bourne
10 East 40th Street
New York, New York 10016
(212) 689-8808

Attorneys for Bill O’Reilly

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