Peter Paul Biro Wins Day in Court vs. New Yorker magazine

*Magazine's key source denied a motion
*Plaintiff to add more defendants

*Federal Judge says article is "capable of defamatory meaning".
*$20-Million ruling comes two weeks after Jonah Lehrer scandal.

August 9, 2012

In an historic and devastating blow to New Yorker magazinewhich for years has touted "ironclad" fact-checking methods, a federal judge has denied the publication's motion to fully dismiss an art expert's $20-Million defamation lawsuit.

US District Court Judge J. Paul Oetken's 95-page ruling means the case will go to trial unless New Yorker magazine and nine other defendants settle with plaintiff Peter Paul Biro. 

The lawsuit stems from a July 12, 2010 feature article written by a New Yorker journalist, David Grann, in which Biro and his family--art conservators from Montreal, Canada, are depicted as criminals, according to the lawsuit.

Grann's article set off a media frenzy, spawning follow-up articles which painted Biro as a "forger" and that his family had done "jail time," all of which were later found to be untrue.

Shortly after the lawsuit was filed, many articles which portrayed Biro negatively were retracted.  Manhattan Media published a public apology and the Daily Beast issued a correction.  Based on the New Yorker article, Business Insider had included Biro on a list of "Nine of the Biggest Art Forgeries of All Time." After the suit was filed, they quickly removed Biro from the list and renamed it, "Eight of the Biggest Art Forgeries of All Time." One media outlet clearly and publicly admitted they misinterpreted the Grann feature and apologized, while some of the spin-off articles just disappeared off the internet. 

In his ruling, Judge Oetken stated that Grann's article is "reasonably capable of a defamatory meaning." He also called into question whether Grann's article "constitutes a fair and true report" on Biro.

Oetken also approved consideration of special damages for Biro on "claims for injurious falsehood". Other claims by Biro were dismissed by the court. But the case will move forward, and as one legal expert said, "settlements will come pouring in."

Biro issued a brief statement following the judge's decision. "I am pleased that the court has ruled that some of the statements in the article can be considered defamatory.  I look forward to proceeding to discovery and to determining the case on its merits."

The New Yorker also issued a statement. "We are gratified that Judge Oetken has already dismissed the vast bulk of Mr. Biro's claims, and we are confident that we will prevail."

But perhaps the statement is too little too late for the New Yorker. One defendant has already chosen to settle. According to U.S. federal court records, publisher Dan Rattiner reached a settlement arrangement with Biro, the details and amount of which are undisclosed. Biro sought $1 million from Rattiner.

In addition to Grann, the suit names as defendants Conde Nast, a division of Advance Magazine Publishers, Inc., Louise Blouin Media, Global Fine Art Registry LLC, Theresa Franks, Business Insider, Inc., Gawker Media LLC, International Council of Museums, Georgia Museum of Art, and Paddy Johnson. 

In a separate ruling, Judge Oetken denied defendant Theresa Franks a motion to dismiss based on jurisdiction. Franks, a resident of Arizona, claims to have been a "catalyst" to the Grann article.

Biro also won a ruling which allows him to file a supplemental complaint to include additional defendants if necessary.

Biro's work was the subject of the 2006 film documentary, Who the #$&% Is Jackson Pollock?, which follows the journey of Ms. Teri Horton, a retired trucker who bought a purported Pollock painting for $5.00 in a thrift shop, and her attempt to have it authenticated. 

A fingerprint on the back of the canvas was first checked out by a San Bernardino, California police chief. Then, years later, Horton hired Biro to analyze the fingerprint. The print matched one on a can of paint in the Pollock studio and on an undisputed, cataloged Pollock painting hanging in the Tate Modern. 

Judge Oetken's ruling comes just weeks after a hugely embarrassing scandal involving New Yorker magazine journalist Jonah Lehrer, who resigned after admitting he fabricated Bob Dylan quotes in his best-selling book, Imagine.