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Bada Bing: Insufficient Actual Malice Allegations Doom Defamation and False Light Claims

By Eli Segal

In December 2017, the New York Daily News reported on the government-ordered shuttering of Satin Dolls, the New Jersey strip club where "The Sopranos"—HBO's show about fictional mafia-boss Tony Soprano—frequently filmed. This Daily News article described the club's connection to "The Sopranos" and explained that the state had closed down the club because the man running it in real life was a convicted racketeer and, therefore, was not permitted to have a liquor license. Accompanying the article was a photograph of two women who worked at Satin Dolls, smiling and posing on either side of a "Sopranos" license plate and hat and a picture of James Gandolfini—the actor who played Tony Soprano.

One of the two women in the photograph, New Jersey resident Diana LoMoro, sued the Daily News in the Eastern District of Pennsylvania (apparently because that is where her lawyer was located). In her operative amended complaint, Ms. LoMoro contended that the article—which never mentioned her by name or otherwise referred to her in any way—defamed her and painted her in a false light in two different ways. First, as the primary focus of her case, Ms. LoMoro maintained that, for unexplained reasons, the Daily News intentionally "doctored" the photograph that it published, making her appear "fatter, larger, uglier, blotchier, discolored, disproportionate and grotesque." Second, Ms. LoMoro asserted that, by implication, the article falsely linked her to criminal conduct.

Under New Jersey law, which governed Ms. LoMoro's claims, actual malice is the standard of fault for any publication about a matter of public concern. See Durando v. Nutley Sun, 37 A.3d 449, 458 (N.J. 2012). And the Daily News article was about a matter of public concern—specifically, a strip club featured on a popular fictional television show about the mafia being shut down by the government due to the club's real-life connections to organized crime. Therefore, to state a claim for defamation or false light invasion of privacy, Ms. LoMoro needed to plausibly allege that the Daily News published the article with actual malice.

The Daily News moved to dismiss for, among other reasons, Ms. LoMoro's failure to meet this actual malice pleading obligation. The Daily News argued that, while Ms. LoMoro did plead that the Daily News "intentionally altered and doctored" the photograph so as "to disparage and diminish her appearance," this allegation of knowing falsification was conclusory (not to mention absurd) and therefore was entitled to no presumption of truth even at the motion to dismiss stage. Put differently, in the words of the Supreme Court in Iqbal v. Ashcroft, Ms. LoMoro pleaded no "factual content that allow[ed] the court to draw the reasonable inference" that the Daily News had in fact knowingly falsified the photograph. To the contrary, it would have defied common sense for the Daily News to have done so. After all, what possible reason would there have been for the Daily News to have "doctored" the photograph as Ms. LoMoro claimed? What benefit could there have been to the Daily News in altering a photograph of a woman who is never mentioned in the associated article so as to allegedly make her look "fatter" and "uglier"?

In response, rather than attempting to show how her amended complaint sufficiently alleged actual malice, Ms. LoMoro submitted and relied upon a one-page "preliminary expert report" from a photographer. Without explaining his expert qualifications or methodology, the photographer opined that the photograph at issue was "intentionally" "altered to depict Ms. Diana LoMoro as ugly and grotesque." He asserted, among other things, that the "[l]egs have been changed by either replacing Ms. Diana LoMoro's legs with others that are largely bigger or her legs were scaled up to be larger than they actually are." Moreover, the photographer claimed that "[a]ll of my opinions are expressed within a reasonable degree of photographic and visual artistic certainty"

The Court was not persuaded. On March 8, 2019, it dismissed Ms. LoMoro's amended complaint with prejudice. In a one-page order, the Court explained that actual malice was an element of Ms. LoMoro's defamation and false light claims given that the article was about a matter of public concern; that "Plaintiff has failed to plead actual malice on the part of the Defendant with respect to her defamation and false light claim; and that "[t]his failure requires dismissal of Plaintiff's claims." Ms. LoMoro filed a motion for reconsideration, which the Court ultimately denied. Ms. LoMoro did not appeal.

Defendant Daily News, L.P., the publisher of the New York Daily News, was represented by Eli Segal of Pepper Hamilton LLP and Matthew Leish of Tribune Publishing Company. Plaintiff Diana Lomoro was represented by Simon Rosen of the Law Office of Simon Rosen, PLLC.

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