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New York libel law requires clear and convincing proof of the falsity of the statement, the 2nd U.S. Circuit Court of Appeals has ruled. Interpreting an area of the law on which New York’s highest court has not issued definitive guidance, the circuit upheld a jury verdict in a libel case involving middleweight boxing champion Bernard Hopkins and boxing promoter Lou DiBella. A 2002 jury trial before Southern District Judge Denny Chin ended with DiBella being awarded $110,000 in compensatory damages and $500,000 in punitive damages for statements made about him by Hopkins to a reporter for the Web site MaxBoxing.com. The remarks concerned an alleged illegal payment by DiBella, who was in the process of leaving the Home Box Office cable network to embark on a career as an independent promoter. Three other statements by Hopkins about DiBella were not found to be libelous. On the appeal in DiBella v. Hopkins, 03-7012, DiBella claimed that Judge Chin erred in instructing the jury that the falsity of the allegedly libelous statement must be proven by clear and convincing evidence. Instead, DiBella argued, the burden of proof should have been preponderance of the evidence. Hopkins’ cross-appeal (03-9095) claimed, among other things, that the libel judgment violated his First Amendment right to free speech, that DiBella failed to prove falsity and malice and that the jury’s verdict was inconsistent with its decision in favor of Hopkins on the three other claims. Writing for the 2nd Circuit, Judge Richard Cardamone said the issue of whether “the federal Constitution requires plaintiffs to prove falsity by clear and convincing evidence is an open question.” Because the court is required to avoid reaching federal constitutional questions where a case may be decided on state law grounds, he said, “we are obligated to apply the New York standard of proof for falsity, so long as we can safely determine the federal Constitution does not require a higher standard of proof.” But the New York State Court of Appeals, Cardamone said, has not addressed the standard of proof for falsity in defamation cases. That left the circuit with one of two alternatives — either predict what the Court of Appeals would do, or ask it directly through the certification process. The court rejected the latter option, saying the case does not present “any of the exceptional circumstances that would justify using the certification procedure.” The panel then looked to New York’s appellate divisions. With the exception of the Appellate Division, 4th Department, which has not addressed the issue, the appellate divisions have held that clear and convincing evidence is the standard. Cardamone said the appellate cases “are not entirely persuasive” because the courts simply state that this is the standard “without citing any relevant authority.” And four of those cases, he said, “did not turn on the falsity of the statements,” which renders the appellate division comments dicta. Nonetheless, the state appeals courts believe that to be the standard, which Cardamone said was “a helpful indicator” as to how the Court of Appeals would rule. Several federal courts, within and outside New York, as well as state courts, have considered the standard to be clear and convincing, the judge said. On the other hand, he acknowledged that a minority of jurisdictions use the preponderance of the evidence standard when a public figure is trying to prove the falsity of the statement. Finally, the court was persuaded by scholarly opinion, and the fact that the Committee on Pattern Jury Instructions of the Association of Justices of the Supreme Court of the State of New York has relied on the appellate division cases by incorporating the standard into its Pattern Jury Instructions. Judge Chin, the circuit found, properly instructed the jury on the burden of proof and, based on the evidence, “the jury could readily have found that Hopkins acted with ill will and maliciousness in spreading false allegations about DiBella.” Judges Joseph McLaughlin and Richard Wesley joined in the opinion. Judd Burstein, Peter B. Schalk and Matthew DeOreo of the Law Office of Judd Burstein represented DiBella. Stephen A. Cozen, Robert W. Hayes and Marlo Pagano-Kelleher of Cozen O’Connor in Philadelphia represented Hopkins.

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