Wade Clark Mulcahy LLP

The Appellate Division, First Department, recently affirmed a trial court’s pre-answer dismissal of a complaint alleging defamation and breach of contract. In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/09/Gillespie-v-Kling.pdf">Gillespie v, Kling</a></em>, plaintiff was an actor and formerly married to defendant, the host of a podcast that was streamed on Apple Music. The couple resided in New Jersey and filed divorce proceedings in that state after their marriage failed. Defendant subsequently published a podcast alluding to suffering abuse from plaintiff during their marriage. This allegedly caused plaintiff to request a mutual non-disparagement clause in their marital separation agreement which was entered into after the podcast was published. The podcast remained online, and plaintiff alleged that it caused him to lose acting opportunities. Plaintiff sued defendant in New York Supreme Court alleging defamation and breach of contract based on the non-disparagement clause in the agreement.

Defendant moved to dismiss the defamation action in lieu of filing an Answer based on New York’s recently amended Anti-SLAPP statute, claiming that the podcast was speech touching on a matter of public concern directed at a public forum. Defendant also moved to dismiss the breach of contract claim based on New Jersey’s entire controversy action, asserting plaintiff should have raised the issue during the divorce proceedings. The trial court granted the motion on both grounds and plaintiff appealed.

The First Department affirmed, holding that statements describing domestic violence during a marriage made on a podcast fell within the protection of the anti-SLAPP law. The First Department found that since the anti-SLAPP law applied, it was Plaintiff’s burden to show, by clear and convincing evidence, that Defendant’s statements were false and made with knowledge of their falsity. Plaintiff only submitted a conclusory and self-serving affidavit and therefore did not meet this burden.

The First Department also held that New Jersey’s entire controversy doctrine barred the breach of contract cause of action. Because plaintiff had knowledge of defendant’s statements before entering into the marital separation agreement, he was required to bring his breach of contract claim during the divorce proceedings. The Court also held that based on the merger doctrine, the marital separation agreement was merged into the judgment of divorce, and thus ceased to exist as a separately enforceable contract.

This decision shows the utility of the newly amended Anti-SLAPP statute in obtaining favorable defense decisions on dispositive motions. It also highlights the importance of considering all potential defenses, even those arising from the law of other jurisdictions, in defending cases.

Thank you to Brendan Gilmartin for his contribution to this post. Please contact <a href="agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.