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In 2014, the era of #metoo had yet to erupt when Kesha Rose Sebert came forward to accuse Lukas “Dr. Luke” Gottwald of rape and long-lasting abuse. The allegations triggered a media sensation, and in the four years since the pop star and her producer filed dueling lawsuits against each other, she’s been the beneficiary of much public sympathy. But in a court of law, Dr. Luke has been scoring one win after another as he looks to hold Kesha responsible for smearing him. Now, Kesha finds herself at risk of becoming the first celebrity in this new age of enlightened awareness around sexual misconduct to stand trial for going too far in making allegations.
On Friday, New York Supreme Court Justice Jennifer Schecter authorized an aggressive expansion of Dr. Luke’s defamation lawsuit against Kesha. While permitting amended complaints is often routine, the judge’s ruling is notable in several respects and could function as a warning for PR firms and lawyers handling star clients.
For starters, Dr. Luke is now targeting Kesha for dozens of statements made around the time that she filed a lawsuit. He basically wants to hold Kesha accountable for media reporting about her lawsuit. This is unusual because of a widespread presumption that when statements are made referring to something happening in court, these statements are afforded some immunity. For example, statements made by lawyers in the course of litigation are often deemed privileged and non-actionable.
Gottwald vs. Sebert could puncture that presumption.
Here, Dr. Luke has come forward with evidence that the accusations against Dr. Luke were game-planned for maximum exposure.
In one May 25, 2012, email exchange, for instance, her manager Ken Levitan told colleagues he had dinner with Kesha the night before and she “beyond despises Luke.” Irving Azoff, the powerful music industry figure, responded, “Get me in the mix. I will ruin him.” Levitan later replied, “We need the album done and its close…there are huge hits on it…let’s ruin him after he delivers.”
The conversation on how to slam him in the press continued and would later involve Sunshine Sachs, which in a memo, stated, “Our goal is to help extricate CLIENT K from her current professional relationship with PERSON L by inciting a deluge of negative media attention and public pressure on the basis of the horrific personal abuses presented in the lawsuit.”
Before Kesha’s then-attorney Mark Geragos filed the lawsuit, the PR firm shared an advance copy of the complaint with TMZ. The publicist requested to see TMZ‘s story before it was published, and TMZ complied with an early version (despite this being an ethical no-no for journalists). After the filing of the lawsuit, Geragos went on a media tour to trumpet the allegations.
Geragos has now been replaced as Kesha’s lawyer. A few years into the case, Kesha’s new legal team demanded Dr. Luke identify the specific statements being deemed as defamatory. After Dr. Luke outlined the entire “smear campaign,” including statements made on television, in news articles and on social media once the lawsuit was filed, Kesha’s lawyers objected and sought to strike these statements as coming too late and being privileged. Her attorneys at O’Melveny & Myers wrote that to allow these statements to be included in the lawsuit “would chill rape and domestic-violence victims from reporting to authorities or filing a complaint out of fear that they will be sued for exercising their litigation right.”
Justice Schecter ruled Friday that these allegedly defamatory statements were not untimely since they relate back to the “campaign” broadly presented in Dr. Luke’s original complaint. And she goes further.
“Though the [litigation privilege] defense was purportedly raised only as to the draft complaint, it would make no sense for [Kesha] to face liability based solely on the unfiled draft complaint and not on the finalized publicly filed one,” writes Schecter. “Nor has it ever been a secret that plaintiffs seek to hold Kesha liable for statements issued by ‘other representatives’ — such as Geragos and [Free Kesha advocate Michael] Eisele — the full extent of whose involvement plaintiffs were able to recognize only after discovery. Their relationship to the ‘campaign’ has been the subject of extensive discovery (including depositions); thus, Kesha cannot reasonably claim to have lacked notice that her liability is potentially predicated, in part, on their conduct.”
As Schecter notes in her decision, the defamation case against her “comes down to the truth of these repeated allegations,” and the judge’s newest decision isn’t a summary judgment nor even one that officially sets up a trial.
That noted, Kesha faces scrutiny not only for statements about sexual misconduct that Dr. Luke allegedly perpetrated against her, but also for insinuations that he raped other stars like Lady Gaga and Katy Perry. Both testified they weren’t sexually abused by Dr. Luke.
If the case does make it to trial, expect the media plan to tar Dr. Luke to be front and center, and while Kesha may present the engagement of public relations specialists as a necessary move to combat what they expected from Dr. Luke’s own PR team, Schecter sees enough in the allegations at this juncture. She writes that a “trier of fact could possibly conclude that the California complaint was a sham maliciously filed solely to defame plaintiffs as part of Kesha’s alleged campaign to destroy Gottwald as leverage to renegotiate her contracts.”
Schecter adds, “In sum, because the proposed allegations are transactionally related to those in the [Amended Complaint] and are not palpably insufficient or patently lacking in merit and because Kesha had notice of them, [Dr. Luke’s] cross-motion to amend the [complaint] is granted and Kesha’s motion to strike…is denied.”
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