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Case 18-2868, Document 279, 08/09/2019, 2628231, Page6é of 37 PRELIMINARY STATEMENT Before the Court reaches the question whether plaintiff can prove falsity and actual malice, it should decide three questions of law, one that narrows considerably the legal issues and two that dispose of the case entirely. 1. It is undisputed Ms. Maxwell, through her agents, sent to various media- representatives—and to no one else—the January 2015 statement. It is undisputed she had no control over any of the media that decided to republish excerpts from the statement. On these facts, under black letter New York law, she is not responsible for these republications. Plaintiffs contrary argument relies on a “foreseeability” doctrine the New York Court of Appeals has specifically rejected. Summary judgment should enter in favor of Ms. Maxwell as to any republication. 2. Under the New York Constitution, whether a statement is constitutionally nonactionable opinion depends upon, among other things, an examination of the full context of the communication and consideration of the setting surrounding it. The January 2015 statement, making no reference to specific allegations, explains why the author believes plaintiff s allegations are “obvious lies”: “Each time the story is re told [sic] it changes with new salacious details... .” It is an expression of a venerable opinion: when a person falsely cries wolf previously, others are free to opine she is telling falsehoods now. This is nonactionable opinion. 3. Under New York law, a statement made pertinent to good faith anticipated litigation is nonactionable. The statement was sent exclusively to the media representatives, and contained a clear message: the media should not republish plaintiffs “obvious lies,” else Ms. Maxwell would sue them. Such a statement is nonactionable. If the Court reaches the question of falsity and actual malice, the Rule 56 record establishes plaintiff cannot prove falsity and actual malice by clear and convincing evidence. 1