DocumentCloud_Epstein_Docs_p02016.png

Case 18-2868, Document 287, 08/09/2019, 2628251, Page68 of 76 In deciding its motion to dismiss opinion, the Court relied on Davis v. Boeheim, 22 N.E.3d 999 (2014), and held that the three allegedly defamatory statements in the Press Release have a specific and readily understood factual meaning, are capable of being proven true or false, and “clearly constitute fact to the reader.” Giuffre, 165 F. Supp. at 152. The Court determined that “[t]he dispositive inquiry” for purposes of deciding whether an allegedly defamatory statement is fact or nonactionable opinion is whether “a reasonable reader could have concluded that the statements were conveying facts about the plaintiff.” Id. at 151 (internal quotation marks and citation omitted). To answer that inquiry, three factors enumerated in Davis were applied. See id. These three factors are the same as the four factors in Immuno AG v. Moor-Jankowski, 567 N.E.2d 1270 (N.Y. 1991); the difference is that the Davis court collapsed the Immuno AG’s third and fourth factors into one. See Davis, 22 N.E.3d at 1005. “[T]he critical aspect of the inquiry, as articulated in the third factor set forth above, is to view the statements in context.” Jewell, 23 F. Supp. 2d at 377. This contextual analysis “proceeds on two levels, the ‘broader social setting’ of the statements, as well as their ‘immediate context.’” Id. (citing Immuno, 567 N.E.2d at 1280). 68