Libel-in-Fiction Claim, Rarely Successful, Survives Summary Judgment

[WSJ_law_blog]

Consider this real-life fact-pattern that was used for a “Law & Order” episode: In 2003, New York State Supreme Court Judge Gerald Garson was charged with granting a divorce lawyer, Paul Siminovsky, preferential treatment in exchange for kickbacks. After the accusation, Garson reportedly agreed to help pursue a separate case by wearing a wire to a lunch with Ravi Batra — an Indian-born Manhattan lawyer who served on the Brooklyn democratic judicial screening committee. Garson’s goal was to gather evidence that judicial seats could be bought by paying Assemblyman Clarence Norman, also a screening committee member who happened to be of counsel to Batra’s law firm. At the lunch, Garson tried, but failed, to elicit incriminating statements from Batra about the alleged bribes. Ultimately, Garson and Norman went to prison; Batra was never charged.

Still, a 2003 NYT story, entitled “Cozying Up to Judges and Reaping Opportunity,” characterized Batra (pictured, right) as a “particularly potent force” who had a hand in selecting judges. The Times story was followed by a “Law & Order” episode that portrayed an Indian-American matrimonial attorney, named “Ravi Patel,” — played by India-born actor Erick Avari (pictured, left) bribing a female Brooklyn Supreme Court justice. Ravi Batra, the real lawyer, responded with a $15 million libel-in-fiction suit against the L&O creators.

In an opinion made public yesterday, New York State Supreme Court Justice Marilyn Shafer, denied the defendants’ summary judgment motion, making the suit the first “libel-in-fiction” claim to survive SJ in nearly 25 years. (Here’s the NYLJ story, and here’s the NYT story.)

To make out a libel-in-fiction claim — a somewhat counterintuitive theory in which a plaintiff claims that something that is fictional is not factually accurate — Batra must demonstrate that the identities of the real and fictional characters are “so complete that the defamatory material” becomes a “plausible aspect” of the plaintiff’s real life.

Justice Shafer held that viewers “would identify” a fictional lawyer character dubbed “Ravi Patel” with Batra “because of the uniqueness of [Batra’s] name, ethnicity and appearance.” Furthermore, she wrote, “because of the widespread media coverage of the Garson/Siminovsky scandal, with which the accusations against [Batra] were inextricably intertwined, it would be reasonable for a viewer to associate Batra” with the “Law & Order” character.