United States District Court Middle District of Florida Fort Myers Division

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION LINDA FAIRSTEIN, Plaintiff, v. Case No.: 2:20-cv-00180-JLB-MRM NETFLIX, INC., AVA DUVERNAY, and ATTICKA LOCKE Defendants. / ORDER On May 31, 2019, Defendant Netflix, Inc. (“Netflix”) released the four-part series When They See Us (“the Series”) on its global streaming platform. (Doc. 1 at ¶1.) The Series is a dramatization of the highly publicized case of the Central Park Five—a group of five African-American and Latino teenagers (“the Five”) who were tried and convicted on charges connected to the violent rape of Patricia Meili in New York City’s Central Park on the night of April 19, 1989. (Id. at ¶¶36–38.) In 2002, the Five’s convictions were vacated after Mattias Reyes confessed to attacking Ms. Meili, and his DNA matched samples taken from Ms. Meili and her personal belongings. (Id. at ¶41.) Twelve years after their convictions were vacated, the Five settled a civil suit against New York City for $41 million. (Id. at ¶43.) This case is not directly about the Five; it is about the Series’ depiction of Plaintiff Linda Fairstein, the former chief of the Manhattan District Attorney’s Sex Crimes Prosecution Unit. (Id. at ¶32.) Ms. Fairstein’s character, played by actress Felicity Huffman, is essentially the “archvillain” of the Series—the architect of a racially biased and unethical prosecution against the Five. (Id. at ¶¶44–130.) This depiction, regardless of its factual accuracy, was not accidental. Both before and after the Series’ release, two of its creators—Ava DuVernay and Attica Locke (collectively, “the Writers”)—published multiple comments on social media suggesting that Ms. Fairstein’s depiction as the Series’ villain was based on facts and research, and that she should be held accountable for her real-life role in prosecuting the Five. (Id. at ¶¶152–99.) The Series and the Writers’ social media posts allegedly created a backlash against Ms. Fairstein that she claims damaged both her reputation and career as a best-selling crime novelist. (Id. at ¶¶232–57.) Ms. Fairstein now sues Netflix and the Writers for defamation and conspiracy to defame. The Writers move to: (1) dismiss the case against them for lack of personal jurisdiction, (2) dismiss the case for improper venue, or (3) transfer venue to the Southern District of New York. (Doc. 26.) Netflix joins in the Writers’ venue-based arguments but does not challenge personal jurisdiction. (Doc. 45.) After a careful review of the parties’ pending motions, the Court agrees that the convenience of the parties and witnesses and the interest of justice weigh in favor of transferring this action to the Southern District of New York. STATEMENT OF FACTS Assuming the uncontradicted facts in the complaint are true (as this Court must), Ms. Fairstein’s relationship with the Series was contentious from the start. In 2016, Ms. Fairstein learned that Ms. DuVernay (creator, director, writer, and executive producer of the Series) had acquired life rights from the Five. (Doc. 1 at 2 ¶131.) Sometime in the spring of 2016, Ms. Fairstein exchanged e-mails with a professional colleague of Ms. DuVernay’s and expressed her concern about the source materials on which Ms. DuVernay would be relying. (Id. at ¶137.) Then, on June 9, 2016, Ms. Fairstein’s counsel sent a letter to Ms. DuVernay, echoing Ms. Fairstein’s concern that prior content concerning the Five was “pursued in order to achieve a predetermined objective” and suggesting a list of twenty sources (mostly court records) that Ms. DuVernay ought to review as “part of any honest fact- finding effort.” (Id. at ¶¶138–39.) Any meeting between Ms. Fairstein and Ms. DuVernay would apparently be conditioned on Ms. DuVernay reviewing those twenty sources and providing Ms. Fairstein with a list of specific topics for discussion. (Id. at ¶140.) Ms. Duvernay responded that Ms. Fairstein had no right to preemptively object to her portrayal in the Series, that any such portrayal would be constitutionally protected, and that Ms. DuVernay would not meet with Ms. Fairstein subject to any preconditions. (Id. at ¶142.) This response only served to confirm Ms. Fairstein’s suspicions that Ms. DuVernay would rely on “potentially biased and unreliable sources” to create the Series. (Id. at ¶144.) After it was announced that Netflix would be streaming the Series, Ms. Fairstein expressed her concerns to Netflix’s general counsel but received no response. (Id. at ¶¶150–51.) On November 27, 2018—six months before the Series premiered—Ms. Locke (a writer and producer of the Series) and Ms. Fairstein had a heated exchange on Twitter regarding Ms. Fairstein receiving a Grand Master award at the 2019 Edgar 3 Awards Ceremony, hosted by the Mystery Writers of America (“MWA”). (Id. at ¶¶152–64.) Essentially, Ms. Locke publicly asserted that Ms. Fairstein should not serve as Grand Master at the ceremony due to her involvement in prosecuting and incarcerating the Five. (Id. at ¶¶153–55.) Ms. Fairstein responded that Ms. Locke’s accusations were factually incorrect. (Id. at ¶154.) Two days after this exchange, the MWA issued a press release stating that it had decided to withdraw the Grand Master award from Ms. Fairstein due to “controversy in which [Ms. Fairstein] has been involved.” (Id. at ¶155.) The events leading up to the MWA’s rescission were reported nationwide. (Id. at ¶161.) On December 18, 2018, Ms. Locke again posted on Twitter, explaining that she knew “so much about the case” because she did “extensive” research while working on the Series, which included reviewing the Five’s trial transcripts. (Id. at ¶¶162–63.) In other words, Ms. Locke implied that the upcoming Series’ depiction of Ms. Fairstein would be based on fact. The notion that the Series was partially fact-based was allegedly aided by Netflix’s marketing of the film. The taglines in the Series’ trailers and in Netflix’s promotional tweets implied that the Series was “based on the true story of the [Five],” and that it would show people “[t]he truth [they] haven’t heard.” (Id. at ¶¶165–67, 200–18) (emphasis added). According to Ms. Fairstein, Netflix even categorized the Series as a “documentary” on its streaming platform before later recategorizing it as a “Crime TV Show.” (Id. at ¶347.) Statements by Cindy Holland, Netflix’s Vice President of Original Content, further suggest that Netflix approved the Series because its audience was particularly attracted to “true 4 stories.” (Id. at ¶220.) Likewise, Ms. DuVernay and Ms. Locke repeatedly represented in interviews and social media posts that the story depicted in the Series was essentially the “real story,” and that it was based on exhaustive research and interviews. (Id. at ¶¶171–81, 187–99.) In one tweet, Ms. Locke went so far as to suggest that the Series was “one of the most accurate portrayals of a true story” because she, Ms. DuVernay, and the rest of their writing team “took the truth as [their] bible.” (Id. at ¶197.) Defendants also indicated that the Series’ negative treatment of Ms. Fairstein’s character was—like the rest of the narrative—based on fact. Indeed, during an interview with Oprah Winfrey, Ms. DuVernay stated that one of her goals in creating the Series was to hold Ms. Fairstein “accountable” for her purported actions in prosecuting the Five. (Id. at ¶182.) The Writers’ stated goal is further evident from the tone of their public comments after the Series’ release on May 31, 2019. In a tweet posted on June 11, 2019, Ms. Locke wrote that “Linda Fairstein is trash, was trash, [and] will always be trash.” (Id. at ¶194.) The next day, Ms. DuVernay made a twitter post with an embedded tweet stating, “not a single publication needs to give [Ms. Fairstein] a chance to speak. [The Five] are broken because of her actions. She has done more than enough damage.” (Id. at ¶183.) The allegedly defamatory content of the Series itself is discussed at length in the complaint and need not be fully recited here. (Id. at 49 ¶¶130.) Suffice it to say that Ms. Fairstein is portrayed as the primary driving force behind the racist prosecution of the Five from its very inception. Indeed, she is one of the first people 5 shown examining the place where Patricia Meili’s body was found in Central Park. From there, the Series repeatedly shows Ms. Fairstein pushing for the Five to be charged, tried, and convicted despite their obvious innocence because she wanted to make an example of them. The most conspicuous examples of this include the Series’ depiction of Ms. Fairstein: a) knowingly creating a false timeline of the events that took place in Central Park on April 19, 1989 in order to blame Patricia Meili’s attack on the Five, despite obvious factual discrepancies (id. at ¶¶77–86.); b) politicking to receive the case instead of Assistant District Attorney Nancy Ryan, who expressed doubts that the Five had done anything wrong and who is later depicted as uncovering Ms. Fairstein’s manipulation of the case’s timeline in 2002, after Mattias Reyes confessed to raping Patricia Meili (id. at ¶¶87–90, 94, 127.); c) ordering the police to round up every “young, black male” who was in Central Park on the night of April 19, 1989 and to “stop every little thug” they saw (id. at ¶97.); d) encouraging the coercion of false confessions from the Five (id. at ¶¶104, 108, 114.); e) pressuring the reluctant Elizabeth Lederer, who was the Assistant District Attorney responsible for actually trying the case in court, to extract fabricated confessions from the Five that would smooth over 6 the factual discrepancies in the case and to prosecute the Five despite insufficient evidence (id.

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