Case 1:10-cv-00897-RJL Document 97 Filed 02/10/11 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
DANIEL PARISI, WHITEHOUSE.COM INC., )
WHITEHOUSE NETWORK LLC AND )
WHITEHOUSE COMMUNICATIONS INC., )
)
Plaintiffs, )
) Case No.: 1:10-cv-00897 (RJL)
v. )
)
LAWRENCE W. SINCLAIR A/K/A “LARRY
SINCLAIR”, JEFFREY RENSE, BARNES & )
NOBLE, INC., BARNESANDNOBLE.COM )
LLC, AMAZON.COM, INC., BOOKS-A- )
MILLION, INC. and SINCLAIR PUBLISHING, )
INC., )
)
Defendants. )

DEFENDANTS BARNES & NOBLE, INC. AND BARNESANDNOBLE.COM LLC’S

MEMORANDUM OF LAW IN OPPOSITION TO LAWRENCE W. SINCLAIR’S
MOTION TO DISMISS THEIR CROSS-CLAIMS AGAINST SINCLAIR
AND SINCLAIR PUBLISHING, INC.

On January 28, 2011, Defendant Lawrence Sinclair (“Sinclair”) submitted a motion to

dismiss the complaint or in the alternative for summary judgment (“Sinclair’s Motion”).

Sinclair’s Motion principally seeks dismissal of Plaintiff Parisi’s libel and related claims

against Sinclair and Sinclair Publishing, Inc. Barnes & Noble, Inc. and barnesandnoble.com

llc (collectively “Barnes & Noble”) support Sinclair’s efforts to seek early resolution of

Plaintiffs’ claims. However, Sinclair’s motion also requests that, if the Court dismisses

Plaintiffs’ claims against Sinclair and/or Sinclair Publishing, that it also dismiss Barnes &

Noble’s cross-claims for indemnity and contribution against Sinclair and Sinclair Publishing,

Inc. as moot. Barnes & Noble submits this memorandum for the limited purpose of opposing

dismissal of its cross-claims.

 Case 1:10-cv-00897-RJL Document 97 Filed 02/10/11 Page 2 of 7

FACTUAL BACKGROUND

The Plaintiffs in this action contend they were defamed by the book Barack Obama &

Larry Sinclair: Cocaine, Sex, Lies & Murder? (the “Book”). In addition to suing the author

Sinclair and the publisher Sinclair Publishing, Inc. (collectively, the “Sinclair Defendants”),

Plaintiffs also have named as defendants several booksellers, including Barnes & Noble.

Plaintiffs have sued Barnes & Noble under a “distribution plus” theory for both distributing the

Book and “the affirmative act of publi[shing]” certain allegedly false statements on

barnesandnoble.com on its display page for the Book under the headings “From the Publisher”

and “Synopsis.” (Cplt ¶ 39.) As he has confirmed, Sinclair wrote the contested website copy.

(See Affidavit of Lawrence W. Sinclair, sworn to Nov. 15, 2010, ¶ 2 [Doc. No. 83].)

By letter dated June 8, 2010, Sinclair and Sinclair Publishing, Inc. agreed to indemnify

Barnes & Noble with respect to the Book and this action (the “June 8, 2010 Indemnity”). The

indemnity reads as follows:

Lawrence W. Sinclair and Sinclair Publishing, Inc. hereby agree to

jointly and severally indemnify and hold harmless Barnes &
Noble, Inc. and Barnesandnoble.com LLC (collectively, "Barnes &
Noble") from and against any and all claims, causes of action,
liabilities, losses, damages, penalties, assessments, judgments,
awards or costs, including reasonable attorneys' fees and costs, and
including any amounts paid by Barnes & Noble in a settlement
approved by Lawrence W. Sinclair and/or Sinclair Publishing, Inc.
("Claims"), arising out of, resulting from, or relating to, the book
entitled Barack Obama & Larry Sinclair: Cocaine, Sex, Lies and
Murder, authored by Lawrence W. Sinclair and published by
Sinclair Publishing, Inc. (the "Book"), including, but not limited to,
any Claims arising out of the lawsuit captioned Parisi et a/, v.
Lawrence W. Sinclair a/k/a "Larry Sinclair" et al., Index No. l:10-
cv-00897 (D.D.C.) (Leon, J.).

Lawrence W. Sinclair and Sinclair Publishing, Inc. agree that

Barnes & Noble shall have the right to defend the Claims by
counsel of its own choosing under the terms of this indemnification
agreement. Lawrence W. Sinclair and Sinclair Publishing, Inc.
further agree that they will pay Barnes & Noble any sums due

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 Case 1:10-cv-00897-RJL Document 97 Filed 02/10/11 Page 3 of 7

under this indemnity within 60 days of receipt of each bill for legal
fees or costs, or of any court order or other applicable document.

See June 8, 2010 Indemnity, Barnes & Noble Answer, Doc. No. 42, Ex. 2.

Barnes & Noble filed its answer on August 24, 2010, and asserted cross-claims for

indemnification and contribution against the Sinclair Defendants under both the June 8, 2010

Indemnity, and statutory and common law. [Doc. No. 42, ¶¶ 122-155.]

On January 28, 2011, Sinclair filed the instant motion to dismiss or, in the alternative, for

summary judgment, seeking dismissal of all claims that Plaintiffs have asserted against Sinclair

in his role as the author and publisher of the Book. Sinclair argues that the alleged claims

against him are not plausible because the allegedly defamatory statements in the Book are

substantively true, Plaintiff cannot prove that Sinclair acted with actual malice, and Plaintiff

cannot prove required damages. In his motion, Sinclair further requested that, should the Court

dismiss the claims against the Sinclair Defendants, the Court also dismiss Barnes & Noble’s

cross-claims for indemnification and contribution as moot. [See Doc. No. 94-1 at 25-26.]

Sinclair’s motion does not seek dismissal of the claims that Plaintiffs have asserted

against Barnes & Noble related to either distribution of the Book or the copy posted on Barnes &

Noble’s website.

ARGUMENT

Contrary to Sinclair’s contention, Barnes & Noble’s potential claims for indemnity and

contribution against him will not be moot should the Court decide to dismiss the Plaintiff’s

claims against the Sinclair Defendants. As such, Barnes & Noble respectfully requests that

Sinclair’s request for dismissal of those cross-claims be denied.

Under the terms of the June 8, 2010 Indemnity, Barnes & Noble has a broad right to seek

indemnification from both Sinclair and Sinclair Publishing LLC with respect to any and all

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 Case 1:10-cv-00897-RJL Document 97 Filed 02/10/11 Page 4 of 7

“causes of action, liabilities, losses, damages, penalties, assessments, judgments, awards or costs,

including reasonable attorneys' fees and costs, and including any amounts paid by Barnes &

Noble in a settlement” of the above-captioned action. It is plain from the face of the June 8,

2010 Indemnity that Barnes & Noble’s rights are not somehow limited by or to the claims that

Plaintiffs have asserted against the Sinclair Defendants. For example, Barnes & Noble’s right to

seek indemnity with respect to its “attorneys’ fees and costs” incurred in this action would not be

extinguished simply because the Plaintiffs’ claims against Sinclair had been dismissed.

Similarly, while Barnes & Noble believes it should ultimately prevail in this action, unless the

Court were to rule for all purposes in the case that both the Book and the contested website copy

are true and accordingly cannot form a basis for any of the five claims pled, there remains the

possibility that Barnes & Noble will be held liable in the case. In such circumstances, Barnes &

Noble would then have a cause of action for indemnification and contribution against Sinclair

under the June 8, 2010 Indemnity and statutory and common law with respect to any judgment

entered against it, regardless of whether the claims against Sinclair himself had been dismissed.

See, e.g., Board of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw &

Folley,71 N.Y.2d 21, 23-24, 517 N.E.2d 1360, 136 (N.Y. 1987) (“[T]wo or more persons who

are subject to liability for damages for the same personal injury, injury to property or wrongful

death, may claim contribution among them whether or not an action has been brought or a

judgment has been rendered against the person from whom contribution is sought.”); New York

Practice Commentaries C1401:3 (McKinney 1997) (“A tortfeasor’s liability for contribution may

flow from either of two sources: breach of a duty to the plaintiff [the injured party] or to the

party seeking contribution.”).

Sinclair also argues that, if his motion is granted Barnes & Noble’s cross-claims must be

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 Case 1:10-cv-00897-RJL Document 97 Filed 02/10/11 Page 5 of 7

dismissed because they no longer comply with Rule 13(g) of the Federal Rules of Civil

Procedure, which permits cross-claims “aris[ing] out of the transaction or occurrence that is the

subject matter of the original action.” This argument is not persuasive. While Rule 13(g)

governs the circumstances under which a cross-claim may be asserted, it does not mandate the

dismissal of Barnes & Noble’s properly asserted cross-claim should plaintiffs’ claims be

dismissed against Sinclair. See, e.g., Shaps v. D.F.D.S., 1985 WL 269, at *3 (S.D.N.Y. 1985)

(“A cross-claim, once properly made, does not cease to be proper because the defendant to

whom they were addressed ceased to be a co-defendant. The cross-claim remains subject to this

court's jurisdiction.”); Slotkin v. Brookdale Hospital Center, 377 F. Supp. 275 (SD N.Y.1974)

(finding, where a stipulation of dismissal had been signed by plaintiff and one defendant against

whom a cross-claim had been made by another co-defendant, that the dismissal of the main

action did not operate to dismiss the cross-claim asserted by the co-defendant).

In short, the resolution of Sinclair’s Motion will not and cannot dispose of the claims for

indemnification and contribution that Barnes & Noble may have against the Sinclair Defendants.

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CONCLUSION

For all the reasons set forth herein, Barnes & Noble, Inc. and barnesandnoble.com llc

respectfully requests that the Court deny Sinclair’s request that their cross-claims be dismissed as

moot in the event that Sinclair’s motion to dismiss or in the alternative for summary judgment is

granted; and (ii) grant any additional relief, including attorneys’ fees and costs, which this Court

may deem just and proper.

Dated: February 10, 2011 Respectfully submitted,

DAVIS WRIGHT TREMAINE, LLP

By: /s/ Linda Steinman

Linda Steinman (admitted pro hac vice)
John Rory Eastburg (D.C. Bar No. 984434)

1919 Pennsylvania Avenue, NW, Suite 800

Washington, D.C. 20006
Attorneys for Defendants Barnes & Noble, Inc.
and barnesandnoble.com llc

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 Case 1:10-cv-00897-RJL Document 97 Filed 02/10/11 Page 7 of 7

CERTIFICATE OF SERVICE

I hereby certify that, on the date below, I caused the foregoing MEMORANDUM OF

LAW IN OPPOSITION TO DEFENDANT LAWRENCE W. SINCLAIR’S MOTION TO

DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT to be served via ECF

on all counsel of record and defendant Lawrence W. Sinclair, pro se.

Dated: February 10, 2011 /s/ Linda Steinman

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 Case 1:10-cv-00897-RJL Document 97-1 Filed 02/10/11 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DANIEL PARISI, WHITEHOUSE.COM INC., )

WHITEHOUSE.COM NETWORK LLC AND )
WHITEHOUSE COMMUNICATIONS INC., )
)
Plaintiffs, )
) Case No.: 1:10-cv-00897 (RJL)
v. )
)
LAWRENCE W. SINCLAIR A/K/A
“LARRY SINCLAIR”, JEFFREY RENSE, )
BARNES & NOBLE, INC., )
BARNESANDNOBLE.COM LLC, )
AMAZON.COM, INC., BOOKS-A-MILLION, )
INC. and SINCLAIR PUBLISHING, INC., )
)
Defendants. )
)

[PROPOSED] ORDER

Upon due consideration of the motion to dismiss or in the alternative for summary

judgment, filed by defendant Lawrence W. Sinclair, dated January 28, 2011, and the opposition

thereto filed by co-defendants Barnes & Noble, Inc. and barnesandnoble.com LLC (collectively,

“Barnes & Noble”), it is hereby

ORDERED that defendant Lawrence W. Sinclair’s motion to dismiss Barnes & Noble’s

cross-claims against Lawrence W. Sinclair and Sinclair Publishing, Inc. is DENIED.

SO ORDERED.

Dated: ___________________, 2011.

_________________________________
United States District Judge
Richard J. Leon