Debevoise Secures Dismissal of Defamation Lawsuit in Fairfax v. N.Y. Public Radio

2 May 2023

Debevoise & Plimpton LLP has a secured a victory for New York Public Radio (NYPR) in a defamation lawsuit brought in the District Court for the Eastern District of Virginia by Justin Fairfax, the former Lieutenant Governor of Virginia. On April 4, Judge Anthony J. Trenga granted the motion to dismiss the suit with prejudice. Judge Trenga also awarded attorneys’ fees and costs against Fairfax under Virginia’s anti-SLAPP statute, agreeing with Debevoise’s arguments that the suit was “meritless, unreasonable, and without any substantial basis in law or fact, and motivated by reasons other than obtaining relief against NYPR based on a good faith, fact-based belief that it had made actionable defamatory statements against him.” This case marks the first time (to our knowledge) that attorneys’ fees have been awarded under the Virginia statute.

The plaintiff’s claims were based on a 2021 episode of an NYPR radio show that discussed two women’s highly publicized allegations of sexual assault against him. The show’s reporting was part of a broader discussion of politics and power amidst the then-recent allegations against New York Governor Andrew Cuomo. As of the episode’s airing, the media already had reported widely the allegations against Fairfax, for more than three years. Prior to publication, NYPR reached out to Fairfax for comment, but he did not respond. Nevertheless, NYPR twice stated expressly in the episode that Fairfax categorically denied the allegations and also that it would post Fairfax’s response on NYPR’s website if he later provided comments. Despite this offer, Fairfax remained silent and instead sued NYPR the day before the statute of limitations expired.

The Debevoise team filed a motion to dismiss the lawsuit, arguing that the complaint failed to state a claim for defamation and intentional infliction of emotional distress. Debevoise also filed a motion for attorneys’ fees under Virginia’s anti-SLAPP statute. In this motion, the team distinguished this lawsuit from a similar suit that Fairfax previously brought against CBS, in which the court did not award fees.

As the Debevoise team argued, Fairfax was on clear notice that his claims against NYPR could not succeed, and yet he filed a nearly identical complaint anyway, including with allegations about harm purportedly caused by CBS. The District Court therefore granted the motion to dismiss and awarded NYPR attorneys’ fees and costs under Virginia’s anti-SLAPP statute.

The Debevoise team was led by litigation partners Andrew Levine and Jonathan Tuttle and counsel Jared Kagan and included associates Naomi Perla and Emily Morgan and former associates Matthew Petrozziello and Christopher Carter.