14-1813(L) Baiul v. NBCUniversal Media, LLC



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN**
**ELECTRONIC DATABASE (**  **WITH THE NOTATION “**  **SUMMARY ORDER ”).**  **A PARTY CITING A SUMMARY ORDER MUST** 
**SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 23 rd** **day of June, two thousand fifteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **GUIDO CALABRESI,** 7 **GERARD E. LYNCH,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 12 **Oksana S. Baiul,** 13 **Plaintiff-Appellant ,**  14 **14-1813(L)** 15 **-v.- 14-2892(con)** 16 **14-3339(con)** 17 **NBCUniversal Media, LLC and NBC Sports** 18 **Network, L.P.,** 19 **Defendants-Appellees**

**.** * 20 21 - - - - - - - - - - - - - - - - - - - -X 22 23 **FOR APPELLANT:** RAYMOND J. MARKOVICH, West 24 Hollywood, California. 25

* The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above.**FOR APPELLEES:** CHELLEY E. TALBERT (Sasha Segall 1 on the brief ), New York, New 2 York. 3 4 Appeal from a judgment of the United States District 5 Court for the Southern District of New York (Forrest, J. ). 6 7 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 8 **AND DECREED**that the judgments of the district court be 9
**AFFIRMED**

. 10 11 Plaintiff Oksana S. Baiul appeals from the judgments of 12 the United States District Court for the Southern District 13 of New York (Forrest, J. ) granting defendants’ motions for 14 summary judgment and for attorney’s fees. We assume the 15 parties’ familiarity with the underlying facts, the 16 procedural history, and the issues presented for review. 17 18 In affirming the dismissal of a related lawsuit a few 19 months ago, we identified “Baiul [as] a world famous figure 20 skater, [who] won the 1993 World Championship for Ladies’ 21 Figure Skating and the 1994 Olympic Gold Medal in Ladies’ 22 Figure Skating.” Baiul v. Disson , No. 14-1741, 2015 WL 23 1726168, at *1 (2d Cir. Apr. 16, 2015). Her latest lawsuit 24 alleges that she was tagged with a reputation as a “no show” 25 after publication of a press release falsely stating that 26 Baiul would be appearing on a nationally televised figure 27 skating special notwithstanding that she had informed the 28 show’s producer that she would not be participating. The 29 district court granted summary judgment (and awarded 30 attorney’s fees) to defendants-appellees NBCUniversal Media, 31 LLC and NBC Sports Network, L.P. (“NBC”). We affirm for 32 substantially the reasons set forth in the series of 33 opinions issued by the district court. 34 35 **1.** As to Baiul’s claims under New York Civil Rights 36 Law § 51, even assuming that NBC made “commercial use” of 37 Baiul’s name, its use fell within the exception for 38 “incidental use.” See, e.g. , Groden v. Random House, Inc.
, 39 61 F.3d 1045, 1049 (2d Cir. 1995). That exception applies 40 notwithstanding the factual error in the press release: 41 “where falsity is the gravamen of a § 51 claim, First 42 Amendment guarantees permit imposition of liability only 43 where actual malice is shown.” Lerman v. Flynt Distributing 44 Co. , 745 F.2d 123, 135 (2d Cir. 1984). Here, no reasonable 45 jury could find that NBC acted with “actual malice,” and 46

2“there is no serious dispute that Baiul is a public figure,” 1 Baiul , 2015 WL 1726168, at *1. 2 3 **2.** Baiul’s Lanham Act claims fail because, among other 4 reasons, Baiul presented virtually no evidence that she 5 suffered any damages, or that NBC profited from the error in 6 the press release. See15 U.S.C. § 1117(a); see alsoGeorge 7 Basch Co. v. Blue Coral, Inc. , 968 F.2d 1532, 1537 (2d Cir. 8 1992). 9 10 **3.** The district court did not clearly err in finding 11 that Baiul filed this lawsuit for an improper purpose, and 12 therefore did not abuse its discretion in deciding to award 13 reasonable attorney’s fees to NBC. Nor did the district 14 court abuse its discretion in calculation of a reasonable 15 fee. 16 17 *** * *** 18 19 For the foregoing reasons, and finding no merit in 20 Baiul’s other arguments, we hereby **AFFIRM** the judgments of 21 the district court. 22 23 FOR THE COURT: 24 CATHERINE O’HAGAN WOLFE, CLERK 25 26 27 28 29 30 31 32 33 34 35 36 37 38

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