State of New York

Court of Appeals

OPINION

This opinion is uncorrected and subject to revision 

before publication in the New York Reports.

Nos. 32 & 33

Lukasz Gottwald, &c., et al.,

 Respondents,

 v.

Kesha Rose Sebert, &c.,

 Appellant,

et al.,

 Defendants.

Case No. 32: 

Anton Metlitsky, for appellant. 

Christine Lepera, for respondents. 

Legal Momentum et al.; Samuel D. Isaly; Advance Publications, Inc. et al.; and Maria Kim Grand, 

amici curiae.

Case No. 33: 

Anton Metlitsky, for appellant. 

David A. Steinberg, for respondents. 

Samuel D. Isaly; National Women's Law Center et al.; and The Reporters Committee for Freedom 

of the Press et al., amici curiae.
- 1 -

GARCIA, J.:

Plaintiff in this defamation suit, Lukasz Gottwald (“Gottwald”), is a music producer 

known as “Dr. Luke.” Defendant Kesha Rose Sebert (“Sebert”) is a singer and songwriter 

known as “Kesha.” Sebert signed a recording contract with one of Gottwald’s companies 

in 2005 and the arrangement produced several successful albums. However, in 2014, 

Sebert sought to void her contractual arrangement with Gottwald by filing an action in 

California, alleging that Gottwald raped her shortly after she signed the original recording 

deal. In response, Gottwald brought this action in New York alleging that statements made 
- 2 - Nos. 32 & 33

- 2 -

by Sebert and her agents with respect to the alleged sexual assault were defamatory. We 

hold that Gottwald is a limited public figure who must prove by clear and convincing 

evidence that Sebert acted with actual malice; that five of the allegedly defamatory 

statements are privileged as a matter of law while the issue of privilege as to the remaining 

20 statements must be resolved by a jury; and that certain provisions of the 2020 

amendments to Civil Rights Law §§ 76-a and 70-a apply to this action. 

I.

Gottwald, in addition to being a music producer, also owns several companies, 

including plaintiffs Kasz Money, Inc. (“KMI”) and Prescription Songs, LLC. In 2005, 

Gottwald signed Sebert, an aspiring singer and songwriter, to a record deal through KMI. 

Sebert alleges that a short time later Gottwald raped her—an allegation he has denied. 

Through her representatives, Sebert subsequently attempted to gain her release from the 

KMI agreement based on the alleged sexual assault. Those efforts were unsuccessful. 

Instead, in 2008, the parties amended the KMI agreement and entered into separate 

publishing and recording agreements. In 2010, Gottwald and KMI released two 

commercially successful albums with Sebert, and in 2012, Gottwald and Sebert released a 

third album through another of Gottwald’s record labels. 

By 2012, however, Sebert sought to renegotiate the terms of her agreements with 

Gottwald but attempts to settle the dispute were once more unsuccessful. Sebert then 

commenced an action against Gottwald and his various companies in California, alleging 

that Gottwald had raped her in 2005 and seeking damages as well as an injunction voiding 
- 3 - Nos. 32 & 33

- 3 -

her contracts with plaintiffs. Gottwald filed this action in Supreme Court, New York 

County, that same day. The operative complaint pleads two counts of defamation against 

Sebert. The first asserts that she acted with malice in making false statements regarding 

the alleged rape. The second count is based on a statement made by Sebert alleging 

Gottwald raped another female recording artist.1 

The California court granted Gottwald’s motion for a stay of that action, while 

Sebert filed counterclaims here based on the same allegations contained in her California 

complaint. She then moved in Supreme Court for a preliminary injunction asking the court 

to enjoin Gottwald and his companies from interfering with her attempts to work with 

others and to prevent them from enforcing any contractual exclusivity and ownership 

provisions. The court denied the injunction. In 2016, Supreme Court granted Gottwald’s 

motion to dismiss Sebert’s counterclaims as, inter alia, time-barred and outside Supreme 

Court’s subject matter jurisdiction (2016 NY Slip Op 32815 [U] [Sup Ct, NY County 

2016]). Sebert appealed the denial of the injunction and dismissal of her counterclaims but 

later withdrew both appeals and voluntarily dismissed her California action.2 

After completing discovery, the parties cross-moved for summary judgment. As 

relevant here, Sebert argued that Gottwald is a public figure and can recover for defamation 

only upon proof that the alleged defamatory statements were made with actual malice, and 

1 That artist denied any sexual assault by Gottwald and the Appellate Division determined 

that the statement was defamatory per se (see 193 AD3d 573, 581 [1st Dept 2021]).

2 None of Sebert’s original counterclaims in this action survive.
- 4 - Nos. 32 & 33

- 4 -

that 25 of those statements cannot serve as the basis for liability in any event because they 

are privileged. Supreme Court granted partial summary judgment in favor of Gottwald and 

denied Sebert’s motion (2020 NY Slip Op 30347 [U], at *5 [Sup Ct, NY County 2020]). 

Sebert appealed. 

In 2020, while that appeal was pending, the Legislature amended a 1992 statute 

designed to protect certain individuals who face targeted litigation for their participation in 

public affairs, i.e., Strategic Lawsuits Against Public Participation (“SLAPP” suits). The 

1992 law—New York’s anti-SLAPP statute (L 1992, ch 767)—is codified in Civil Rights 

Law § 76-a and § 70-a. Sebert moved in Supreme Court for a ruling that the 2020 

amendments to the anti-SLAPP statute apply to this action and for leave to assert a 

counterclaim for attorney’s fees, damages for emotional distress, and punitive damages, as 

permitted by the amended statute. That court agreed, holding that the amendments applied 

retroactively to pending claims and granting Sebert leave to file a counterclaim. Gottwald 

appealed that decision. 

The Appellate Division, in two separate opinions, reversed on the application of 

the anti-SLAPP statute, holding that the amendments were not retroactive and so did not 

apply to this litigation, and affirmed Supreme Court’s holding that Gottwald was not a 

public figure and that issues of fact precluded the grant of summary judgment on certain 

defamatory statements (203 AD3d 488 [1st Dept 2022]; 193 AD3d 573 [1st Dept 2021]). 

The respective panels granted Sebert leave to appeal, certifying in each case the question 

of whether the orders were properly made. We answer each question in the negative.
- 5 - Nos. 32 & 33

- 5 -

II.

We first consider whether Gottwald is a public figure such that he must prove the 

allegedly defamatory statements were made with “actual malice” (see Huggins v Moore,

94 NY2d 296, 301 [1999]). If subject to that standard, Gottwald would be required to 

prove by clear and convincing evidence that each statement was made “with either 

knowledge that it was false or reckless disregard for the truth” (id.; see also New York 

Times Co. v Sullivan, 376 US 254, 279-280 [1964]). This actual malice standard need not 

apply to private figures (see Wolston v Reader’s Digest Ass’n, Inc., 443 US 157, 164 

[1979]); rather, “the States may define for themselves the appropriate standard of liability” 

for those individuals (Gertz v Robert Welch, Inc., 418 US 323, 347 [1974]). In New York, 

the accepted standard for private figures is negligence (see Krauss v Globe Intl., 251 AD2d 

191, 194 [1st Dept 1998]; see also Kesner v Buhl, 590 F Supp 3d 680, 692 [SD NY 2022]).

“The category of public figures is of necessity quite broad” (James v Gannett Co.,

40 NY2d 415, 422 [1976] [internal quotation marks and citation omitted]). At the same 

time, public figure status “is a matter of degree” (id. at 423). Certain individuals may be 

considered public figures for all purposes while others “may invite publicity only with 

respect to a narrow area of interest” and may fairly be considered public figures only where 

the alleged defamation relates to the publicity they sought (id.). One becomes such a 

limited-purpose public figure through some “purposeful activity,” by which the individual 

has “thrust” themself “into the public spotlight and sought a continuing public interest in 

[their] activities” (id. at 423; see also Maule v NYM Corp., 54 NY2d 880 [1981]). In that 
- 6 - Nos. 32 & 33

- 6 -

case, an otherwise private individual may properly be considered “a public personality” 

(id.; see Kipper v NYP Holdings Co., Inc., 12 NY3d 348, 353 n 3 [2009]). We agree with 

the dissent below that Gottwald meets this standard and is a limited-purpose public figure 

(193 AD3d at 587 [Scarpulla, J., dissenting] [Gottwald “purposefully and continuously 

publicized and promoted his business relationships with young female artists, like (Sebert), 

to continue to attract publicity for himself and new talent for his label”]).

By 2014, when Gottwald initiated this defamation action, he was, by his own 

account, a celebrity—an acclaimed music producer who had achieved enormous success 

in a high-profile career. As self-described in the complaint, he “has written the most 

Number One songs of any songwriter ever” and “was named by Billboard as one of the top 

ten producers of the decade in 2009.” Gottwald’s engagement with the media was 

“obviously designed to project his name and personality” before a wide audience to 

establish his reputation in this field (see Maule, 54 NY2d at 882). He purposefully sought 

media attention for himself, his businesses, and for the artists he represented, including 

Sebert, to advance those business interests (see James, 40 NY2d at 423). He had been 

featured in various publications, as well as on radio and television, highlighting the nature 

of his relationships with those artists and his development of their talent and careers. Sebert 

alleged that, shortly after establishing a professional relationship as her producer, Gottwald

sexually assaulted her. Therefore, Gottwald is appropriately considered a limited-purpose 

public figure, and as a result he must prove that Sebert’s allegedly defamatory statements 

were made with actual malice. 
- 7 - Nos. 32 & 33

- 7 -

III.

Sebert identifies 25 allegedly defamatory statements that she contends cannot serve 

as the basis for liability because they are protected by one or more of three privileges: the 

litigation privilege, the pre-litigation privilege, and the statutory fair report privilege under 

Civil Rights Law § 74. Supreme Court denied summary judgment on the privileged 

statements, reasoning that “sharply disputed questions of fact going to the heart of the case 

about whether Sebert’s California complaint was brought in good faith...or whether it was 

a ‘sham’ intended to defame and pressure plaintiffs” require that the privilege issues be 

decided by a jury (2020 NY Slip Op at *9-10). The Appellate Division agreed with 

Supreme Court that issues of fact regarding whether the litigation was brought in good faith 

precluded summary judgment on the application of any privilege. The court explained that 

the jury could conclude that Sebert “commenced that action ... to pressure Gottwald into 

renegotiating her contracts or to release her from her contracts” and that there was record 

support for Gottwald’s allegations that Sebert’s action was a sham (193 AD3d at 580). We 

agree that questions of fact exist as to the application of the pre-litigation and fair report 

privileges—those issues must go to a jury—but disagree as to application of the absolute 

litigation privilege.

In general, “[a] privileged communication is one which, but for the occasion on 

which it is uttered, would be defamatory and actionable” (Park Knoll Assoc. v Schmidt, 59 

NY2d 205, 208 [1983]). “The privilege may be either absolute or conditional depending 

on the occasion and the position or status of the speaker” (id. at 208-209). This Court has 
- 8 - Nos. 32 & 33

- 8 -

long held that “absolute immunity from liability for defamation exists for oral and written 

statements made by attorneys in connection with a proceeding before a court ‘when such 

words and writings are material and pertinent to the questions involved’ ” (Front, Inc. v 

Khalil, 24 NY3d 713, 718 [2015], quoting Youmans v Smith, 153 NY 214, 219 [1897]). 

The litigation privilege, being absolute, “confers immunity from liability regardless of 

motive” (Park Knoll Assoc., 59 NY2d at 209). 

In its analysis of the applicability of the absolute privilege, the Appellate Division 

relied upon a line of cases holding that this privilege may be “lost if abused” in certain 

circumstances (Halperin v Salvan, 117 AD2d 544, 548 [1st Dept 1986]), for example, if 

the underlying action was brought with malice (see Lacher v Engel, 33 AD3d 10, 14 [1st 

Dept 2006]). Accordingly, that Court held that the privilege “will not be conferred where 

the underlying lawsuit was a sham action brought solely to defame the defendant” (193 

AD3d at 580, quoting Flomenhaft v Finkelstein, 127 AD3d 634, 638 [1st Dept 2015]; 

Lacher, 33 AD3d at 10). This was error.

A “sham exception” is inconsistent with the absolute privilege recognized by this 

Court for statements made in connection with judicial proceedings. It is well-established 

that “[i]n questions falling within the absolute privilege the question of malice has no 

place” (Moore v Manufacturers’ Natl. Bank of Troy, 78 Sickels 420, 426 [1890]). The five 

statements Sebert claims are covered by the absolute litigation privilege relate to the 

California complaint, the counterclaims in the New York action, and an affidavit in support 

of her motion for a preliminary injunction. Each of these statements was made during the 
- 9 - Nos. 32 & 33

- 9 -

course of a judicial proceeding and each is “material and pertinent to the questions 

involved” in the California and New York actions (Front, 24 NY3d at 718, citing Youmans, 

153 NY at 219). Because these five statements fall squarely within the purview of the 

absolute litigation privilege, they “ ‘cannot serve as the basis for the imposition of liability 

in a defamation action’ ” (Rosenberg v MetLife, Inc., 8 NY3d 359, 365 [2007], quoting 

Toker v Pollak, 44 NY2d 211, 218 [1978]).

Sebert asserts that two of the remaining statements are protected by a separate prelitigation privilege: a draft version of the California complaint sent by Sebert’s 

representatives to the general counsel of Sony Music Entertainment (which owned one of 

Gottwald’s companies that had a contract with Kesha) during settlement negotiations; and 

an embargoed copy of the California complaint sent by Sebert’s representatives to a tabloid 

news organization shortly before it was filed. 

Generally, statements made in anticipation of good faith litigation are privileged, 

given that “[c]ommunication during this pre-litigation phase should be encouraged and not 

chilled by the possibility of being the basis for a defamation suit” (Front, 24 NY3d at 719). 

In Front, however, we “recognize[d] that extending privileged status to communications 

made prior to anticipated litigation has the potential to be abused” and that “applying an 

absolute privilege to statements made during a phase prior to litigation would be 

problematic and unnecessary to advance the goals of encouraging communication prior to 

the commencement of litigation” (id.). The privilege is therefore qualified, meaning that 

it may be “lost” only “where a defendant proves that the statements were not pertinent to a 
- 10 - Nos. 32 & 33

- 10 -

good faith anticipated litigation” (id. at 720). This is the “logical basis to distinguish” 

(dissenting op at 18) between this qualified pre-litigation privilege and the absolute 

litigation privilege.3 Here, as the courts below held, there is an issue of fact for the jury as 

to whether the California suit was at this stage “good faith anticipated litigation.”

Sebert claims that 19 other statements fall under the protection offered by Civil 

Rights Law § 74, known as the fair report privilege. These statements are that same 

embargoed complaint as well as 18 additional statements including, among other things, 

statements made by Sebert and her representatives regarding the rape allegations in a “Press 

Plan” distributed to numerous media outlets, on a podcast, in television and magazine 

interviews, in a press release, and on various social media outlets.

The statutory privilege applies to “the publication of a fair and true report of any 

judicial proceeding” (Civil Rights Law § 74) where “the substance of the [statement is] 

substantially accurate” (Holy Spirit Assn. for Unification of World Christianity v New York, 

49 NY2d 63, 67 [1979]). This Court has excluded from the privilege’s coverage statements 

made by those who “maliciously institute a judicial proceeding alleging false and 

defamatory charges” (Williams v Williams, 23 NY2d 592, 599 [1969]).4 We disagree with 

3

It is the good faith of the anticipated litigation that is determinative, not the audience 

(dissenting op at 17-19). Nor is it relevant that a statement was made “one day prior” to 

filing of the action (id. at 18) or that it contained the “contents” of a future complaint (id.

at n 9): communications made in anticipation of litigation are, by definition, subject to the 

qualified “pre-litigation” privilege. 

4 As we noted in Williams, this limitation on the privilege is not “intended to restrict in any 

manner the reporting of news stories and other reports which are made in the public 
- 11 - Nos. 32 & 33

- 11 -

the dissent’s view that Williams is limited to “the filing of a false complaint by a principal 

of a company against a former principal who then sent a letter with a copy of the summons 

and complaint to ‘interested parties engaged in the same trade’ ” (dissenting op at 21, 

quoting Williams, 23 NY2d at 606 [Fuld, C.J., dissenting in part]). Rather, it is an 

admittedly narrow qualification to the statutory privilege, applicable in this case, where 

there is a question of fact as to whether the litigation in California and counterclaims in 

New York were brought by Sebert in good faith or maliciously to defame Gottwald and 

pressure plaintiffs to release her from her contracts. Regarding the 19 statements 

purportedly covered by the statutory privilege, that is a question appropriately left for the 

jury. 

IV.

Finally, we address whether the 2020 amendments to the anti-SLAPP statute apply 

to this litigation. As enacted in 1992, the anti-SLAPP statute was “designed to protect 

citizens who participate in public affairs,” namely those relating to applications requiring 

government approval, against retaliatory lawsuits (Sponsor’s Mem, Bill Jacket, L 1992, ch 

767]). As relevant here, former Civil Rights Law § 76-a (1) (a) provided: 

“An ‘action involving public petition and participation’ is an action, claim, 

cross claim or counterclaim for damages that is brought by a public applicant 

or permittee, and is materially related to any efforts of the defendant to report 

on, comment on, rule on, challenge or oppose such application or 

permission.”

interest” (21 NY2d at 599). Rather, it applies only to those who are shown to have 

“maliciously institute[ed]” a proceeding (id.).
- 12 - Nos. 32 & 33

- 12 -

The statute defined “an action involving public petition and participation” narrowly to 

include only claims “brought by a public applicant or permittee,” further defined as “any 

person who has applied for or obtained a permit, zoning change, lease, license, certificate 

or other entitlement for use or permission to act from any government body, or any person 

with an interest, connection or affiliation with such person that is materially related to such 

application or permission” (Civil Rights Law former § 76-a [1] [a], [b] [1992]). Claims 

covered by the statute require proof of actual malice by clear and convincing evidence 

(Civil Rights Law former § 76-a [2]). Defendants in a SLAPP suit were entitled to a 

counterclaim and, if successful, could potentially recover costs, attorney’s fees, and 

damages (Civil Rights Law former § 70-a [1] [a], [b], [c] [1992]). 

The legislature enacted the 2020 amendments to “extend the protection” of the 1992 

statute to a broader class of individuals (Senate Introducer’s Mem in Support, Bill Jacket, 

L 2020, ch 250]). Those amendments substantially expanded the definition of “an action 

involving public petition and participation” to include “a claim based upon: (1) any 

communication in a place open to the public or a public forum in connection with an issue 

of public interest; or (2) any other lawful conduct in furtherance of the exercise of the 

constitutional right of free speech in connection with an issue of public interest, or in 

furtherance of the exercise of the constitutional right of petition” (Civil Rights Law § 76-a 

[1] [a] [1], [2] [2020]). The term “ ‘[p]ublic interest’ shall be construed broadly, and shall 

mean any subject other than a purely private matter” (Civil Rights Law § 76-a [1] [d]).
- 13 - Nos. 32 & 33

- 13 -

The amendments altered the remedy offered by Section 70-a for defendants falling 

within the purview of the amended Section 76-a. That section empowers defendants to 

“maintain an action, claim, cross claim or counterclaim to recover damages, including costs 

and attorney’s fees, from any person who commenced or continued such action” (Civil 

Rights Law § 70-a [1]). The award of costs and attorney’s fees to defendants was made 

mandatory rather than a matter of discretion (Civil Rights Law § 70-a [1] [a]). Sections 

providing for the discretionary award of compensatory and punitive damages were not 

amended but have far broader application given the expanded scope of the relevant 

definitions (Civil Rights Law § 70-a [1] [b] and [c] [emphasis added]). 

Sebert asserts that the broadened definition of public petition and participation in 

Section 76-a applies to this action and establishes the governing standard for liability. 

However, because we now hold that Gottwald is a limited public figure who must prove 

by clear and convincing evidence that the allegedly defamatory statements were made with 

actual malice, we do not address whether the provision of the amended statute (Civil Rights 

Law § 76-a [2]) imposing that standard applies to actions pending at the time of its 

enactment. 

Sebert further contends that she may now assert a counterclaim for damages and 

attorney’s fees under Section 70-a. After conducting a retroactivity analysis, Supreme 

Court agreed and granted Sebert leave to amend her answer to assert a Section 70-a 

counterclaim, holding that the 2020 amendments should “apply to pending cases” because 
- 14 - Nos. 32 & 33

- 14 -

of the legislation’s “important purpose” in amending the statute and that application to 

pending cases would not violate Gottwald’s due process rights. 

The Appellate Division reversed, holding that “there is insufficient evidence 

supporting the conclusion that the legislature intended” the amendments “to apply 

retroactively to pending claims” (203 AD3d at 488). The Court determined that “the 

presumption of prospective application” had not been overcome given that “[t]he 

legislature did not specify that the new legislation was to be applied retroactively” and that 

“[t]he legislature acted to broaden the scope of the law almost 30 years after the law was 

originally enacted, purportedly to advance an underlying remedial purpose that was not 

adequately addressed in the original legislative language” (id. at 489). Because the court 

held that the amendments did not apply to actions pending at the time the amendments 

were enacted, it denied Sebert’s motion for leave to assert a counterclaim pursuant to 

Section 70-a. 

“[R]etroactive operation is not favored by the courts and statutes will not be given 

such construction unless the language expressly or by necessary implication requires it” 

(Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 584 [1998]). This 

approach reflects a “deeply rooted presumption against retroactivity . . . based on 

elementary considerations of fairness” (Regina Metropolitan Co., LLC v New York State, 

35 NY3d 332, 370 [2020] [internal citations, quotation marks, and alterations omitted]). 

But “[a] statute does not operate ‘retrospectively’ merely because it is applied in a case 
- 15 - Nos. 32 & 33

- 15 -

arising from conduct antedating the statute’s enactment” (Landgraf v USI Film Products, 

511 US 244, 269 [1994]). 

Here, the legislature did not “expressly prescribe[] the statute’s proper reach” and 

therefore we must apply the “judicial default rules” in assessing retroactivity (id. at 280). 

Pursuant to these rules, we look to the text of the statute to determine whether it was 

intended to have retroactive effect (id.). The language chosen here makes clear that the 

intended application is prospective. A counterclaim may be maintained against any person 

who “commenced or continued” an action involving public participation (Civil Rights Law 

§ 70-a [1]; see Civil Rights Law § 76-a). Similar language is found in the provision 

providing for costs and attorney’s fees, where the action was “commenced or continued 

without a substantial basis in fact and law and could not be supported by a substantial 

argument for the extension, modification or reversal of existing law” (Civil Rights Law § 

70-a [1] [a]). “[O]ther compensatory damages” and punitive damages are recoverable 

“upon an additional demonstration” that the action was “commenced or continued for the 

purpose [or, with respect to punitive damages, for the “sole purpose”] of harassing, 

intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, 

petition or association rights” (Civil Rights Law § 70-a [1] [b], [c]). There is no retroactive 

effect when these provisions are applied, according to their terms, to the continuation of 

the action beyond the effective date of the amendments. To the extent that Sebert’s 

statements constitute public petition and participation, and should a factfinder determine 

that she meets the other relevant statutory conditions, Gottwald’s continuation of his suit 
- 16 - Nos. 32 & 33

- 16 -

beyond the effective date of the amendments entitles Sebert to recover damages. Because 

Gottwald’s liability attached, if at all, when he chose to continue the defamation suit after 

the effective date of the statute, any potential calculation of attorney’s fees or other 

damages begins at the statute’s effective date (see Landgraf, 511 US at 281-283; see also 

id. at 275 n 29). 

Sebert, and our dissenting colleague (see dissenting op at 5-13), would find 

legislative intent to calculate fees and damages from the commencement, rather than the 

continuation, of the suit. But “it takes a clear expression of the legislative purpose . . . to 

justify retroactive application of a statute” (Regina, 35 NY3d at 370 [internal citations, 

quotation marks, and alterations omitted]). Here, we do not find anything approaching the 

required expression of clear legislative intent. While the statute directs that it “shall take 

effect immediately,” we have previously held that, for purposes of determining retroactive 

application, “the meaning of [that] phrase is equivocal” and is not “enough to require 

application to pending litigation” (Becker v Huss Co., 43 NY2d 527, 541 [1978]; see also 

Majewski, 91 NY2d at 583; Landgraf, 511 US at 257). Nor is there anything in the 

amended statute requiring retroactive application “by necessary implication.” As to the 

dissent’s suggestion that the statute is “remedial,” a statute imposing damages is not “the 

sort of ‘remedial’ change that should presumptively apply in pending cases” (Landgraf, 

511 US at 285 n 37; see Regina, 35 NY2d at 365).

Sebert argues that the fact that express language providing that the statute “shall 

apply to actions commenced on or after” the statute’s effective date was removed during 
- 17 - Nos. 32 & 33

- 17 -

the drafting process clearly indicates the legislature’s intent that the amendments apply 

retroactively. This is not the effect of that change. Had that language been included, 

application to pending litigation—whether retroactive or not—would have been barred by 

the express terms of the statute. Instead, as enacted, the amendments apply to pending 

cases insofar as they have been continued after the effective date. The dissent’s reliance 

on this history to support a finding of retroactive intent is misplaced (dissenting op at 9). 

In Majewski, evidence that removal in the drafting process of a provision that the statute 

would apply to “lawsuits that have neither been settled nor reduced to judgment” could, 

we noted, be considered “evidence consistent with the strong presumption of prospective 

application” (91 NY2d at 587). It is not evidence sufficient to overcome that strong 

presumption. 

Moreover, this is not a case where the legislative history indicates that “the purpose 

of the new legislation is to clarify what the law was always meant to say and do” (id. at 

585) or to “correct” an overly “narrow” interpretation by the courts (dissenting op at 7). 

Rather, the legislature intended the amendments to greatly expand the limited coverage 

offered by the original anti-SLAPP statute (see Landgraf, 511 US at 252-253 [amendment 

“significantly expand[ed] the monetary relief potentially available” under prior law]). 

Accordingly, the strong presumption against retroactive legislation has not been overcome 

with respect to the amendments to the anti-SLAPP statute. 

Application of the amendments to Gottwald’s post-effective date continuation of 

the action does not “upset[] reliance interests” or “trigger[] fundamental concerns about 
- 18 - Nos. 32 & 33

- 18 -

fairness” (Regina, 35 NY3d at 365). Although the “[r]etroactive imposition of punitive 

damages” raises constitutional concerns, those concerns become relevant only if the statute 

“explicitly authorized damages for preenactment conduct” (Landgraf, 511 US at 281). 

Similarly, the imposition of compensatory damages is problematic only if it penalizes 

conduct predating the statute (id. at 281-282). Our interpretation of the application of the 

fees and damages provisions does not implicate these concerns (see id. at 267 n 21 [“In 

some cases . . . the interest in avoiding the adjudication of constitutional questions will 

counsel against a retroactive application”]).5 As applied here, Sebert may assert a 

counterclaim under Civil Rights Law § 70-a and, if successful, recover costs, attorney’s 

fees, and damages based on Gottwald’s continuation of this action following the 

amendment’s effective date. 

* * *

Accordingly, in Gottwald v Sebert I, the order of the Appellate Division should be 

reversed, with costs, Sebert’s motion to amend her answer to assert a counterclaim pursuant 

to Civil Rights Law § 70-a granted, and the certified question answered in the negative. In 

Gottwald v Sebert II, the order of the Appellate Division should be modified, without costs, 

in accordance with this opinion, as so modified affirmed, and the certified question 

answered in the negative.

5

It is unclear whether the dissent would authorize such constitutionally suspect punitive 

damages for pre-enactment conduct (see dissenting op at 12-13 and n 6). 
- 1 -

RIVERA, J. (dissenting in part):

The underlying litigation presents two counter-narratives. In one, a popular singer 

alleges she was raped and then exploited for years by a successful music producer who 

refused to free her from her lucrative recording and publication contracts. In the other, the 

music producer claims the singer defamed him and his companies with false claims of 
- 2 - Nos. 32 & 33

- 2 -

sexual abuse and harassment when he did not agree to more favorable business terms. 

These are familiar counter-narratives reflecting the power dynamic between a powerful 

mentor and an up-and-coming mentee, but they have taken on a new resonance in an era 

of increased public awareness of sexual abuse at the workplace. Assuming the parties do 

not settle, a jury eventually must decide which version to believe and to what extent. Our 

task here is to decide what legal standards govern the parties’ respective claims. 

I agree with several of the majority’s conclusions but my analysis differs in certain 

important respects. First, I agree that respondents must establish malice to succeed on their 

defamation claims. For all but one claim, this is their statutory burden of proof under New 

York’s Civil Rights Law—specifically the amended anti-SLAPP law—and, as the majority 

correctly holds, malice is also the standard applied to all the claims under established 

principles of defamation law. I also agree that the anti-SLAPP law’s remedies apply to this 

pending action, but not as temporally limited by the majority. Lastly, I agree the alleged 

defamatory statements in a previously-filed complaint are privileged, but I cannot agree 

that there are outstanding factual issues regarding the remaining challenged statements. 

Based on our precedent and the intended purpose of the privileges asserted, I would hold 

that the pre-litigation privilege applies to an embargoed draft of the complaint sent to 

counsel for settlement purposes and to a tabloid the day before filing. Further, the statutory 

fair report privilege applies to all but two of the allegedly defamatory statements to the 

media.

I.
- 3 - Nos. 32 & 33

- 3 -

Respondents are Lukasz Gottwald, known professionally as “Dr. Luke,” and his two 

affiliated companies. The moniker identifies him as the music producer of several pop hits 

which have made him both a well-known and well-fixed personality—and not just within

the music industry. For years he has actively promoted his success in the media, having 

appeared on a major television network and having been the subject of major stories in 

print and digital publications with extensive readership.1 By any account, his public 

relations agents have done a masterful job.

Appellant Kesha Rose Sebert is the singer “Kesha,” who has several number one 

hits to her credit. Dr. Luke was instrumental to Kesha’s career,2 developing an interest in 

her when she was 18 years old after a colleague gave him a CD recording of Kesha singing. 

Shortly thereafter, Dr. Luke and Kesha signed a six-album record deal and Kesha relocated 

to Los Angeles. The two collaborated on Kesha’s first album, which sold over two million 

copies and catapulted her to worldwide fame. Her follow-up extended play (EP) and second 

album enjoyed similar commercial success. 

Respondents filed a defamation action against Kesha in New York state court based 

on claims associated with a California lawsuit she filed earlier that day against Dr. Luke, 

wherein she alleged that he drugged and raped her after a 2005 Hollywood party and 

verbally and emotionally abused her throughout their working relationship. Kesha sought 

1 Dr. Luke was profiled in The New Yorker, which boasts a paid circulation of over 1.2 

million, and New York Magazine, which has a readership of over 150,000 (Alliance for 

Audited Media, Magazine Media – Snapshot Report [Dec. 31, 2022], available at

https://abcas3.auditedmedia.com/ecirc/magtitlesearch.asp [accessed May 8, 2023]).

2

I refer to both parties by the professional names for which they are famously known.
- 4 - Nos. 32 & 33

- 4 -

rescission of her contracts and various damages. In respondents’ defamation action, Kesha 

asserted counterclaims of sexual assault and battery, sexual harassment, bias-related 

violence under New York Civil Rights Law § 79-n, gender-motivated violence under New 

York City Administrative Code § 8-904, and intentional infliction of emotional distress. In 

support, Kesha contends that respondents’ defamation suit is subject to New York’s current 

anti-SLAPP law and thus requires that they show her statements were made with malicious 

intent, and that regardless, the same malice standard applies because Dr. Luke is a public 

figure. She further claims she may seek compensatory and punitive damages, attorney’s 

fees and costs as provided under the law should she succeed on her counterclaims. 

Respondents counter that the law was amended in 2020 during the pendency of this 

defamation action and may not be applied retroactively to their claims, meaning that they 

need only show negligence and Kesha’s statutory counterclaims may not proceed.

For the reasons I discuss, the amended anti-SLAPP law applies to this pending 

action, and for the one claim outside the statute, respondents must establish malice because 

as a matter of common law Dr. Luke is a public figure for the limited purpose of this 

litigation. 

II.

Generally, a court must apply “the law in effect at the time it renders its decision, 

unless doing so would result in manifest injustice or there is statutory direction or 

legislative history to the contrary” (Bradley v School Bd. of City of Richmond, 416 US 696, 

711 [1974]; see also Thorpe v Hous. Auth. of City of Durham, 393 US 268 [1969]). Express 
- 5 - Nos. 32 & 33

- 5 -

language as to the operative effect of a statute is unnecessary absent these identified 

limiting grounds. Indeed, “[e]ven absent specific legislative authorization, application of 

new statutes passed after the events in suit is unquestionably proper in many situations” 

(Landgraf v USI Film Products, 511 US 244, 273 [1994]). Prospective application is only 

mandated where newly enacted statutory language would have the retroactive effect of 

impairing substantive rights and due process guarantees (see id. at 278-280). Here, the 

Legislature intended the amended anti-SLAPP law to apply to this pending litigation and 

doing so would not impair respondents’ substantive rights or otherwise be unfair.

A.

New York, like most states, has enacted an anti-SLAPP law—short for antiStrategic Lawsuits Against Public Participation—to protect defendants against lawsuits 

based on protected speech.3 New York first enacted its version in 1992 and amended it in 

2020. The relevant amendments clarified that the statute covered speech in connection 

“with an issue of public interest” and required that plaintiffs establish a defendant’s malice 

in actions involving such speech (Civil Rights Law § 76-a), and recognized a defendant’s 

claim for damages, attorney’s fees and costs against a person instituting such action (id. § 

70-a).

3 32 other states have an anti-SLAPP law, approximately 20 of which are comparably broad 

to New York’s version (see Updates to the Anti-SLAPP Report Card, Institute for Free 

Speech [May 18, 2022], available at https://www.ifs.org/blog/updates-to-the-anti-slappreport-card/ [accessed June 5, 2023]).
- 6 - Nos. 32 & 33

- 6 -

The amendments are remedial, and the Legislature specifically intended them to 

enhance protections for defendants and thereby minimize litigation that chills free speech 

(see Asman v Ambach, 64 NY2d 989, 991 [1985] [“amendments are to be viewed as 

remedial” where they are “designed to correct imperfections in the prior law, by giving 

relief to an aggrieved party”] [cleaned up]; see also Assembly Sponsor’s Mem, Bill Jacket, 

L 2020, ch 250 [explaining that the amendments will better protect SLAPP-suit defendants 

from the “threat of personal damages and litigation costs” associated with abusive 

litigation]). We must assume that the Legislature was aware of the well-established rule 

that remedial legislation applies to pending litigation “to effectuate its beneficial purpose” 

(Matter of Gleason [Michael Vee, Ltd.], 96 NY2d 117, 122 [2001]).4

4 The majority is correct that a footnote in Landgraf acknowledged that the general 

presumption that remedial statutes should apply to pending cases might not apply to 

statutes “introducing damages liability” (511 US at 285 n 37; see majority op at 16). 

However, the footnote did not foreclose the application of newly modified remedies to 

pending cases. The Court quoted Hastings v Earth Satellite Corp. (628 F2d 85, 93 [DC Cir 

1980]) for the proposition that “ ‘[r]etroactive modification’ of damages remedies may 

‘normally harbo[r] much less potential for mischief than retroactive changes in the 

principles of liability . . . but that potential is nevertheless still significant” (id.). Here, the 

amendments do not introduce a new remedy for past conduct, but simply modify an 

existing remedy, and the only question is whether that modification as applied to 

respondents’ pending action works an unfairness and upsets prior expectations. In that vein, 

the Supreme Court’s reference to Hastings is particularly apt. Hastings recognized the 

distinction between remedies and principles of liability with respect to the retroactive 

application of both, noting that, unlike “retroactive creation of legal responsibilities or 

abolition of legal rights [which] risks unfairness because the retroactive change confounds 

the expectations upon which persons acted,” “[r]etroactive modifications in remedy [] do 

not involve the same degree of unfairness. Such modifications do not transform a legal act 

into an illegal act[]. Modification of remedy merely adjusts the extent, or method of 

enforcement, of liability in instances in which the possibility of liability previously was 

known” (628 F2d at 93). That is precisely the effect of section 70-a, which adjusts the 

extent of liability already known to any plaintiff who files a frivolous lawsuit. Accordingly, 

the “mischief” referenced in the Landgraf footnote is not present here. Inasmuch as the 
- 7 - Nos. 32 & 33

- 7 -

As the legislative history establishes, and contrary to the majority’s assertion (see 

majority op at 17), the amendments were intended to correct the prior anti-SLAPP regime 

which courts had interpreted too narrowly to adequately protect defendants and our state’s 

interest in free public discourse on issues of public concern.

The Senate Sponsor’s Memorandum states:

“Section 76-a of the Civil Rights Law was originally enacted 

by the Legislature to provide ‘the utmost protection for the free 

exercise[,] speech, petition, and association rights, particularly 

where such rights are exercised in a public forum with respect 

to issues of public concern.’ L. 1992 Ch. 767. However, as 

drafted, and as narrowly interpreted by the courts, the 

application of Section 76-a has failed to accomplish that 

objective. In practice, the current statute has been strictly 

limited to cases initiated by persons or business entities that are 

embroiled in controversies over a public application or permit, 

usually in a real estate development situation. Meanwhile, 

many frivolous lawsuits are filed each year that are calculated 

solely to silence free speech and public participation, which do 

not specifically arise in the context of the public ‘permit’ 

process. By revising the definition of an ‘action involving 

public petition and participation,’ this amendment to Section 

76-a will better advance the purposes that the Legislature 

originally identified in enacting New York’s anti-SLAPP law. 

This is done by broadly widening the ambit of the law to 

include matters of ‘public interest’, which is to be broadly 

construed, e.g. anything other than a ‘purely private matter’.

Additionally, the principal remedy currently provided to 

victims of SLAPP suits in New York is almost never actually 

imposed. The courts have failed to use their discretionary 

power to award costs and attorney’s fees to a defendant found 

majority suggests that Regina’s parenthetical citation to that footnote is relevant to this 

analysis (35 NY2d at 365), Regina should not be understood to overrule our longstanding 

presumption applying remedial statutes to pending cases (see Palin v New York Times Co., 

510 F Supp 3d 21, 28 [SD NY 2020] [“Nothing in Regina suggests that it is overturning 

the general rule that remedial legislation . . . is presumed to have retroactive effect”]).
- 8 - Nos. 32 & 33

- 8 -

to have been victimized by a frivolous lawsuit intended only to 

chill free speech. By an award of costs and fees, the Legislature 

had originally intended to address ‘threat of personal damages 

and litigation costs . . . as a means of harassing, intimidating, 

or punishing individuals, unincorporated associations, not-forprofit corporations and others who have involved themselves 

in public affairs.’ L. 1992 Ch. 767. This amendment to Section 

70-A of the Civil Rights Law makes clear that a court ‘shall’ 

impose an award of costs and fees, but only if the court [finds] 

[sic] that the case has been initiated or pursued in bad faith. 

Together, the two amendments will protect citizens against the 

threat – and financial reality – of abusive litigation, but will not 

discourage meritorious litigation.

Further, a mandatory award of attorney’s fees is necessary to 

discourage SLAPP lawsuits – which attempt to chill free 

speech by definition – from being instituted” (Senate 

Sponsor’s Mem, Bill Jacket, L 2020, ch 250).

Likewise, the Assembly Sponsor explained to the Governor that “[i]n recent years, 

we have seen a growth—in New York and nationwide—in these types of [SLAPP] suits, 

which are brought with one goal in mind: to stifle the free expression of ideas and/or 

criticism” (Assembly Sponsor’s Letter to the Governor, L 2020, ch 250). She explained 

that because the prior version of the law “has proven inadequate to stem the rising tide [of 

such suits],” the new bill “updates and modernizes [the statute] by expanding the breadth 

of the law and also putting teeth into it” (id.). Clearly, the drafters of the amendments 

recognized that the 1992 statute left individuals exposed to abusive litigation and deprived 

of financial recourse, and thus considered it important to ensure robust remedies. It would 

be nonsensical to assert that the Legislature intended to deny current SLAPP-suit victims 

the benefit of the amended statute simply because they began defending a defamation 
- 9 - Nos. 32 & 33

- 9 -

action before the amendments were enacted. To the contrary, the legislative history reveals 

the very fact of those existing lawsuits was the impetus for the amendments.

Moreover, the Legislature instructed that the amendments “shall take effect 

immediately” (L 2020, ch 250 § 4). Although the majority is correct that such language 

alone does not require application to pending cases (majority op at 16), there is more. Given 

the legislative history, and the sense of urgency that animated legislative action against 

increased SLAPP litigation, the choice not to delay the amendments’ effective date further 

supports the legislative desire that the law apply to all pending matters.

The drafting history confirms this intent. An earlier draft of the amendments 

included express language stating that the statute “shall apply to actions commenced on or 

after” the statute’s effective date. The Rent Stabilization Association, a trade organization 

with an interest in the anti-SLAPP law, took note of the removal of the language and wrote 

to the Governor, requesting that the original prospectivity language be restored. The phrase 

was not reinserted in the final version of the bill the Governor signed into law, making it 

apparent that the Legislature and the Executive made a concerted decision—over 

objections of an interested party—to excise any language limiting the law’s application to 

future cases.

The Court has previously found such action indicative of legislative intent. In 

Majewski v Broadalbin-Perth Cent. School Dist., the Court examined certain amendments 

to the Workers’ Compensation Law which, in an earlier draft, “expressly provided that it 

would apply to lawsuits that have neither been settled nor reduced to judgment by the date 

of its enactment” (91 NY2d 577, 587 [1998] [internal quotation marks omitted]). Like here, 
- 10 - Nos. 32 & 33

- 10 -

that proposed language “d[id] not appear in the enacted version” (id.). Reciting the 

principle that a “court may examine changes made in proposed legislation to determine 

intent,” the Court held that the deletion of the language in Majewski was consistent with 

the intent that the statute apply only prospectively (id.). Applying that same principle here, 

the Legislature’s consideration and rejection of the prospective-only language shows that 

it intended the amended statute to apply to pending claims. Indeed, contrary to the 

majority’s misguided view, removal of prospective-only language that was criticized 

because it would prohibit the application of the statute to pending litigation is as close to 

express intent as it gets without the actual words.

B.

Respondents’ contention that application of the amendments to this litigation will 

have a constitutionally impermissible retroactive effect is mistaken. Applying the amended 

anti-SLAPP statute to this litigation as of the day of its commencement does not impact 

respondents’ substantive rights and therefore presents no unfairness.5 First, the 

5 Other New York courts—state and federal—have likewise applied the amendments to 

lawsuits pending at the time of enactment (see e.g. Palin, 510 F Supp 3d at 28 [holding that 

the amendments are remedial and that defamation plaintiff “was never entitled to recover 

monetary damages absent a showing of malice”]; Reus v ETC Hous. Corp., 72 Misc 3d 479 

[Sup Ct, Clinton County 2021], affd 203 AD3d 1281 [3d Dept 2022]; Coleman v Grand, 

523 F Supp 3d 244 [ED NY 2021]; Sackler v Am. Broadcasting Cos., 71 Misc 3d 693 [Sup 

Ct, New York County 2021]; Veritas v New York Times Co., 2021 WL 2395290 [Sup Ct, 

Westchester County 2021]; Kurland & Assocs., P.C. v Glassdoor, Inc., 2021 WL 1135187 

[Sup Ct, New York County 2021]; Sweigert v Goodman, 2021 WL 1578097 [SD NY 

2021]; Reilly v Crane Tech Solutions, LLC, 2021 WL 2580281 [Sup Ct, New York County 

2021]; Cisneros v Cook, 2021 WL 2889924 [Sup Ct, New York County 2021]; Griffith v 

Daily Beast, 2021 WL 2940950 [Sup Ct, New York County 2021]; Goldman v. 
- 11 - Nos. 32 & 33

- 11 -

amendments do not foreclose respondents’ defamation claims. For example, the 

amendments did not abolish a pre-existing cause of action for defamation or otherwise 

eliminate a basis for respondents’ recovery against Kesha, but simply modified 

respondents’ burden of proof. Litigants have no “vested interest in any rule of law entitling 

[them] to have the rule remain unaltered” (Preston Co. v Funkhouser, 261 NY 140, 144 

[1933]), and certainly there is no constitutionally protected interest in the application of a 

common evidentiary standard of fault that governs certain defamation actions to 

respondents’ claims. Second, even if the statutory burden of proof did not apply, as the 

majority holds, respondents’ claims are nevertheless subject to the same requirement that 

they establish malice under general defamation law principles. Respondents have 

understood all along that they might be subject to that standard. Indeed, they alleged in the 

initial complaint and in each of the three amended complaints that Kesha acted with malice. 

Respondents also were well aware when they commenced this litigation that in order to 

avoid application of the malice standard they would have to argue that despite Dr. Luke’s 

notoriety, he is not a public figure, even for limited purposes. And they did so argue, 

repeatedly, advocating that point in the Appellate Division and before us. Respondents 

cannot belatedly claim that it would be unfair to apply a standard which they have argued 

in the alternative is both satisfied here and does not apply to them under existing case law. 

Third, respondents cannot point to any conduct Dr. Luke would have changed based on the 

Reddington, 2021 WL 4099462 [ED NY 2021]; Great Wall Medical P.C. v Levine, 2022 

WL 869725 [Sup Ct, New York County 2022]; Kesner v Buhl, 590 F Supp 3d 680 [SD NY 

2022]).
- 12 - Nos. 32 & 33

- 12 -

amendments if they had been in effect at the time of the alleged abuse. Retroactive effect 

impacts actions that underlie litigation, not litigation conduct itself.

In the same vein, the financial relief available under section 70-a applies here and 

should be measured from the moment respondents filed their complaint. As the majority 

notes, this section applies to actions continued after the effective date of the amended 

language (majority op at 15).6 When respondents chose to continue the litigation, they 

could not reasonably expect that the amended provision would not apply. As to any 

additional relief measured from the date of commencement, any party who files a 

completely baseless action or who files an action solely to harass risks financial penalties. 

For example, a court may, in its discretion, award any party or attorney the costs and 

attorney’s fees resulting from frivolous litigation, and a court may also impose financial 

sanctions upon a party engaging in frivolous conduct, including conduct meant to harass 

(22 NYCRR 130-1.1; see e.g. Maroulis v 64th Street Third Ave. Assoc., 77 NY2d 831, 833 

[1991] [“frivolous and meritless motion practice” amounted to “abuse of the judicial 

process (which) supports the imposition of (monetary) sanctions”]; see also CPLR 3126 

6 The majority’s prospective-only construction of the “commenced or continued” language 

in section 70-a (1) of the amended statute is an overly narrow construction of that phrase. 

The fact that any action continued at the time of the effective date of the amendments falls 

within the scope of the statute means just that; it does not necessarily or by implication 

mean that monetary relief is measured from the effective date. Despite the majority’s effort 

to complicate straightforward language, the meaning and effect of the word “commenced” 

in the phrase “commenced or continued” tracks to the person who commenced the 

prohibited legal action. Additionally, the majority’s interpretation is “at odds with the 

remedial nature” of the amendments (Matter of Marino S., 100 NY2d 361, 373 [2003]), 

which were intended to correct the former statute’s overly narrow definition of “public 

petition” and to better protect victims of SLAPP lawsuits (see discussion of legislative 

history, supra at 6-8).
- 13 - Nos. 32 & 33

- 13 -

[authorizing a court to impose monetary sanctions for a party’s refusal to obey an order for 

disclosure]). Sanctions are a common and expected consequence for misuses of judicial 

process which financially injure the opposing party and “divert[] unnecessarily” “the time 

and attention of [the] Judges of this State” (Minister, Elder & Deacons of Refm. Prot. Dutch 

Church of NY v 198 Broadway, 76 NY2d 411, 415 [1990]; cf. Engel v CBS, Inc., 93 NY2d 

195, 207 [1999] [lawsuits brought for an improper purpose “not only waste precious 

judicial resources, but are also anathema to the justice system itself”]).

Respondents’ reliance on Regina Metro. Co., LLC v New York State Div. of Hous. 

and Community Renewal (35 NY3d 332 [2020]) is misplaced. There, the Court restated the 

rule that “[a] statute has retroactive effect if ‘it would impair rights a party possessed when 

[they] acted, increase a party's liability for past conduct, or impose new duties with respect 

to transactions already completed,’ thus impacting ‘substantive’ rights (id. at 365, citing 

Landgraf, 511 US at 278-280). But, as I discuss, no such rights are impacted here and 

respondents have no identifiable reliance interests in the pre-amendment law. Thus, 

application of the amendments to the pending litigation does not produce a retroactive 

effect. 

III.

There is one claim not within the scope of the anti-SLAPP law and therefore 

respondents’ burden of proof is assessed under established defamation law principles. A 

plaintiff in a defamation action typically “must show: (1) a false statement that is (2) 

published to a third party (3) without privilege or authorization, and that (4) causes harm, 
- 14 - Nos. 32 & 33

- 14 -

unless the statement is one of the types of publications actionable regardless of harm” 

(Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]). However, a plaintiff 

who is a public official or public figure “must prove the statement was made with actual 

malice, i.e., with either knowledge that it was false or reckless disregard for the truth” 

(Huggins v Moore, 94 NY2d 296, 301 [1999] [internal quotation marks omitted]). “In some 

instances an individual may achieve such pervasive fame or notoriety that [they] become[ 

] a public figure for all purposes and in all contexts” (Gertz v Robert Welch, Inc., 418 US 

323, 351 [1974]). By contrast, a “limited purpose” public figure is “an individual [who] 

voluntarily injects [themselves] or is drawn into a particular public controversy and thereby 

becomes a public figure for a limited range of issues” (id.).

Respondents unpersuasively assert that Dr. Luke is not a public figure. Dr. Luke is 

at the top of his profession and has cultivated a notorious public persona. He has actively 

sought and gained media attention, rising above lesser-known figures in the music industry. 

His bankable success is based primarily on producing pop hits with young female artists 

like Kesha. Therefore, I agree with the majority that he is a limited public figure, as we 

have defined that term (majority op at 5-6).7

Although the court unanimously rejects respondents’ contentions, it is important to 

clarify that respondents’ proposed definition for a limited purpose public figure has no 

place in our law. They assert that if an individual lacks the pervasive fame required to 

establish that they are a public figure for all purposes, then any lesser level of fame is 

7 As a consequence, we need not consider whether Dr. Luke is a general public figure for 

all purposes.
- 15 - Nos. 32 & 33

- 15 -

irrelevant. Under that proposed standard, a public figure for limited purposes must 

comment on the specific topic that is the basis for the alleged defamatory statement—here, 

the sexual assault of young female artists in the pop industry by those with power to affect 

their careers. That is too narrow a view of limited-purpose public figures, and it is contrary 

to our precedent. It also conveniently ignores the nature of Kesha’s claims that she was the 

target of sexual abuse made possible by a power structure wherein artists—particularly 

women and other marginalized individuals—are treated as prey by those with power to 

make or break their careers. What person alleged to have sexually assaulted an artist would 

comment publicly on the value of such conduct? What individual with the power that 

Kesha alleges Dr. Luke exercises over his female clients would publicly acknowledge the 

alleged abusive nature of the relationship? 

It is only after the #MeToo movement that sexual harassment and abuse became the 

topic of a global public platform (see Cole v Cole, 35 NY3d 1012, 1015 [2020] [Rivera, J., 

dissenting] [“Recently, in an impressive demonstration of organizing, the Me Too 

Movement has effectively used social media to call for change and engage survivors of 

sexual violence at unprecedented levels”]). Through the public commons of social media, 

the movement shone a light on the prevalence of sexual abuse in society generally, but also 

particularly within the entertainment industry. To adopt the narrow standard advocated by 

respondents would be to insulate powerful individuals in any given industry who are all 

but guaranteed never to comment publicly on the abusive power dynamics from which they 

benefit.
- 16 - Nos. 32 & 33

- 16 -

Under our public figure doctrine as correctly applied by the majority, Dr. Luke is a 

public figure in his professional capacity for the limited purpose of this litigation (majority 

op at 6).8 Accordingly, to succeed on their remaining defamation claim, respondents must 

prove that Kesha acted with actual malice.

IV.

Turning to the litigation-related privileges asserted by Kesha, I agree that there is 

no “sham exception” to the absolute privilege for statements made in judicial proceedings 

(majority op at 8-9). Therefore, as the majority concludes, the statements relating to 

Kesha’s California complaint, along with her counterclaims and assertions in the instant 

action, are absolutely privileged (id. at 9). However, I disagree with the majority that all of 

the statements for which Kesha asserted the pre-litigation and fair report privileges must 

8 The majority below determined that Dr. Luke was not a public figure based on the 

conclusion that he had not achieved the status of a “household name” (Gottwald v Sebert, 

193 AD3d 573 [1st Dept 2021]). That standard has its genesis in a line of First Department 

cases holding that the class of all-purpose public figures “generally consists of people who 

have achieved enough prominence in society that their names are tantamount to household 

words,” as well as “political figures” (see e.g. Farrakhan v N.Y.P. Holdings, Inc., 168 

Misc2d 536, 539 [Sup Ct, New York County 1995], affd 238 AD2d 197 [1st Dept 1997], 

lv denied 91 NY2d 803 [1997]; Krauss v Globe Intl., Inc., 1996 WL 780550, *3 [Sup Ct, 

New York County 1996], affd as mod 251 AD2d 191 [1st Dept 1998]). But the First 

Department has not addressed the normative basis for determining whether an individual 

has achieved public figure status. Which and how many households count in making that 

determination? Perhaps the focus is on households with consumers of pop music and those 

who work in this industry. That appears to be the approach of the dissent below when it 

concluded that Dr. Luke “is a household name to those that matter” (193 AD3d at 584). 

Notwithstanding the divided Appellate Division, we have no occasion here to consider the 

propriety of that standard as Dr. Luke is a public figure under our established case law.
- 17 - Nos. 32 & 33

- 17 -

go to a jury to determine whether she brought the underlying claims in good faith. With 

two exceptions, those statements are privileged as a matter of law.

First, the draft complaint in the California litigation was sent to Sony’s general 

counsel—at her request—in order to facilitate a settlement. This is common practice and 

furthers the goal of avoiding litigation by fostering resolution without judicial intervention, 

which is precisely the purpose we identified in support of the privilege in Front, Inc. v 

Khalil Enterprises (24 NY3d 713 [2015]). Front held that pre-litigation communication 

“should be encouraged and not chilled by the possibility of being the basis for a defamation 

suit” because parties must be able to speak freely during settlement negotiations in order 

“to reduce or avoid the need to actually commence litigation” (id. at 719). Only where 

attorneys “are seeking to bully, harass, or intimidate their client’s adversaries by 

threatening baseless litigation or by asserting wholly unmeritorious claims” is the privilege 

destroyed (id. at 720). In this case, the parties had been engaged in settlement negotiations 

for several months. Both parties clearly anticipated litigation, as evidenced by their 

separate filings on the same day. Kesha’s attorney averred that he shared the draft 

California complaint at opposing counsel’s behest, and that when the attorneys met to 

review the complaint, Kesha’s lawyer stated that filing was imminent but that they were 

eager to resolve it and willing to give it another try. Hence, the parties were engaged in 

routine, good faith efforts to resolve the case—exactly what the pre-litigation privilege was 

intended to cover. There is simply no record evidence that either attorney sought to “bully, 

harass, or intimidate” the other by the mere fact of sharing the draft complaint before filing. 

The fact that they were ultimately unable to reach an agreement does not make the 
- 18 - Nos. 32 & 33

- 18 -

statements asserted therein any less privileged. Otherwise, there would be nothing left to 

the privilege as negotiating parties would rightly be unwilling to share drafts of litigation 

documents. The majority’s interpretation severely limits settlement efforts, in 

contravention of Front.

Moreover, since the majority agrees that the contents of the filed California 

complaint are absolutely privileged as statements made during the course of a judicial 

proceeding (majority op at 8-9), it is odd to conclude that Kesha’s allegations as they 

appeared in the filed complaint are privileged, while her identical allegations as they 

appeared in the draft complaint are not similarly protected simply because the former was 

served on counsel and the latter was provided to counsel as a courtesy in anticipation of 

litigation.

For the same reason, the sending of an embargoed copy of the California complaint 

to TMZ the day before it was filed is likewise privileged as a matter of law. Again, there 

is no logical basis to distinguish between the complaint as it was filed and the complaint 

as it was shared with a media outlet one day prior with the understanding that it could not 

be made public until after the actual filing.9

9 Contrary to the majority’s suggestion, I do not maintain that it is the intended audience 

of the statement that determines whether the privilege applies (majority op at 10 n 3). 

Neither do I mean to conflate the pre-litigation and absolute litigation privileges (id. at 10). 

The point is that the contents of the complaint as-filed and as-shared were identical, and 

the majority offers no sound reason to privilege the allegations as they appeared in one but 

not the other. In any case, the embargoed complaint sent to a media outlet that could not 

be made public until after filing falls within the fair report privilege. 
- 19 - Nos. 32 & 33

- 19 -

As to the remaining 19 allegedly defamatory statements, all but two are covered by 

the statutory fair report privilege as Kesha alleged. An “action cannot be maintained against 

any person, firm or corporation, for the publication of a fair and true report of any judicial 

proceeding, legislative proceeding or other official proceeding, or for any heading of the 

report which is a fair and true headnote of the statement published” (Civil Rights Law § 

74). “For a report to be characterized as fair and true within the meaning of the statute . . .

it is enough that the substance of the article be substantially accurate” (Holy Spirit Ass’n 

for Unification of World Christianity v New York, 49 NY2d 63, 67 [1979] [internal 

quotation marks omitted])

In a 2014 cable news interview and during an episode of a legal issues podcast, 

Kesha’s attorney suggested that Dr. Luke’s conduct was not limited to Kesha. However, 

Kesha’s complaint did not allege that Dr. Luke sexually assaulted or otherwise abused 

multiple women. Therefore, a jury could determine that those statements are not 

“substantially accurate” reports of the litigation and are therefore not statutorily privileged 

(Holy Spirit Ass’n, 49 NY2d at 67). On several other occasions, the attorney compared Dr. 

Luke to Bill Cosby, who at the time was a prominent figure in the news for alleged sexual 

abuse (see Charlotte Alter, Everything You Need to Know About the Bill Cosby Scandal, 

TIME Magazine [Nov. 24, 2014], available at https://time.com/3602131/bill-cosby-sexualassault-allegations-guide/ [accessed May 9, 2023]). To the extent that those statements 

were intended to compare Cosby’s modus operandi—the use of the date rape drug GHB—

to the method in which Dr. Luke allegedly drugged Kesha, those statements are privileged

because they reflect specific allegations she has made in the course of the litigation. Each 
- 20 - Nos. 32 & 33

- 20 -

of the other statements for which Kesha asserted the statutory fair report privilege should 

be protected, as they pertain to the allegations made in the litigation and are substantially 

accurate reports of the proceedings.

The narrow exception to the fair report privilege set out in Williams v Williams (23 

NY2d 592 [1969]) has no application here. In that case, the defamation defendant had 

instituted an action against his brother and former business partner alleging that the brother 

“conspired with others to misappropriate and misuse the company’s trade secrets and 

assets” (id. at 595). He then had copies of the complaint “printed and circulated to members 

of the trade” (id.). Noting the “unusual factual pattern” of the case (id. at 596), the majority 

determined that Civil Rights Law § 74 did not apply because the defendant had maliciously 

instituted the underlying action solely so that he could “circulate a press release or other 

communication based thereon and escape liability by invoking the statute” (id. at 599).10

As the Court declared, Williams is limited to its unique facts—the filing of a false 

complaint by a principal of a company against a former principal who then sent a letter 

with a copy of the summons and complaint to “interested parties[] engaged in the same 

trade” (id. at 606 [Fuld, C.J., dissenting in part]).11 We should not extend it lest we risk 

eroding the privilege altogether. Chief Judge Fuld (joined by Judge Bergan) argued in 

dissent that the majority, driven by “an unreasoned and unreasonable fear of abuse,” had 

10 On appeal from the denial of the defendant’s motion to dismiss, the Court presumed that 

the plaintiff’s factual allegations were true (23 NY2d at 595-596, citing CPLR 3211).

11 The majority’s attempt to marginalize this interpretation of Williams is belied by the 

Court’s clear exhortation that the exception is limited to “the unusual factual pattern of 

[that] case” (23 NY2d at 596).
- 21 - Nos. 32 & 33

- 21 -

reached a “strained and incongruous result” that was “not only [ ] at odds with the language 

and with the legislative history of section 74” but one that was “completely unnecessary to 

protect against the sort of abuse envisioned by the court” (id. at 605). In response, the 

majority argued that the decision would not limit free access to the courts and expressly 

cautioned that the holding “in no way infringes upon the right of a person to bring an action 

or to say or write material pertinent to a suit within the confines of that action” (id. at 599). 

Apart from the unsound extension of Williams here, it is also unnecessary because 

the concerns that animated the Court’s decision there are not implicated by Kesha’s filings 

in California or New York. In Williams, the plaintiff fabricated legal claims as a vehicle to 

disseminate lies to fellow tradespersons for the sole purpose of maligning the defendant. 

The plaintiff then deployed the privilege to avoid liability for that malicious conduct. By 

contrast, Kesha filed her California complaint and disseminated it to the media and pressed 

her counterclaims in the New York litigation in response to respondents’ lawsuit. The 

California filing is the exact conduct the Williams majority acknowledged was protected, 

and the responsive filing in the New York action was defensive, not initiated as affirmative 

abuse of the judicial process of the like presented in Williams. Thus, the statutory privilege 

applies.

V.

I agree that the certified questions in these respective appeals should be answered 

in the negative, but I disagree that potential relief on Kesha’s counterclaims is temporally 

limited in the manner so held by the majority and that the privilege alleged for all but two 
- 22 - Nos. 32 & 33

- 22 -

of her statements must be presented to a jury. Our precedents do not support the majority’s 

construction of the Civil Rights Law, and its treatment of the relevant privileges as factual 

questions contravenes Front and eviscerates their intended purposes. Lawyers beware!

For No. 32: 

Order reversed, with costs, defendant Kesha Rose Sebert’s motion to amend her answer to 

assert a counterclaim pursuant to Civil Rights Law § 70-a granted, and certified question 

answered in the negative. Opinion by Judge Garcia. Judges Singas, Cannataro and 

Troutman concur and Chief Judge Wilson concurs, for the reasons stated in section IV.

Judge Rivera dissents in part in an opinion. Judge Halligan took no part.

For No. 33: 

Order modified, without costs, in accordance with the opinion herein, as so modified, 

affirmed, and certified question answered in the negative. Opinion by Judge Garcia. Judges 

Singas, Cannataro and Troutman concur. Chief Judge Wilson joins section II of the 

majority opinion herein by Judge Garcia and dissents in part for the reasons stated in 

section IV of the dissenting opinion herein by Judge Rivera. Judge Rivera dissents in part 

in an opinion. Judge Halligan took no part.

Decided June 13, 2023