Mark Geragos can assert a counterclaim against Lukasz “Dr. Luke” Gottwald in a defamation fight stemming from his tweets thanks to a New York law enacted last year, a judge ruled on Thursday.
It’s a spinoff fight that followed the heated litigation between Gottwald and Kesha Sebert. She sued him alleging sexual assault, and he sued for defamation and breach of contract. (That matter is expected to go to trial later this year.)
In December 2014, Gottwald separately sued Geragos, who was representing Kesha, over tweets related to Lady Gaga. Geragos tweeted a link to an article about a Howard Stern interview of Lady Gaga in which she discussed being sexually assaulted. “Guess who the rapists [sic] was?” Geragos asked his Twitter followers. Someone in the comments wrote “Lukasz” and Geragos responded with “#bingo.”
Since the complaints were filed, New York broadened its anti-SLAPP protections in an effort to deter frivolous lawsuits arising from the exercise of free speech. First, Kesha seized on the opportunity and a judge found Gottwald will have to prove actual malice (knowledge of falsity or reckless disregard for the truth) in order to prevail on his defamation claim — even though the court had previously found he’s a private figure. Under the new law, that doesn’t matter if the topic of discussion is a matter of public interest.
Now, it’s Geragos’ turn. Judge Shawn Kelly on Thursday granted Geragos’ request to amend his answer to the complaint and assert a claim for attorney’s fees under the new anti-SLAPP statute. A source familiar with the matter says Gottwald could be on the hook for “millions of dollars in legal fees” if Geragos prevails on the SLAPP motion.
Gottwald opposed the motion, arguing the allegedly defamatory statements at issue don’t concern a matter of public interest and an anti-SLAPP motion would fail because his suit isn’t frivolous.
Kelly didn’t agree. “[T]he alleged defamatory statements relate to posts on Twitter and a subsequent comment to TMC,” writes Kelly in the order, which is embedded below. “These forums are inarguably public and further, Plaintiff is a famous ‘Grammy-nominated songwriter and record producer’ who operates ‘his own record label and publishing company.'”
Kelly also noted it’s not yet clear whether Gottwald will ultimately prevail on the merits of his claim, Geragos isn’t required to prove his counterclaim will prevail at this stage, and the counterclaim is “not patently without merit, nor is it futile.”