Court Dismisses Suit Against N.Y. Times & Serial Productions over The Idiot Podcast

The podcast is M. Gessen’s story about cousin Allen Gessen (who is the plaintiff in this case) and his murder-for-hire conviction. Extra juicy tidbit in this case: Venue!

For some backstory, see this DoJ press release ("Murder For Hire Convict Sentenced To Ten Years In Prison" / "Allen Gessen Was Convicted Of Soliciting an Undercover Agent to Murder the Estranged Mother of His Children") and the N.Y. Times introduction of the podcast. From Allen Gessen v. Masha Gessen, decided today by Judge Leo Sorokin (D. Mass.); note that Allen Gessen is a lawyer, albeit unsurprisingly now a disbarred one:

This action began with a flurry of simultaneous filings by [Allen] Gessen. He filed a complaint naming himself and his children, O.G. and E.G., as plaintiffs and bringing claims against a journalist who is his cousin, The New York Times, and Serial Productions. The claims seek to prevent the publication of a podcast the defendants are producing about Gessen and his family. The complaint was accompanied by motions to proceed anonymously and to seal Gessen's submissions to the Court.

Because the undersigned was unavailable and Gessen sought various forms of emergency action, Judge Brian Murphy reviewed the submissions and promptly issued a Memorandum and Order addressing many of them ("the March 5 Order"). Among other things, Judge Murphy temporarily allowed the motions to proceed anonymously and to file under seal, pending further review by the undersigned. The Court has now conducted such review.

There is a "strong presumption against the use of pseudonyms in civil litigation." This is because proceeding "anonymously is … in tension with the common law presumption of public access to judicial proceedings and records." A party seeking to overcome this presumption must cite exceptional circumstances, such as a "reasonable fear of severe harm that outweighs the public's interest in open litigation." Gessen has not made such a showing in this case…. As to O.G. and E.G., use of initials is required even if proceeding anonymously is not. See Fed. R. Civ. P. 5.2(a)(3).

As far as sealing is concerned, the March 5 Order explained that the public's presumptive right of access to court proceedings means that "only the most compelling reasons can justify non-disclosure of judicial records" in civil actions. So long as the children's initials are used, Gessen has not established that this case presents the sort of "compelling reasons" required to warrant across-the-board sealing. The Court therefore DENIES the blanket motion to seal. Unless Gessen notifies the Court within fourteen days of this Order that any of his submissions contain specific, non-public information about O.G. or E.G. (such as a date of birth, full name, or medical condition), all submissions presently sealed will be UNSEALED by the Clerk on April 8, 2026….

With his complaint, Gessen filed a motion seeking a temporary restraining order or preliminary injunction preventing the defendants from including "any private facts about O.G. and E.G.," and any "of Allen Gessen's voice recordings," in the podcast. The same motion also sought an order requiring the defendants "to delete and destroy all unauthorized recordings of Allen Gessen" and to pay Gessen "damages for emotional distress, endangerment, and injury to reputation." Gessen's request for ex parte, interim relief was denied in the March 5 Order because he had not in the complaint alleged facts establishing this Court's personal jurisdiction over the defendants or supporting a finding that this District was an appropriate venue for this action. The absence of such facts rendered Gessen unlikely to succeed on the merits of his claims…. [Gessen's follow-up arguments as to this] do not avoid dismissal.

Venue is generally assessed by reference to the location of the defendant or the events underlying a plaintiff's lawsuit. In a case alleging multiple claims, a plaintiff must establish that venue is proper with respect to each cause of action….

The Court begins with a pair of factually related claims Gessen asserts only on his own behalf: promissory estoppel and a Lanham Act violation. Gessen alleges all three defendants are New York residents, which means the venue question before this Court turns on whether "a substantial part of the events or omissions giving rise to" these claims "occurred" in Massachusetts. 28 U.S.C. § 1391(b)(2). Counts II and III concern the defendants' anticipated use of a telephone interview of Gessen by his cousin. Gessen alleges that the defendants will publish his voice recordings—obtained when his cousin (in New York) called Gessen (in a federal prison in New Jersey)—in a podcast produced by the New York Times.

In Count II, Gessen claims such use breaks his cousin's promise that the recorded interview would be used only for an episode of This American Life (a public-radio program produced by a different media company). In Count III, Gessen claims the defendants' use of the recording "is likely to deceive or confuse consumers into believing that Allen Gessen has agreed to associate or affiliate himself with the New York Times," thereby damaging his "professional reputation" which is "strong" and "centered in Israel." The "events or omissions" giving rise to both claims, thus, happened (and the anticipated harm will arise) in locations other than Massachusetts.

The promise allegedly broken was not made in Massachusetts, nor did it require (or prohibit) publication of the recording within Massachusetts. Neither party to the recorded conversation was in Massachusetts during the interview. The reputation Gessen fears will be harmed, and potential business connections he worries will be impacted, are centered elsewhere. Nothing in Gessen's show-cause submission suggests otherwise as to Counts II and III.

To be sure, Gessen claims his cousin investigated and fact-gathered in Massachusetts in order to produce a podcast about a newsworthy topic—Gessen's conviction of a federal crime after a public trial, and the events that led to it. But this does not supply the connection to this District that is required in order to establish venue for Gessen's promissory estoppel and Lanham Act claims. Those claims, as alleged, specifically arise from the podcast's (alleged, anticipated) use of a single recorded conversation Gessen had with his cousin. Neither that conversation, nor Gessen's allegations about the harms he expects to suffer if it is used in the podcast, "occurred" in this District. Venue, therefore, does not lie here as to Counts II and III.

Though transfer is an alternative to dismissal if venue lies elsewhere, the Court finds it is not an appropriate option here. For one thing, despite an opportunity to voluntarily withdraw this action and file it in another District, Gessen opted to continue his attempts to litigate the case here. Further, if there were a basis to find venue as to Counts II and III in another District, transfer would be an exercise in futility. Gessen's complaint does not advance a short and plain statement of either claim that plausibly entitles him to relief from the defendants.

In Count II, Gessen alleges he reasonably relied on his cousin's promise to publish their conversation on a specific program, and that he would not have agreed to the interview absent this "representation limiting the scope of use." In particular, Gessen claims his cousin promised that the recorded interview would be used only for one episode of a prominent, long-running, public-radio program about his crime; that he reasonably relied on this promise in agreeing to the interview; and that now his cousin has expanded the project into a multi-episode podcast about his crime and his background (including his family life—a topic not necessarily separable from his crime, given the nature of the offense) that will be circulated by a different prominent media outlet. The Court finds these facts do not state a viable promissory estoppel claim. Even accepting that such a promise was made, and that Gessen reasonably relied on it, Gessen has not plausibly shown how the foregoing series of events works an "injustice that can be avoided only by enforcement of the promise."

{The publications identified by Gessen—This American Life, and a podcast produced by the New York Times—are not obviously different in scope or audience. Gessen does not allege, for example, that he relied on a promise to use the interview for a story in a small-town newspaper circulated to a few thousand residents, only to learn that it would be aired during a Super Bowl commercial seen by millions of viewers around the world.}

In Count III, Gessen alleges false association under the Lanham Act. As relevant here, such a claim requires plausible allegations showing "a likelihood of consumer confusion as to the affiliation, connection, or association" of the plaintiff "with another person." False-association claims "typically involve attempts to appropriate the goodwill associated with a competitor, for example, by misappropriating a trademark or falsely implying an endorsement." Claims that do not stem from such consumer confusion—for example, claims alleging "that consumers will be misled into believing" something that is published by a defendant and that the plaintiff views as disparaging—"fail[] to state a claim under this liability theory."

Just so here. Gessen suggests unspecified prospective clients might be "confuse[d] … into believing" he is affiliated with the New York Times, upon learning of or hearing the podcast and its use of his recorded interview, and that this will tarnish Gessen's reputation and impair his undescribed future business prospects in Israel due to the "perceived severe anti-Israel bias" of the New York Times. This is simply not the stuff of a Lanham Act false-association claim. And even if it were, the allegations are "too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture."

{Gessen does not, and likely could not, advance any legal claim that would broadly prevent the defendants from developing and releasing a podcast concerning his criminal conduct. Cf. Neb. Press Ass'n v. Stuart (1976) (classifying "prior restraints on speech and publication" as "the most serious and the least tolerable infringement on First Amendment rights," and emphasizing that protection against such restraints "should have particular force as applied to reporting of criminal proceedings"). Perhaps understanding this, Gessen's challenges in this case are tied to information about his children and the use of a specific recorded interview with him—not to the investigation and publication of information about him or his crime in general. See Doc. No. 1 at 6 (conceding defendants may "report facts about" Gessen "which may be newsworthy and of public interest" but urging right "does not extend to the use of … improperly obtained voice recordings").} …

As to O.G. and E.G. and a potential invasion-of-privacy claim, Gessen's show-cause submission raises facts that might support a finding of venue and personal jurisdiction. At least two hurdles remain, however, and are not susceptible to resolution on the present record. One is subject-matter jurisdiction; any state-law claim the minor plaintiffs might be able to state against the defendants can proceed in federal court only if the amount in controversy, for each child, exceeds $75,000. The other is representation; as noted previously, Gessen cannot pursue claims for his children, and no lawyer has entered an appearance on their behalf….

On the eve of a deadline set in the March 5 Order for counsel to enter an appearance on behalf of O.G. and E.G., Gessen … asked the Court to appoint a guardian ad litem ("GAL") for the children pursuant to Rule 17(c)(2)…. [T]he Court declines to appoint a GAL.

The Federal Rules of Civil Procedure provide that, where a minor "is unrepresented in an action," the Court "must appoint a guardian ad litem" or "issue another appropriate order." Gessen points to this mandatory language in urging the Court to appoint a GAL for O.G. and E.G. here. But the Rule requires the Court to do so only if the minor(s) at issue "do[] not have a duly appointed representative" who could sue on their behalf. See Fed. R. Civ. P. 17(c)(1) (listing representatives, including "general guardian," who may sue on minor's behalf). Gessen has not alleged his children lack such a representative. Indeed, his own submissions admit facts which substantially undermine his invocation of Rule 17(c)(2).

First, the Middlesex County Probate and Family Court has before it ongoing proceedings concerning the custody of the children, including Gessen's rights as a non-custodial parent and his ex-wife's rights as their custodial parent. Second, the children have a state-court-appointed GAL representing their interests in the Probate and Family Court proceedings. Third, Gessen asked the Probate and Family Court to take action concerning dissemination of information about the children and/or to authorize him to retain counsel to represent the children in this case, thereby alerting both the GAL and the state-court judge of the potential claims Gessen believes should be asserted on his children's behalf and of the podcast that is the subject of this action. Fourth, the state court, having considered Gessen's requests and after a hearing at which both the GAL and Gessen's state-court lawyer were present, declined to permit Gessen to retain counsel for his children or to direct the GAL to take action on their behalf.

Finally, the children's custodial parent (their mother) was apparently interviewed—and permitted the children to be interviewed—for the podcast at issue, and she objected before the Probate and Family Court to Gessen's efforts to restrict the content of the podcast, see Opp'n to Def.'s Motions at 6–10, Chigariro v. Gessen (Middlesex Cnty. Prob. & Fam. Ct 2026) (citing producers' assurance "that the series will not disclose full names or other identifying information" of E.G. and O.G.).

Though counsel has not appeared to pursue the claims Gessen wishes to assert for the children in this case, the record before the Court does not establish that O.G. and E.G. are lacking "a duly appointed representative" able to sue on their behalf. Rather, the foregoing facts suggest that their custodial parent does not wish file suit, and neither the GAL nor the Probate and Family Court judge have determined that the circumstances warrant authorizing action against the custodial parent's wishes. Against that backdrop, the Court finds appointment of a GAL here is neither required by the law nor warranted by the facts.