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Newsletter > November 2015 > "Lawsuits Filed Following UVA Article Retraction"
Lawsuits Filed Following UVA Article Retraction
Three lawsuits have been filed against Rolling Stone magazine following the retraction of its discredited1 article, “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA.” This article was previously discussed in our January 2015 issue.2
On November 9, 2015, the Virginia Alpha Chapter of Phi Kappa Psi filed a defamation suit in Charlottesville Circuit Court seeking $25 million in damages to the organization’s reputation.3 The complaint alleged that “Rolling Stone published a devastating story it knowingly failed to verify, in reckless disregard for truth or falsity,” and detailed the threats and vandalism the fraternity experienced in the days following the article’s publication.4
On July 29, 2015, three individuals—all University of Virginia alumni and Phi Kappa Psi Fraternity members—filed a federal lawsuit in the Southern District of New York claiming defamation and negligent infliction of emotional distress.5 The three alleged that Rolling Stone and the article’s author, contributing editor Sabrina Erdely, “created a simple and direct way” to match the plaintiffs with the attackers portrayed in the article.6
The plaintiffs alleged that they were identified as potential attackers on local gossip websites, causing members of their community to “interrogate, humiliate, and scold them.”7 One further claimed that the article identified his bedroom as the likely scene of its narrative’s alleged gang rape.8 All claimed that the article had a “devastating effect on [their] reputations”9 and demanded “judgment in their favor in an amount in excess of $75,000” among other relief.10
The same day, Rolling Stone announced that managing editor Will Dana would resign after nineteen years with the magazine.11 The magazine stated that “many factors go into a decision like this.”12
Previously, on May 12, 2015, UVA Associate Dean of Students Nicole P. Eramo filed a defamation suit against the same Defendants.13 Eramo’s duties include serving as the head of UVA’s Sexual Misconduct Board,14 and she alleged that the article “irreparabl[y] harm[ed]” her professional reputation15 by falsely depicting her as “callous” toward sexual assault victims.16 She demanded compensatory and punitive damages totaling $7.8 million.17
The three lawsuits all cite a March 23, 2015 statement from the Charlottesville, VA Police Department concluding that the article’s central narrative held “no substantive basis of fact.”18 “Jackie,” the article’s protagonist, had not cooperated with the police investigation, and it was suspended pending additional evidence.19
On April 5, 2015, Rolling Stone retracted Erdely’s article and replaced it with a self-commissioned report from the Columbia University Graduate School of Journalism, “‘A Rape on Campus’: What Went Wrong.”20 This report concluded that the episode was “a story of journalistic failure that was avoidable.”21 Rolling Stone also apologized to those “damaged by our story and the ensuing fallout, including members of the Phi Kappa Psi fraternity and UVA administrators.”22 Erdely issued a separate apology stating she “did not go far enough to verify” Jackie’s account.23
The following day, the Virginia Alpha chapter “announced plans to pursue all available legal action against” Rolling Stone.24 At that time, one blogger commented that a suit brought by the chapter as a corporate entity could face “substantial hurdles,” noting that “bad journalism doesn’t necessarily amount to legal liability.”25
Under Virginia law, defamation plaintiffs must show a “sufficient nexus” between the publication of an allegedly false statement and its negative impact on the individual’s reputation.26 The statement must also be “of and concerning” the plaintiff,27 and he or she must establish the “requisite intent.”28 U.S. Supreme Court precedent requires a “public official” to establish that a defamatory statement was published with “actual malice,” defined as knowledge that the statement was false or a reckless disregard of whether it was false or not.29 UCLA Law Professor Eugene Volokh has argued that Eramo’s status as a “high-level university administrator” may qualify her as a “public official” because she “exercise[s] significant influence over a public institution.”30 Eramo’s complaint alleged that the Defendants acted with “actual malice”31 but did not address whether she is a “public official.” The individual Phi Kappa Psi members, all private individuals, alleged that the Defendants’ conduct was “negligent at a minimum.”32
1 See Paul Fahri &T. Rees Shapiro, Rolling Stone Retracts Discredited U-Va Rape Story, Wash. Post (April 5, 2015), https://www.washingtonpost.com/lifestyle/style/inquiry-of-rolling-stone-u-va-rape-story-finds-series-of-journalistic-lapses/2015/04/05/666e3932-c8de-11e4-a199-6cb5e63819d2_story.html.
2 Micah Kamrass, UVa: A Case for Due Process, Fraternal Law, Jan. 2015, http://fraternallaw.com/wp-content/uploads/2015/01/Fraternal-Law-Newsletter-January-2015.pdf.
3 Complaint, Virginia Alpha Chapter of Phi Kappa Psi Fraternity v. Rolling Stone, L.L.C., No. CL15-479, at 1, ¶ 1, 92 (Va. Cir. Ct. Nov. 9, 2015).
4 Id. at ¶ 5, exhibits. H–M.
5 Complaint, Elias v. Rolling Stone, No. 1:15-cv-05953-PKC, at ¶¶ 1, 121–158 (S.D.N.Y. July 29, 2015).
6 Id. at ¶ 3.
7 Id. at ¶¶ 4–5.
8 Id. at ¶ 4.
9 Id. at ¶ 6.
10 Id. at p. 40.
11 Ravi Somaya, Will Dana, Rolling Stone’s Managing Editor, to Depart, N.Y. Times, July 30, 2015, at B4.
13 Complaint, Doc. 14-1, Eramo v. Rolling Stone, No. 3:15-cv-00023-GEC, at ¶ 1 (W.D. Va. Filed June 9, 2015) (document originally filed in the Circuit Court of the City of Charlottesville on May 12, 2015, see p. 1).
14 Id. at ¶ 7.
15 Id. at ¶ 16.
16 Id. at 10.
17 Id. at Page ID #386.
18 Full Text: Charlottesville Police Statement in U-VA Sex Assault Case, Wash. Post (Mar. 23, 2015), http://www.washingtonpost.com/local/full-text-charlottesville-police-statement-in-u-va-sex-assault-case/2015/03/23/ec4485bc-d193-11e4-8fce-3941fc548f1c_story.html.
20 Sheila Coronel, Steve Coll, & Derek Kravitz, Rolling Stone & UVA: The Columbia University Graduate School of Journalism Report, “A Rape On Campus”: What Went Wrong, Rolling Stone (Apr. 5, 2015), http://www.rollingstone.com/culture/features/a-rape-on-campus-what-went-wrong-20150405.
23 Sabrina Rubin Erdely, Writer of Rolling Stone Rape Article, Issues Statement, N.Y. Times (Apr. 5, 2015), http://www.nytimes.com/2015/04/06/business/media/statement-from-writer-of-rolling-stone-rape-article-sabrina-erdely.html.
24 John Bacon & Emma Hinchliffe, Frat to Pursue Legal Action Against Rolling Stone, USA Today (Apr. 7, 2015, 7:01 AM), http://www.usatoday.com/story/news/nation/2015/04/06/uva-fraternity-lawsuit-rolling-stone/25363051.
25 Jacob Gershman, Sizing Up Phi Kappa Psi’s Potential Suit Against Rolling Stone, Wall St. J. Law Blog, http://blogs.wsj.com/law/2015/04/07/sizing-up-phi-kappa-psis-potential-suit-against-rolling-stone.
26 Schaeffer v. Bouffault, No. 141480, Op. at 19 (Va. June 24, 2015), available at http://www.courts.state.va.us/opinions/opnscvwp/1141480.pdf.
28 Id. at 5.
29 New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).
30 Eugene Volokh, UVA Associate Dean Nicole Eramo Sues Rolling Stone: An Early Analysis, Volokh Conspiracy (May 12), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/12/uva-associate-dean-nicole-eramo-sues-rolling-stone-an-early-analysis.
31 Complaint, Doc. 14-1, Eramo v. Rolling Stone, No. 3:15-cv-00023-GEC, at ¶ 1 (W.D. Va. Filed June 9, 2015) (document originally filed in the Circuit Court of the City of Charlottesville on May 12, 2015, see p. 1).
32 Complaint, Elias v. Rolling Stone, No. 1:15-cv-05953-PKC, at ¶¶ 127 (S.D.N.Y. July 29, 2015).