Judge dismisses Jay-Z's extortion and defamation lawsuit against Tony Buzbee
The long-awaited final ruling follows two tentative orders and reverses course on the actual malice of the plaintiff lawyer's statements about rape lawsuits he's pursuing.
A judge has dismissed rapper Shawn “Jay-Z” Carter’s extortion and defamation lawsuit against the attorney who sued him for rape.
The new ruling changes tentative orders issued in February and March after Los Angeles County Superior Court Judge Mark Epstein decided he can’t consider recorded statements of Carter’s accuser because the woman was acting under an implied threat that her name could be publicized and that “if she cooperated, but perhaps only if she cooperated, Carter would not sue her.”
The “tenor and tone” of the investigators who visited the woman at her home in Alabama and secretly recorded her “was civil and respectful throughout the interview. They were polite and friendly,” according to the order filed Monday.
“But the court must take their words in context. They came on Doe unannounced and without warning, obliquely and reluctantly admitting that they were—sort of—there on Carter’s indirect behalf and with a potential issue of disclosure and litigation looming in the background—or even foreground,” Epstein wrote, referring to the woman’s pseudonym, Jane Doe.
The judge also rejected the investigators’ statements that the woman “was calm and relaxed throughout.”
“That is not what the court heard,” Epstein wrote. “To the court’s ear, Doe was concerned and distressed that the investigators had discovered who she was and where she lived. She did not expect to see them on her property and knocking on her door. At times, her voice dropped down to a whisper. And her statements changed from the start of the interview—when she did seem to implicate Carter—to the end.”
Epstein’s tentative order in February dismissed three statements from Buzbee that Carter alleged defamed him but allowed three to move forward. His final order, however, dismisses all six because he said there’s no indication that Buzbee made them maliciously, knowing they were false and intending to defame, which is the legal standard for defamation of a public figure such as Carter. The related intentional infliction of emotional distress claim also was dismissed.
The judge said he would rule differently if he could legally consider the woman’s statements to investigators because “then there would be some evidence not only that Carter had nothing to do with any sexual assault on Doe, but that Buzbee knew it in the sense that (according to Doe) it was Buzbee that kept pressing to get Doe to implicate Carter.”
“That pressure, coupled with the statement by Buzbee that he had investigated the claims, would be enough to support an inference of actual malice. Therefore, but for the court’s evidentiary ruling, the court would come out the other way on this motion,” the judge wrote.
Epstein said he wishes case law regarding admissibility “were just a teeny bit more flexible,” and he said he’d interpret legal issues in the controlling case, Sanchez v. Bezos, “a bit more broadly,” but “it is well settled that this court must follow Sanchez.”
“Period. Full stop. The court is aware of no appellate authority questioning Sanchez or reaching a different rule or conclusion. Therefore, this court is bound to follow Sanchez fairly read and applied, and it will do so,” Epstein wrote. Sanchez involved the now-brother-in-law of Amazon founder Jeff Bezos suing him for defamation.
Epstein ended his 65-page order by cautioning that he’s “not wholly satisfied that this is the outcome that best serves the legislative and constitutional doctrines.”
“All of that said (and at length), this court is only the first stop on the parties’ [Special Motion to Strike] journey. It will be for the Court of Appeal to determine whether the court got it right or wrong, and whether the suit ought to go forward or ought to end. Stay tuned,” wrote Epstein, who has been a judge since 2017 and is the son of late California Court of Appeal Justice Norman Epstein.
Buzbee called the ruling a “huge win” and referenced Carter by the pseudonym he originally sued under, John Doe.
“As I said when it was filed, the case was completely meritless. We will now seek attorneys’ fees against John Doe for bringing the legally flawed case,” Buzbee, who’s based in Houston, Texas, and has filed dozens of lawsuits against Combs, wrote on X. He also wrote on Instagram, “Glad a judge saw through this. Time to get back to real work.”
Carter’s lawyer Alex Spiro said they “are surprised and disappointed by this ruling. He said the judge misapplied California law “on the admissibility of the investigators’ statements” and noted the statement about how the ruling would have changed “dramatically” if he’d considered the woman’s statements.
“What does it say about our justice system if someone can knowingly bring about completely false claims of the most heinous nature imaginable against an innocent individual and get away with it on a technicality? We plan to appeal this case immediately,” said Spiro, a partner at Quinn Emanuel Urquhart & Sullivan, LLP, in New York City.
Quinn Emanuel partner Robert M. Schwartz in Los Angeles filed notice of appeal Tuesday afternoon.
Full dismissal follows two tentative orders
Using the John Doe pseudonym, Carter sued Buzbee for extortion on Nov. 18, three weeks before Buzbee filed a federal lawsuit accusing him and Sean “Diddy” Combs of raping a 13-year-old girl during an afterparty for the MTV Video Music Awards in New York on Sept. 7, 2000.
The extortion claim concerns two demand letters Buzbee sent Carter’s lawyers before he sued, one on behalf of the woman and another on behalf of a man whom Buzbee accused Carter of raping him in 2005 when he was 16. The man never sued, and Buzbee moved to dismiss the woman’s lawsuit in February amid problems regarding his ability to practice in the Southern District of New York. Carter’s lawyers, meanwhile, amended their extortion complaint to include defamation for six statements Buzbee made during media appearances about his lawsuits.
Buzbee’s lawyers moved to dismiss all claims under California’s anti-Strategic Lawsuit Against Public Participation law, which aims to thwart lawsuits designed to infringe participation in a public process.
Epstein planned to dismiss the extortion claim because he said Buzbee’s pre-lawsuit letters to Carter were protected under litigation privilege and not outside the norm for demand letters. But the judge indicated he may change his mind after Carter’s lawyers told him of possible new evidence during a Feb. 25 hearing, filed declarations from two private investigators, Christine Henderson and James Butler, that described a conversation they had with Carter’s accuser outside her home in Alabama, where they arrived unannounced to question her about the lawsuit and Buzbee.
During the discussion, the woman said Carter was at the party but said Buzbee insisted on going with him in the lawsuit. She also affirmed investigators’ statement that he didn’t rape her.
Buzbee’s lawyers later filed a declaration from the woman that says she dismissed her rape lawsuit against Combs and Carter only because of fear. She said the investigators who visited her home asked her to sign an affidavit stating her claims are false but “I refused.”
“They also asked me if Mr. Buzbee sought me out as a client, and whether Mr. Buzbee offered to pay me to pursue a false claim against Jay-Z. I told them that neither of those things ever happened, and I asked them to leave me alone,” according to the declaration.
Epstein issued a new tentative order in March that revived the extortion claim based on the investigators’ declarations. Buzbee’s lawyers pushed back during a hearing in April, with Sam Moniz of Sheppard, Mullin, Richter & Hampton LLP calling Carter’s claims against Buzbee “an attack on the right to free speech.”
“It’s an abusive case. It deserves to be dismissed,” Moniz said. “If this case can survive an anti-SLAPP motion, then the anti-SLAPP procedure has almost lost its effects.”
Epstein in May ordered Carter’s lawyers to file a copy of the audio recording of the investigators’ interview with the woman.
Buzbee’s lawyers objected to the judge considering it, calling the statements “unadulterated hearsay that do not come within any hearsay exception” in a four-page filing on May 19. They also said the investigators “improperly sought to invade the attorney-client privilege” and obtained the recording “in violation of the California Rules of Professional Conduct that prohibit contact with a represented party.”
They called the audio “deeply troubling” and said it shows the woman “was terrified when she was ambushed by Carter’s agents on her doorstep.”
“Jane Doe’s voice on the audio shakes. At times, she is responding in a voice that is barely a whisper. At one point in the Audio Recording, Jane Doe appears to be in distress, renaming silent as the investigators repeatedly question ‘what’s wrong,’” Moniz wrote.
Moniz said Carter, his lawyers and investigators “grossly and blatantly misrepresented facts to this Court by submitting plainly misleading declarations under penalty of perjjry that Jane Doe was ‘at ease’ and comfortable during this interaction.”
Schwartz replied that Carter and his lawyers weren’t present when investigators spoke with the woman so “they are in no position” to dispute the investigators’ declarations.
“Defendants’ assertion that the investigators committed perjury is ludicrous. The recording of Ms. Doe’s conversations, which the Court now has, refutes Defendants’ other attempts to dispute the plain meaning of what she said,” Schwartz said.
Judge Epstein’s ruling sides Buzbee and says the woman’s statements implicating Buzbee and affirming Carter didn’t assault her were not made against her own interests but were instead made to protect her own interests. If the woman made them against her own interests, that would be an exception to the legal prohibition on hearsay and allow them to be used in trial. Epstein, however, said the woman appears to have been protecting herself from the investigators’ implied threat that Carter would sue her.
“They did not say that expressly, but having listened to the tape, there is really no other way to interpret it. They were not saying words to the effect that if she admitted that the claims against Carter were false, they were still about to serve her with a civil complaint,” Epstein wrote. “In fact, the fairest reading is the contrary: if she cooperated, but perhaps only if she cooperated, Carter would not sue her. Read in that light, the court does not believe that these were statements were statements against interest at all.”
Epstein said the investigators “were inconsistent on Doe’s anonymity. At times, they suggested that they would keep her name secret no matter what.”
“But at other times, they suggested that they would keep her name confidential only if she cooperated with them,” Epstein wrote. “The court believes that Doe could very reasonably view this as an implicit threat that cooperation was the way to stay out of the limelight and out of the press.”
The judge also said statements the investigators made to the woman raise “significant questions as to who exactly retained” them.
Henderson told the woman they were “indirectly” there on Carter’s behalf, which Epstein said “leads directly to an ethical question because being “indirectly” present on Carter’s behalf seems suspicious” and raises the issue of “whether Carter or his counsel ‘indirectly’ sought to question a person known to be represented by counsel.”
“If that was done at the firm’s behest, it leads to ethical concerns,” Epstein said, and “the facts of this approach are a bit distasteful.”
“Further, while the investigators claim that Carter did not send them, it simply beggars reason to believe that he was unaware of it—or at least that if in fact he was not told, it was only to give him plausible deniability,” the judge wrote.
Carter’s lawyers argue the woman’s statements to investigators were admissible through the coconspirator exception for hearsay, but Epstein said the statements “were not made while Doe was participating in any conspiracy, nor was it made prior to or during any conspiracy.”
The lawsuit against Carter had been dismissed when investigators confronted the woman, Epstein wrote, “and even if Carter could get past that, the statements to the investigators hardly seem to be in furtherance of the conspiracy.”
“If anything, they are contrary to the conspiracy’s alleged aims,” according to the order.
The judge acknowledged the potential significance of the woman’s statements: “All of that said, the situation would change, and change dramatically, if the investigators’ declarations as to the conversation with Doe were admissible for the truth of what Doe stated. For if that were the case, then there would be some evidence not only that Carter had nothing to do with any sexual assault on Doe, but that Buzbee knew it in the sense that (according to Doe) it was Buzbee that kept pressing to get Doe to implicate Carter. That pressure, coupled with the statement by Buzbee that he had investigated the claims, would be enough to support an inference of actual malice. Therefore, but for the court’s evidentiary ruling, the court would come out the other way on this motion. However, for the reasons set forth above, the court cannot agree that the investigators’ statements are admissible because they would be relevant only if Doe’s statements therein were true, and the court believes that Doe’s statements were hearsay.”
Judge changes mind on defamation claim
Epstein always planned to dismiss three of the six statements from Buzbee that Carter alleged defamed him, but he tentatively was going to let the defamation claim proceed on three statements, and the decision hinged mostly on Buzbee’s decision to like a post on X that the judge said created a reasonable inference that his statements were about Carter.
The final order filed on Monday reverses course based on Epstein’s determination that there’s no evidence of actual malice, which he called “one of the hardest questions presented in this motion.”
The judge said he “cannot say that as a general matter a lawyer has some obligation to do an investigation to determine whether a client is telling the truth before making statements about the case.”
“Indeed, any other outcome could chill the attorney/client relationship and free speech because under such circumstances it would be far too easy to start second-guessing what the attorney should have done, how deep the investigation should have gone, what leads should have been followed, and so on and so on. Doing so after the fact would put attorneys at too great a risk and would chill the exercise of First Amendment rights,” Epstein wrote.
The statements being dismissed for lack of actual malice are:
“It may not be big names at first, but—but we have a long list of names.” Buzbee said this during an interview with Piers Morgan that aired on Oct. 8.
Buzbee called his client in the rape lawsuit against Carter a “sexual assault survivor,” which Carter’s defamation claim alleges “reasonably understood to refer to Mr. Carter as the perpetrator of the alleged assault.”
Buzbee was paraphrased by TMZ on Dec. 10 as saying” he’s not ruling out filing rape charges against [Mr. Carter] with New York authorities,” and “What happens next is up to my client. It’s her case and what she decides to do you will find out in due course.” TMZ also reported, “Jay-Z’s rape accuser might take the music mogul’s advice and file a criminal complaint against him after slapping him with a civil suit alleging sexual assault, according to her attorney Tony Buzbee.”
Epstein always planned to dismiss are:
Buzbee said on Stephen A. Smith’s show on Oct. 2, “I want to make sure I capture a wide net and capture everybody involved, and that’s what I’m—that’s what I’m trying to do. And part of the—part of the purpose of the press conference was to encourage people that witnessed some of these events to come forward, and that’s happening now. I want to make sure that anyone that facilitated this, egged it on, participated, benefited from, profited from, they’re involved too because that’s really— that’s really what needs to happen here. It happens—it happens in other cases like that. You want to make sure that you include everyone, especially those that enabled and were complicit.” He also said: “You know, obviously, a lot of this is hard to corroborate.”
Buzbee said on Chris Hansen’s show on Oct. 3 that “facilitators” committed misconduct and claimed they “should be prosecuted and put underneath [sic] the jail.” He also said: “I expect the [Combs] indictment and the charges in the indictment will grow. I expect other people will be implicated, so I think that, like I say, I think we’re only seeing the tip of the iceberg here.”
Buzbee said on Shaun Attwood’s podcast on Oct. 7, “there are going to be some people named in these cases that are going to raise some eyebrows … if you were a bank and you were somehow facilitating this by allowing, you know, hundreds and hundreds of thousands of dollars of cash to be withdrawn to be used for various things, or you were some sort of pharmacy that ordered large volumes of particular drugs were being purchased or maybe you were a hotel or a club or this type of activity was taking place, you’re going to be named.”
Carter still is suing Buzbee and the woman in federal court in Alabama for malicious prosecution, civil conspiracy and abuse of process. Buzbee’s law partner David Fortney also is a defendant, as is Antigone Curis, the New York City lawyer who filed the lawsuit against Carter and is Buzbee’s co-counsel in dozens of lawsuits against Combs. Carter also is suing the woman for defamation.
Buzbee’s lawyers at Adams and Reese LLP in Mobile, Alabama, filed a motion to dismiss on June 4. Carter’s lawyers’ reply is due on July 23.
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