I've been around Wall Street for some 35 years and have been admitted to the Bar since 1985. During that time, I've worked with and represented some not-so-nice folks and some truly wonderful human beings -- it all sort of comes with the territory of working on the Street and being a lawyer. Notwithstanding my three-decades-plus of experience, I've rarely been as disgusted with the underlying facts of a case as by those alleged in Christopher Brummer, Plaintiff, v. Benjamin Wey, FNI Media LLC, and NYG Capital LLC d/b/a New York Global Group, Defendants (Amended Complaint, Supreme Court of the State of New York, New York County, File No. 153583/2015, January 13, 2017).
Benjamin Wey (Benjamin Tianbing Wei, Chinese: 魏天冰; pinyin: Wei 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, Wey 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."   He is also facing a defamation suit stemming from his attacks on a Financial Industry Regulatory Authority (FINRA) regulator and Georgetown University law professor in his internet magazine The Blot. According Bloomberg Businessweek, he has also used the publication to defame investigative journalists.
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.
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 ).
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.
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).
1. by delivering the summons within the state to the person to be served; or2. 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; or3. 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.
Benjamin Wey seeks an Order pursuant to CPLR §3211 [a],  dismissing the complaint against him for lack of jurisdiction arguing he was not served with the summons with notice in accordance with CPLR §308. 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.
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.
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
18. Since August 2015, Defendants have added new and specific allegations to the Fraud Article stating that Professor Brummer (1) "was entangled in an alleged extramarital affair with 'Big Red' Maureen Gearty," a witness in the FINRA proceedings that testified against brokers Scholander and Harris (2) engaged in "bribery and shady money dealings," (3) filed and lost a frivolous lawsuit against "journalists," (4) caused "many investors to lose their life savings," and (5) was "strongly rebuked in an SEC filing."19. The ever-changing Fraud Article makes false and defamatory statements that currently include the following:
- That Professor Brummer engaged in "bribery and shady money dealings," and "repeatedly harassed investigative journalists."
- That Professor Brummer acted "like a thief that got caught in a failed scheme to SILENCE THE MEDIA[.]" (bold in original)
- That "[p]ublic records revealed murky dealings among Chris Brummer, his alleged extramarital affair with a FINRA witness, the cover-up by FINRA cronies . . .[and] lies told by Chris Brummer[.]"
- That "[i]n March 2016, CHRIS BRUMMER, broadly known as 'Dr. Bratwurst' LOST the frivolous lawsuit against journalists. A New York judge tossed out Chris Brummer's fabricated claims."
- That Professor Brummer "was entangled in an alleged extramarital affair with 'Big Red' Maureen Gearty, a FINRA 'STAR' witness whose blatant lies destroyed the 20 year careers of two innocent black brokers. The alleged steamy sexual affair has brought media spotlight on CHRIS BRUMMER, who was also sued and accused of fabricating evidence."
- That Professor Brummer's "background of cooking sausages should have disqualified Brummer in a complex financial case. Instead, the FINRA Uncle Tom Chris Brummer was deliberately told to adjudicate a case and rule in FINRA's favor against two black brokers."
- That Professor Brummer "was strongly rebuked in an SEC filing against Brummer, quoted directly from the SEC complaint: 'Led by Chris Brummer, FINRA has merely sought to malign the character of Appellants. This tactic is particularly egregious because there is NO support for the aspersions cast by FINRA . . .Chris Brummer and FINRA apparently feel that they can grossly misconstrue the record . . .'" [By characterizing this as a "rebuke" in an "SEC filing," and purportedly quoting from an "SEC complaint"-while deliberately omitting that it refers to an unsuccessful brief that (federally indicted brokers) Scholander and Harris filed with the SEC in connection with a rejected appeal-the statement implies the false facts that a rebuke came from the SEC itself and that the regulatory agency has "rebuked" Professor Brummer. But in fact the SEC upheld the decision in its entirety including the punishment of the brokers.]
- That Professor Brummer "may be better at teaching his students dancing with naked German girls than the law or business courses."
- That Professor Brummer "never denied that his alleged lover and FINRA 'star witness' Maureen Gearty lied under oath - which led to a rigged ruling that assassinated the reputation of two innocent black men, [and] completely devastated their young families."
- That Professor Brummer "makes money off convicted felons, according to public records."
- That Professor Brummer "laid his eyes on a young female student's pair of naked legs - a waitress working at Saxby's Coffee, a popular coffee joint hear Georgetown University in D.C."
- That Professor Brummer worked at the Milken Institute as "a biotech industry 'pumper and dumper' that makes bundles of cash by selling highly risky biotech stocks - making empty promises and creating dreams of drug wonders while emptying the life savings of grandmas and grandpas across America."
- That "[m]any investors lost their life savings, thanks to [the] endorsement by Brummer."
- That Professor Brummer "became the 21st century 'Uncle Tom' ruining the lives of innocent men and women in the world of finance."