Ed Henry Fox
Sex Harassment Case Dismissed In Its
Entirety Albeit With Leave to Amend
By Matthew
Russell Lee, Patreon Podcast
BBC
- Guardian
UK - Honduras
- ESPN
SDNY COURTHOUSE,
Sept 20 – Jennifer Eckhart and
Cathy Areu sued Fox News, Ed
Henry, Sean Hannity and
others. Their cases have since
been severed.
On July 21,
2021 U.S. District Court for
the Southern District of New
York Judge Ronnie Abrams held
an oral argument. Inner City
Press live tweeted it, here
and below (podcast here)
On September 20,
2022, Judge Abrams dismissed
Henry's complaint: "Plaintiff
Edward Henry brings this
lawsuit for defamation,
invasion of privacy, and
tortious interference against
his former employer Fox News
Network LLC and Fox News’
Chief Executive Officer
Suzanne Scott. Henry’s claims
arise from four statements
issued by Fox and Scott that
reported on the circumstances
of Henry’s termination. The
statements indicated that,
after receiving a complaint
from a former employee against
Henry regarding sexual
misconduct, Fox retained an
outside law firm to conduct an
investigation and ultimately
terminated Henry based on the
findings of that
investigation. According to
Henry, Defendants’ statements
were false because he was not
in fact terminated based on
the findings of the
investigation, but instead to
further a narrative that Fox
was reforming its culture and
in an effort for Scott to
advance her career. Moreover,
because Fox had permitted
other consensual affairs
between employees and because
he claims that his sexual
activity with former Fox
Business producer Jennifer
Eckhart—who has accused him of
sexually assaulting and raping
her—was in reality consensual,
Henry asserts that Defendants’
statements announcing his
termination for “willful
sexual misconduct” created the
intentionally false impression
that his conduct must have
been “akin to rape.”
For the
reasons that follow, the Court
finds that Henry has failed to
plausibly allege that any of
Defendants’ statements were
false, or that they gave rise
to a defamatory inference. His
First Amended Complaint (the
“complaint”) also lacks
factual allegations to sustain
his remaining claims for false
light/invasion of privacy and
tortious interference. The
complaint is thus dismissed in
its entirety, albeit with
leave to amend if Henry has a
good faith basis to do so."
Full order on Inner City
Press' DocumentCloud here.
Back on May 9,
2022 Magistrate Judge Gabriel
W. Gorenstein held a discovery
proceeding, and Inner City
Press live tweeted here:
Fox, represented
by Proskauer, wants discovery
into Eckhart's mental /
emotional distress.
Judge Gorenstein:
Are dental procedures
relevant?
Proskauer:
Plaintiff has put her mental
condition at issue but doesn't
want to give us HIPAA
authorizations.
Fox's lawyer: We
want to explore what else
caused the emotion distress
Plaintiff is alleging. We want
gynecological records. We
should be able to probe that
in discovery.
Eckhart's lawyer:
When our client was raped in
2019 she was left with
scratches and bruises
Eckhart's lawyer:
Rarely does a court order
production of nine years of
medical records. We are not
asking her dentist for
records. She had panic attacks
and we're getting those
records. We can meet and
confer.
Eckhart's lawyer:
She had a panic attack in
Atlanta and we're getting
those records, a trauma
counselor and a therapist, we
don't object to producing
that.
Fox's lawyer:
This is new information to us.
Plaintiff is claiming
emotional distress since she
met Henry.
Judge Gorenstein:
I'm not prepared at this point
to say that Defendant is
permitted to comb through
Plaintiff's primary care
medical records. But the
plaintiff must go through the
record and produce anything
having to do with mental. We
trust parties to comply.
As Inner City
Press reported
first on May 6, the case
against NPR and CNN was
dismissed with prejudice
here.
Another
case, Edward Henry v. Fox New
Network LLP et al, 21-cv-7299
(Abram) had a proceeding
before Judge Abrams on October
28. Inner City Press live
tweeted here:
now in Ed Henry
v. FOX News and Suzanne Scott,
who Henry says turned against
him and publicly humiliated
him, there's a proceeding
Judge Abrams: I
find that a discretionary
extension of the time to serve
is justified. The Judge
Engelmayer case is
distinguishable - here, the
failure to serve was not
willful. Let's talk about next
steps. What does FOX News
intend to do - a motion to
dismiss?
FOX lawyer: Yes,
we intend to move to dismiss
under the anti-SLAPP statute
and the First Amendment. We'd
like a stay of discovery. Ed
Henry's lawyer Joel MacMull:
The state anti-SLAPP provision
for a stay of discovery does
not in Federal court
Judge Abrams:
Tell me what your thinking is.
Ed Henry's lawyer: Let's
formulate the briefing
schedule. If we choose to
amend, we'll contact [Fox
lawyer Avi] Weitzman in the
first instance.
Weitzman: For a
reply, we'd like December 17.
Ten days.
Judge Abrams:
Have a good day all. Stay
safe. We are adjourned.
From July 21,
2021: Fox News' lawyer says
that even if Fox knew of
prostitution, it would not
make out a sex trafficking
claim for purposes of Federal
jurisdiction. "She hasn't
alleged that Mr. Henry coerced
anyone into a commercial sex
act."
Fox News' lawyer:
She alleged Ed Henry had an
affair with a Las Vegas
stripper. But that is not even
workplace conduct.
Judge Abrams: But
if he promised to get a woman
into an important place to get
a job, why isn't that a thing
of value?
Judge
Abrams: Why can't I consider
his text message asking, Why
did you turn away today? Fox
News' lawyer: Her claims are
time barred. Those
communications are not sexual.
Judge Abrams: Isn't it part of
that harassment? Fox News'
lawyer: It is too remote in
time
Fox News'
lawyer: The alleged rape was
in 2017. The text is 20 months
later. It's too remote. Judge
Abrams: There are texts
saying, Are you playing hard
to get. The Morgan case says
it is not too remove-- Fox
News' lawyer: I think you're
talking about the Sullivan
case.
Fox News'
lawyer: They were co-workers.
Mr. Henry was not a manager.
Their first contact was
through a private Twitter
message. Nor is there a
sufficient allegation that Fox
knew of Mr. Henry's
misconduct. She reported it,
three years later.
Judge Abrams:
Wasn't she asked, in her exit
interview, if she had been
sexually harassed? Fox News'
lawyer: It is not an admission
of knowledge. In this day and
age it is common to ask that
in an exit interview. To find
that way would disincentivize
asking
Fox News' lawyer:
She concedes in his briefing
that when she said toxic
workplace, she didn't mention
sexual harassment. But we
don't have to read her mind.
Fox News'
lawyer: She claims that Fox
firing Mr. Henry without
giving her prior notice was a
form of retaliation. She says
Fox's Rule 11 motion is also
retaliation. That cannot be a
cognizable claim. She has
already filed and amended. And
the motion is authorized
Fox News' lawyer:
She says that Mr. Henry's
filing, which included
intimate photographs, is Fox
News' fault. But Fox didn't
endorse the filing. Anyway,
the Rule 11 motion is against
Ms. Area and the firm
representing her. I want to
defend my honor, about hiring
me
Fox News'
lawyer: Ms. Areu's case was
severed. And hiring me is not
an admission -- Judge Abrams:
I find those arguments
offensive and will not
consider them. Fox News'
lawyer: Anyway, the statute
doesn't apply to images
included in a legal pleading.
Ed Henry's
lawyer: If he was trying to
date someone, that does not
support that he was a habitual
sex harasser. His statement
about putting her in a room
with important people was
after they had a sexual
relationship. Judge Abrams:
Before the alleged rape--
Ed Henry's
lawyer: There was a
relationship, then an offer to
help. That cannot be sex
trafficking. They had sex.
They had a relationship; it
continued. You can't just say,
it's turned into sex
trafficking because they spoke
about supporting each other
Ed Henry's
lawyer: Maybe he's puffing.
But it's not enough. In the
Weinstein cases, there are
very specific allegations,
many meetings before he gets
them into a hotel room. In the
David case you decided, he
suggested she had the film
role. That's not this.
Ed Henry's
lawyer: There's no need to
entice her - he's already in a
relationship with her. He's a
political anchor. She doesn't
talk about politics. Why would
she believe she would be on a
political show?
Ed Henry's
lawyer: The "Yo, why did you
turn away" was just a
greeting. Mr. Henry cannot be
personally liable under these
cited statutes because he was
not her supervisor. Judge
Abrams: What about gender
animus? Ed Henry's lawyer:
We're not conceding anything.
Ed Henry's
lawyer: We were within our
right to append the pictures
Judge Abrams: Why couldn't you
just describe them in writing?
Ed Henry's lawyer: We redacted
the more intimate sections.
Judge Abrams: I
have a hard stop coming up.
[So a ruling today is unlikely
- Inner City Press will stay
on the case(s)
Ms. Eckhart's
lawyer cites Bill O'Reilly.
Judge Abrams: Under state law,
the employer would have to
condone or approved. Eckhart's
lawyer: They condoned it. Even
approved it, by promoting him.
Eckhart's
lawyer: My client was told,
You're going to face
repercussions if you pursue
the complaint. Then she was
terminated despite her
outstanding performance. We
didn't plead that Fox asks
everyone if they faced
harassment, despite what Ms.
McKenna said.
Judge Abrams: Why
should I read into "toxic
environment" that she was
alleging protected activity?
Eckhart's lawyer: Fox
understood that she could have
been raising a concern about
harassment and discrimination.
Judge Abrams: And the sex
trafficking claim? Eckhart's
lawyer: He made promises to
her that were fraudulent. Then
he violently attacked her.
This is Weinstein-esque. He
pushed her head down.
Eckhart's lawyer:
I've never seen anything like
this, the filing of those
photographs. We cited photos
of my client handcuffed, not
these photographs. This was
gratuitous. How can they argue
it is a common legal practice?
Judge
Abrams: What about the
redactions? Eckhart's lawyer:
You can see around the
thong... Also, when you're
raping a woman, that fact that
she's a woman obviously has
something to do with it.
Eckhart's lawyer:
They called Ms. Areu a hot
potato. That's not
appropriate. Fox News' lawyer:
It was the situation created
by the Wigdor firm I was
referring to. Ed Henry's
lawyer: The photos were
relevant. Even rape would not
make out a sex trafficking
case.
Judge Abrams:
Well argued on all sides. I
will reserve decision.
Adjourned.
On April
20, 2021, SDNY Magistrate
Judge Gabriel W. Gorenstein
held an oral argument as to
whether Judge Abrams' stay on
discovery should remain in
place until Fox's motion to
get out of the case is
decided. Inner City Press live
tweeted it here:
(podcast
here)
Ed Henry's
lawyer: My client is out of a
job for months, unable to
clear his reputation. The fact
that Fox is pointing to
document in its system that
might help Mr. Henry is not
the point. We need the case to
move forward. I agree with the
plaintiffs on that.
Ed Henry's
lawyer: We need the
plaintiff's emails, with us
and others. Maybe there's a
way to limit the nature of the
discovery we get as to Fox.
Judge Gorenstein:
OK, I'll give Fox a chance to
reply. Fox's lawyer: We don't
think Fox should be dragged
into it
Magistrate Judge
Gorenstein: Defendant's
argument with dismissal as to
it have support. I am
sympathetic to Plaintiff's
wish to move forward, and
Henry's, to try to defend his
reputation. But there is not
much prejudice, like elderly
witnesses...
Judge
Gorenstein: As to the breadth
of discovery, there are limits
to what a third party has to
produce, versus a party.
Electronic discovery is
expensive to re-do. So, I
conclude the stay previously
ordered by Judge Abrams should
remain in place.
So: there will
still be a stay on discovery,
until Fox's motion to get out
of the case is decided.
On October
19, Ed Henry had fired back,
including "7. Attached hereto
as Exhibit D is a true and
correct copy of email
correspondence between Ed
Henry and Jennifer Eckhart,
dated October 21, 2015. 8.
Attached hereto as Exhibit E
is a true and correct copy of
a message, dated January 2,
2016, from Jennifer Eckhart to
Ed Henry sending him a
“Playlist” of songs via
Dropbox. Included in this
“Playlist” are songs like
“Coffee (Fucking)” (which
features the lyrics “Fucking
in the morning . . . I’ve
never felt comfortable like
this . . . Sweet dreams turn
into fucking in the morning”)
and “Cockiness (Love It When
You Eat It)” (which features
the lyrics “I want you to be
my sex slave . . . Set my
whole body on fire”). 9.
Attached hereto as Exhibit F
is a true and correct copy of
email correspondence Jennifer
Eckhart sent to Ed Henry,
dated January 13, 2016, with a
link to a picture of a man’s
tattoo, as well as a
screenshot from that webpage.
10. Attached hereto as
Exhibits G-U are true and
correct copies of photographs
Jennifer Eckhart sent Ed Henry
in 2017. In exhibits I, J, M,
and Q, Plaintiff’s intimate
parts have been purposely
obscured. Dated: New York, New
York October 19, 2020."
The
exhibits was in PACER, and
public - then on the morning
of October 20, they were not
available. Jennifer Eckhard's
lawyer wrote in:
"we made an
emergency application to the
ECF Help Desk to temporarily
seal these exhibits pending a
formal application to Your
Honor, which was granted early
this morning. Case
1:20-cv-05593-RA Document 91
Filed 10/20/20 Page 1 of 2 The
Honorable Ronnie Abrams
October 20, 2020 Page 2 While
we expect that Defendant Henry
will attempt to draw a false
equivalency between the text
messages that Plaintiff
included in her Amended
Complaint in an effort to
justify his behavior, there is
obviously no comparison
between words sent by a party
and disseminating nude images
of someone to the general
public. Indeed, in New York,
public dissemination of nude
images in this manner is
actually unlawful. See N.Y.
Penal Law § 245.15. Notably,
we are not seeking to redact
or seal any of the non-image
related exhibits that
Defendant Henry filed with his
motion to dismiss
(notwithstanding the fact that
this material is also
irrelevant at the motion to
dismiss stage). These pictures
also represent the type of
confidential and sensitive
information that are normally
sealed in the course of
litigations. In re N.Y. Times
Co., 828 F.2d 110, 116 (2d
Cir. 1987). Courts have
identified particular examples
of “higher values.” See e.g.,
Giuffre v. Maxwell, No. 15
Civ. 7433 (RWS), 2017 WL
1787934, at *2 (S.D.N.Y. May
2, 2017)"
Will this
citation to Maxwell work? On
October 22 Ed Henry fired
back: "Re: Jennifer Eckhart v.
Fox News Network, LLC, et al.,
Civil Case No. 1:20-cv-05593
Dear Judge Abrams: We
write on behalf of Defendant
Edward Henry in response to
the October 20, 2020 letter
motion filed by Plaintiff
Jennifer Eckhart, requesting
that this Court seal certain
documents filed by Mr. Henry
in connection with his motion
to dismiss Plaintiff’s Second
Amended Complaint and for a
more definite statement. See
Dkt 91. Mr. Henry opposes
Plaintiff’s request to seal
these documents from the
public. As an initial
matter, Plaintiff’s
application should be denied
for improper use of the
Court’s “Emergency Sealing”
process and for her offensive
and meritless argument that
under New York law the “public
dissemination of nude images
in this manner is actually
unlawful,” citing to New York
Penal Law 245.15. (See
Plaintiff letter at 2.) In
actuality, the Emergency
Sealing Request is intended
for instances when a party
mistakenly files its own
confidential information, not
to hide from public view
documents that the party finds
embarrassing. See SDNY
Electronic Case Filing Rules
& Instructions § 21.7
(April 1, 2020). Plaintiff,
therefore, had no right to
seek emergency sealing through
the ECF office. Moreover,
Plaintiff has no need to seek
relief on an emergency basis.
In her letter, Plaintiff
falsely contends that Mr.
Henry did cfoti@maglaw.com
(212) 880-9530 October 21,
2020 Case 1:20-cv-05593-RA
Document 94 Filed 10/21/20
Page 1 of 4 The Honorable
Ronnie Abrams October 21, 2020
2 not inform Plaintiff about
the photographs prior to
filing. To the contrary, as
far back as July, Mr. Henry’s
counsel informed Plaintiff’s
counsel that Mr. Henry was in
possession of the photographs
which we believed proved the
fallacy of Plaintiff’s claims.
Plaintiff obviously knew the
nature of the photographs she
had sent Mr. Henry and could
have sought relief from their
becoming public prior to the
filing. She chose not to do
so. Her decision instead to
utilize the Emergency Sealing
mechanism is a blatant misuse
of the court system and
requires that the temporary
stay be lifted immediately."
But the
sealing was not lifted. Judge
Abrams ruled that since she
can't consider such
"extrinsic" material on a
motions to dismiss, the photos
are not judicial documents, at
least not for now: "Sealing
requests are subject to the
test set forth in Lugosch v.
Pyramid Co. of Onondaga, 435
F.3d 110 (2d Cir. 2006). That
test requires the Court to
first determine whether the
documents at issue are
“judicial documents” by
examining whether they are
“relevant to the performance
of the judicial function and
useful in the judicial
process.” United States v.
Erie Cnty., 763 F.3d 235, 239
(2d Cir. 2014). If the
documents are judicial
documents, then a common law
presumption of access
attaches, and the Court must
then consider the weight of
that presumption against any
“competing considerations.”
Lugosch, 435 F.3d at 119–120.
In light of the fact that
these exhibits were submitted
in connection with Defendant
Henry’s motion to dismiss,
they would generally be
considered judicial documents
entitled to a presumption of
public access. See City of
Almaty, Kazakhstan v.
Ablyazov, No. USDC-SDNY
DOCUMENT ELECTRONICALLY FILED
DOC#: DATE FILED: 10-21-20
Case 1:20-cv-05593-RA Document
95 Filed 10/21/20 Page 1 of 2
2 15-CV-5345, 2019 WL 4747654,
at *5 (S.D.N.Y. Sept. 30,
2019) (“Documents submitted in
support or opposition to a
motion to dismiss are judicial
documents.”). The Court
nevertheless grants the motion
to seal the fifteen
photographs. Not only do these
exhibits contain highly
sensitive images that
Plaintiff has an
understandable interest in
keeping private, cf. United
States v. Amodeo, 71 F.3d
1044, 1051 (2d Cir. 1995) (“In
determining the weight to be
accorded an assertion of a
right of privacy, courts
should first consider the
degree to which the subject
matter is traditionally
considered private rather than
public.”), but they also
constitute extrinsic evidence
which this Court is not
permitted to consider—and thus
should not have been filed—in
conjunction with this motion
to dismiss. See Nicosia v.
Amazon.com, Inc., 834 F.3d
220, 231 (2d Cir. 2016), see
also Kopec v. Coughlin, 922
F.2d 152, 155–56 (2d Cir.
1991). Hence, they are not at
this time “relevant to the
performance of the judicial
function and useful in the
judicial process.” Erie Cnty.,
763 F.3d at 239. Taken
together, these considerations
outweigh any presumption of
access, and the Court finds
that—at this juncture—sealing
is appropriate under Lugosch.
Accordingly, it is hereby
ORDERED that Plaintiff’s
motion to seal Exhibits 7–21
of docket entry 85 is GRANTED,
albeit without prejudice to an
application to unseal the
exhibits at an appropriate
time. The Court will file
these exhibits under seal,
visible to only the parties
(Jennifer Eckhart, Fox News
Network, LLC, Ed Henry, Sean
Hannity, Tucker Carlson, and
Howard Kurtz); counsel for the
parties; and court staff. The
Clerk of Court is respectfully
directed to terminate the
motion pending at Dkt. 91."
Watch this site.
We'll have
more on this, too. For now we
note that the Guiffre v.
[Ghislaine] Maxwell case cited
above was cited elsewhere in
the SDNY on October 20, in
support of sealing or not
docketing mere words, letters
by Suspicious Activities
Report leaker / whistleblower
Natalie Edwards, which Inner
City Press applied to unseal,
October 20 order here.
Ms. Areu
says Sean Hannity threw a $100
bill on the set desk and
"began calling out to men in
the room and demanding that
someone take Ms. Areu out on a
date for drinks at Del
Friscos."
At issue on
October 7 was whether the
separate the two women's
cases. This will be done.
Update: After
Inner City Press published the
above about the October 7
proceeding, we received the
following which we publish in
full:
Statement from
FOX News on the Cathy Areu
amended complaint “As we
have maintained, the
accusations against Tucker
Carlson, Sean Hannity and
Howard Kurtz are utterly
devoid of merit. Ms. Areu’s
allegation that women are not
treated equally at FOX News is
also provably false and yet
another malicious attempt to
smear the network with
baseless claims. In fact, FOX
News has provided more
leadership opportunities for
women than any other cable
news network, including
featuring more solo women
anchors and hosts on-air and
retaining a senior staff
comprised of more than 50%
female
executives.”
Statement from
FOX News in response to Wigdor
lawsuit
filing:
“Based on the findings of a
comprehensive independent
investigation conducted by an
outside law firm, including
interviews with numerous
eyewitnesses, we have
determined that all of Cathy
Areu’s claims against FOX
News, including its management
as well as its hosts Tucker
Carlson, Sean Hannity &
Howard Kurtz and its
contributor Gianno Caldwell,
are false, patently frivolous
and utterly devoid of any
merit. We take all claims of
harassment, misconduct and
retaliation seriously,
promptly investigating them
and taking immediate action as
needed — in this case, the
appropriate action based on
our investigation is to defend
vigorously against these
baseless allegations. Ms. Areu
and Jennifer Eckhart can
pursue their claims against Ed
Henry directly with him, as
FOX News already took swift
action as soon as it learned
of Ms. Eckhart’s claims on
June 25 and Mr. Henry is no
longer employed by the
network.”
The lead case is
Eckhart et al v. Fox News
Network, LLC et al.,
20-cv-5593 (Abrams /
Gorenstein)
***
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