Steinbuch v. Hachette Book Group

Filing 36

BRIEF IN OPPOSITION filed by Hachette Book Group re 31 Motion to Amend/Correct (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Stone, Clayborne)

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Exhibit 10 Schuyler G. Carroll (Bar Roll # 508523) ARENT Fox LLP 1675 Broadway New York, NY 10019 (212) 4843900 Attorneys for Robert Steinbuch UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF NEW YORK In re: Jessica Cutler, Debtor. Robert Steinbuch, Plaintiff, -againstJessica Cutler, Defendant. COMPLAINT x Chapter 7 Case No. 07-31459 (MCR) x Adv. Pro. x COMPLAINT FOR DETERMINATION OF NON-DISCHARGEABILITY Robert Steinbuch ("Plaintiff"), by his attorneys, Arent Fox LLP, as and for its Complaint against Debtor Jessica Cutler ("Cutler" or the "Debtor"), alleges: JURISDICTION AN]) THE PARTIES 1. This adversary proceeding is a core proceeding over which this Court has jurisdiction under 28 U.S.C. 157 and 1334. 2. 3. Venue is proper in this District and in this Court pursuant to 28 U.S.C. 1409(a). This adversary proceeding is brought pursuant to 11 U.S.C. 523(a)(6). NYC/348726, I 4. Cutler commenced this Chapter 7 case by the filing of a voluntary petition under chapter 7 of Title 11 of the United States Code, 11 U.S.C. 101 et seq (the "Bankruptcy Code") on May 30, 2007 (the "Filing Date"). BACKGROUND 5. For approximately two years until on or about June, 2004, Plaintiff was a Counsel for the United States Judiciary Committee. 6. From approximately February through May of 2004, Defendant Cutler was an employee of the United States Senate. THE WASHINGTON D.C. ACTION 7. In May 2004, Cutler published a "blog," a publicly-available Internet site, on which she added and modified periodic entries from her Senate computer. She entitled the blog "Washingtonienne." Cutler's X-rated blog described in graphic detail her ongoing sexual relationships with six men, including Plaintiff. Cutler's "Washintonienne" blog became notorious and widely publicized throughout the world. 8. Cutler said in one of her many interviews with the press: "With a blog, you cant expect your private life to be private anymore." 9. At the time of his relationship with Cutler, Plaintiff did not know that Cutler was simultaneously engaged in sexual relationships with another man, let alone with five other men, and let alone that she was prostituting herself to some of them; and Plaintiff did not know that Cutler was recording the details of her relationship with Plaintiff on a public blog. Defendant Cutler put Plaintiff's name and other identifying information about Plaintiff in her blog. 10. Cutler's actions constitute an invasion of Plaintiff's privacy, satisfying the elements of the tort of publication of private facts. Cutler caused widespread publication and NYC/348726.1 2 publicity of private intimate facts concerning Plaintiff in a manner that would be deemed outrageous and highly offensive to an ordinary reasonable person of average sensibilities, subjecting Plaintiff to severe emotional distress, humiliation, embarrassment, and anguish. 11. These disclosures of private facts were willful and malicious exposures of the most intimate details of Plaintiff's life to the public, causing him harm. 12. Cutler willfully and maliciously portrayed Plaintiff falsely, putting him in false light, causing him harm. 13. Cutler's actions were willful and malicious and caused Plaintiff significant injury emotionally, physically, and professionally. 14. Plaintiff filed suit for invasion of privacy (public disclosure of private facts and false light) and intentional infliction of emotional distress for Cutler's actions relative to the blog in United States District Court for the District of Washington D.C., Case no. 1:05-cv-00970 (PLF). 15. All of Cutler's various motions to dismiss have been rejected by the D.C. District Court, and prior to the automatic stay from the instant case, the D.C. case was in discovery. THE ARKANSAS ACTION 16. 17. Cutler continued her postblog willful and malicious injury of Plaintiff Cutler said: "Some people with blogs are never going to get famous, and they've been doing it for, like, over a year. I feel bad for them." 18. Cutler signed a deal with Playboy Magazine which included a nude photo spread of Cutler posted on Playboy's Internet site, capitalizing on the publicity generated by her blog and her relationship with Plaintiff. NYC/348726. 1 3 19. Plaintiff asked Cutler not to continue to willfully and maliciously injure him by writing a book based on him. 20. Nonetheless, Cutler signed a book contract, receiving a six-figure advance, with Hyperion Press, a division of the Disney Publishing Worldwide, to write a book based on the blog in which the details of her relationship with Plaintiff are described in graphic fashion. 21. On or about June 1, 2005, Defendants Cutler, Hyperion and Disney published a book with the same title as the blog, "Washingtonienne," explicitly based upon Plaintiff's private real life events. 22. real-life blog. 23. According to Defendant Hyperion, the publisher of the book, the book is an . Cutler's contract with the book's publisher required the book to be based on her "utterly unrepentant roman a clef exposing the scandalous truth... [Cutler] uses her `real life experience. . . for a sexy, semi-autographical novel that is sure to initiate a. . . game of Who's Who." Hyperion specifically advertised the book as being in "a witty, unapologetic voice, the novel's narrator.. tells the story of. . . . the staff counsel [i.e., Plaintiff] whose [sexual] taste[s]. she `accidentally' leaks to the office." 24. Cutler commented in the press that she feels sorry for those people that write blogs for years and never obtain a book deal. 25. Cutler willfully and maliciously transformed her blog into a book for her own profit at the intentional expense of Plaintiff. 26. In responding to what she has done with her new found wealth resulting from her lucrative book deal, Cutler said "I guess you can buy more drugs." NYC1348726. 1 4 27. Home Box Office purchased from Defendant Cutler the rights to make the book into a TV series and has started production thereof. 28. Plaintiff sued Cutler and others related to her book for Invasion of Privacy (Public Disclosure of Private Facts, Misappropriation, False Light, and Intrusion Upon Seclusion) and Intentional Infliction of Emotional Distress in the United States District Court for the Eastern District of Arkansas, Case no. 4:06-cv-00620 (WRW). 29. The Arkansas Defendants' actions of publishing and advertising their book, the Washingtonienne, and creating a TV series, constitute an invasion of Plaintiff's privacy, satisfying the elements of the tort of publication of private facts. Cutler caused widespread publication and publicity of private intimate facts concerning Plaintiff in a manner that would be deemed outrageous and highly offensive to an ordinary reasonable person of average sensibilities, subjecting Plaintiff to severe emotional distress, humiliation, embarrassment, and anguish. 30. These disclosures of private facts were willful and malicious exposures of the most intimate details of Plaintiff's life to the public, causing Plaintiff injury. 31. The Arkansas Defendants misappropriated Plaintiff's likeness and identity in the text of and advertising for the book subject to the Arkansas lawsuit. The Arkansas Defendants willfully and maliciously profited from this misappropriation without the consent of or compensation to Plaintiff causing Plaintiff harm. 32. The Arkansas Defendants portrayed Plaintiff falsely, willfully and maliciously putting him in false light, causing him harm. 33. Through Defendants' actions of publishing and advertising their book, the Washingtonicnne, and creating a TV series, Defendants actions intruded upon Plaintiff's right to NYC1348726. 1 5 seclusion. 34. s, Defendant's actions have caused Plaintiff to suffer severe emotional distres im relative to his humiliation, embarrassment, anguish, pain and suffering and have damaged h community. 35. ry Cutler's actions were willful and malicious and caused Plaintiff significant inju emotionally, physically, and professionally. 36. The Arkansas case is on appeal in the United States Court of Appeals for the personal Eighth Circuit from the Arkansas District Court's dismissal of the case based on jurisdiction. CONCLUSION 37. Accordingly, Plaintiffs claims against Debtor should be deemed non alicious dischargeable pursuant to 523(a)(6) of the Bankruptcy Code due to the willful and m injury by the Debtor to the Plaintiff. NYC1348726.1 6 WHEREFORE, Plaintiff requests judgment against the Debtor: a. Declaring the debt owed by the Debtor to Plaintiff to be non- dischargeable, pursuant to 523(a)(6) of the Bankruptcy Code; b. c. costs and expenses; and such other and further relief this Court deems just and proper. Dated: New York, New York September 4, 2007 A1ENT Fox LLP Attorneys for Robert Steinbuch By: /s/ Schuvier G. Carroll Schuyler G. Carroll (Bar Roll # 508523) 1675 Broadway New York, NY 10019 (212) 484-3900 NYCI34726.I 7

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