14-1741-cv
Baiul et al. v. Disson et al.

                                     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 “SUMMARY ORDER”). A PARTY CITING 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
16th day of April, two thousand fifteen.

Present:    ROSEMARY S. POOLER,
            RAYMOND J. LOHIER, JR.,
            SUSAN L. CARNEY,
                        Circuit Judges.
___________________________________________________

OKSANA S. BAIUL, OKSANA, LTD.,

                                       Plaintiffs-Appellants,


                                v.                                             14-1741-cv

STEPHEN DISSON, DISSON SKATING, LLC,

                        Defendants-Appellees.1
___________________________________________________

Appearing for Appellants:                     RAYMOND J. MARKOVICH, West Hollywood, CA.

Appearing for Appellees:                      MATTHEW G. DEOREO (Joseph Tacopina, on the brief),
                                              Tacopina Seigel & Turano, P.C., New York, NY.

       Appeal from the United States District Court for the Southern District of New York
(Forrest, J.).




         1
             The Clerk of the Court is directed to amend the case caption as above.
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

       Plaintiffs-Appellants Oksana Baiul and Oksana, Ltd. appeal from the April 24, 2014
opinion and order of the United States District Court for the Southern District of New York
(Forrest, J.) granting Defendants-Appellees Stephen Disson and Disson Skating, LLC’s motion
for summary judgment as to appellants’ claims of defamation. We assume the parties’ familiarity
with the underlying facts, procedural history, and specification of issues for review.

        At the threshold, the parties disagree regarding which state’s law applies. However, we
need not resolve this choice of law question because Baiul has failed to show Disson made any
of the alleged defamatory statements with actual malice, and thus her claims fail as a matter of
constitutional law.2 See Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 66 (1976) (recognizing
that under New York Times Co. v. Sullivan, 376 U.S. 254 (1964), “the First Amendment places
limitations on the States’ power to enforce their libel laws”).

        “[W]hen a defamatory statement is allegedly made about a public figure, the plaintiff has
a heightened burden and must prove that the statement was published with ‘actual malice.’”
Dongguk Univ. v. Yale Univ., 734 F.3d 113, 123 (2d Cir. 2013) (quoting Curtis Publ’g Co. v.
Butts, 388 U.S. 130, 155 (1967)). “Actual malice” means that the statement was published with
“knowledge that the statement was ‘false or with reckless disregard of whether it was false or
not.’” Id. (quoting N.Y. Times, 376 U.S. at 280). “The actual malice showing ‘must be made with
convincing clarity, or, in a later formulation, by clear and convincing proof.’” Karedes v.
Ackerley Grp., Inc., 423 F.3d 107, 114 (2d Cir. 2005) (quoting Phila. Newspapers v. Hepps, 475
U.S. 767, 773 (1986)).

        As an initial matter, there is no serious dispute that Baiul is a public figure. Although
Baiul nominally contests this point, she provides no argument to the contrary. See Tolbert v.
Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001) (“It is a settled appellate rule that issues adverted to
in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived.” (internal quotation marks omitted)). In any case, we have little trouble concluding that
Baiul is a public figure. “We evaluate whether a party is a public figure based on ‘clear evidence
of general fame or notoriety in the community, and pervasive involvement in the affairs of
society.’” Dongguk Univ., 734 F.3d at 123 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323,
352 (1974)). Baiul is a world famous figure skater, having won the 1993 World Championship
for Ladies’ Figure Skating and the 1994 Olympic Gold Medal in Ladies’ Figure Skating. Indeed,
she describes herself as a “public figure,” “a superstar in the world of figure skating,” and a
“global entertainer.” App’x 567, 643; see also Celle v. Filipino Reporter Enters. Inc., 209 F.3d
163, 177 (2d Cir. 2000) (“Given plaintiff Celle’s own characterization of himself as a ‘well
known radio commentator’ within the Metropolitan Filipino-American community, the district
court correctly held that he is a public figure.”).



       2
         The parties do not distinguish between the claims of Baiul and Oksana Ltd., the legal
entity used by Baiul to conduct business, and given the absence of any argument on this point,
neither do we.

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        In light of her status as a public figure, Baiul must provide evidence sufficient to permit a
reasonable juror to find “clear and convincing proof,” Karedes, 423 F.3d at 114 (internal
quotation marks omitted), that Disson made each of the challenged statements with “‘actual
malice,’ that is with knowledge that the statement was false or with reckless disregard of whether
it was false or not,” Dongguk Univ., 734 F.3d at 123 (internal quotation marks omitted). Baiul
has failed to meet this burden.

        With respect to Disson’s allegedly false statements regarding his public disclosure and
advertising of Baiul’s appearance, as well as his description of her withdrawal from the relevant
skating shows, Baiul has provided no evidence that Disson made these statements with actual
malice. Disson testified that he was not aware of any potential public disclosure of Baiul’s
appearance until after she filed her separate lawsuit alleging misappropriation of her name and
likeness, and Baiul has offered no contrary evidence suggesting his involvement in any such
disclosures. Although Disson shared the possibility of Baiul’s appearance with his business
partners, he testified that he did not view these private discussions as “public” disclosure or
advertising of her appearance, and Baiul does not argue that his use of the terms “public
disclosure,” “advertising,” and “promotion” is unreasonable or implausible. See Dalbec v.
Gentleman’s Companion, Inc., 828 F.2d 921, 927 (2d Cir. 1987) (noting that actual malice “is a
matter of the defendant’s subjective mental state” and may be shown circumstantially). Finally,
although Disson made these statements after Baiul filed her separate lawsuit containing
allegations as to these issues, “[g]enerally, ‘mere proof of failure to investigate, without more,
cannot establish reckless disregard for the truth.’” Dongguk Univ., 734 F.3d at 124 (quoting
Gertz, 418 U.S. at 332).

         With respect to Disson’s statement that “One time, she didn’t show up. She was out
shopping,” Baiul has also failed to show actual malice. Disson stated that the story underlying
this statement was conveyed to him by Brian Boitano, another well-known figure skater. To the
extent this statement is false, Baiul provides no evidence that Disson made it with knowledge of
its falsity or reckless disregard of the truth. She does not cast doubt on Boitano’s reliability as a
source, nor does she suggest the improbability of the story. See Celle, 209 F.3d at 183 (noting
that “[a]ctual malice can be established through the defendant’s own actions or statements, the
dubious nature of his sources, and the inherent improbability of the story among other
circumstantial evidence.” (internal quotation marks and brackets omitted)). Indeed, Baiul stated
in her deposition that her former agent had heard the same story and that prior to 2011, it was
gossip in the skating industry that she had missed an event because she was out shopping.

        As to the remaining statements, to the extent they constitute actionable defamatory
language, Baiul’s only evidence of Disson’s “actual malice” is his denial in his deposition that he
actually made these statements to the reporter interviewing him. However, the fact that Disson
subsequently denied making these statements provides only weak evidence as to the issue here –
whether, if he actually made them, he did so with actual malice. We have described actual malice
as a “demanding burden,” requiring “clear and convincing proof.” Id. at 182–83. While such a
subsequent denial may provide some limited circumstantial evidence of actual malice, standing
alone here as Baiul’s only evidence on this point, a reasonable juror could not find that it meets
the “clear and convincing” standard. Id. at 183 (explaining that circumstantial evidence “should
provide evidence of negligence, motive and intent such that an accumulation of the evidence and

                                                  3
appropriate inferences supports the existence of actual malice.” (internal quotation marks and
emphasis omitted)).

        We have considered the remainder of Baiul’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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