First Department dismisses high-profile SLAPP suit

A few years ago, New York amended its law prohibiting strategic lawsuits against public participation. These are known as SLAPP suits, filed against people who publicly disparage or criticize individuals in a public form. This lawsuit was filed by a wealthy businessman against a woman who publicly accused him of sexual abuse. The First Department says this is a SLAPP suit prohibited under New York law, and the case is dismissed.

The case is Black v. Gunieva, issued on March 6. In the interests of full disclosure, I represent Ganieva in a separate action against Black seeking to nullify a release that barred her from suing Black for sex abuse and defamation. That case was dismissed and the First Department affirmed that dismissal over a strong dissent. Gunieva is now trying to certify that case for review by the New York Court of Appeals. That lawsuit is the reason Black is suing Ganieva for malicious prosecution.

State Supreme Court summarizes the facts of the SLAPP suit this way:

In sum, plaintiff and Ganieva had a years-long intimate relationship, which ended with Ganieva’s signing of a non-disclosure agreement (NDA) in exchange for the sum of at least $9.5 million. In 2021, after years of silence, Ganieva spoke publicly about her relationship with plaintiff, thereby violating the NDA and causing plaintiff to cease making payments to her thereunder. In response, Ganieva sued plaintiff, with Wigdor as her legal counsel and the law firm that filed the lawsuit.

I would note that, apart from the "intimate relationship," Ganieva asserts the relationship was abusive. After Ganieva sued Black (the case in which I am involved), Black filed this malicious prosecution lawsuit, claiming Ganieva's lawsuit was meritless and barred by the NDA and was intended solely to harass Black. State Supreme Court allowed this lawsuit to proceed, but the First Department holds that Black's lawsuit is a SLAPP suit. "The claim, rooted in allegations involving defendants’ commencement and prosecution of a legal action, is a claim based upon communications made in a public forum and conduct in furtherance of the exercise of the constitutional rights of free speech and petition." The recently-amended SLAPP law is Civil Rights Law sec. 76-a. (Previously, the SLAPP law had little teeth).

Relatedly, under the SLAPP statute (see CPLR 3211(g)(1), the malicious prosecution claim is properly dismissed because he has failed to show the case has a "substantial basis," which means “'such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact', which is the same 'substantial evidence' standard that 'has been equated with the ordinary summary judgment standard,' and it requires the submission of evidence such as an affidavit rather than reliance on the mere allegations in the complaint." Since Black did not submit evidence showing that his claim against Gunieva had merit, he cannot show his case has a "substantial basis."


 

 

No attorneys' fees despite so-ordered civil rights stipulation in plaintiff's favor

The limits of the fee-shifting statute in civil rights cases are on display here. Plaintiff got the relief he wanted in this disability discrimination claim against Stony Brook University, but he does not recover his attorneys' fees, which I am sure were sizeable.

The case is Sampson v. Stony Brook University, a summary order issued on March 4. Plaintiff was a medical student at Stony Brook. In separate litigation, he won a injunction against the outside testing agency, NBME, entitling him to testing accommodations. But that injunction was vacated on appeal because plaintiff's alleged inability to progress in medical school  depended in part on whether he could obtain an extension of his graduation date from Stony Brook. In the litigation against Stony Brook, the parties then stipulated that plaintiff would have until August 12, 2024 to complete his medical education. The stipulation was memorialized in a court order. Plaintiff eventually passed the medical exam, prompting the district court to dismiss the case as moot.

The Second Circuit (Lynch, Robinson and Nathan) holds that plaintiff will recover no attorneys' fees even though he got the relief he wanted. Why? Because the court-ordered stipulation did not have the requisite "judicial imprimatur" required under Supreme Court cases interpreting the fee-shifting statutes. First, as the Supreme Court just recently stated in Lackey v. Stinnie, 2025 WL 594737 (2025), "a plaintiff who successfully secures interim relief in the form of a preliminary injunction, and then ultimately achieves the desired result due to extrinsic factors that moot the case, may not be a prevailing party." The other central case on this issue is Buckhannon v, West Virginia, 532 U.S. 598 (2001), which holds that a case mooted out by defendant by giving the plaintiff the relief he requested does not render the plaintiff a prevailing party under the fee-shifting statutes.

While settlement agreements attained through a consent decree, a stipulation memorialized in a court order is not enough to turn this agreement into a consent decree enforceable by a court. The Second Circuit has already held that a so-ordered stipulation of dismissal is not the same as a judgment or consent decree. Since the so-ordered stipulation neither retained jurisdiction with the court to enforce the underlying settlement, and the stipulation was not incorporated into the order of dismissal, plaintiff cannot recover his attorneys' fees.

New York's measles vaccination law does not violate the Free Exercise Clause

Apart from the COVID-19 issue, the other vaccine challenge these days involves the measles. The measles issue arise first, in 2019, when New York eliminated the religious exception to the policy that schoolchildren must take the measles vaccine. Litigation has been brewing ever since. This case upholds the state-wide elimination of the religious exemption.

The case is Miller v. McDonald, issued on March 3. The plaintiffs are three Amish community schools that were fined by New York for noncompliance with the immunization law. They want a religious exemption on the basis that the measles vaccination violates their religious principles, and their religion also requires education in a "group setting" and not home-schooling, which many parents have opted for to avoid the vaccine.

The vaccine law adopted in 2019 will be struck down unless it is a law of "general applicability," that is, if it applies to everyone and does not single out any particular religion. Plaintiffs, of course, argue that the 2019 law violates the Free Exercise Clause because it is not neutral. They argue that the language of the 2019 amendment, and comments from legislators who voted on the amendment, demonstrate religious hostility. 

 

The Court of Appeals (Cabranes, Wesley and Lee) says, the law is neutral on its face and does not target or affirmatively prohibit any religious practices; it applies to all schoolchildren in New York who do not qualify for the medical exemption. 

Nor does the legislative history reflect any religious bias. While plaintiff identifies some hostile comments from a few legislators, they have not alleged facts showing those remarks infected "a sizable portion of legislators' votes or otherwise influenced the law's enactment." One case from the Appellate Division holds that statement from three percent of the legislature did not "taint to actions of the whole" in enacting this provision. That case hurts the plaintiffs' case. Another case on this issue involving measles vaccines, M.A. v. Rockland County, 53 F.4th 29 (2d Cir. 2022), held that religious hostility from two governmental officials responsible for issuing a challenged emergency declaration on measles was enough to find liability against the county. But this case is not like the Rockland County case because we are talking about the actions of the State Legislature, not a smaller governmental body like county government.

Supreme Court turns away First Amendment challenge to university bias response teams

One of these days, the Supreme Court is going to decide whether public colleges and universities violate the First Amendment in maintaining bias response teams that investigate complaints that other students have engaged in offensive speech or conduct motivated by bias or prejudice and meant to intimidate, demean, mock or degrade an individual or group's identifies. That day has not arrived, but two Justices think this issue is ripe for Supreme Court review.

The case Speech First, Inc. v. Whitten (scroll down to the end).The Supreme Court denied certiorari on March 3. Justices Alito and Thomas wanted to take the case, and Thomas wrote a dissent from the denial of certiorari. It takes four Justices to hear the case. 

Under the policy at Indiana University, a bias complaint is reviewed by the bias response team which cannot impose discipline or conduct formal investigations but can assess whether anyone violated university policy or any criminal laws. The team an refer the matter to other campus offices with disciplinary power. The argument is that these policies violate the First Amendment because they might chill constitutionally-protected speech on campus. 

The plaintiffs are conservative students who hold "unpopular" views about gender identify, the Israeli-Palestine conflict, immigration, and affirmative action. The Seventh Circuit held the plaintiffs lack standing to sue because they have not shown the bias response policies will be enforced against them or that any student has faced an objectively reasonable chilling effect on their speech. But, Justice Thomas notes, three Circuits have held otherwise and fond that bias response policies "objectively chill" student speech, including the Fifth, Sixth and Eleventh Circuits. Circuit splits usually wind up in the Supreme Court, 

Justice Thomas believes the Seventh Circuit most likely got this issue wrong because 

It is well settled that plaintiffs may establish standing based on “the deterrent, or ‘chilling,’
effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights.” And, in assessing whether an “objective chill” exists in a particular case, courts must “look through forms to the substance” of the government’s “informal sanctions." The Seventh Circuit’s emphasis on the formal limits of a bias response team’s power seems hard to square with this Court’s framework.

He adds, "Given the number of schools with bias response teams, this Court eventually will need to resolve the split over a student’s right to challenge such programs. The Court’s refusal to intervene now leaves students subject to a 'patchwork of First Amendment rights,' with a student’s ability to challenge his university’s bias response policies varying depending on accidents of geography."

I guess the bias response teams fall under the DEI category. DEI is in the news these days because the President has objected to them. I wonder if the administration will threaten to withhold funds from colleges and universities that maintain such anti-bias rules and procedures.