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Cortes v. Twenty-First Century Fox America, Inc.

United States District Court, S.D. New York

January 9, 2018


          Attorneys for Plaintiff THE LAW OFFICES OF J.A. SANCHEZ-DORTA, P.C.

          Attorneys for Defendants DECHERT LLP By: Andrew J. Levander, Esq., Linda C. Goldstein, Esq., Nicolle L. Jacoby, Esq.


          ROBERT W. SWEET, U.S.D.J.

         Defendants Twenty-First Century Fox, Inc. and 21st Century Fox America, Inc. ("21CFA" and, collectively, the "Defendants"[1]) have moved pursuant to Federal Rule of Civil Procedure 12(b) (6) to dismiss the First Amended Complaint ("FAC") of Francisco Cortes ("Cortes" or the "Plaintiff"). Based on the conclusions set forth below, Defendants' motion is granted and Plaintiff's FAC is dismissed with prejudice.

         Prior Proceedings

         On July 25, 2017, Plaintiff filed his Complaint, which was amended on August 7, 2017. See Dkt. Nos. 1, 8. Plaintiff's FAC alleges seven causes of action: breach of contract, fraudulent' misrepresentation, civil conspiracy to defraud, intentional interference with contractual relationships, defamation per se, libel per se, and slander per se. See FAC ¶¶ 117-60.

         On October 6, 2017, Defendants filed the instant motion to dismiss. Dkt. No. 22. The motion was heard and marked fully submitted on November 29, 2017.


         The Complaint sets forth the following facts, which are assumed true for the purpose of this motion to dismiss. See Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012). As part of a motion to dismiss, a "court may consider any written instrument attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as documents upon which the complaint relies and which are integral to the complaint." N.Y. Life Ins. Co. v. U.S., 724 F.3d 256, 258 n.l (2d Cir. 2013) (quoting Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir. 2005))/ see also Chapman v. N.Y.S. Div. for Youth, 546 F.3d 230, 234 (2d Cir. 2008) (stating that a court may consider "undisputed documents, such as a written contract attached to, or incorporated by reference in, the complaint").

         Prior to his termination, Cortes was a vice president of Fox News Latino, a division of Fox News Network, LLC ("Fox News"), which in turn was a subsidiary of Defendants. See FAC Ex. A (attaching Emily Steel, Fox Is Said to Settle With Former Contributor Over Sexual Assault Claims, The N.Y. Times, Mar. 8, 2017, While Cortes was at Fox News, Tamara Holder ("Holder") was a Fox News contributor. Id. In February 2015, Cortes made sexual advances on Holder in his office; Holder has stated Cortes sexually assaulted her, while Cortes has stated the interaction was consensual. FAC ¶¶ 7, 33, 92, Ex. A; see also Carol Felsenthal, Former Fox News Pundit Who Accused Exec of Sexual Assault Returns to Chicago, Chicago Magazine, May 2, 2017, http: //www. chicagomag. com/Chicago-Magazine /Felsenthal-Files/Apri1-2017/Tamara-Holder/ (describing the encounter from Holder's perspective and noting that afterward, Holder "remained silent for more than a year").

         In July 2016, as part of The New York Times' reporting of sexual harassment allegations against then-Fox News Chairmen Roger Ailes, Times reporter Emily Steel ("Steel") reached out to Holder to inquire whether Holder had ever been harassed by Ailes. FAC ¶¶ 42, 83. Holder described her interactions with Steel at that time in relation to her own alleged sexual harassment as follows:

I had been suppressing this. I had been boiling up. Emily Steel sent me a direct message on Twitter. She wanted to know if there were other stories about Roger. I answered her that I have nothing to say about Roger, but I know somebody who was sexually assaulted by a Fox News executive. Describing what happened to me in Cortes' office felt like letting the cat out of the bag. I said, holy shit, I'm going to be quoted in the New York Times. That was in July 2016 and it led to the worst six months of my life.

FAC ¶ 83 (quoting Felsenthal, supra). Steel did not publish any about Holder at this time, and Holder continued to keep her allegations secret from Fox News. See Felsenthal, supra (noting that the Times first published an article about Holder in early 2017); FAC ¶ 53 (quoting Yashir Ali, Top Talen Agency Discouraged Fox News Contributor From Reporting Alleged Sexual Assault, Huffington Post, May 2, 2017, (describing how Holder held back from informing Fox News of her allegations in early September 2016 during employment contract negotiations).

         In late September 2016, Holder informed Fox News for the first time of her sexual assault allegations and, on October 21, 2016, provided additional details of the encounter, including Cortes' identity. See Steel, supra; Felsenthal, supra. On October 21, 2016, Cortes was terminated. See FAC ¶¶ 1, 25, 47; Steel, supra; Felsenthal, supra.

         On November 11, 2016, as part of Cortes' termination, Cortes and Fox News signed a severance and general release agreement (the "Severance Agreement") that contained, of relevance to the instant litigation, the following provision:

Non-disparagement: Cortes and Fox each agree not to disparage, trade libel, or otherwise defame the other, and in the case of Fox, Cortes agrees not to disparage, trade libel, or otherwise defame Fox, and/or any of its officers and/or any of its current and/or former employees.

         Amended Declaration of Linda C. Goldstein dated November 29, 2017 ("Goldstein Decl."), Ex. 1; see FAC ¶ 113 (describing "contractual obligations" between Cortes and Fox News in December 2016).

         Around the same time as Cortes' termination, Holder drafted and presented to Defendants a complaint that contained claims against Fox News and Cortes. FAC ¶¶ 19, 113. Attorneys from Paul, Weiss, who represented Defendants, met with Plaintiff to see if he would testify against Holder in a mediation between Fox News and Holder; Plaintiff refused to do because he believed it would violate the non-disparagement provision of the Severance Agreement. See FAC ¶ 113.

         Holder's claims were resolved in February 2017 when Holder, 21CFA, and Cortes signed a settlement agreement (the "Holder Settlement Agreement"), to which Cortes, with advice of counsel, signed assent "as to Paragraph 6c and 12." FAC ¶¶ 20-22, Ex. B. Portions of the Holder Settlement Agreement to which Cortes did not assent upon signing, which included other signatories to the agreement, were redacted. FAC ¶¶ 29-30, see FAC Ex. B.

         Paragraph 6c of the Holder Settlement Agreement provided that:

Cortes, on behalf of himself and the Cortes Released Parties, hereby knowingly and voluntarily releases and discharges the Holder Released Parties from any and all Claims whatsoever in law, admiralty or equity, whether now known or unknown, suspected or unsuspected, vested or contingent, accrued or yet to accrue, against the Holder Released Parties ...

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