NYP Answer To Huizenga

Case 1:17-cv-02113-LTS Document 25 Filed 06/02/17 Page 1 of 19
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
X
ROBERT HUIZENGA., :
:
Plaintiff, :
: Index No. 17 Civ. 2113 (LTS)
- against - :
: ANSWER OF DEFENDANT
NYP HOLDINGS, INC. d/b/a the New York : NYP HOLDINGS, INC.
Post, JOELLE GWYNN and DOES 1-20, :
:
Defendants. :
:
X
Defendant NYP Holdings, Inc. (NYP or Defendant) by and through its undersigned
attorneys, hereby answers the First Amended Complaint (the Complaint) of plaintiff Robert
Huizenga (Huizenga or Plaintiff), as follows:
SUMMARY OF THE CASE
1. Defendant denies knowledge or information sufficient to form a belief as to the
truth or falsity of the allegations of paragraph 1 of the Complaint, and therefore denies them,
except admits that Plaintiff is publicly known as Dr. H and that Plaintiff is a public figure.
2. To the extent the allegations of paragraph 2 of the Complaint allege conclusions
of law, Defendant is not required to plead thereto; to the extent the allegations of said paragraph
are deemed to be allegations of fact, Defendant denies each and every allegation thereof, except
admits that the New York Post published an article with the title Biggest Loser drugged us so
wed lose weight on May 22, 2016, an article with the title Biggest Loser contestants demand
NBC cancel show on May 23, 2016, and an article with the title Biggest Loser rigged weigh-
ins by forcing contestants to eat baking soda on May 23, 2016 (collectively, the Post
Articles), avers that the Post Articles speak for themselves, and refers the Court to the Post
Articles for their contents.
4823-8060-2441v.2 3930033-000075
admits that Maureen Callahan (Ms. Callahan), a reporter for the New York Post, had
communications with Plaintiff, Plaintiffs office, and Plaintiffs attorney prior to publication of
any of the Post Articles and avers that those communications speak for themselves.
are deemed to be allegations of fact, Defendant denies each and every allegation thereof.
PARTIES
truth or falsity of the allegations of paragraph 5 of the Complaint, and therefore denies them.
are deemed to be allegations of fact, Defendant admits the allegations thereof, except denies it
does or did business as the New York Post.
7. Defendant admits the allegations of paragraph 7 of the Complaint upon
information and belief.
are deemed to be allegations of fact, Defendant denies knowledge or information sufficient to
form a belief as to the truth or falsity of the allegations thereof, and therefore denies them.
4823-8060-2441v.2 3930033-000075 2
JURISDICTION & VENUE
form a belief as to the truth or falsity of the allegations thereof, and therefore denies them, but
does not contest that the Court has personal jurisdiction over Defendant.
does not contest that the Court has subject matter jurisdiction of this case.
does not oppose venue in this District.
FACTS RELEVANT TO ALL CAUSES OF ACTION
except admits that Plaintiff is publicly known as Dr. H and that Plaintiff is a public figure.
14. Defendant denies the allegations of paragraph 14 of the Complaint.
4823-8060-2441v.2 3930033-000075 3
17. Defendant denies the allegations of paragraph 17 of the Complaint.
except admits that Plaintiff served as a doctor on The Biggest Loser and is a public figure.
25. Defendant denies each and every allegation of Paragraph 25 of the Complaint,
except admits that Ms. Callahan communicated with a representative of Plaintiff by email on or
4823-8060-2441v.2 3930033-000075 4
about May 19, 2016, avers that that email speaks for itself, and refers the Court to this document
incorporated into the Complaint for its contents.
admits that Ms. Callahan received written correspondence from Plaintiffs attorney on or about
May 20, 2016 and that the New York Post published the article attached as Exhibit A to the
Complaint. By way of further answer, Defendant avers that this correspondence and the article
speak for themselves and refers the Court to the documents incorporated into and/or attached to
the Complaint for their contents.
admits that the New York Post published the articles attached as Exhibits B and C to the
Complaint. By way of further answer, Defendant avers that that the articles speak for themselves
and refers the Court to the documents attached to the Complaint for their contents.
admits that words placed in quotation marks appeared in the Post Articles, avers that the Post
4823-8060-2441v.2 3930033-000075 5
Articles quoted and/or referenced in paragraph 29 speak for themselves, and refers the Court to
the documents attached to the Complaint for their contents.
admits that Defendant published the Post Articles, avers that the articles quoted and/or
referenced in paragraph 31 speak for themselves, and refers the Court to the documents attached
to the Complaint for their contents.
admits that Defendant published the Post Articles, avers that the articles referenced in paragraph
32 speak for themselves, and refers the Court to the documents attached to the Complaint for
their contents.
admits that Plaintiff, producers of The Biggest Loser show, Bob Harper and Kai Hibbard have
made statements, which speak for themselves. By way of further answer, Defendant avers that
4823-8060-2441v.2 3930033-000075 6
the articles quoted and/or referenced in paragraph 33 speak for themselves, and refers the Court
to the documents attached to the Complaint for their contents.
admits that Plaintiff, producers of The Biggest Loser, Bob Harper and Kai Hibbard have made
statements, which speak for themselves. By way of further answer, Defendant avers that the
articles quoted and/or referenced in paragraph 34 speak for themselves, and refers the Court to
the documents attached to the Complaint for their contents.
admits that the National Institute of Health conducted a study (the NIH Study) and avers that
the NIH Study speaks for itself. By way of further answer, Defendant avers that the articles
quoted and/or referenced in paragraph 35 speak for themselves, and refers the Court to the
documents incorporated into and/or attached to the Complaint for their contents.
states that Ms. Callahan contacted Plaintiffs representative for responses by the Plaintiff to
things former contestants on The Biggest Loser had stated. By way of further answer, Defendant
avers that the articles and documents quoted and/or referenced in paragraph 36 speak for
4823-8060-2441v.2 3930033-000075 7
themselves, and refers the Court to the documents incorporated into and/or attached to the
Complaint for their contents.
states that the articles quoted and/or referenced in paragraph 37 speak for themselves, and refers
the Court to the documents incorporated into and/or attached to the Complaint for their contents.
states that former The Biggest Loser contestant Suzanne Mendonca informed Ms. Callahan, On
my season, five people had to be rushed to the hospital, and avers that the articles quoted and/or
referenced in paragraph 38 speak for themselves, and refers the Court to the documents
incorporated into and/or attached to the Complaint for their contents.
admits that Defendant received a letter from Plaintiffs attorney, avers that the letter speaks for
itself, and refers the Court to the document incorporated into the Complaint for its contents. By
4823-8060-2441v.2 3930033-000075 8
way of further answer, Defendant states that it has not removed the Post Articles from its
website, and has not issued a correction, apology, or retraction of the Post Articles.
FIRST CAUSE OF ACTION

(Defamation)
42. Defendant repeats and realleges its responses to paragraphs 1 through and
including 41 of the Complaint set forth hereinabove, as if the same were fully stated herein.
are deemed to be allegations of fact, Defendant denies each and every allegation thereof. By
way of further answer, Defendant avers that the articles quoted and/or referenced in paragraph 44
speak for themselves, and refers the Court to the documents attached to the Complaint for their
contents.
4823-8060-2441v.2 3930033-000075 9
admits that Defendant published the Post Articles in the New York Post newspaper and on the
New York Post website.
admits that Defendant received a letter dated May 31, 2016 from Plaintiffs attorney, avers that
the letter speaks for itself, and refers the Court to this document incorporated into the Complaint
for its contents.
4823-8060-2441v.2 3930033-000075 10
SECOND CAUSE OF ACTION

(Defamation Per Se)
are deemed to be allegations of fact, Defendant denies each and every allegation thereof. By
way of further answer, Defendant avers that the articles quoted and/or referenced in paragraph 55
speak for themselves, and refers the Court to the documents attached to the Complaint for their
contents.
4823-8060-2441v.2 3930033-000075 11
admits that Defendant published the Post Articles in the New York Post newspaper and on the
New York Post website.
admits that Defendant received a letter dated May 31, 2016 from Plaintiffs attorney, avers that
the letter speaks for itself, and refers the Court to the document incorporated into the Complaint
for its contents.
THIRD CAUSE OF ACTION

(Intentional Interference with Prospective Economic Relations)
4823-8060-2441v.2 3930033-000075 12
form a belief as to the truth or falsity of the allegations thereof, and therefore denies them.
SEPARATE AND ADDITIONAL DEFENSES
By alleging the Separate and Additional Defenses, set forth below, Defendant is not in
any way acknowledging or conceding that it has the burden of proof for any issue for which
applicable law places the burden on Plaintiff.
4823-8060-2441v.2 3930033-000075 13
FIRST SEPARATE AND ADDITIONAL DEFENSE
1. Plaintiffs Complaint fails to state a claim, in whole or in part, upon which relief
can be granted.
SECOND SEPARATE AND ADDITIONAL DEFENSE
2. Plaintiffs claims are barred, in whole or in part, by the doctrines of unclean
hands, waiver and estoppel.
THIRD SEPARATE AND ADDITIONAL DEFENSE
3. Plaintiffs claims for relief against Defendant are barred by the First and
Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the New
York Constitution.
FOURTH SEPARATE AND ADDITIONAL DEFENSE
4. Plaintiffs claims for relief against Defendant fail because Defendant was not
aware of and did not intend or endorse the alleged defamatory implications complained of by
Plaintiff.
FIFTH SEPARATE AND ADDITIONAL DEFENSE
5. Each of the statements complained of by Plaintiff are true or substantially true,
and thus cannot give rise to any claim against Defendant.
SIXTH SEPARATE AND ADDITIONAL DEFENSE
6. Some or all of the statements complained of by Plaintiff do not assert verifiably
false facts, and/or constitute rhetorical hyperbole or subjective statements of opinion, and thus
cannot give rise to any claim against Defendant.
SEVENTH SEPARATE AND ADDITIONAL DEFENSE
7. Plaintiffs claims against Defendant are barred, in whole or in part, because
4823-8060-2441v.2 3930033-000075 14
Plaintiff cannot prove that he has suffered any compensable damage as a result of any actionable
statement published by Defendant.
EIGHTH SEPARATE AND ADDITIONAL DEFENSE
8. Plaintiffs claims against Defendant are barred in whole or in part because the
challenged statements cannot be reasonably understood by a reasonable reader to have the
defamatory meanings or implications that Plaintiff alleges.
NINTH SEPARATE AND ADDITIONAL DEFENSE
9. Plaintiffs claims are barred because Plaintiff is a public figure, and Defendant did
not publish any of the statements in suit with actual malice.
TENTH SEPARATE AND ADDITIONAL DEFENSE
10. Plaintiffs claims are barred because the Post Articles address matters of public
concern and none of the statements in suit was published by Defendant with gross
irresponsibility.
ELEVENTH SEPARATE AND ADDITIONAL DEFENSE
11. The allegedly defamatory statements in suit were published without the degree of
fault required by the First and Fourteenth Amendments to the United States Constitution and
Article I, Section 8 of the New York Constitution, and thus cannot give rise to any claim against
Defendant.
TWELFTH SEPARATE AND ADDITIONAL DEFENSE
12. The statement and implications complained of by Plaintiff are protected by the
doctrine of fair comment, and therefore cannot provide a basis for any recovery by Plaintiff.
4823-8060-2441v.2 3930033-000075 15
THIRTEENTH SEPARATE AND ADDITIONAL DEFENSE
13. Plaintiffs claims for relief against Defendant are barred by the doctrine of neutral
reportage.
FOURTEENTH SEPARATE AND ADDITIONAL DEFENSE
14. Plaintiffs claims for relief against Defendant are barred, in whole or in part,
because the damages allegedly suffered by Plaintiff, if any, were not proximately caused by
Defendant.
FIFTEENTH SEPARATE AND ADDITIONAL DEFENSE
because of Plaintiffs failure to mitigate his alleged damages, if any.
SIXTEENTH SEPARATE AND ADDITIONAL DEFENSE
because any damages allegedly suffered by Plaintiff were the result, in whole or in part, of
Plaintiffs own legal fault, and any recovery by Plaintiff should be reduced in proportion to
Plaintiffs fault.
SEVENTEENTH SEPARATE AND ADDITIONAL DEFENSE
because any damages allegedly suffered by Plaintiff were either wholly or in part the legal fault
of persons, firms, corporations, or entities other than Defendant, and that legal fault reduces the
percentage of responsibility, if any, to be borne by Defendant.
EIGHTEENTH SEPARATE AND ADDITIONAL DEFENSE
18. Plaintiffs claims against Defendant are barred, in whole or in part, because any
award of damages would unjustly enrich Plaintiff.
4823-8060-2441v.2 3930033-000075 16
NINETEENTH SEPARATE AND ADDITIONAL DEFENSE
because Plaintiff has not pleaded either libel per se or special damages with sufficient
particularity.
TWENTIETH SEPARATE AND ADDITIONAL DEFENSE
because Plaintiff has failed to state a claim upon which punitive damages can be awarded against
Defendant.
TWENTY-FIRST SEPARATE AND ADDITIONAL DEFENSE
21. Plaintiff is not entitled to recover punitive damages because Plaintiff is a public
figure and none of the statements complained of were published by Defendant with actual
malice.
TWENTY-SECOND SEPARATE AND ADDITIONAL DEFENSE
22. Plaintiffs claim for punitive damages is barred by the Constitution of the United
States, the New York Constitution and the common law.
TWENTY-THIRD SEPARATE AND ADDITIONAL DEFENSE
Plaintiffs damages, if any, are vague, uncertain, imaginary, and speculative.
TWENTY-FOURTH SEPARATE AND ADDITIONAL DEFENSE
Defendants conduct was reasonable, justified, and in good faith.
4823-8060-2441v.2 3930033-000075 17
TWENTY-FIFTH SEPARATE AND ADDITIONAL DEFENSE
25. Plaintiffs claims are barred, in whole or in part, because the complained of
statements are subject to and protected by the absolute and/or qualified privileges that they
concerned news, matters of public interest, matters of public record, matters regarding official
actions and proceedings.
TWENTY-SIXTH SEPARATE AND ADDITIONAL DEFENSE
26. Plaintiffs claim for Intentional Interference with Prospective Economic Relations
is barred because it sounds in defamation and is duplicative of Plaintiffs claims for Defamation
and Defamation Per Se.
TWENTY-SEVENTH SEPARATE AND ADDITIONAL DEFENSE
27. Defendant has insufficient knowledge or information upon which to form a belief
as to whether it may have additional, as yet unstated, separate defenses available to it. Defendant
reserves its right to assert additional separate defenses in the event discovery indicates that such
defenses would be appropriate.
PRAYER FOR RELIEF
WHEREFORE, Defendant prays for judgment against Plaintiff as follows:
1. Dismissing the Amended Complaint in its entirety and with prejudice, and
entering judgment thereon in favor of Defendant; and
2. For such other and further relief as to the Court shall seem just and proper.
Dated: New York, New York

June 2, 2017
DAVIS WRIGHT TREMAINE LLP
By: /s/ Robert D. Balin
Robert D. Balin
Eric J. Feder
4823-8060-2441v.2 3930033-000075 18
1251 Avenue of the Americas 21st Floor

New York, NY 10020
Telephone: (212) 489-8230
Facsimile: (212) 489-8340
Attorneys for Defendant NYP Holdings, Inc.
4823-8060-2441v.2 3930033-000075 19

NYP Answer To Huizenga

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Case 1:17-cv-02113-LTS Document 25 Filed 06/02/17 Page 1 of 19

UNITED STATES DISTRICT COURT

Huizenga (Huizenga or Plaintiff), as follows:

SUMMARY OF THE CASE

1. Defendant denies knowledge or information sufficient to form a belief as to the

2. To the extent the allegations of paragraph 2 of the Complaint allege conclusions

Articles for their contents.

3. To the extent the allegations of paragraph 3 of the Complaint allege conclusions

4. To the extent the allegations of paragraph 4 of the Complaint allege conclusions

5. Defendant denies knowledge or information sufficient to form a belief as to the

6. To the extent the allegations of paragraph 6 of the Complaint allege conclusions

does or did business as the New York Post.

7. Defendant admits the allegations of paragraph 7 of the Complaint upon

information and belief.

8. To the extent the allegations of paragraph 8 of the Complaint allege conclusions

are deemed to be allegations of fact, Defendant denies knowledge or information sufficient to

9. To the extent the allegations of paragraph 9 of the Complaint allege conclusions

JURISDICTION & VENUE

are deemed to be allegations of fact, Defendant denies knowledge or information sufficient to

are deemed to be allegations of fact, Defendant denies knowledge or information sufficient to

are deemed to be allegations of fact, Defendant denies knowledge or information sufficient to

does not oppose venue in this District.

FACTS RELEVANT TO ALL CAUSES OF ACTION

13. Defendant denies knowledge or information sufficient to form a belief as to the

14. Defendant denies the allegations of paragraph 14 of the Complaint.

15. Defendant denies knowledge or information sufficient to form a belief as to the

16. Defendant denies knowledge or information sufficient to form a belief as to the

17. Defendant denies the allegations of paragraph 17 of the Complaint.

18. Defendant denies knowledge or information sufficient to form a belief as to the

19. Defendant denies knowledge or information sufficient to form a belief as to the

20. Defendant denies knowledge or information sufficient to form a belief as to the

21. Defendant denies knowledge or information sufficient to form a belief as to the

22. Defendant denies knowledge or information sufficient to form a belief as to the

23. Defendant denies knowledge or information sufficient to form a belief as to the

24. Defendant denies knowledge or information sufficient to form a belief as to the

incorporated into the Complaint for its contents.

the Complaint for their contents.

the documents attached to the Complaint for their contents.

to the Complaint for their contents.

to the documents attached to the Complaint for their contents.

the documents attached to the Complaint for their contents.

Complaint for their contents.

incorporated into and/or attached to the Complaint for their contents.

FIRST CAUSE OF ACTION

New York Post website.

for its contents.

SECOND CAUSE OF ACTION

New York Post website.

for its contents.

THIRD CAUSE OF ACTION

are deemed to be allegations of fact, Defendant denies knowledge or information sufficient to

SEPARATE AND ADDITIONAL DEFENSES

applicable law places the burden on Plaintiff.

FIRST SEPARATE AND ADDITIONAL DEFENSE

SECOND SEPARATE AND ADDITIONAL DEFENSE

2. Plaintiffs claims are barred, in whole or in part, by the doctrines of unclean

hands, waiver and estoppel.

THIRD SEPARATE AND ADDITIONAL DEFENSE

FOURTH SEPARATE AND ADDITIONAL DEFENSE

FIFTH SEPARATE AND ADDITIONAL DEFENSE

5. Each of the statements complained of by Plaintiff are true or substantially true,

and thus cannot give rise to any claim against Defendant.

SIXTH SEPARATE AND ADDITIONAL DEFENSE