United States District Court, S.D. New York
Attorneys for Plaintiff THE LAW OFFICES OF J.A.
Attorneys for Defendants DECHERT LLP By: Andrew J. Levander,
Esq., Linda C. Goldstein, Esq., Nicolle L. Jacoby, Esq.
W. SWEET, U.S.D.J.
Twenty-First Century Fox, Inc. and 21st Century Fox America,
Inc. ("21CFA" and, collectively, the
"Defendants") 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.
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.
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.
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").
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
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
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.
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.
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).
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 ¶
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.
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 ...