Ahead of a trial set to take place in the fall, the pop star is looking to exploit recently enacted anti-SLAPP legislation designed to deter bullying in the courts by powerful individuals.
Kesha Rose Sebert has yet another new move to show in a legal battle against producer Lukasz “Dr. Luke” Gottwald. On Tuesday, in a defamation battle that has apparently gone on forever (actually seven years), the pop star sought permission from the court to assert a new counterclaim based on New York’s recently enacted anti-SLAPP law.
Since 2014, Dr Luke has been suing Kesha claiming that she sullied him with false rape allegations. He has largely won. His previous counterclaims were dismissed, and then in February 2020, Dr. Luke obtained numerous benefits over summary judgment, including the judge’s finding that he was not a public figure and that the singer released a misrepresentation when she texted Lady Gaga that he had also raped Katy Perry.
But as the case moves forward, now toward a trial date expected to come this fall, the ground under the parties’ feet has changed. Last year, inspired by individuals like Donald Trump and Harvey Weinstein, New York adopted a law to protect gratuitously speech from frivolous lawsuits. Anti-SLAPP legislation has many elements, and it can work as libel defendants are on a massive winning streak.
Now, Kesha, advised by Daniel Petrocelli and Leah Godesky of O’Melveny, hopes to use the anti-SLAPP law allowance for a counterclaim to sue for compensatory and punitive damages plus attorney fees and costs. she spent seven long years defending what Kesha’s legal team believes. be a baseless libel suit.
The movement is radical in more than one way.
Initially, because the judge ruled that Dr Luke was a private figure, he did not need to show that Kesha had made false statements with real nastiness, which means knowledge of the falsehood or reckless disregard. of the truth. Negligence would do the trick. This decision is now under appeal and Kesha’s position that one of the entertainment industry’s top producers is a public figure garnered support from media law circles. The Journalists’ Committee for Freedom of the Press as well as news organizations like The Daily Beast, Dow Jones, New York Public Radio and others filed an amicus brief in favor of Kesha.
While Kesha still hopes a New York appeals court will overturn the trial judge’s decision, the new anti-SLAPP law provides for situations where evenprivate characterssometimes have to show real nastiness to win. These situations are where freedom of expression is exercised on matters of public interest.
“As this Court has already found, Keshas’ statements that Dr. Luke sexually assaulted her (and another world famous female artist) are considered a matter of public interest,” says a new memorandum from Kesha’s team. “There could be no serious debate to the contrary. Indeed, one of the three courts to have already applied [the new anti-SLAPP statute] stressed that “sexual irregularities and pressure in the music industry” are “unquestionably” a matter of public interest “.
(The reference is to a decision of February 26 where an aspiring saxophonist prevailed against an established jazz musician whom she accused of pushing her into sex.)
The memorandum added: “The plaintiffs’ allegations of defamation obviously involve a matter of public interest, and if the jury concludes that Keshas’s report on the sexual assault of Dr. Lukes is true, it necessarily follows that Dr. Luke brought this lawsuit only to harass and intimidate Kesha. “
Below is the full memorandum. Both parties will appear before Judge Jennifer Schecter later this month to decide whether the amended counterclaim will be allowed. Anti-SLAPP laws have been passed across the country; but it would be an extremely rare case where the defendant would have eventually collected damages after the plaintiffs partially prevailed over the summary judgment. In other words, if Kesha succeeds, it is hardly a given.
Meanwhile, Keshas’ attorneys and Dr. Luke’s attorneys are exchanging witness and exhibit lists and will likely release them to the public in June in time for a pre-trial conference. A tough test date has yet to be set.
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