    19-3632
    Wexler v. Dorsey & Whitney LLP



                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.


                  At a stated term of the United States Court of Appeals for the Second
    Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
    the City of New York, on the 9th day of July, two thousand twenty.

    PRESENT:
               JON O. NEWMAN,
               PETER W. HALL,
               GERARD E. LYNCH,
                     Circuit Judges.
    _____________________________________

    Shimshon Wexler,

                            Plaintiff-Appellant,

                    v.                                              19-3632



    Dorsey & Whitney LLP, Artin Betpera,

                     Defendants-Appellees.
    _____________________________________
FOR PLAINTIFF-APPELLANT:                      SHIMSHON WEXLER, pro se, Atlanta,
                                              GA.

FOR DEFENDANTS-APPELLEES:                     JONATHAN M. HERMAN (Krista
                                              Bolles, Helen Jiang on the brief),
                                              Dorsey & Whitney LLP, New York,
                                              NY.



      Appeal from a judgment of the United States District Court for the Eastern

District of New York (Bulsara, M.J.).


      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

      Appellant Shimshon Wexler, an attorney proceeding pro se, sued Dorsey &

Whitney LLP (“Dorsey”) and its former associate, Artin Betpera, for defamation

under New York state law for Betpera’s authorship and Dorsey’s publication of a

blog post.   We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

                                         I.

      In 2015, plaintiff Shimshon Wexler brought a Telephone Consumer

Protection Act (“TCPA”) class action in the Eastern District of New York against


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AT&T, with his wife, Dr. Eve Wexler, as the proposed lead plaintiff. AT&T filed

a letter seeking a conference on a contemplated motion to strike, writing that

“unless and until Shimshon Wexler both withdraws as counsel and renounces any

interest in any future award of attorney’s fees in this case, Dr. Wexler is an

inadequate class representative as a matter of law.”          J. App. at 49 (internal

quotation marks omitted). In response, Wexler’s co-counsel (who joined the case

a month after filing) explained that Wexler would withdraw as counsel and would

not be entitled to attorney’s fees recovered in the case but that he may seek payment

on quantum meruit grounds for the work done prior to his withdrawal. AT&T

moved to strike the class allegations on the ground that Dr. Wexler was not an

adequate representative of the class; the district court (Block, J.) granted the motion.

In granting the motion, the district court explained that Dr. Wexler, as class

representative, should act to maximize recovery to the class and that her interest in

a fee award to her husband—who Judge Block noted “intend[ed] to seek fees for

his work based on quantum meruit,” J. App. at 52—gives an opposite incentive.

      Dorsey is a law firm that defends companies sued for violations of the TCPA

and has a consumer financial services blog. In 2018, Dorsey published a “Legal


                                           3
Update” article written by Betpera both on the blog and on a website called

JDsupra.   The headline for the article stated “TCPA Class Certification Denial

Exposes Major Spousal Scheme.” The text of the article read:

      There are plenty of things I’d like to do with my wife one day. Take a
      trip to Greece. Finally convince her to go camping with me (never
      going to happen). But filing a class action with her as a class
      representative is definitely not one of them.

      That’s exactly what one husband-and-wife duo tried to pull in the
      Eastern District of New York. Senior Judge Frederic Block made
      quick work of the scheme.

      In Wexler v. AT&T Corp., No. 15 CV-0686 (FB) (PK), 2018 U.S. Dist.
      LEXIS 20157 (E.D.N.Y. Feb. 5, 2018), the Court granted AT&T’s
      motion to strike class allegations based on the inadequacy of the class
      representative. The class representative was Dr. Eve Wexler, who
      was the wife of class counsel Shimshon Wexler. After AT&T alerted
      the Court to their relationship, Mr. Wexler quickly withdrew and
      was replaced by class counsel who had no relation to Plaintiff.
      However, Mr. Wexler made it clear that he still intended to pursue an
      award of feeds for his work on the case prior to withdrawal.

      Plaintiff argued that Mr. Wexler’s withdrawal “mooted” the issue.
      Not so, said Judge Block. There’s no disputing Plaintiff would have
      an interest in a potential fee award to her husband, had he been
      appointed class counsel. “Courts have long found that a familial (or
      any other) relationship creates a conflict if it gives the class
      representative an interest in the fees class counsel might recover.”
      And that conflict didn’t just vanish after Mr. Wexler withdrew,
      especially because he was still planning to seek an award of fees for
      his work prior to withdrawal.

                                        4
      The Court astutely observed that “[a]s class representative, Dr.
      Wexler should act to maximize [class] recovery and, by extension,
      minimize reductions to it. But her interest in the fee award supplies
      the opposite incentive.” The Court emphasized that because the
      “very nature of a class creates conflicts of interest between the class,
      class counsel and the class representative,” the requirements of Rule
      23 must be “scrupulously enforced.”

      And enforced they were. The Court held that because Plaintiff had an
      interest in a possible fee award to her husband, “she cannot
      adequately represent the interests of absent class members,” and
      granted AT&T’s motion to strike. Maybe the Wexlers should try
      salsa dancing instead.

J. App. at 11-12.

      Wexler thereafter sued Dorsey and Betpera contending that the headline and

article were defamatory. The defendants moved to dismiss the complaint for failure

to state a claim and for lack of personal jurisdiction over Betpera. Magistrate

Judge Bulsara dismissed Wexler’s complaint for failure to state a claim on the basis

that the headline was non-actionable opinion and that Wexler had abandoned any

claims that the text of the article constitutes defamation. Magistrate Judge Bulsara

declined to reach the question of whether the court had personal jurisdiction over

Betpera.




                                         5
                                          II.

      We have jurisdiction over this appeal as one taken from a final decision of a

magistrate judge where the parties consented to a disposition by a magistrate

judge. See 28 U.S.C. § 636(c)(1); 28 U.S.C. § 1291. By letter dated June 24, 2020,

Betpera consented to personal jurisdiction in this case.

      “We review de novo a district court’s dismissal of a complaint pursuant to

Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in

the complaint as true, and drawing all reasonable inferences in the plaintiff’s

favor.”   Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).         The

complaint must plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). Although a court must accept as true all the factual

allegations in the complaint, that requirement is “inapplicable to legal

conclusions.” Iqbal, 556 U.S. at 678.

                                          III.

      “Under New York law a defamation plaintiff must establish five elements:

(1) a written defamatory statement of and concerning the plaintiff, (2) publication


                                           6
to a third party, (3) fault, (4) falsity of the defamatory statement, and (5) special

damages or per se actionability.” Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d Cir.

2019). On appeal, Wexler argues that when the headline is viewed together with

the article, it is obvious that it is “of and concerning” him, that the words “exposes”

a “major spousal scheme” are reasonably susceptible to conveying a defamatory

meaning, and that the headline is not protected as an opinion.

      “Since falsity is a sine qua non of a libel claim and since only assertions of fact

are capable of being proven false, we have consistently held that a libel action

cannot be maintained unless it is premised on published assertions of fact.” Brian

v. Richardson, 87 N.Y.2d 46, 51 (1995); see also Mr. Chow of New York v. Ste. Jour Azur

S.A., 759 F.2d 219, 225 (2d Cir. 1985). “[T]he determination of whether a statement

is opinion or rhetorical hyperbole as opposed to a factual representation is a

question of law for the court.”       Mr. Chow, 759 F.2d at 224.        Distinguishing

between opinion and fact requires a consideration of the following factors: “(1)

whether the specific language in issue has a precise meaning which is readily

understood; (2) whether the statements are capable of being proven true or false;

and (3) whether either the full context of the communication in which the statement


                                           7
appears or the broader social context and surrounding circumstances are such as

to signal readers or listeners that what is being read or heard is likely to be opinion,

not fact.” Richardson, 87 N.Y.2d at 51 (internal quotation marks and alterations

omitted); see also Mr. Chow, 759 F.2d at 226 (considering context in which statements

are made, how the language is used (precise and literal, or loose or hyperbolic), and

capability of a statement being proven true or false). The “context” factor includes

not only “the immediate context in which the disputed words appear,” but also

“the nature of the particular forum.”       Richardson, 87 N.Y.2d at 51.     Even if a

statement is deemed to be opinion, there may be liability for defamation where

there is “a clear but false implication that the author is privy to facts about the

person that are unknown to the general reader.”           Mr. Chow, 759 F.2d at 225

(citation omitted).

      We agree with the magistrate judge that the headline in this case constitutes

opinion and is therefore not actionable. The tenor of the article reflects that it is

meant to be not only informative but also amusing and entertaining, making

hyperbole in the headline expected and reasonable. The article’s placement on a

law firm’s blog also suggests that it is informed, at least in part, by the firm’s and


                                           8
its author’s opinions.    The context of the statement therefore cuts against a

determination that it is an assertion of fact meant to be taken literally.         The

language “exposes major spousal scheme” also does not have a readily understood

precise meaning of the nefarious sort that is advanced by Wexler – it could just as

easily mean exactly what happened here, that the TCPA decision brought to light

an ethically questionable arrangement by a married couple (here, to represent both

the attorney’s and the class’s fiscal interests in a class action). The use of “major”

does not change this analysis, as that is a relative term, the applicability of which is

a matter of opinion. An average reader would not understand the headline to be

“an attempt to convey with technical precision literal facts about” Wexler. Mr.

Chow, 759 F.2d at 229.      And because the statement does not have a readily

understood precise meaning, it is not capable of being proved true or false. See id.

(explaining that, because a reasonable reader would not take literally the language

used, the statements read reasonably are not capable of being proved false). Nor

do we think that a reasonable reader would think that the headline was based on

facts other than those disclosed in the article, which accurately describes the ruling

of the court. Cf. Levin v. McPhee, 119 F.3d 189, 197 (2d Cir. 1997) (explaining that


                                           9
statements of opinion “may yet be actionable if they imply that the speaker’s

opinion is based on the speaker’s knowledge of facts that are not disclosed to the

reader”). The headline is therefore properly read as non-actionable opinion rather

than fact, and Wexler’s defamation claim fails.

                                  *      *        *

      We have reviewed the remainder of Wexler’s arguments and find them to be

without merit. For the foregoing reasons, the judgment of the district court is

AFFIRMED.

      It is further ORDERED that within 14 days of the issuance of this order,

Wexler show cause why sanctions should not be imposed for filing a frivolous

appeal.




                                      FOR THE COURT:
                                      Catherine O’Hagan Wolfe, Clerk of Court




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