Another Nevada S. Ct. Decision as to #TheyLied Sexual Assault Defamation Claim Brought by Nickolas Carter (Backstreet Boys)

From Tuesday's Nevada Supreme Court decision in Schuman Henschel v. Carter (for more on an earlier decision in Ruth v. Carter, see here):

This appeal arises out of a defamation countersuit brought by respondent Nickolas Carter against appellants Melissa and Jerome Schuman (collectively, the Schumans). Over the span of several years, the Schumans made statements about Carter's alleged sexual assault of Melissa and other women. One of the other women, Shannon Ruth, sued Carter for sexual battery, and Carter countersued for defamation and related torts and joined the Schumans as counter-defendants. The Schumans filed an anti-SLAPP special motion to dismiss Carter's claims against them….

[Under the Nevada anti-SLAPP statute, once a court determines that] "… the claim is based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern[,]" … [the person making the claim must] show "with prima facie evidence a probability of prevailing on the claim." …

"To prevail on a defamation claim, [a public figure] must show (1) a false and defamatory statement; (2) unprivileged publication to a third person; (3) fault; (4) damages, presumed or actual; and … (5) actual malice." Actual malice is demonstrated when a statement "is published with knowledge that it was false or with reckless disregard for its veracity." … "[T]o demonstrate by prima facie evidence a probability of success on the merits of a public figure defamation claim, the [non-moving party's] evidence must be sufficient for a jury, by clear and convincing evidence, to reasonably infer that the publication was made with actual malice." …

The Schumans … claim that Carter's declarations and evidence did not refute aspects of the allegations regarding the assault of Melissa, do not demonstrate that Melissa consented to sexual intercourse or that Jerome did not believe his daughter, and do not prove that the Schumans believed that Ruth's account of being assaulted was untrue.

Viewing the evidence in the light most favorable to him, we conclude Carter presented sufficient evidence that, if believed, would sustain a favorable verdict. Carter claimed that the Schumans fabricated Melissa's sexual assault allegations and that they, alongside Ruth and his brother Aaron Carter, conspired to defame and extort him. He conceded that he had sexual intercourse with Melissa but asserted that the sex was consensual.

In support, Carter provided 92 exhibits, affidavits, and declarations directly contradicting or undermining Melissa's allegations. For example, Carter provided a declaration from a witness present in the room on the night of the alleged rape that stated the witness saw Melissa and Carter flirting and playing with one another and that at no point did he witness Melissa upset or fearful, nor did he witness Carter act inappropriately toward her.

Carter also provided ample evidence suggesting Melissa changed her version of the events over the years, with pertinent details changing—such as whether she informed anyone in the days following the encounter or waited years, and whether she stopped working alongside Carter. All of this evidence, when viewed in the light most favorable to Carter arguably demonstrate that the sexual interactions between him and Melissa were consensual, that Melissa knew she was not sexually assaulted, and that the Schumans, Ruth, and Aaron conspired to defame Carter.

The Schumans point to their own declarations in arguing that Carter could not demonstrate actual malice. Melissa provided a declaration detailing the alleged sexual assault, her belief that Ruth was being truthful regarding her own alleged assault by Carter, and that she did not "prey on" Aaron or Ruth or coach them with what to say. Jerome provided a declaration averring that he believed to be true Melissa's recounting of the encounter and Ruth's allegations of assault, and that he did not conspire with Melissa and Ruth to extort Carter.

While these declarations demonstrate that there may be genuine disputes of material facts in this case, this court cannot weigh the evidence but rather must consider the evidence in the light most favorable to Carter. Upon doing so, we conclude that Carter provided sufficient evidence that, if believed, shows that the Schumans published defamatory statements with knowledge that they were false or with reckless disregard for their veracity….

Comments

[Martinned2]

I understand the difficulty for the Nevada Supreme Court, but doesn't it defeat the purpose of an anti-SLAPP statute if the plaintiff can get around it simply by alleging the right/enough facts?

[Stupid Government Tricks]

If the purpose of the courts is to supply justice, then aren't facts important?

[Martinned2]

Yes, but as we learned from the Bill of Middlesex, there's a big difference between facts and things alleged by the plaintiff.

The whole scenario that anti-SLAPP statutes have in mind is one where a plaintiff with deep pockets sues a defendant who doesn't have the same resources because the plaintiff doesn't like something the defendant said, without worrying too much about whether the case is actually winnable. If that's the problem, surely the plaintiff in that scenario can hire enough lawyers to come up with a set of facts that pass muster if the test is the normal pleading standard?

Remember, the facts claimed don't have to be true, they just have to be true enough to allow for discovery. After that the plaintiff can always drop their case.

[Stupid Government Tricks]

Anti-SLAPP stuff is only necessary because the legal system sucks. Loser pays would go a long way towards discouraging stupid lawsuits and helping poor defendants find legal assistance, but it would have to be all expenses, not just attorney fees. But lawyers hate anything which discourages stupid lawsuits.

There's also the speed issue. The only reason judicial systems are so slow is because lawyers have used occupational licensing to keep the supply low and wages high, and because governments refuse to either hire more judges or allow private judges.

It's a racket from top to bottom.

[David Nieporent]

Anti-SLAPP stuff is only necessary because the legal system sucks. Loser pays would go a long way towards discouraging stupid lawsuits and helping poor defendants find legal assistance, but it would have to be all expenses, not just attorney fees. But lawyers hate anything which discourages stupid lawsuits.

1) Anti-SLAPP laws are a form of loser pays.
2) Anti-SLAPP laws discourage stupid lawsuits.

There's also the speed issue. The only reason judicial systems are so slow is because lawyers have used occupational licensing to keep the supply low and wages high, and because governments refuse to either hire more judges or allow private judges.

1) The lawyer supply is not low, and wages are not high. (There is a bimodal distribution of lawyer salaries. BigLaw compensation is quite high. But most lawyers are not in BigLaw.)
2) I assume you mean that taxpayers refuse to hire more judge.
3) "Private judges" are called arbitrators, and they are in fact allowed.

[Stupid Government Tricks]

Oh pull another one! loser pays would discourage far more lawsuits than just SLAPP. Perhaps you think other lawsuits don't count, but their victims sure do.

If lawyer supply is not low, then get rid of bar exams and limited law school enrollment.

Your self-interest blinds you.

[David Nieporent]

Oh pull another one! loser pays would discourage far more lawsuits than just SLAPP. Perhaps you think other lawsuits don't count, but their victims sure do.

Perhaps I don't think any such thing.

Your self-interest blinds you.

As always, you prove your handle has two too many words. As a libertarian, I oppose mandatory occupational licensing.

[Satchmo_Lives]

Doesn't having right/enough facts show the lawsuit isn't frivolous or meant to intimidate?

[Martinned2]

You don't need to have facts to allege them, particularly if the point is to litigate in order to discourage public participation, which is the evil that anti-SLAPP statutes are intended to fix.

[David Nieporent]

You don't need to have facts to allege them,

There are other remedies for lying to the court.

particularly if the point is to litigate in order to discourage public participation, which is the evil that anti-SLAPP statutes are intended to fix.

By heading off meritless claims, not meritorious ones. We don't want people "publicly participating" with defamation.

[Satchmo_Lives]

I guess you would prefer plaintiffs not be able to present facts before dismissing the suit.

I am not sure who you think should determine facts presented by the plaintiff are likely to prevail other than the judge. I suppose you want the defendants or his attorneys to be the arbiter?

[David Nieporent]

I understand the difficulty for the Nevada Supreme Court, but doesn't it defeat the purpose of an anti-SLAPP statute if the plaintiff can get around it simply by alleging the right/enough facts?

No. That's not defeating the purpose; that literally is the purpose.

[MN2828]

No, the plaintiff has to supply evidence in support of the facts that he has alleged. It is basically a summary judgment standard, i.e., the case can proceed if the plaintiff can present enough evidence to get past summary judgment. It differs from an ordinary summary judgment as the plaintiff doesn't necessarily get the right to take discovery before responding.

[ReaderY]

The intent of anti-SLAPP statutes is to dispose of and deter MERITLESS defamation claims.

Carter here produced substantially more evidence than his own word, including witnesses who claimed to see the two flirting with each other on the night of the alleged rape and evidence that Melissa changed her story considerably since the initial incident. As the Nevada Supreme Court rightly pointed out, that makes his lawsuit far from meritless.

[Satchmo_Lives]

Nothing to see here. Move along.

[CindyF]

Over the years, women have learned that if they accuse a celebrity of rape or sexual assault, it is an automatic payout for them. They've also learned that after consensual sex they can cry "rape" and be automatically believed no matter any evidence showing otherwise. It makes a mockery of the horrors and suffering of actual victims of an sexual assault.

However, celebrities are learning that paying to settle these cases and having the accuser sign an NDA doesn't actually make the accuser go away. If the incident is later revealed (usually by the accuser even though they received funds and signed the agreement), the NDA is considered an admission of guilt and can be used against them in court.

Therefore, if not guilty it is better in the long run to fight the false accusations rather than settle with the accuser.

It is good to see someone fighting back against false charges. Hopefully the era of #metoo #believeallwomen is finally over.

BTW, If breaking a NDA contract, the accuser should have to return all funds paid and be civilly liable for breaking the contract.

[Satchmo_Lives]

If the party who paid for NDA thinks it is worth the headache (see Streisand Effect) they should be able to recover both the amount and legal fees. Stormy Daniels comes to mind.