Brummer Versus Wey Defamation Case Moves Forward, Sort Of

March 16, 2016

Not that Wikipedia is an unimpeachable source but, for whatever it's worth, let's consider the opening paragraph of the entry for "Benjamin Wey"[Ed: footnotes omitted]:


Benjamin Wey (Benjamin Tianbing WeiChinese魏天冰pinyinWi Tiānbīng) is a Chinese-born American Wall Street financier, and CEO of New York Global Group (NYGG)He began his financial career as an investment advisor and broker in Oklahoma in the late 1990s. Wey and NYGG were among the most active "facilitators and promoters" of reverse takeovers that allowed small Chinese companies to raise capital on U.S. markets, until reverse takeovers became the subject of a U.S. Securities and Exchange Commission investigation in 2011. In September 2015, he was indicted by the United States Department of Justice on charges of securities fraud, stock manipulation, money laundering, and wire fraud for his role in an alleged fraudulent scheme to profit from undisclosed, controlling ownership interests in several companies in the United States, including 6D Global Technologies Inc.

In fairness to Wey, let me remind you that as a defendant/respondent in any pending matters, he is presumed innocent unless proven guilty after a trial/hearing and according to the applicable burdens of proof in the various civil and criminal matters. 

To say that recent years have been challenging for Mr. Wei might be an understatement. As previously reported in "Things Get Waaaay Worse for Wey" (BrokeAndBroker.com Blog, September 11, 2015), in addition to the trials and tribulations touched upon in the Wikipedia preamble, in July 2014, Wey was sued by a former employee; and on June 29, 2015 a jury awarded the former employee $2 million in compensatory damages and $16 million in punitive damages for sexual harassment, retaliation and defamation. 

Brummer Complaint

Also, in April 2015, Wey was named as a defendant in a defamation lawsuit in New York State Supreme Court by Georgetown Law Professor Christopher Brummer, who is also a member of the Financial Industry Regulatory Authority ("FINRA") National Adjudicatory Council (the "NAC"). Christopher Brummer, Plaintiff, v. Benjamin Wey, FNI Media LLC, and NYG Capital LLC d/b/a New York Global Group, Defendants (Complaint, Supreme Court of the State of New York, New York County, File No. 153583/2015, April 22, 2015).  In the "INTRODUCTION" portion of the civil Complaint filed by Plaintiff Brummer, the following is set forth:

1. This action arises out of the vindictive and mendacious conduct of defendant Benjamin Wey (the self-described "Saint of Wall Street, Journalist, Financier") and the defendant companies he controls, which, because Defendant Wey disagreed with a decision rendered by the Financial Industry Regulatory Authority, Inc. ("FINRA"), have been waging a retaliatory internet defamation campaign against FINRA, the FINRA panelists who issued the decision, and members of the advisory council that upheld FINRA's decision on appeal. Plaintiff Christopher Brummer, a Professor of Law at Georgetown University Law Center, served on that advisory council.

2. One of many weapons in defendants' arsenal of defamatory internet publications is "TheBlot Magazine" ("TheBlot"),1 a digital magazine published by Defendant Wey that purportedly "brings traditional journalism to the modern day" but that Defendant Wey, in fact, utilizes to maliciously defame, harass, and intimidate private individuals under the guise of legitimate investigative journalism. Here, Defendant Wey has used TheBlot to sling knowingly false information in various articles about Professor Brummer specifically intended to blot Professor Brummer's character, destroy his reputation, harass and intimidate him, and incite others to harass him (e.g., by publishing his telephone number and email address). Defendant Wey has also spewed falsehoods about Professor Brummer that seep into each category of the cause of action for defamation per se except for the "loathsome disease" category (e.g., "Chris Brummer, charged with regulatory abuses, FINRA's 'Uncle Tom,'" "Chris Brummer, caught in multiple fraud," "Georgetown Law School Chris Brummer caught lying, exaggerated biography," and "In December 2014, Brummer was caught messing with another man's wife"). In an effort to inflict maximum damage on his victims, Defendant Wey has even gone to such outrageous lengths as to perform internet search engine optimization to increase the exposure of his defamatory articles and to create phony names for reporters and post sham comments about their articles to intensify the illusion of legitimate journalism and thereby lend an air of credibility to his knowing and malicious libel. 

3. Professor Brummer accordingly seeks, among other things, compensatory and punitive damages and an order enjoining defendants from continuing their deliberate and relentless campaign of defamation, harassment, and intimidation, and from further tarring Professor Brummer's reputation.
____________________

Blot (blot) n. An association of disgrace with one's character or reputation. See The American Heritage Dictionary of the English Language, Houghton Mifflin Harcourt Publishing Company (Slh ed. 20 14).  

In explaining the purported genesis of Wey's alleged personal attacks upon Brummer, the Complaint asserts:
Defendant Wey's Retaliation for
a FINRA Decision that Punished His Associates For Acts of Fraud 

24. In August 20 13, after a fully-litigated proceeding, a FINRA hearing panel found that two of Defendant Wey's business associates (William Scholander and Talman Harris) had violated Section 10(b) of the Securities Exchange Act of 1934, SEC Rule 10b-5, and FINRA Rules 2020 and 2010. This decision (the "Hearing Panel Decision") prohibited the patties from associating with any FINRA firm in any capacity. This Hearing Panel Decision was appealed to the NAC and ultimately affirmed on December 29,2014. Professor Brummer served on the NAC panel that issued this decision (the "NAC Decision"). 

25. The Hearing Panel Decision that was issued in August 2013 referred to Defendant Wey's involvement in the activities of Scholander and Harris. On August 29, 2013, Defendant Wey's legal counsel wrote a letter to FINRA demanding that Defendant Wey's name be removed from the Hearing Panel Decision. FINRA accommodated that request. 

26. On or about September 24,2013, Defendant Wey emailed one of the FINRA hearing panelists, falsely accusing the panelist of participating in a racist, baseless, and vindictive decision. Defendant Wey wrote, "Read this media story, it is disgusting" and provided a link to an article he had written for TheBlot under a fake name falsely maligning FINRA. Defendant Wey threatened to "start talking to the New York times (sic) and other media organizations" and to tell those organizations that the FINRA panelist was racist and had called Defendant Wey a "Chinese negro," which Defendant Wey well knew to be false. 

27. In furtherance of their retaliation against the Hearing Panel Decision, defendants, via TheBlot, began publishing vicious, defamatory, and false stories about FINRA and individuals associated with FINRA, such as: 
  • "FINRA REGULATORS JEFFREY P. BLOOM, LUCINDA O. MCCONATHY IMPLICATED IN RONEN ZAKAI FELONY"2 
  • "OP-ED: SEX, LIES AND IMPOTENT FINRA REGULATOR JEFFREY BLOOM MISSED NEW BERNIE MADOFF"
  • "MYLES EDWARDS, DISGRACED CONSTELLATION WEALTH ADVISOR LAWYER IMPLICATED IN RONEN ZAKAI FELONY CONVICTION."4 
  • "CAPTURED: FACEBOOK CRIMINAL RONEN ZAKAI, THE NEW BERNIE MADOFF FRAUD." 5
  • "AEGIS CAP IT AL FIGHTS BACK AT FINRA BLACKMAIL, RACISM" 6
These articles falsely and maliciously accused various FINRA employees and associates with making false statements, being implicated in various frauds, and making racist and bigoted comments. 

28. On or about January 9, 2014, Defendant Wey created a fake email in an effort to impersonate Michael Dixon, a FINRA enforcement attorney, and make it appear as if Mr. Dixon were sending one of the articles above to another FINRA enforcement attorney, Jeffrey Bloom, with the question, "Is this true?" 

29. On or about February 11,2014, February 27, 2014, and March 8, 2014, Defendant Wey created further fake emails to Jeffrey Bloom that he falsely attributed to Maureen Gearty, a witness whose testimony was cited in the Hearing Panel Decision. In these emails, Defendant Wey made it appear as if Ms. Gearty were writing such things as: (i) "I have lied many times. Sorry that you were duped also. Maureen"; (ii) "Jeffrey, I have run out of money. Could you pay me again? Sorry that I have lied many times to you and duped FINRA. Maureen"; and (iii) "Jeffrey, you have screwed me so bad. Then you left me alone in the cold. You are an evil person." 

30. By fabricating these emails, Defendant Wey manufactured evidence that a witness had lied during her testimony about Scholander and Harris and that FINRA's employees had engaged in wrongdoing by paying for this false testimony. Defendant Wey fabricated this evidence for the purpose of obstructing FINRA's adjudicatory process and any appeal of FINRA's decision-making to the SEC. Upon information and belief, Defendant Wey has manufactured other kinds of false evidence in order to undermine these and other proceedings. 

31. Defendant Wey's associates, Scholander and Harris, appealed the NAC decision to the SEC in January 2015. FINRA submitted a brief concerning the circumstances of the 10 disciplinary action to the SEC. On February 27, 20 15, Defendant Wey called Michael Garawski, Associate General Counsel at FINRA, and left a threatening voicemail, transcribed here: "Hey, Michael, hi, this is Benjamin Wey from New York. I'm calling regarding a publicly-available document, searchable on the SEC website regarding FINRA v. Talman Harris. My name is mentioned as a stock promoter. What is the basis for that mentioning? I'm an investigative reporter. I'm investigating you, and your patties involved. Remove my name or you will face litigation. Okay? Call me back. Be a man, not a coward. 212-566-0499. This is 2:37 pm, Friday, February 27th " 

32. This voicemail is but one more example of defendants' using the power of TheBlot to spread falsehoods about FINRA and its employees and affiliates in retaliation for the enforcement actions against Scholander and Harris and as unlawful leverage to attempt to get FINRA to abandon and/or rescind the sanctions against them.
____________________

Wey's Motion to Dismiss

On August 10, 2015, Defendants filed a Motion to DismissChristopher Brummer, Plaintiff, v. Benjamin Wey, FNL Media LLC, and NYG Capital LLC d/b/a New York Global Group,Defendants (NYS Supreme Court, NY County, No.. 153583/2015, August 10, 2015). As set forth in Defendants' Memorandum of Law in Support of the Motion to Dismiss:

SUMMARY OF ARGUMENT 

As demonstrated infra in Section I, all of Plaintiff's claims must be dismissed because (i) all of the statements posted on the Blot are constitutionally protected statements of opinion and (ii) many of the statements are not about Plaintiff at all. 

As demonstrated infra in Section II, Plaintiff's defamation claims must be dismissed because Plaintiff is a limited purpose public figure who has failed to plead actual malice with specificity. As demonstrated infra in Section III, Plaintiffs' claims against Defendants, who are the alleged "publishers," are immune under the Communications Decency Act of 1996 because Plaintiff fails to plead facts showing that any of the defendants authored these posts. 

As demonstrated infra in Section IV, Plaintiffs' third cause of action for Intentional Infliction of Emotional Distress fails because its allegations are duplicative of the defamation claims and the conduct alleged does not satisfy the legal standard for extreme and outrageous conduct. 

Finally, as demonstrated infra in Point V, at a minimum, Defendant Wey must be dismissed from this lawsuit because Plaintiff failed to serve him in accordance with CPLR 308(2).

March 2016 NYS Supreme Court Order with Notice of Entry

On March 1, 2016, New York State Supreme Court Judge Manual Mendez issued an Order With Notice of Entry addressing several pending motions. Christopher Brummer, Plaintiff, v. Benjamin Wey, FNI Media LLC, and NYG Capital LLC d/b/a New York Global Group, Defendants (Order With Notice of Entry, Supreme Court of the State of New York, New York County, File No. 153583/2015, March 1, 2016). In his Order, Judge Mendez denied Defendant Wey's motion to dismiss but granted him a traverse hearing to determine whether the Complaint was duly served upon him. Also, the Judge denied Plaintiff's motion to dismiss and for sanctions, and he further declined to issue an order directing the Defendants to refrain from the spoliation of evidence and to preserve evidence. 

Documentary Evidence

In denying Defendants's Motion to Dismiss based upon the documentary evidence that they had cited, Judge Mendez found that:

The documentary evidence provided by the defendants does not "utterly refute" the allegations asserted in the Complaint. Plaintiff has stated a potentially meritorious claim and he is not required to establish the success of his allegations.

Opinion

In rejecting Defendants' s contention that the language at issue is "opinion" and, as such, privileged and not actionable,  Judge Mendez found questions remained as to whether the content at issue was purely opinion: 

Opinions that imply they are based on facts, " .. which justify the opinion but are unknown to those reading or hearing it," are considered mixed opinion and actionable (Steinhilber v. Alphonse, 68 N.Y. 2d 283,501 N.E. 2d 550, 508 N.Y.S. 2d 901 (1986)). Opinions are privileged, no matter how offensive, but defamatory statements of fact are actionable. Three factors to be taken into consideration are, "( 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 appears or the broader social context and surrounding circumstances are such to signal ... readers or listeners that what is being read or heard is likely to be opinion, not fact" (Davis v. Boeheim, 24 N.Y. 3d 262, 22 N.E. 3d 999, 998 N.Y.S. 3d 131 [2014J). Under the New York State and United States Constitutions publications that can be reasonably interpreted as stating or implying false facts are actionable (Gross v. The New York Times Co., 82 N.Y. 2d 146, 623 N.E. 2d 1163,603 N.Y.S. 2 d 0813 [1993]).

Public Figure

In addressing Defendant's argument that Plaintiff Brummer is a limited purpose public figure, Judge Mendez explains that such a characterization requires proof that a private individual has placed himself in the forefront of public controversies. If such a public figure burden of proof is met, then the standard by which alleged defamation is viewed becomes one involving proof of "actual malice. " In rejecting Defendants's position, the Judge found that:

Defendants have not provided proof that the plaintiff did anything to place himself in the forefront of the controversy or otherwise draw attention to himself concerning the NAC's December 14, 2014 decision. They have not established that plaintiff's employment as either a professor of law or with the NAC makes him a limited purpose public figure, and that the higher "actual malice" standard applies. 

Defamation

As to the core issue of whether the language at issue was defamatory, Judge Mendez dismisses Defendants's points by noting that:

The argument that the Complaint fails to state causes of action for defamation or defamation per se, because the statements plaintiff relies on are imprecise, ambiguous and "race baiting" or name calling which are not actionable, fails because the terms cited are taken out of context. Racist terms referring to plaintiff, as stated TheBlot, together with other statements describing the plaintiff as available for hire, involved in fraud, and affiliated with felons. could reasonably be susceptible to a defamatory connotation. The "articles" refer to plaintiff's alleged affiliation and implication in fraud investigations and the language is sufficiently specific to state a claim of defamation. 

Defamation per se, involves a statement that, charges the plaintiff with a serious crime or "tends to injure another in his or her trade, business or profession." (Konig v. Wordpress.com, 112 A.d. 3d 936, 978 N.Y.S. 2d 92 [2nd Dept., 2013]). Plaintiff ha.s stated a potential claim of defamation per se by the allegations in the Complaint that defendants referred to criminal affiliation and fraud. Plaintiff alleges he had to forgo a consulting engagement involving banking regulations and spend an additional $882.82, to purchase internet domains to protect himself and his professional reputation (Mot. Wipper Aff., Exh. A).

Service

Under New York State Civil Practice Law and Rules ("CPLR") §308: Personal service upon a natural person, a protocol is set forth as to how litigants are to effect personal service: 

1. by delivering the summons within the state to the person to be served;  or
2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other;  proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later;  service shall be complete ten days after such filing;  proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;  or
3. by delivering the summons within the state to the agent for service of the person to be served as designated under rule 318, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;
4. where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other;  proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later;  service shall be complete ten days after such filing, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;
5. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.
6. For purposes of this section, "actual place of business" shall include any location that the defendant, through regular solicitation or advertisement, has held out as its place of business.

In considering Wey's assertion that the Complaint had not been duly served upon in pursuant to CPLR §308[2]Judge Mendez explained that:

Benjamin Wey seeks an Order pursuant to CPLR §3211 [a], [8] dismissing the complaint against him for lack of jurisdiction arguing he was not served with the summons with notice in accordance with CPLR §308[2]. It is Mr. Wey's contention that the affidavit of service states substituted service at his home address on an individual, "Jason P. (refused last name) - Cotenant" (Mot. Wipper Aff., Exh. F), but that he does not share the residence. Defendant also claims that service is defective because the affidavit of service does not state the address used as his residence.

In a somewhat stunning rebuff that may have serious consequences for Plaintiff Brummer, Judge Mendez found that:

Plaintiff's affidavit of service is defective in that it does not state the address defendant was served. The claims asserted by plaintiff's counsel that the affidavit was merely redacted are insufficient without proof. Benjamin Wey's affidavit also raised an issue of whether the process server effectuated service on a person of suitable age and discretion, since he claims that there is no other person residing at the apartment requiring that a traverse hearing be conducted.

Spoliation

Finally as to Plaintiff's complaints about Defendants's alleged spoliation of evidence, Judge Mendez found that:

Plaintiff failed to provide proof that the defendants have spoliated discovery. Defendants have not admitted to spoliation only that they operate a site that is available to the public and by its nature is subject to modification as a result of use. Plaintiff is seeking the equivalent of injunctive relief without making the relevant arguments. His desire to obtain assurances that the potential evidence is not being spoliated has not established that an Order is required at this time

Bill Singer's Comment

Brummer v. Wey does not necessarily move forward but, in a more legal sense, it is sidetracked to permit a traverse hearing on the issue of whether Plaintiff effected proper CPLR 308(2) upon Defendant Wey. Given Judge Mendez's commentary in the Order, it looks like Plaintiff has some problems with proving statutory compliance.  At best, this might just result in some delay in order to allow proper service but, at worst, the  Court may throw out the Complaint as against Defendant Wey and require Plaintiff to go back to square one. Such issues are not without potentially devastating consequences because New York State has a one-year statute of limitations for defamation actions and the State follows the so-called "single publication rule," under which the date on which allegedly defamatory publication appears on the Internet, for example, is typically deemed as the start of the ticking clock (although certain forms of republication or revision may re-start the clock). Stay tuned because there may be more fuel to be thrown on this fire.

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