From Judge Steven Merryday's decision yesterday in Lindberg v. Weinberg (M.D. Fla.):
Alleging that a December 2, 2024 Bloomberg Businessweek article titled How A Billionaire's "Baby Project" Ensnared Dozens of Women contains three false and defamatory statements, Greg Lindberg sues Bloomberg, L.P., and three Bloomberg employees …. Lindberg moves for an "emergency preliminary injunction" to stop Bloomberg from publishing an allegedly defamatory podcast based on the article.
Bloomberg's article details Lindberg's "baby project," an effort to use egg donors and surrogates to enlarge Lindberg's family. The sub-title of the article states, "Disgraced tycoon Greg Lindberg built a network of egg donors and surrogates. Several say he conned them—and that the US fertility clinics helped him do it." To substantiate the information in the article, the defendants "reviewed independently sourced legal, medical and financial records, and conducted dozens of interviews with [Lindberg's] former employees, clinic workers, ex-girlfriends, egg donors and surrogates." …
Lindberg alleges in Count V [which seeks injunctive relief based on the allegedly defamatory statements] that three statements in the article are defamatory[:] (1) that "Lindberg's selection of egg donors was based exclusively on eye color," (2) that "the statement characterizing Lindberg's family planning decisions as 'off' and 'jarring,'" and (3) that "Lindberg 'conned' women into donating eggs to him." The general allegations of the complaint include only allegations of the "eye color" statement and the "family planning" statement.
Under Section 770.01, Florida Statutes, before a plaintiff sues a "news media" defendant, the plaintiff must give "pre-suit" notice to the author. In an action against a reporter, a plaintiff who gives notice to the publishing corporation and not to the individual reporter fails to satisfy Section 770.01. Absent "pre-suit" notice, dismissal is proper. No allegation appears in the complaint that Lindberg served each defendant with "pre-suit" notice under Section 770.01.
Count I asserts a claim for defamation per se. [To quote the definition from another Florida case, "Generally, a publication is libelous per se if, when considered alone without innuendo, it tends to subject one to hatred, distrust, ridicule, contempt or disgrace, or tends to injure one in his trade or profession, or if it imputes to another conduct, characteristics, or a condition incompatible with the proper exercise of his lawful business, trade, profession or office. Words which amount to libel per se import damages and malice and are actionable in and of themselves without allegations or proof of special damages." -EV] Count I includes no allegation of a statement in the article that is defamatory per se. Although Count I includes a conclusory allegation that the "[d]efendants made false and defamatory statements concerning [the] [p]laintiff, both orally and in writing," Count I neither quotes nor describes the allegedly defamatory statements. Also, Count I states the elements of a defamation claim, but contains no factual allegations that if true would support a finding of defamation per se. Count I fails to state a claim under Florida law for defamation per se.
Count II fails to state a claim for defamation per quod. [Under Florida law, statements are defamatory per quod if they aren't defamatory per se; they can still be actionable, but only if the plaintiff can prove "special damages," which is to say specifically identifiable losses stemming from the damage to reputation. -EV] Count II neither quotes nor describes the allegedly defamatory statements. Also, Count II alleges no particular "extrinsic evidence" that would "reveal [the statement's] defamatory meaning." The conclusory allegations in Count II fail to state a claim for defamation per quod.
Although the complaint puts each word in quotation marks, a review of the article reveals that the article does not contain the statements that Lindberg's family planning decisions were "off" and "jarring," and does not use the word "exclusively" to describe Lindberg's selection of egg donors. Lindberg's complaint fails to "identify[] the allegedly defamatory statements with sufficient particular[ity]."
Lindberg argues that the statement (from the article's sub-heading) that "[s]everal [egg donors and surrogates] say [Lindberg] conned them" is not an "opinion" and is provably false. "Under Florida law, a defendant publishes a 'pure opinion' when the defendant makes a comment or opinion based on facts which are set forth in the publication or which are otherwise known or available to the reader or listener as a member of the public." "Mixed expression of opinion occurs when an opinion or comment is made which is based upon facts regarding the plaintiff or his conduct that have not been stated in the publication or assumed to exist by the parties to the communication."
The American Heritage Dictionary defines "con" as "[t]o swindle (a victim) by first winning the victim's confidence; dupe." The article states that "[s]everal egg donors and at least one surrogate never received the full payment they were promised, according to interviews, contracts and financial records." The article's "conned" statement is supported by factual assertions in the article. The complaint fails to allege which of those factual assertions (that support the "conned" statement) are false.
Though not entirely clear, Lindberg seems to argue that the three statements in the article "convey a false and defamatory impression." Under Florida law, a plaintiff may assert a claim for "the tort of defamation by implication." However, Lindberg's complaint fails to assert a claim for "defamation by implication."
Lindberg's defamation claims suffer from an additional deficiency. The defendants argue, and Lindberg agrees, that Lindberg is a "public figure." "Because of the expressive freedom guaranteed by the First Amendment, a defendant may not be held liable for defaming a public figure about a matter of public concern unless he is shown to have acted with actual malice." "To plead actual malice" Lindberg "must allege facts sufficient to give rise to a reasonable inference that the false statement was made 'with knowledge that it was false or with reckless disregard of
whether it was false ….'"
Lindberg argues that the complaint sufficiently alleges "actual malice" for several reasons. First, the complaint alleges that "Bloomberg reporters gained access to Lindberg under false pretenses, misrepresenting the purpose of their interview," and that "[t]his deceptive conduct supports an inference that Bloomberg was not engaged in good-faith journalism but rather in a predetermined attack." Second, Lindberg argues that the defendants "ignored extensive corrective information provided by Lindberg's legal team before publication." Third, the defendants "relied exclusively on anonymous and biased sources while disregarding credible contradictory evidence."
Each of Lindberg's arguments is unpersuasive. The defendant's misrepresentations of the purpose of an interview is insufficient to allege "actual malice." Although ignoring "extensive corrective information" given to the defendants could support a finding of "actual malice," the complaint fails to allege what specific information was provided to the defendants. The conclusory allegation that "corrective information" was provided to the defendants is insufficient to allege "actual malice." Similarly, alleging reliance on a biased source is not the same as alleging that the defendants knew or should have known that the biased source's information was false. The complaint fails to sufficiently allege that the defendants had "actual malice."
Because Lindberg fails to state a claim for defamation, Lindberg's claim for injunctive relief also fails….
Count IV asserts a claim for "false light invasion of privacy." Inexplicably, Count IV cites Jews for Jesus to support the assertion that "Florida law recognizes false light invasion of privacy as a distinct cause of action." However, Jews For Jesus "decline[s] to recognize a cause of action for false light invasion of privacy." 997 So. 2d 1098, 1114 (Fla. 2008). Count IV warrants dismissal.
The court also dismissed Lindberg's claims of tortious interference with business relationships.
Carol Jean LoCicero and Linda R. Norbut (Thomas & LoCicero PL) represent defendants.
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