A recent court ruling in a defamation lawsuit that conductor James Levine brought against his former employer, New York’s Metropolitan Opera, points to some issues litigation and crisis communicators should think about when crafting messages. The bottom line is, yes, Virginia, you can say things in a crisis and during a lawsuit.

The case is especially relevant because it concerns accusations of sexual misconduct, which are obviously becoming frequent in this #MeToo era.

On March 25, New York State Supreme Court Justice Andrea Masley (a trial-level judge) dismissed most of the defamation accusations against the Metropolitan Opera and its general manager, Peter Gelb. She did allow one to move forward. Her legal reasoning should be of interest to communicators. All the accusations relate to statements the opera and its legal counsel issued once sexual-misconduct allegations arose against Levine and once he sued for defamation.

First, let’s look at what those messages were, limiting ourselves to the parts relevant to Masley’s ruling on the defendants’ motion to dismiss.

• On Dec. 2, 2017, The New York Times and the New York Post published stories reporting that a man accused the famous conductor of molesting him in the 1980s when the alleged victim was a teenager. On Dec. 3, the Times ran another story reporting that two more people had come forward. That story said the Met had suspended Levine and quoted Gelb calling the situation “a tragedy for anyone whose life has been affected.” The same quote appeared in a tweet the Met sent out that day. On Dec. 4, Gelb emailed Met supporters that “this is a sad moment in the company’s history and a tragedy for anyone whose life may have been affected.”

• On March 12, 2018, the Met said it had fired Levine. In a press release on its website, it said, in part, its “investigation uncovered credible evidence that Mr. Levine had engaged in sexually abusive and harassing conduct.”

• On March 15, 2018, Levine sued for defamation. The relevant portions of a public statement by the Met’s lawyer responding to the suit said the internal probe had “uncovered credible and corroborated evidence of sexual misconduct” and the charges “have been corroborated.” The attorney also said the “Met only transitioned [Levine] from Music Director to Music Director Emeritus at the end of the 2015-16 season when it became obvious that Levine was no longer physically capable of carrying out his duties as Music Director.”

The judge’s decision turned on the words “tragedy,” “credible evidence,” and “corroborated,” and the accusation that Levine was too sick to do his job. “Credible evidence” is of special note to communicators because it’s a phrase we’re seeing more and more in discussions of sexual allegations against the famous and powerful.

The judge disagreed with Levine that Gelb’s use of “tragedy” in the December 2017 statements meant the Met asserted the allegations were true and therefore necessarily defamed him. Also relevant was that the Met said it was investigating (a typical crisis-response tool). The judge also said the “tragedy” messages were vague, as was calling the situation “a sad moment.”

The following excerpt from the court ruling is interesting, from a communications point of view; again, it shows that there are things you can say — approaches you can take — in responding to litigation and other crises:

As for the March 2018 invocation of “credible evidence” and “corroborated,” the judge found that those terms could potentially be defamatory as they mix opinion and fact. Such statements can be problematic because they involve expressing opinions that are apparently based on facts unknown to the targeted audience.

So, this decision would advise communicators to use caution when invoking “credible evidence” or “corroborated” or implying you have facts that prove guilt.

Yet, in this case the judge dismissed the defamation claim concerning the attorney’s March 15 statement because it was issued in response to Levine’s lawsuit and thus protected by the litigation privilege, which guards comments made in connection with a court proceeding. That included the lawyer’s comments about Levine’s health, which the judge said could be otherwise problematic; she disagreed with the defendants that they were purely opinion.

So the only statement that survived the motion to dismiss and will move forward in the litigation was the March 12 press release that said the Met’s “investigation uncovered credible evidence.”

But the judge said facts could come out later in the case that could protect that statement too, because in some instances messages can be protected by the litigation privilege even if made before a lawsuit is filed.

Photo Credit: Sean Pavone/Shutterstock

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