A federal judge tossed most of the claims in a lawsuit accusing two of actor Jussie Smollett’s lawyers of defaming brothers accused of helping the former “Empire” actor stage a racist and homophobic hate crime.
In a written opinion Wednesday, U.S. District Judge Mary M. Rowland held all the statements made by Mark Geragos of Geragos & Geragos in Los Angeles and most of the statements made by Tina Glandian of the firm’s New York office were not specific enough to defame the brothers or to place them in a false light under Illinois law.
Other statements made by Glandian were “reasonably capable of an innocent construction,” Rowland wrote, quoting Lott v. Levitt, 556 F.3d 564 (7th Cir. 2009).
But she declined to dismiss the defamation and false light claims Olabinjo and Abimbol Osundairo brought against Glandian based on her statement that the brothers — who are Nigerian-American — may have been wearing “whiteface” during their purported encounter with Smollett.
Rowland noted Savannah Guthrie of NBC’s “Today” show asked Glandian during an interview how the Osundairo brothers could have been Smollett’s assailants in light of the actor’s statement that his alleged attackers were white.
“The [c]ourt finds that this statement could fairly impute the crimes of battery and hate crime to the Osundairos,” Rowland wrote. “Although Glandian did not specifically say the words ‘battery’ or ‘attack,’ considering the context of the statement, it is certainly plausible that Glandian is directly accusing the Osundairos of attacking Smollett.”
Rowland made her rulings under Illinois law. The Osundairo brothers filed the suit in federal court in Chicago under diversity jurisdiction.
Rowland also declined to strike the whiteface claim — the only one remaining in the suit — under California’s anti-SLAPP statute.
A strategic lawsuit against public participation is designed to intimidate or silence critics by forcing them to pay the costs of defending against the action.
California law may be applied to the whiteface claim under the doctrine of depecage, Rowland wrote.
Quoting Spinozzi v. ITT Sheraton Corp., 174 F.3d 842 (7th Cir. 1999), she wrote courts may apply the doctrine when “it is appropriate to apply the law of more than one jurisdiction” because “the issues to which the different laws are applied are separable.”
When an anti-SLAPP statute is cited as a defense to a defamation claim, the question is whether the statement is privileged, not whether it is defamatory, Rowland wrote.
“Thus,” she wrote, “the fact that Illinois law governs the defamation and false light claims at issue does not preclude the application of a different state’s anti-SLAPP law.”
And while Glandian made her statement about whiteface in New York, she is domiciled in California, Rowland wrote.
In January 2019, Smollett reported to police that he had been approached in the Streeterville neighborhood by two white men who made racist and homophobic slurs and then attacked him by pouring a chemical substance on him and tying a noose around his neck.
Smollett is African-American and openly gay.
Following a police investigation, a Cook County grand jury in February 2019 indicted Smollett on charges of disorderly conduct for allegedly paying the Osundairos to fake the attack on him and then filing a false police report.
Police alleged Smollett staged the crime because he was unhappy with his salary and hoped the publicity would lead to a raise. Smollett ultimately was dropped from the “Empire” cast.
In March 2019, Smollett entered into a plea agreement with prosecutors that called for him to perform community service and forfeit his $10,000 bond in return for having the charges dropped.
The following month, the city filed a suit in Cook County Circuit Court against Smollett seeking the overtime costs police allegedly ran up in investigating his allegations.
Smollett removed the suit to federal court. He filed counterclaims in November accusing the city of holding him up to public ridicule and causing him economic harm.
Controversy over the handling of Smollett’s case led to the appointment of Dan K. Webb as a special prosecutor to investigate the matter. A grand jury last month indicted Smollett on six counts of disorderly conduct.
Cook County State’s Attorney Kimberly M. Foxx faced a public backlash over her part in the case, but still won the Democratic nomination Tuesday in her bid for another term as the county’s top prosecutor.
The Osundairo brothers filed their suit in April 2019 against Geragos, Glandian and the Geragos & Geragos law firm.
Claims that Rowland dismissed Tuesday included one accusing Glandian of defamation per se for allegedly saying on the “Today” show and ABC’s “Good Morning America” that the Osundairos “criminally attacked” Smollett.
The allegation “does not resemble any specific statement made by Glandian during either show,” Rowland wrote.
Another claim that was too broad, she wrote, maintained that Glandian accused the brothers of committing perjury before a grand jury and of lying to police.
In response to separate questions from George Stephanopoulos on “Good Morning America,” Glandian said the Osumdairos lied and that they did not tell the truth.
“To be actionable as defamation per se, the statement must directly or expressly accuse the plaintiff of committing a specific crime — not of lying generally,” Rowland wrote.
And she wrote that two other statements had innocent constructions.
Glandian’s allegation that Olabinjo had said his brother knew how to obtain steroids in Nigeria was not the same as saying Abimbola was a drug trafficker, Rowland wrote.
And she wrote Glandian’s statement that Abimbola had spent a night at Smollett’s house and that this caused Olabinjo to wonder whether the two had a relationship did not amount to a false accusation that Abimbola engaged in fornication.
“The transcript reveals that Glandian expressly stated that she was only speaking as to what Olabinjo Osundairo might have thought of Abimbola spending the night at Smollett’s — not about what Abimbola and Smollett actually did,” Rowland wrote.
The case is Olabinjo Osundairo, et al., v. Mark Geragos, et al., No. 19 C 2727.
The lead attorney for the Osundairos is Gregory E. Kulis of Gregory E. Kulis & Associates Ltd.
The lead attorney for Geragos, Glandian and the Geragos firm is Brendan J. Healey of Baron Harris Healey.
The attorneys could not be reached for comment.