                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


    LAURA WILLIS LUHN,

                Plaintiff,

         v.                                               No. 19-cv-1180 (DLF)

    SUZANNE GUNDERSON SCOTT, et al.,

                Defendants.


                                 MEMORANDUM OPINION

        Laura Luhn brings this suit against Fox News Network, LLC and its CEO, Suzanne

Gunderson Scott. Compl., Dkt. 1. Luhn’s amended complaint asserts four causes of action

against Fox News and Scott: (1) defamation; (2) defamation by implication; (3) false light

invasion of privacy; and (4) intentional infliction of emotional distress. Am. Compl., Dkt. 15.

Before the Court is the defendants’ motion to dismiss the amended complaint for failure to state

a claim under Federal Rule of Civil Procedure 12(b)(6). Mot. to Dismiss, Dkt. 16. For the

reasons that follow, the Court will grant the defendants’ motion and dismiss the case.

I.      BACKGROUND 1

        A.     Luhn’s History at Fox News

        Luhn began working for Fox News in 1996. Am. Compl. ¶ 31. She spent the next

decade and a half enduring extensive and traumatic sexual abuse at the hands of Roger Ailes, the



1
  The factual allegations below are drawn from Luhn’s amended complaint. See Banneker
Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (court considering motion to
dismiss must “accept all the well-pleaded factual allegations of the complaint as true and draw
all reasonable inferences from those allegations in the plaintiff’s favor”). The Court has granted
and considered Luhn’s Motion for Leave to File Surreply, Dkt. 19.
former CEO of Fox News. See id. ¶ 33. According to Luhn’s complaint, Ailes “demanded,

coerced, extorted, blackmailed and forced sexual favors from her.” Id. Among other things,

Ailes required Luhn to meet her at various hotel rooms, wearing a sexually suggestive

“uniform,” where he would force her to perform various sex acts. See, e.g., id. ¶ 36. Ailes also

interfered constantly with Luhn’s personal and professional life, isolating her from friends and

family to increase his own power over her. Id. ¶¶ 48–49, 55–56. Over the course of Luhn’s time

at Fox News, Ailes repeatedly informed her, “I own you.” Id. ¶ 59.

       In 2011, Luhn contacted the Office of the United States Attorney General. Id. ¶ 66. The

Attorney General’s staff put her in touch with an Assistant United States Attorney in her area, to

whom she described “in graphic detail the years of abuse and psychosexual torture that she

endured at the hands of Ailes.” Id. After speaking to a psychiatrist and consulting an attorney,

Luhn agreed to a settlement with Fox News, although she claims that she was “pressured,

coerced and fraudulently induced” into doing so. Id. ¶ 72. Years later, several other women

came forward with allegations of sexual harassment against Ailes, ultimately leading to Ailes’s

departure from the company in 2016. Id. ¶ 7. Scott became CEO of Fox News soon thereafter,

in May 2018. Am. Compl., Ex. 1, Dkt. 15.

       Luhn claims to suffer “serious, debilitating and life threatening trauma, anxiety and other

serious health complications as a result of Ailes’s severe psychological torture and mind

control.” Id. ¶ 74. She has twice attempted suicide, and her current psychological ailments

include PTSD, Stockholm Syndrome, and “bouts of intermittent anxiety and hopelessness.” Id.

       B.      The Los Angeles Times Article

       This lawsuit relates not to the extensive sexual abuse allegations against Ailes but to the

details of a Los Angeles Times article entitled “Fox News Chief Executive Suzanne Scott keeps




                                                2
her focus on winning.” That article, a general profile of Scott published by the Times on April 3,

2019, describes several of the challenges that Scott faced upon ascending to the CEO role—chief

among them the “harassment lawsuits and numerous lurid reports describing alleged bad

behavior by Ailes.” Id. Ex. 1. The article quotes Scott as saying that she “felt devastated for the

women who work here” and “wanted to do everything [she] could to heal this place.” Id.

       Luhn’s complaint principally concerns a section of the article in which Scott denies

knowledge of Ailes’s acts of sexual harassment. At one point, the article references one-on-one

meetings that Scott held with several Fox News employees to discuss potential improvements to

the corporate environment for women, and explains that “[i]n some of those discussions, it was

necessary for Scott to tell employees that she had no knowledge of Ailes’[s] behavior even

though she was part of his inner circle.” Id. In the next paragraph, the article quotes Scott as

saying that she “had no clue on what was going on in Roger Ailes’[s] office” and “never had any

issues with any sort of harassment [her]self.” Id. The article goes on to explain that Scott has

since “eradicated the memory of Ailes by overseeing a massive renovation of the entire second

floor where his corporate lair was located” and has implemented an internal process for women

to report inappropriate behavior. Id.

       C.      Procedural History

       Luhn filed her initial complaint in this lawsuit on April 23, 2019. Compl. Her amended

complaint, filed on August 5, 2019, names only Fox News and Scott as defendants. Am. Compl.

The amended complaint asserts four causes of action: (1) defamation; (2) defamation by

implication; (3) false light invasion of privacy; and (4) intentional infliction of emotional

distress. Id. ¶ 77–95. Each of Luhn’s claims concerns Scott’s statements to the Times denying

knowledge of Ailes’ misconduct, and each alleges, in essence, that those statements “created the




                                                  3
false and misleading implication that Plaintiff Luhn is dishonest and fabricated allegations of

sexual abuse against Ailes and fabricated allegations of [a] cover-up against Defendant Scott.”

Id. ¶ 85.

        Attached to Luhn’s amended complaint are two press releases published on the website

of her attorney, Larry Klayman. See Am. Compl., Ex. 2, Dkt. 15. The first press release,

published on January 9, 2019, describes Luhn’s lawsuit against Hollywood studios Showtime

and Blumhouse Production for misappropriation of her likeness in a miniseries entitled “Loudest

Voice in the Room” that depicted Ailes’s tenure at Fox News and his harassment of various

female employees. Id. The second press release was published on April 4, 2019, the day after

the Times article was published. This press release describes Scott’s comments to the Times as

“patently false,” and explains that “Scott knew of Ailes’ sexual abuse and criminality, but

covered it up and continues to cover it up.” Id.

        Also attached to Luhn’s amended complaint are two affidavits from Hollywood

producers Judah Friedman and Jason Goodman. Am. Compl., Ex. 3, Dkt. 15. In these affidavits,

the producers attest to having read the Times article and having “understood the references to

sexually abused and harassed women at Fox News to refer principally to Laura Luhn.” Id. Each

of the producers further attests, in identical language, that he understood Scott’s statements

concerning her lack of knowledge of Ailes’ sexual abuse “to impugn the integrity [of] and to

defame Ms. Luhn, who has reportedly tried to commit suicide and suffers from PTSD as a result

of Ailes’ sexual abuse and harassment, as well as the cover-up of this sexual abuse and

harassment.” Id.

        The defendants filed their motion to dismiss the amended complaint on August 9, 2019.

Mot. to Dismiss.




                                                   4
II.     LEGAL STANDARDS

        A.      Federal Rule of Civil Procedure 12(b)(6)

        Rule 12(b)(6) allows a defendant to move to dismiss the complaint for failure to state a

claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6)

motion, the complaint must contain factual matter sufficient to “state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facially

plausible claim is one that “allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard

does not amount to a specific probability requirement, but it does require “more than a sheer

possibility that a defendant has acted unlawfully.” Id. A complaint need not contain “detailed

factual allegations,” but alleging facts that are “merely consistent with a defendant’s liability . . .

stops short of the line between possibility and plausibility.” Id. (internal quotation marks

omitted).

        Well-pleaded factual allegations are “entitled to [an] assumption of truth,” id. at 679, and

the court construes the complaint “in favor of the plaintiff, who must be granted the benefit of all

inferences that can be derived from the facts alleged,” Hettinga v. United States, 677 F.3d 471,

476 (D.C. Cir. 2012) (internal quotation marks omitted). But the assumption of truth does not

apply to a “legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quotation

marks omitted). An “unadorned, the defendant-unlawfully-harmed-me accusation” is not

credited; likewise, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. Ultimately, “[d]etermining whether a complaint

states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.” Id. at 679.




                                                   5
III.   ANALYSIS

       Luhn’s complaint asserts four causes of action: (1) defamation; (2) defamation by

implication; (3) false light invasion of privacy; and (4) intentional infliction of emotional

distress. Id. ¶ 77–95. The Court has subject matter jurisdiction because the parties are domiciled

in different states and the amount in controversy exceeds $75,000. See 28 U.S.C. §1332.

       A. Defamation

       The same elements apply to both of Luhn’s defamation claims. To constitute defamation,

a defendant’s statement must be: (1) defamatory, (2) “of and concerning” the plaintiff; (3)

capable of being proven false; (4) false; and (5) made with the requisite degree of fault. Coles v.

Wash. Free Weekly, Inc., 881 F. Supp. 26, 30 (D.D.C. 1995), aff’d, 88 F.3d 1278 (D.C. Cir.

1996). 2 When considering defamation claims, courts must interpret the statements at issue

through the objective lens of a hypothetical, reasonable reader; subjective interpretations of those

statements by actual readers therefore lack relevance. See, e.g., Farah v. Esquire Magazine, 736

F.3d 528, 537 (D.C. Cir. 2013); 1 Rodney A. Smolla, Law of Defamation § 4.17, at 4-40.9 (2d

ed. 2010). Because the statements at issue were neither “of and concerning” Luhn, nor

“defamatory,” the Court will dismiss Luhn’s defamation claims.

               1.   “Of and Concerning” the Plaintiff

       For Scott’s statements to be “of and concerning” Luhn, Luhn “must plead and prove that

the statement referred to [her] and that a person hearing or reading the statement reasonably

could have interpreted it as such.” Three Amigos SJL Rest., Inc. v. CBS News Inc., 28 N.Y.3d



2
  The amended complaint does not specify which state’s law should govern Luhn’s claims. But
no choice-of-law analysis is required because there is no material “conflict between the laws of
the relevant jurisdictions.” Young Women’s Christian Ass’n of the Nat’l Capital Area, Inc. v.
Allstate Ins. Co. of Canada, 275 F.3d 1145, 1150 (D.C. Cir. 2002).



                                                  6
82, 86-87 (N.Y. 2016). Scott’s statements from the Los Angeles Times article were not “of and

concerning” Luhn, and no reasonable reader could have interpreted them as such. Indeed, at no

point does the Times article even reference Luhn. The amended complaint identifies only two of

Scott’s statements as pertaining to Luhn: (1) that Scott “had no knowledge of Ailes’ behavior

even though she was part of his inner circle” and (2) that she “had no clue on what was going on

in Roger Ailes’ office.” Am. Compl., Ex. 2. But these statements did not concern Luhn.

Instead, the statements pertained exclusively to Scott and her own mental state, specifically, her

unawareness of Ailes’ sexual harassment of female subordinates. The fact that Luhn

subsequently contested the accuracy of Scott’s statements—or even the fact that Luhn

purportedly made contradictory statements prior to publication of the article—does not transform

Scott’s limited statements about her own ignorance into statements about Luhn.

       Nor do the two affidavits attached to Luhn’s amended complaint change the analysis.

See Am. Compl., Ex. 3. Both affidavits state, using identical language, that the affiant “took

[Scott’s statements] to impugn the integrity [of] and to defame Ms. Luhn.” Id. But as noted

above, courts are required to analyze defamation claims through the objective lens of a

hypothetical reasonable reader, rather than the subjective interpretations of actual readers. See,

e.g., Smolla, Law of Defamation § 4.17. Notwithstanding the conclusory statements in Luhn’s

affidavits, no objectively reasonable reader could understand Scott’s statements as a commentary

on Luhn. The fact that two affiants construed Scott’s statements to contain some oblique,

unstated reference to Luhn—an interpretation with no apparent basis in the record—does not

require the Court to accept that construction as objectively reasonable. The Court therefore

concludes that Scott’s statements were not “of and concerning” Luhn.

               2. “Defamatory” to the Plaintiff




                                                  7
       Moreover, even if Scott’s statements could be interpreted as references to Luhn, the

statements were not “defamatory.” To be defamatory, a statement “must be more than

unpleasant or offensive; the language must make the plaintiff appear ‘odious, infamous, or

ridiculous.’” Fleming v. AT&T Info. Servs., Inc., 878 F.2d 1472, 1475–76 (D.C. Cir. 1989)

(quoting Howard Univ. v. Best, 484 A.2d 958, 989 (D.C. 1984)). In considering whether

statements are “reasonably capable of defamatory meaning,” courts interpret statements “as a

whole, and in the sense in which [they] would be understood by the readers to whom [they were]

addressed.” Farah, 736 F.3d at 535 (internal quotation marks omitted).

       To begin, no reasonable reader could interpret Scott’s statements to “create[] the false

and misleading implication that Plaintiff Luhn . . . fabricated allegations of sexual abuse against

Ailes.” Am. Compl. ¶ 85. To the contrary, Scott explicitly stated that she “had no clue what was

going on in Roger Ailes’ office,” thereby expressly disclaiming any personal knowledge of the

truthfulness of Luhn’s allegations. Id. Ex. 2. Luhn’s inference—that Scott’s denial of

knowledge of any abuse calls into question Luhn’s own allegations of abuse—is not a reasonable

one. Indeed, Scott’s other comments for the article—that she “felt devastated for the women

who work here” and “wanted to do everything [she] could to heal this place”—reflect her

apparent belief in Luhn’s (and other women’s) allegations. “[T]aken as a whole,” Farah, 736

F.3d at 535, the article contains no possible implication that Luhn “fabricated allegations of

sexual abuse against Ailes.” Am. Compl. ¶ 85.

       Luhn’s amended complaint asserts, alternatively, that Scott’s statements “created the

false and misleading implication that Plaintiff Luhn . . . fabricated allegations of [a] cover-up

against Defendant Scott.” Id. ¶ 85. But the complaint contains no factual basis for this assertion.

Nowhere in the complaint does Luhn reference allegations of a cover-up that preceded




                                                  8
publication of the Times article. And the two press releases attached to the complaint do not

support such an assertion: the January 9 press release contains but a single reference to Scott,

with no reference to a cover-up, while the April 4 press release was published after the Times

article. But even if Luhn’s cover-up allegations predated Scott’s comments to the Times, Scott’s

mere denial of accusations regarding her own conduct could not reasonably be interpreted to

make Luhn “appear odious, infamous, or ridiculous.” Fleming, 878 F.2d at 1476.

       This last conclusion finds support from binding circuit precedent. In Smith v. Clinton,

parents of Americans killed in Benghazi, Libya, sued former Secretary of State Hillary Clinton

for defamation. 886 F.3d 122 (D.C. Cir. 2018). The basis of their defamation claim was

Secretary Clinton’s denial that she had previously stated, as the parents claimed, that “the

Benghazi Attack was the result of an anti-Muslim YouTube video.” Id. at 124. The district

court dismissed the claim and the D.C. Circuit affirmed, noting that Clinton had “contradicted

[the plaintiffs’] version of events but did not state or imply they were lying.” Id. at 128. The

same is true here. Even assuming that Scott’s comments were specifically intended to refute

Luhn’s allegations of a cover-up—an assumption with no basis in the record—Scott’s flat denial

of those allegations without any specific reference to Luhn’s character would not constitute

defamation. Because Luhn’s defamation claims fail on each of these two elements, the Court

will dismiss both claims.

       B. False Light Invasion of Privacy

       A claim for false light invasion of privacy “requires a showing of: (1) publicity; (2) about

a false statement, representation or imputation; (3) understood to be of and concerning the

plaintiff; and (4) which places the plaintiff in a false light that would be offensive to a reasonable

person.” Doe v. Bernabei & Wachtel, PLLC, 116 A.3d 1262, 1267 (D.C. 2015) (internal




                                                  9
quotation marks omitted). Given the similarity of their elements, the torts of defamation and

false light invasion of privacy are “often analyzed in the same manner, at least where the plaintiff

rests both his defamation and false light claims on the same allegations.” Zimmerman v. Al

Jazeera Am., LLC, 246 F. Supp. 3d 257, 273 (D.D.C. 2017) (internal quotation marks and

alterations omitted).

       Luhn’s claim for false light invasion of privacy fails for the same reasons as her

defamation claim. As explained above, Scott’s statements to the Times denying Scott’s own

knowledge of Ailes’s misconduct were not statements “of and concerning” Luhn, whom the

article did not mention. Doe, 116 A.3d at 1267. Moreover, Scott’s statements certainly did not

depict Luhn “in a false light that would be offensive to a reasonable person.” Id. Indeed, the

statements did not concern Luhn at all. To the extent that they may have contradicted Luhn’s

supposed previous statements implicating Scott in a cover-up, they did not place Luhn herself in

a false light, let alone a false light that would be offensive to a reasonable person. The Court will

therefore dismiss Luhn’s false light invasion of privacy claim.

       C. Intentional Infliction of Emotional Distress

       “To succeed on a claim of intentional infliction of emotional distress, a plaintiff must

show (1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or

recklessly (3) causes the plaintiff severe emotional distress.” Armstrong v. Thompson, 80 A.3d

177, 189 (D.C. 2013). “‘Liability will not be imposed for mere insults, indignities, threats,

annoyances, petty oppressions, or other trivialities.’” Kowalevicz v. United States, 302 F. Supp.

3d 68, 76 (D.D.C. 2018) (quoting District of Columbia v. Tulin, 994 A.2d 788, 800 (D.C. 2010)).

Rather, “‘[t]he conduct must be so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in




                                                 10
a civilized community.’” Id. (quoting Horman v. Goyal, 711 A.2d 812, 818 (D.C. 1998)).

“Whether the conduct complained of is sufficiently outrageous is a question of law that should

be decided by the court on a motion to dismiss.” Smith v. United States, 121 F. Supp. 3d 112,

124 (D.D.C. 2015), aff’d 843 F.3d 509 (D.C. Cir. 2016).

       According to Luhn, “Defendants engaged in extreme and outrageous conduct by falsely

calling Plaintiff Luhn a liar and creating the implication that she fabricated sexual assault and

cover-up allegations against Ailes and fabricated allegations of cover-up against Defendant

Scott.” Am. Compl. ¶ 93. But Scott’s comments to the Times do not meet the standard for

“extreme and outrageous conduct.” Such conduct “must be so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.” Kowalevicz, 302 F. Supp. 3d at 76

(quoting Horman, 711 A.2d at 818). Luhn’s allegations regarding Ailes’s alleged acts of sexual

harassment might well rise to that level of outrageousness. Scott’s comments to the Times,

however, plainly do not. Scott’s denial of her knowledge of Ailes’s misconduct bears no

resemblance to the conduct alleged in cases where courts have previously recognized intentional

infliction of emotional distress claims. See, e.g., Catsouras v. Dep’t of California Highway

Patrol, 181 Cal. App. 4th 856, 863 (2010) (defendants posted photographs of decapitated

remains of teenage traffic accident victim online). The Court will therefore dismiss Luhn’s

intentional infliction of emotional distress claim.

                                          CONCLUSION

       For the reasons stated above, the defendants’ motion to dismiss Luhn’s amended

complaint is granted, and the case is dismissed. A separate order consistent with this decision

accompanies this memorandum opinion.




                                                 11
                              ________________________
                              DABNEY L. FRIEDRICH
                              United States District Judge
Date: November 7, 2019




                         12
