A lawyer who provided his client’s divorce papers to the Wall Street Journal has been ordered to stand trial on claims of libel, invasion of privacy and civil conspiracy.
The Appellate Division reversed a ruling Thursday dismissing claims by Michael Mandelbaum against attorney Jack Arsenault of Arsenault & Fassett in Chatham. Arsenault, who was co-counsel for Debra Mandelbaum in the divorce case, sent the Journal filings in which his client accused Michael Mandelbaum of pushing her down a flight of stairs and other acts of abuse. She later admitted those claims were false, but prosecutors still charged Michael Mandelbaum with aggravated assault. Ultimately, he was admitted to a diversionary program for first-time offenders.
Arsenault’s disclosure to the media, which came after he threatened a “public undressing” of Mandelbaum if he did not accede to Debra Mandelbaum’s monetary demands, prompted articles in the Journal and other publications about the couple’s divorce. Mandelbaum’s father, David, is a part owner of the Minnesota Vikings, and the family is listed at No. 384 on Forbes’ list of the 400 richest Americans, with a net worth of $900 million. Mandelbaum is an attorney who works in the family business.
The Journal article, published online on Sept. 18, 2014, said Michael Mandelbaum claimed the couple was not married because they had no marriage license at the time of their wedding. Two days later, an article on the New York Post’s Page Six said Mandelbaum was admitted to pretrial intervention, which allows charges to be dropped for first-time offenders who meet certain conditions. The article said Ray Rice, a former Baltimore Ravens running back, was admitted to the same program after an altercation with his wife at an Atlantic City casino. Sports Illustrated and Britain’s The Daily Mail also published articles about the couple’s divorce.
According to the court, on Dec. 19, 2013, Debra Mandelbaum arranged for the couple’s older son to take their youngest child to school, so she and Michael Mandelbaum would be home alone. They argued, and when he tried to walk away, she hit him, then “gave him a strange look as she continued backwards toward the staircase landing, and slid down the stairs feet-first on her stomach, mocking him with facial gestures as she began her slide down the stairs,” the appeals court said.
Mandelbaum attended to Debra, called a doctor and later called 911. She lied to a police officer that he had abused her for years, and said she fell down the stairs while backing away from Michael Mandelbaum as he grabbed her arms, the court said.
Mandelbaum’s libel count says Arsenault made false statements about him to the Journal by providing the publication with a certification from Debra Mandelbaum claiming he committed a crime by pushing her down the stairs. Arsenault is also accused of invading Mandelbaum’s privacy by giving the paper documents containing the abuse allegations and a copy of the couple’s tax return without redacting Mandelbaum’s Social Security number.
Superior Court Assignment Judge Yolanda Ciccone of Somerset County dismissed the libel count after finding Michael Mandelbaum was unable to demonstrate Arsenault was at fault. Ciccone found Arsenault had no reason not to believe an affidavit from a police officer or other sworn certifications that formed the basis of his belief that Mandelbaum abused Debra, and that Arsenault’s supposed reliance on sworn affidavits was reasonable.
However, the Appellate Division panel of Judges Mitchel Ostrer and George Leone noted the complaint alleged Arsenault knew Debra Mandelbaum’s certifications and the exhibits contained false information, and that Ciccone “erred in finding facts contrary to the complaint’s allegations.” The motion judge should have limited her inquiry to examining the legal sufficiency of the facts alleged on the face of the complaint, the appeals court said.
Ciccone dismissed Mandelbaum’s false-light privacy claim after finding prior publication of the material in question was a defense. She cited a Jan. 7, 2014, article in the The Star-Ledger referencing Debra Mandelbaum’s abuse claims, which Arsenault attached to his motion to dismiss Michael Mandelbaum’s complaint. But Ostrer and Leone said that no New Jersey court “has made prior publication a defense to publicizing a matter portraying someone in a false light.”
Even if prior publication could be a defense, knowingly or recklessly placing someone in a false light to reach more people could result in damages and give rise to a cause of action against the person causing the additional publicity, the appeals court said.
Ciccone dismissed the count for Mandelbaum’s Social Security number because he failed to detail what damages resulted release of that information. The appeals court said Michael Mandelbaum’s allegation that he had to take protective measures and suffered pecuniary damages was sufficient under the circumstances.
The appeals court affirmed Ciccone’s dismissal of a count for abuse of process.
Arsenault and his lawyer, Nace Naumoski of Stewart, Bernstiel, Rebar & Smith in Blue Bell, Pennsylvania, did not return calls seeking a comment. Mandelbaum’s lawyer, Joel Silverstein of Stern & Kilcullen in Florham Park, declined to comment.