Teri Buhl V Harvey J. Kesner Summons Complaint 3.24.22 NY State Court

CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO.
INDEX NO. UNASSIGNED

NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/24/2022
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
-----------------------------------------------------X
TERI BUHL, an individual, Index No.: _______________________
Plaintiff, SUMMONS
-against- Plaintiff Designates New York

County as the Place of Trial.
HARVEY J. KESNER, an individual,
Defendant.
-----------------------------------------------------X
YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action
and to serve a copy of your answer upon Paul Law Group, LLP, as counsel for the plaintiff, Teri
Buhl, within twenty (20) days after service of this Summons, exclusive of the day of service, or
within thirty (30) days after the service is complete if this Summons is not personally delivered
to you within the State of New York. In case of your failure to appear or answer, judgment will
be taken against you by default for the relief demanded in the Verified Complaint.
Dated: March 24, 2022

New York, New York By:
Wesley J. Paul, Esq.
PAUL LAW GROUP, LLP

902 Broadway, 6th Floor
New York, NY 10010
Tel: (646) 278-9955
wpaul@paullawgrp.com
Attorney for Plaintiff Teri Buhl
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 1 of 49
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
-----------------------------------------------------X
TERI BUHL, an individual, Index No.: _______________________
Plaintiff,
VERIFIED COMPLAINT
-against-
HARVEY J. KESNER, an individual,
Defendant.
-----------------------------------------------------X
Plaintiff Teri Buhl (“Buhl” or “Plaintiff”), by her attorneys, Paul Law Group, LLP, with
an office at 902 Broadway, 6th Floor, New York, New York 10010, complaining of the
Defendant, Harvey J. Kesner (“Kesner” or “Defendant”), states to the Court and alleges as
follows:
INTRODUCTION
1. Ms. Buhl is a recognized and long-standing investigative journalist, who has published
numerous articles in major national publications on issues related to financial fraud and
abuse. Ms. Buhl’s work has been published in numerous publications, including the New
York Post, New York Magazine, Forbes Magazine, The Atlantic, Fortune, New York
Observer, Business Insider, Hearst Newspapers, and Growth Capitalist. Based on her
reporting for The Atlantic on Bear Sterns’ role in the subprime mortgage crisis, Ms. Buhl was
featured in the Frontline documentary film The Untouchables.
This is a copy of a pleading filed electronically pursuant to1 New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
2. Since 2010, Ms. Buhl has also published articles on her online news publication TERI BUHL
SMASHMOUTH INVESTIGATIVE JOURNALISM, (“News Site”), which is available at
teribuhl.com.
3. In 2019, Defendant brought a factually unsupported and objectively frivolous defamation
action against Ms. Buhl. See Kesner v. Buhl, No. 20-cv-03454, Op. and Order, Dkt. 155
(S.D.N.Y. Mar. 10, 2022) (the “Federal SLAPP Suit”). Originally filed in federal court in the
state of Florida, and subsequently transferred by court order to the Southern District of New
York (the “District Court”), the Defendant continued his litigation without any factual and
legal support.
4. Indeed, Kesner’s only possible purpose for bringing the lawsuit was to bully, harass, and
ultimately censor Ms. Buhl’s freedom of speech because she was reporting on him, and
certain of his clients’ fraudulent activity, and he wanted it to stop. These types of lawsuits
are commonly referred to as a Strategic Lawsuit Against Public Participation (SLAPP); a
type of unlawful legal action widely recognized to be anathema to the unhindered discourse
of a free society.
5. New York’s anti-SLAPP law now provides Ms. Buhl, as a defendant to a SLAPP action
involving “public petition and participation,” as defined by N.Y. Civil Rights Law § 76-a, the
right to maintain an “action [or] claim . . . to recover damages, including costs and attorney’s
fees, from any person who commenced or continued such [SLAPP] action.” N.Y. Civ. Rights
Law § 70-a.
6. Civil Rights Law § 76-a defines an action involving public petition and participation as: “a
claim based upon: (1) any communication in a place open to the public or a public forum in
connection with an issue of public interest; or (2) any other lawful conduct in furtherance of
the exercise of the constitutional right of free speech in connection with an issue of public
interest.”
7. In the District Court, Ms. Buhl filed and resoundingly won a motion for summary judgment,
with the District Court holding “there is literally no evidence” for Kesner’s claims and going
on to dismiss “Kesner’s factually baseless arguments.” The District Court’s opinion and
order is annexed as Exhibit A to this Verified Complaint.
8. The District Court also found it “noteworthy that Buhl ha[d] come forward with competent
evidence refuting” Kesner’s claims of actual malice.
9. Importantly, the District Court explicitly held that Civil Rights Law § 76-a applied to
Kesner’s defamation action and found that each of Buhl’s articles at issue concerned matters
of public interest.
10. Based on those proceedings, Buhl has demonstrated that Kesner had “commenced and
continued” the Federal SLAPP Suit without any basis, let alone a “substantial basis in fact
and law,” as required under N.Y. Civil Rights Law § 70-a(1)(a).
11. Consequently, under New York law, Ms. Buhl is entitled to recover her damages, including
costs and attorney’s fees, from defending against Defendant’s unsupported and frivolous
SLAPP action.
12. Additionally, under N.Y. Civil Rights Law § 70-a(1)(b)-(c), Kesner is liable for other
compensatory and punitive damages because his motive for filing the Federal SLAPP Suit
was retaliatory in nature.
13. Kesner’s singular and only purpose for commencing and continuing the Federal SLAPP Suit
was to harass, intimidate, punish, or otherwise maliciously inhibit Ms. Buhl’s free exercise of
speech. Kesner wanted Ms. Buhl’s truthful and accurate reporting on himself, and certain of
his clients’ fraudulent activity, to stop. But Kesner also wanted to hurt her professionally.
Kesner’s amended complaint contained derogatory, false, completely unfounded, and indeed,
intentionally fabricated allegations against Ms. Buhl. As shown by the District Court’s
decision in the Federal SLAPP Suit, Defendant made these allegations with zero factual basis
or support.
PARTIES
14. Plaintiff is an individual residing in the State of New York, County of New York.
15. Defendant Harvey Kesner is an attorney listed as having a license to practice law in the State
of New York, a member of the New York Bar, and based on his own previous admissions,
has practiced law for over 30 years. Upon information and belief, Defendant presently
resides in the State of Florida.
JURISDICTION AND VENUE
16. The Court has personal jurisdiction over the Defendant pursuant to CPLR 301 because the
Defendant is currently licensed to practice law in the State of New York and his contacts
with New York are so extensive and on-going as to support general jurisdiction.
17. The Court also has personal jurisdiction over the Defendant pursuant to CPLR 302 because
Defendant’s tortious conduct giving rise to this Verified Complaint, i.e., commencing and
continuing an entirely unsupported SLAPP action against the Plaintiff, was directed towards
and took place in New York and was in violation of the laws of New York.
18. The appropriate venue for this action is New York County pursuant to CPLR 503(a).
BACKGROUND
Certain Facts Relevant to the Federal SLAPP Suit
19. Ms. Buhl has dedicated her career to holding allegedly bad actors in the financial industry
accountable and has reported on potential misconduct that has led to over a half a dozen
criminal charges or regulatory enforcement actions.
20. Ms. Buhl’s reporting that is relevant here began in 2016, where she began reporting on a
group of investors led by known microcap investor Barry Honig (“Honig”). Through her
sources, Ms. Buhl began to learn how Honig, and his associates, engaged in fraudulent
activity, commonly referred as “pump and dump” transactions, on certain public companies.
21. During that time, and since, Ms. Buhl has tracked this group of investors, which she labels in
many of her articles as “Team Honig,” including the group’s attorneys, stockbrokers, and
privately owned companies (which in turn make security investments), among others.
22. Defendant is a securities lawyer who for the great majority of his career worked in New York
City. Defendant is also the longtime attorney for Honig and who concurrently represented
numerous public companies Honig invested in.
23. In 2018, the Securities Exchange Commission (“SEC”) brought a five-count civil complaint
against Honig and his associates for serious violations of the securities laws. The SEC
asserted that Honig, and his associates, perpetrated three “highly profitable ‘pump-and-dump
schemes, involving the stock of three publicly traded companies,” which were BioZone
Laboratories, Mabvax Therapeutics Holdings Inc., and MGT Capital Investments Inc.
Although Kesner is not a named defendant in the SEC complaint, the SEC refers to him as
“Issuer’s Counsel Partner,” and makes numerous compromising statements against the
Defendant and of his legal representation of two of these companies, as well as his
concurrent legal representation of certain investors of these companies, including Honig.
24. The SEC’s complaint included allegations of securities violations by Defendant’s clients that
were precisely those reported on by Buhl in her earlier reporting.
25. In 2018, Kesner was forced out as named partner of his firm Sichenzia Ross Ference Kesner
LLP (“SRFK”), which later changed its name to Sichenzia Ross Ference, LLP after Kesner’s
ouster. Shortly after, Kesner and his former law firm, SRFK, were sued for malpractice and
fraud by their former client Mabvax in California Superior Court in San Diego County. The
malpractice action was later removed to federal court. The case was eventually settled.
26. Through investigating these events, and others, Plaintiff wrote and published various articles
on her News Site detailing Team Honig’s publicly available trading activities and the
voluminous litigation that would often follow, including uncovering Defendant’s close ties
with Honig and his questionable stock transactions. Plaintiff also published links to her
articles on the social media site Twitter and occasionally provided her opinion and
commentary both on Twitter and in her articles.
27. As a result of this spotlight Buhl shown on Defendant, and his clients’ fraudulent activities,
Defendant, in league with his client Honig, conspired and coordinated a strategic plan to
harass and intimidate Plaintiff, in an attempt to stop her reporting and infringe on her First
Amendment rights. This included both Kesner and Honig filing entirely frivolous and
unsupported defamation actions against her in federal and state court.
28. First, Honig brought legal action against Buhl in 2016, alleging, among other things, that
Buhl’s reporting on Honig was defamatory. That action was settled in 2018, without Ms.
Buhl changing or editing any of her original reporting.
29. Honig also filed an action in June 2021, which is currently pending in this Court, titled Honig
v. Buhl, No. 155270/2021 (N.Y. County June 1, 2021). At the time of this Verified
Complaint, an anti-SLAPP motion filed by Ms. Buhl is currently sub judice in that action.
Defendant’s Federal SLAPP Suit
30. For his part of the conspiracy, Kesner commenced his lawsuit in federal court in the Southern
District of Florida against Buhl and certain other defendants on May 31, 2019. The action
was eventually transferred to the District Court (i.e. Southern District of New York) by court
order. Kesner alleged in the five-count complaint defamation, and other tort-based claims,
against Ms. Buhl and certain other defendants (i.e., the Federal SLAPP Suit).
31. The other defendants in the Federal SLAPP Suit were dismissed pursuant to their respective
motions to dismiss. Buhl also filed a motion to dismiss and 18 of the 21 allegations of
defamation by Buhl were dismissed by the District Court. The District Court also dismissed
all other tort claims alleged against Buhl in the Federal SLAPP Suit.
32. The Defendant brought his lawsuit in a calculated, brazen, and unlawful attempt to chill Ms.
Buhl’s reporting. The underlying facts of the Federal SLAPP Suit all point to one
conclusion: Ms. Buhl’s reporting was starting to reveal Defendant’s involvement in several
questionable transactions, and the Defendant did not want Ms. Buhl to continue with this
reporting.
33. Plaintiff’s commencement and continuation of the Federal SLAPP Suit in New York was a
direct infringement upon Ms. Buhl’s First Amendment rights, and importantly, was a
violation of New York law which prohibits Defendant’s frivolous conduct and retaliatory
behavior targeting Plaintiff’s freedom of speech.
34. Moreover, Kesner amended his federal complaint to include further derogatory, false, and
completely unfounded and fabricated allegations against Ms. Buhl. The Defendant’s
amended complaint was itself defamatory towards Ms. Buhl but for any possible judicial or
litigation privilege. Ultimately, the District Court found that Kesner had “literally no
evidence” to support any of his claims or allegations.
35. As noted above, the District Court dismissed the great majority of Defendant’s allegations of
defamation, and all the other tort-based claims, against Ms. Buhl pursuant to Rule 12(b)(6)
by finding those claims failed to state a plausible claim for which relief can be granted.
Leaving only three out of the twenty-one statements Kesner contended to be defamatory to
be reviewed again at summary judgment.
The District Court’s Findings on Summary Judgment
36. After dismissal of most of the Defendant’s claims, Ms. Buhl filed a counterclaim, alleging
the same claim that is presented in this Verified Complaint, that Kesner had brought and
continued the defamation action without a substantial basis in fact and law, in violation of
N.Y. Civil Rights Law § 70-a. Kesner filed a motion to dismiss the counterclaim on the basis
that Section 70-a did not apply in federal court.
37. After discovery, Ms. Buhl filed for summary judgment on Kesner’s three remaining bases for
defamation by asserting that he had failed to produce evidence sufficient to prove his libel
claims.
38. On March 10, 2022, the District Court ruled entirely in Buhl’s favor on her motion for
summary judgment.
39. As part of its findings, the District Court determined that Kesner utterly failed to provide
necessary evidence of Buhl’s “actual malice,” as required, and defined, by N.Y. Civil Rights
Law § 76-a. Moreover, on summary judgment, the District Court determined that Kesner
failed to file a Statement of Material Facts that was in conformity with Local Rule 56.1 and
failed to provide or submit any evidence to support his claims. Further, as the District Court
noted, “Kesner did not appear to have taken any discovery or . . . engaged in any active
litigation in this case.”
40. The fact is, by the time summary judgment came around, Plaintiff had already gotten what he
wanted. The Federal SLAPP Suit revealed Kesner’s true motivation for filing the Federal
SLAPP Suit. Kesner never intended to actually win a favorable judgment, but rather
intended to bully, harass, and ultimately censor Ms. Buhl by burdening her with the cost and
expense of defending his SLAPP action. As the Court of Appeals has explained, “[t]he threat
of being put to the defense of a lawsuit . . . may be as chilling to the exercise of First
Amendment freedoms as fear of the outcome of the lawsuit itself.” Karaduman v. Newsday,
Inc., 51 N.Y.2d 531, 545 (1980).
41. Regarding Ms. Buhl’s counterclaim premised on Section 70-a, the District Court only
dismissed the claim because it found that Section 70-a cannot be applied in federal court
because it “would require the Court to apply a state procedural standard that conflicts with
the Federal Rules of Civil Procedure.”
42. Nonetheless, Section 70-a explicitly states: “A defendant in an action involving public
petition and participation, as defined in paragraph (a) of subdivision one of section seventy-
six-a of this article, may maintain an action, claim, cross claim or counterclaim to recover
damages, including costs and attorney’s fees, from any person who commenced or continued
such action. . . .”
FIRST CAUSE OF ACTION FOR

VIOLATION OF NEW YORK’S ANTI-SLAPP LAW
(Asserting rights pursuant to N.Y. Civil Rights Law § 70-a, et. seq.)
43. Ms. Buhl repeats and re-alleges each and every allegation in Paragraphs 1-42 of the Verified
Complaint as if fully set forth herein.
44. The updated NY anti-SLAPP law allows a defendant to an action involving public petition and
participation, such as Teri Buhl, to maintain an action and claim to recover damages, including
costs and attorney fees, against the Plaintiff, who has commenced and continued the SLAPP
suit. N.Y. Civ. Rights Law § 70-a.
45. An action involves public petition and participation when the plaintiff’s claim is based on: “(1)
any communication in a place open to the public or a public forum in connection with an issue
of public interest; or (2) any other lawful conduct in furtherance of the exercise of the
constitutional right of free speech in connection with an issue of public interest . . ..” N.Y. Civ.
Rights Law § 76-a (a)(1)-(2).
46. Ms. Buhl’s reporting primarily focuses on legal proceedings, facts, and circumstances related
to publicly traded companies. Such reporting, as contained in Buhl’s articles at the center of
the Federal SLAPP Suit, is important and vitally necessary to shareholders, and the investing
public as a whole, to ensure transparency in the securities industry.
47. Ms. Buhl has engaged in reporting of Kesner and his potential role in a number of questionable
securities and/or financial transactions starting around May 2016 and continuing to this day.
48. Ms. Buhl’s investigative reporting in the Buhl Materials is part of a “communication in a place
open to the public or a public forum” and the Buhl Materials concern issues of “public interest.”
10New York State court rules (22 NYCRR §202.5-b(d)(3)(i))

This is a copy of a pleading filed electronically pursuant to
49. The Defendant’s Federal SLAPP Suit against Ms. Buhl constitutes an action involving “public
petition and participation,” thus entitling Ms. Buhl to relief afforded by law. N.Y. Civ. Rights
Law § 70-a.
50. The District Court has already determined that the anti-SLAPP law was expressly applicable
to Defendant’s Federal SLAPP Suit.
51. As is made clear by the District Court’s findings on Ms. Buhl’s motion for summary judgment
in the Defendant’s Federal SLAPP Suit, Ms. Buhl has demonstrated that Defendant
commenced and continued that action “without a substantial basis in fact and law and could
not be supported by a substantial argument for the extension, modification or reversal of
existing law” under § 70-a(1)(a).
52. Ms. Buhl is entitled to attorney’s fees and costs for defending against that action.
53. Additionally, Plaintiff had commenced and continued the Federal SLAPP Suit for the purpose
of harassing, intimidating, punishing and otherwise maliciously inhibiting Ms. Buhl’s free
exercise of speech, petition, or association rights under § 70-a(1)(b).
54. As a direct and proximate result of Defendant filing of the Federal SLAPP Suit, Plaintiff has
suffered general and special economic injury, damage, loss and harm to her business,
reputation, and mental health. Because of Plaintiff’s unlawful purpose for commencing and
continuing his Federal SLAPP Suit, Defendant is liable to Ms. Buhl for these compensatory
damages.
55. Lastly, Defendant had commenced and continued the Federal SLAPP Suit for the sole purpose
of harassing, intimidating, punishing and otherwise maliciously inhibiting Ms. Buhl’s free
exercise of speech, petition or association rights, making punitive damages appropriate under
§ 70-a(1)(c).

DEMAND FOR RELIEF
WHEREFORE, Plaintiff respectfully demands judgment against Defendant Harvey
Kesner, as follows:
A. Plaintiff is entitled to attorneys’ fees and costs in an amount of $313,500 pursuant to N.Y.
Civ. Rights Law § 70-a(1)(a);
B. Plaintiff is entitled to “other compensatory damages” in an amount of not less than
$500,000 (or an amount to be determined at trial) as a result of Defendant bringing his
Federal SLAPP Suit for the purpose of harassment, intimidation, punishment, or to
maliciously inhibit Ms. Buhl’s free speech, petition, or association rights, as set forth in
N.Y. Civ. Rights Law § 70-a(1)(b);
C. Plaintiff is entitled to punitive damages because the Defendant brought his Federal SLAPP
Suit “for the sole purpose” of harassing, intimidating, punishing or maliciously inhibiting
Ms. Buhl’s free speech, petition, or association rights, under § 70-a(1)(c); and
D. Plaintiff is entitled to such other and further relief as may be just and proper.
Dated: March 24, 2022 Respectfully submitted,

New York, New York
Wesley J. Paul, Esq.
PAUL LAW GROUP, LLP

902 Broadway, 6th Floor
New York, NY 10010
Tel: (646) 278-9955
Fax: (646) 514-6829
wpaul@paullawgrp.com
Attorney for Plaintiff Teri Buhl

VERIFICATION
State of New York )

)
County of New York )
I, Wesley J. Paul, affirm under the penalty of perjury the following:
1. I am an attorney duly authorized to practice law in the courts of New York and the
founding partner at Paul Law Group, LLP;
2. I am the attorney-of-record for the Plaintiff in the above-captioned action and the
attorney-of-record for the Plaintiff in her defense of the Federal SLAPP Suit filed by
the Defendant;
3. I have read the annexed Verified Complaint, and know the contents thereof to be true
to my knowledge, except as to those matters there stated to be alleged upon
information and belief, and as to those matters I believe them to be true;
4. As to those matters stated upon information and belief, the grounds for my belief are
my intimate knowledge of the facts of this case and upon the Defendant’s own
admissions in the Federal SLAPP Suit;
5. I provide this verification in place of the Plaintiff to save her the time and expense
required to find a notary.
Wesley J. Paul

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Teri Buhl V Harvey J. Kesner Summons Complaint 3.24.22 NY State Court

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CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO.

INDEX NO. UNASSIGNED

SUPREME COURT OF THE STATE OF NEW YORK

TERI BUHL, an individual, Index No.: _______________________

-against- Plaintiff Designates New York

Dated: March 24, 2022

Wesley J. Paul, Esq.

PAUL LAW GROUP, LLP

SUPREME COURT OF THE STATE OF NEW YORK

TERI BUHL, an individual, Index No.: _______________________

HARVEY J. KESNER, an individual,

featured in the Frontline documentary film The Untouchables.

SMASHMOUTH INVESTIGATIVE JOURNALISM, (“News Site”), which is available at

3. In 2019, Defendant brought a factually unsupported and objectively frivolous defamation

are commonly referred to as a Strategic Lawsuit Against Public Participation (SLAPP); a

order is annexed as Exhibit A to this Verified Complaint.

evidence refuting” Kesner’s claims of actual malice.

and law,” as required under N.Y. Civil Rights Law § 70-a(1)(a).

was retaliatory in nature.

resides in the State of Florida.

JURISDICTION AND VENUE

Certain Facts Relevant to the Federal SLAPP Suit

criminal charges or regulatory enforcement actions.

numerous public companies Honig invested in.

concurrent legal representation of certain investors of these companies, including Honig.

were precisely those reported on by Buhl in her earlier reporting.

commentary both on Twitter and in her articles.

unsupported defamation actions against her in federal and state court.

Buhl changing or editing any of her original reporting.

Defendant’s Federal SLAPP Suit

behavior targeting Plaintiff’s freedom of speech.

evidence” to support any of his claims or allegations.

be reviewed again at summary judgment.

The District Court’s Findings on Summary Judgment

that Section 70-a did not apply in federal court.

litigation in this case.”

Inc., 51 N.Y.2d 531, 545 (1980).

the Federal Rules of Civil Procedure.”

FIRST CAUSE OF ACTION FOR

Complaint as if fully set forth herein.

suit. N.Y. Civ. Rights Law § 70-a.

Rights Law § 76-a (a)(1)-(2).

public as a whole, to ensure transparency in the securities industry.

10New York State court rules (22 NYCRR §202.5-b(d)(3)(i))

to Defendant’s Federal SLAPP Suit.

not be supported by a substantial argument for the extension, modification or reversal of

existing law” under § 70-a(1)(a).

exercise of speech, petition, or association rights under § 70-a(1)(b).

11New York State court rules (22 NYCRR §202.5-b(d)(3)(i))

DEMAND FOR RELIEF

WHEREFORE, Plaintiff respectfully demands judgment against Defendant Harvey

Civ. Rights Law § 70-a(1)(a);

B. Plaintiff is entitled to “other compensatory damages” in an amount of not less than

$500,000 (or an amount to be determined at trial) as a result of Defendant bringing his

Federal SLAPP Suit for the purpose of harassment, intimidation, punishment, or to

N.Y. Civ. Rights Law § 70-a(1)(b);

Dated: March 24, 2022 Respectfully submitted,

Wesley J. Paul, Esq.

PAUL LAW GROUP, LLP

12New York State court rules (22 NYCRR §202.5-b(d)(3)(i))

State of New York )

I, Wesley J. Paul, affirm under the penalty of perjury the following:

13New York State court rules (22 NYCRR §202.5-b(d)(3)(i))