2nd Circuit Rules Fox News Must Face Suit Brought by Seth Rich’s Family

by Josh Russell, Court House News, September 13, 2019

MANHATTAN (CN) – The Second Circuit Friday revived an infliction of emotional distress suit against Fox News brought by the traumatized parents of murdered Democratic National Committee staffer Seth Rich over the cable network’s retracted coverage of a WikiLeaks conspiracy theory.

“We have no trouble concluding that – taking their allegations as true – the Riches plausibly alleged what amounted to a campaign of emotional torture,” U.S. Circuit Judge Guido Calabresi wrote for a three-judge panel.

“Taking the allegations as a whole and drawing all reasonable inferences in favor of the Riches – as we must in this context – we find that the complaint states sufficiently plausible claims against Fox News as an entity to survive a motion to dismiss and warrant discovery into any additional involvement of Fox News in the alleged scheme,” the 28-page ruling continues.

The Second Circuit opinion revived emotional distress and tortious interference claims against Fox News, a contributor and a guest commentator, brought by the parents of Rich, a DNC staffer who was fatally shot in Washington, D.C., three years ago.

Rich’s parents, Joel and Mary Rich, who live in Omaha, Nebraska, claimed they suffered symptoms of post‐traumatic stress disorder and social anxiety disorder after Fox News pushed a discredited right-wing conspiracy theory that their son was involved in the leak of thousands of DNC emails to WikiLeaks, and was killed because of it. 

Rich was shot twice in the back a block from his apartment in Washington’s gentrifying Bloomingdale neighborhood, on July 10, 2016. The murder remains unsolved.

Nearly a year after Rich’s death, in May 2017, Fox News published a story written by co-defendant and reporter Malia Zimmerman, which included the now-debunked claim that investigators had evidence showing Rich leaked the emails in the midst of the 2016 presidential election campaign.

The Riches brought a lawsuit against Fox News in the Southern District of New York in March 2018.

The suit filed by Eli Kay-Oliphant, of Massey & Gail, compared the network’s discredited report that he leaked emails to WikiLeaks before his death to burying their son all over again.

U.S. District Judge George B. Daniels dismissed all of the claims with prejudice in August 2018. Daniels wrote in his opinion that Rich’s parents fell short of stating an emotional distress claim against the network.

One year later, on appeal by the Rich family, the Second Circuit concluded Friday morning that the district court improperly dismissed the claims.

The Second Circuit remanded the case for further proceedings and instructed the Southern District of New York to allow the Riches to amend their negligent supervision or retention claim concerning Zimmerman and non-party Rod Wheeler, a Fox News contributor and retired detective who was the only named source for the retracted Rich story.

Calabresi, a Clinton appointee, was joined in the three-judge panel by Second Circuit Judge Christopher Droney, an Obama appointee, and U.S. District Court Judge Stefan Underhill, who was sitting by designation.

Representatives for Fox News Friday morning said that they would be reviewing legal options following the circuit court’s decision. 

“The court’s ruling today permits Mr. and Mrs. Rich to proceed with discovery to determine whether there is a factual basis for their claims against FOX News,” the company said in a statement. “And while we extend the Rich family our deepest condolences for their loss, we believe that discovery will demonstrate that FOX News did not engage in conduct that will support the Riches’ claims.”