The parents of Seth Rich, the Democratic National Committee staffer murdered during a botched robbery in 2016, won a legal effort on Friday to revive a lawsuit against Fox News, reporter Malia Zimmerman and guest commentator Ed Butowsky centering on a conspiracy theory that was published about the case.
The Court of Appeals for the Second Circuit ruling revived the Rich lawsuit, reversing a lower court decision to dismiss the case.
“We conclude that these allegations plausibly state claims for intentional infliction of emotional distress and tortious interference with contract, and that they are capable of supporting claims of negligent supervision,” according to an opinion written by Guido Calabresi, who was joined by two other judges in the decision. Read it here.
Rich’s parents, Joel and Mary Rich, can pursue claims of intentional infliction of emotional distress, tortious interference with contract and negligent supervision.
Rich’s murder is still unsolved, but D.C. Metropolitan Police determined that Rich was shot and killed a few hundred feet from his home during a robbery, the judges noted. But soon after his death, fringe groups began to advance conspiracy theories that he was involved in the leak of DNC emails to WikiLeaks, a hack that was drawing relentless media attention at the time.
The Riches claim that Zimmerman and Butowsky convinced them to hire another Fox News contributor, Rod Wheeler, as a private investigator to look into the circumstances of their son’s death. Instead, the Riches claim, Zimmerman and Butowsky exploited their connection to Wheeler to give credibility to what they knew were “false accusations” about Seth Rich, and the allegations were “widely disseminated” through Fox News.
In a statement, the Riches said, “We would not wish what we have experienced upon any other parent – anywhere. We appreciate the appellate court’s ruling and look forward to continuing to pursue justice.” They are represented by Massey & Gail LLP and Susman Godfrey LLP.
A Fox News spokesperson said that the appellate ruling “permits Mr. and Mrs. Rich to proceed with discovery to determine whether there is a factual basis for their claims against Fox News. And while we extend the Rich family our deepest condolences for their loss, we believe that discovery will demonstrate that Fox News did not engage in conduct that will support the Riches’ claims. We will be evaluating our next legal steps.”
The appellate judges declined to dismiss Fox News as a defendant. Although the judges noted that the Riches’ lawsuit “contains few specific factual allegations concerning the pre‐publication involvement of individuals at Fox News in addition to Zimmerman, Butowsky, and Wheeler,” they found that their lawsuit still “states sufficiently plausible claims” against the network.
Zimmerman wrote two stories on May 16, 2017, that included Wheeler as a named source, even though he signed a contract that restricted his speaking on behalf of the family.
Fox News retracted the story five days after it was published, releasing a statement in which it said that it was “not initially subjected to [a] high degree of editorial scrutiny.”
In their lawsuit, the Riches claim that Fox News was aware of “the scheme” all along, and that on the eve of publication, Butowsky sent an email to Fox News producers saying that “If you have any questions about the story or more information is needed, call me” because “I’m actually the one who’s been putting this together but as you know I keep my name out of things because I have no credibility.”
The Riches say that the advancement of conspiracy theories over the case has triggered symptoms of post-traumatic stress disorder and social anxiety disorder, and that Mary Rich no longer feels comfortable in public out of fear of being asked about WikiLeaks.
The judges’ opinion stated that “the Riches are not claiming any injury because of some reputational harm suffered by their son. That hypothetical defamation suit died with Seth, and no one can resurrect it. But the Riches’ own cause of action for [intentional infliction of emotional distress] — arising from the Appellees’ speech and conduct specifically targeted at Joel and Mary — continues to be viable.”
The judges also wrote that the Riches’ complaint “sufficiently pleaded causation” when it came to the question of whether the defendants tortiously interfered with the contract that the family had with Wheeler. That question, the judges noted, would be better left to discovery and perhaps a jury.
The judges wrote that the Riches’ claim could revive their claim of negligent supervision on the part of Fox News if they amended their lawsuit to make it clearer. The family claimed that Fox News has liability for the conduct of Zimmerman, and even Wheeler.