FILED: APPELLATE DIVISION - 1ST DEPT 04/22/2022 12:39 PM 2021-03036

NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/22/2022

New York Supreme Court

Appellate Division—First Department

LUKASZ GOTTWALD p/k/a Dr. Luke, KASZ MONEY, INC.

and PRESCRIPTION SONGS, LLC, Appellate
Plaintiffs-Appellants, Case No.:
– against – 2021-03036
KESHA ROSE SEBERT p/k/a Kesha,
Defendant-Respondent,
– and –
PEBE SEBERT, VECTOR MANAGEMENT, LLC and JACK ROVNER,
Defendants.
––––––––––––––––––––––––––––––
KESHA ROSE SEBERT p/k/a Kesha,
Counterclaim Plaintiff-Respondent,
– against –
LUKASZ GOTTWALD p/k/a Dr. Luke, KASZ MONEY, INC.
and PRESCRIPTION SONGS, LLC,
Counterclaim Defendants-Appellants,
– and –
DOES 1-25, inclusive,
Counterclaim Defendants.

OMNIBUS OPPOSITION TO MOTIONS FOR LEAVE TO FILE

AMICUS CURIAE BRIEFS IN SUPPORT OF RESPONDENT’S
MOTION FOR REARGUMENT OR LEAVE TO APPEAL

MITCHELL SILBERBERG & KNUPP LLP

Attorneys for Plaintiffs/Counterclaim
Defendants-Appellants
437 Madison Avenue, 25th Floor
New York, New York 10022
(212) 509-3900
ctl@msk.com
jmm@msk.com
New York County Clerk’s Index No. 653118/14
 TABLE OF CONTENTS
Page(s)

PRELIMINARY STATEMENT ............................................................................. 1

APPLICABLE LEGAL STANDARDS ................................................................... 4

ARGUMENT ............................................................................................................ 5

I. The Court Should Deny Leave To File Amicus Curiae Briefs On

Respondent’s Motion For Reargument Or Leave To Appeal ........................ 5
A. The Proposed Amicus Briefs Should Be Rejected Outright As
Procedurally Improper And Substantively Unhelpful On
Respondent’s Motion For Reargument ................................................ 6
B. The Proposed Amicus Briefs Should Be Rejected Outright On The
Issue Of Leave To Appeal Because They Duplicate Arguments
Made By Respondent ........................................................................... 8

II. None Of The Amici’s Proposed Briefs Offer Any New Information That
Would Be Of Assistance To The Court ........................................................ 10
A. Senator Hoylman ................................................................................ 10
B. Catherine Reddington and Maria Kím Grand .................................... 17
C. Media Amici ....................................................................................... 19
D. Legal Momentum, Equal Rights Advocates, and the National
Women’s Law Center......................................................................... 23

CONCLUSION ....................................................................................................... 24

i
 TABLE OF AUTHORITIES
Page(s)
CASES
210 E. 68th St. Corp. v. City Rent Agency,
34 N.Y.2d 552 (1974) ........................................................................................... 8

Anschutz Expl. Corp. v. Town of Dryden,

35 Misc. 3d 450 (Sup. Ct. Tompkins Cnty. 2012)................................................ 5

Blanchette v. Connecticut Gen. Ins. Corps.,

419 U.S. 102 (1974) ............................................................................................ 11

City of New York v. 2305-07 Third Ave., LLC,

142 A.D.3d 69 (1st Dep’t 2016) ........................................................................... 8

Columbus Monument Corp. v. City of Syracuse,

73 Misc. 3d 967 (Sup. Ct. Onondaga Cnty. 2021) .....................................5, 7, 17

Cruz v. Mt. Sinai Hosp.,

191 A.D.2d 325 (1st Dep’t 1993) ...................................................................8, 16

Dental Soc’y of State of N.Y. v. New York State Tax Comm’n,

1987 WL 272396 (Sup. Ct. Albany Cnty. Sept. 8, 1987)..................................... 7

Estate of Mayer,
110 Misc. 2d 346 (Sur. Ct. N.Y. Cnty. 1981) ................................................... 5, 9

Griffith v. Daily Beast,

2021 WL 2940950 (Sup. Ct. N.Y. Cnty. July 13, 2021) .................................... 20

Household & Com. Prod. Ass’n v. New York State Dep’t of Env’t
Conservation,
65 Misc. 3d 832 (Sup. Ct. Albany Cnty. 2019) ................................................ 5, 9

In re Doe,
19 S.W.3d 346 (Tex. 2000)................................................................................. 11

ii
 TABLE OF AUTHORITIES
(Continued)
Page(s)
In re Gleason (Michael Vee, Ltd.),
96 N.Y.2d 117 (2001) ......................................................................................... 19

Johnson v. Morris,
87 Wash. 2d 922 (1976) ...................................................................................... 12

Kesner v. Buhl,
2022 WL 718840 (S.D.N.Y. Mar. 10, 2022) ...................................................... 20

Kuzmich v. 50 Murray St. Acquisition LLC,

34 N.Y.3d 84 (2019) ........................................................................................... 11

Labor & Farm Party v. Elections Bd., State of Wis.,

117 Wis. 2d 351 (1984) ...................................................................................... 11

Lindberg v. Dow Jones & Co. Inc.,

2021 WL 3605621 (S.D.N.Y. Aug. 11, 2021).................................................... 20

Majewski v. Broadalbin-Perth Cent. Sch. Dist.,

91 N.Y.2d 577 (1998) ......................................................................................... 11

Mangine v. Keller,
182 A.D.2d 476 (1st Dep’t 1992) ....................................................................... 18

Martin v. City of New York,

152 N.Y.S. 8 (1st Dep’t 1915) .............................................................................. 9

Massa Constr., Inc. v. Meany,

2021 WL 4321438 (Sup. Ct. Ontario Cnty. May 13, 2021) ............................... 20

Matter of Daniel C.,

99 A.D.2d 35, aff’d, 63 N.Y.2d 927 (1984) ....................................................... 11

McKechnie v. Ortiz,
132 A.D.2d 472 (1st Dep’t 1987), aff’d, 72 N.Y.2d 969 (1988) ........................ 11

iii
 TABLE OF AUTHORITIES
(Continued)
Page(s)
New York State Senator Kruger v. Bloomberg,
1 Misc. 3d 192 (Sup. Ct. N.Y. Cnty. 2003) .......................................................... 5

Palin v. New York Times Co.,

510 F. Supp. 3d 21 (S.D.N.Y. 2020) .................................................................. 20

People v. Archer,
68 A.D.2d 441 (2d Dep’t 1979),
aff’d on other grounds, 49 N.Y.2d 978 (1980) ...............................................8, 16

Pittston Coal Grp. v. Sebben,

488 U.S. 105 (1988) ............................................................................................ 11

Price v. New York City Bd. of Educ.,

16 Misc. 3d 543 (Sup. Ct. N.Y. Cnty. 2007) ..............................................1, 8, 16

Regina Metro. Co., LLC v. New York State Div. of Hous. & Cmty.
Renewal,
35 N.Y.3d 332 (2020) ...................................................................................18, 19

Reus v. ETC Hous. Corp.,

-- N.Y.S.3d --, 2022 WL 617904 (3d Dep’t Mar. 3, 2022) ................................ 22

Reus v. ETC Hous. Corp.,

72 Misc. 3d 479 (Sup. Ct. Clinton Cnty. 2021) ............................................20, 22

Sackler v. Am. Broad. Companies,

71 Misc. 3d 693 (Sup. Ct. N.Y. Cnty. 2021) ................................................20, 22

Shahidullah v. Shankar,
2022 WL 286935 (D. Md. Jan. 31, 2022).....................................................20, 21

Veritas v. New York Times Co.,

2021 WL 2395290 (Sup. Ct. Westchester Cnty. Mar. 18, 2021) ....................... 20

iv
 TABLE OF AUTHORITIES
(Continued)
Page(s)
Voices for Choices v. Illinois Bell Tel. Co.,
339 F.3d 542 (7th Cir. 2003) .............................................................................. 12

William P. Pahl Equip. Corp. v. Kassis,

182 A.D.2d 22 (1st Dep’t 1992) .....................................................................6, 17

STATUTES
Civil Rights Law
§ 70-a .................................................................................................................. 15
§ 70-a(1) .............................................................................................................. 18
§ 76-a .................................................................................................................. 18

OTHER AUTHORITIES
22 NYCRR § 1250.4(f) .............................................................................................. 4

v
 PRELIMINARY STATEMENT1 2

When Plaintiffs-Appellants Lukasz Gottwald p/k/a Dr. Luke, Kasz Money,

Inc. and Prescription Songs, LLC (together, “Appellants”) appealed the trial

court’s ruling that the 2020 amendments to New York’s anti-SLAPP statute (the

“2020 Amendments”) were to be given retroactive effect, not a single interested

party attempted to submit an amicus brief. Clearly, any potential amicus either

believed that the very narrow issue on appeal—the potential retroactive impact of

the 2020 Amendments—was not important enough to warrant further input, or that

any amicus had nothing of substance to add beyond what was covered in the

parties’ thorough briefing. This Court then issued a well-reasoned decision

1
Defendant-Respondent Kesha Sebert is “Respondent.” Plaintiffs-Appellants Lukasz Gottwald
p/k/a Dr. Luke, Kasz Money, Inc. and Prescription Songs, LLC are “Appellants.” The Court’s
Order dated March 10, 2022 (NYSCEF Doc. No. 19) is the “Order.” Respondent’s Motion for
Reargument or Leave to Appeal (NYSCEF Doc. No. 20) is “Mot.” The Media Amici’s motion
for leave to file an amicus brief (NYSCEF Doc. No. 22) is “Media AmBr”; Catherine
Reddington and Maria Kím Grand’s motion for leave to file an amicus brief (NYSCEF Doc. No.
23) is “Grand AmBr”; Legal Momentum, Equal Rights Advocates, and the National Women’s
Law Center’s motion for leave to file an amicus brief (NYSCEF Doc. No. 24) is “Non-Profit
AmBr”; and New York State Senator Hoylman’s motion for leave to file an amicus brief
(NYSCEF Doc. No. 25) is “Hoylman AmBr.” Unless otherwise noted, all emphasis is added and
all citations and internal quotation marks are omitted.
2
In an effort to address overlapping issues raised therein with minimal repetition, Appellants
oppose all four proposed amici (Motion Nos. 1597, 1598, 1601, 1607) in this single Omnibus
Opposition. As the court recognized in Price v. New York City Bd. of Educ., 16 Misc. 3d 543
(Sup. Ct. N.Y. Cnty. 2007), “the amicus process has often become a burden.” Id. at 553. “As a
court should consider each application to submit an amicus before accepting or rejecting it, each
ill considered amicus application puts an unnecessary and unwarranted burden on the Court, as
such application must be read and addressed, if only to be rejected.” Id.

1
holding that the 2020 Amendments could not be deemed to have retroactive effect,

given the absence of the requisite clear indication that the legislature so intended

(the “Order”). See NYSCEF Doc. No. 19. Defendant-Respondent Kesha Rose

Sebert p/k/a Kesha (“Respondent”) is now asking this Court to reconsider the

Order, or otherwise grant leave to appeal to the Court of Appeals. And, despite

having never previously attempted to submit anything before, no less than four

separate groups now seek leave to submit amicus briefs—on a procedural motion,

no less.

There is simply no good reason to permit any of the four proposed amici to

file additional briefing in connection with Respondent’s motion. In large part,

each of the proposed briefs consist of improper attempts at placing inappropriate

political pressure on, and straining the resources of, a private tort plaintiff through

the piling on of voluminous “amicus” argumentation from prominent non-parties

and law firms with no knowledge of the underlying facts or legitimate interest in

the outcome of this lawsuit. Moreover, each of the amici submit proposed briefing

that largely repeats the very same arguments that Respondent proffered to the

Court on the underlying appeal, and is again arguing now in connection with the

pending motion. An amicus brief that simply restates existing arguments that have

already been fully briefed by the parties is neither beneficial nor helpful.

2
 The amici also vastly overstate the interests they purport to represent, some

even going so far as to contend that the Court’s Order will have a “profound”

impact on numerous third-parties. The truth is just the opposite. The only third-

parties that could even theoretically be impacted by the Court’s Order are parties to

pending litigations filed prior to November 2020, and which would otherwise fall

within the scope of the 2020 Amendments. (And of course, none of the defendants

to those pre-existing litigations could have been acting in reliance on the 2020

Amendments, as they did not exist.) That universe can be clearly defined, and is

not large. The third-parties that would be impacted by a reversal of the Order,

however, is a much larger pool. Finding the 2020 Amendments to be broadly

retroactive (without any limitation, temporal or otherwise) could potentially lead to

an avalanche of previously-resolved cases being reopened, or a tsunami of parties

asserting new claims for attorneys’ fees under the 2020 Amendments on lawsuits

that have long-ago been dismissed. In short, the “impact” of this Court’s Order is

narrow and defined; the impact of a reversal is what should truly pose a concern.

Some of the proposed amici, such as New York State Senator Brad

Hoylman, go even further, and attempt to submit entirely new material on the

record, despite new arguments or evidence being entirely inappropriate on a

motion for reargument. Worse, the only non-repetitive information presented in

3
Senator Hoylman’s proposed brief is his (unsworn) statements regarding his

personal beliefs regarding the 2020 Amendments, which, as a matter of law, is not

an appropriate indicator of legislative intent.

As explained in more detail herein, the Court should reject the attempts by

these four proposed amici to overcomplicate the straightforward issues before the

Court, and submit improper material that would only serve to further burden the

Court. Each of the motions for leave to submit amicus briefing should be denied.

APPLICABLE LEGAL STANDARDS

There are no specific rules promulgated in the First Department under

which to assess an application like the four proposed amici’s here, which seek

permission to file amicus curiae briefs in support of a motion for reargument or

leave to appeal to the Court of Appeals from an order of the Appellate Division not

finally determining this action. There are, however, general factors that courts in

this state consider when evaluating whether to reject attempts to file an amicus

brief, including those set forth in 22 NYCRR § 1250.4(f).

New York courts generally deny the filing of amicus curiae briefs, unless

the proposed amicus can demonstrate that the parties to the action are not “capable

of a full and adequate presentation of the relevant issues” and that “the proposed

amici could remedy this deficiency[,]” or that “the proposed briefs identify law or

4
arguments that might otherwise escape the court’s consideration or would

otherwise be of assistance to the court[.]” See Columbus Monument Corp. v. City

of Syracuse, 73 Misc. 3d 967, 971 (Sup. Ct. Onondaga Cnty. 2021); Anschutz Expl.

Corp. v. Town of Dryden, 35 Misc. 3d 450, 454 (Sup. Ct. Tompkins Cnty. 2012);

New York State Senator Kruger v. Bloomberg, 1 Misc. 3d 192, 198 (Sup. Ct. N.Y.

Cnty. 2003). In other words, “[w]here all possible points of view were represented

by counsel, the application to appear as amicus will be denied, as nothing would be

served by allowing additional appearances.” Kruger, 1 Misc. 3d at 196 (citing

Estate of Mayer, 110 Misc. 2d 346, 351 (Sur. Ct. N.Y. Cnty. 1981)); see also

Household & Com. Prod. Ass’n v. New York State Dep’t of Env’t Conservation, 65

Misc. 3d 832, 842 (Sup. Ct. Albany Cnty. 2019).

Pursuant to these standards, the four proposed amici curiae briefs are

improper, and this Court should deny permission to file such briefs on

Respondent’s motion for reargument or leave to appeal.

ARGUMENT

I. The Court Should Deny Leave To File Amicus Curiae Briefs On

Respondent’s Motion For Reargument Or Leave To Appeal

The Court should deny the filing of the four proposed amicus curiae briefs

on Respondent’s motion for reargument or leave to appeal to the Court of Appeals

because: (1) the proposed briefs are procedurally improper, substantively

5
unhelpful, and do not demonstrate that the Court overlooked or misapprehended

any points; and (2) the proposed briefs duplicate arguments made by Respondent

and do not demonstrate that there is anything “novel” or “of public importance”

implicated by the Court’s decision.

A. The Proposed Amicus Briefs Should Be Rejected Outright As

Procedurally Improper And Substantively Unhelpful On
Respondent’s Motion For Reargument

This Court should reject the four amici’s proposed briefs in support of

reargument outright. A motion for reargument “is addressed to the sound

discretion of the court” and “may be granted only upon a showing ‘that the court

overlooked or misapprehended the facts or the law or for some reason mistakenly

arrived at its earlier decision.’” William P. Pahl Equip. Corp. v. Kassis, 182

A.D.2d 22, 27 (1st Dep’t 1992) (citation omitted). “Reargument is not designed to

afford the unsuccessful party successive opportunities to reargue issues previously

decided or to present arguments different from those originally asserted.” Id.

(citations omitted).

First, an amicus brief is unnecessary and improper on a procedural motion

for reargument (or leave to appeal). This is not a substantive motion that will

determine whether the 2020 Amendments should apply prospectively or

retroactively; that determination was already made on the appeal itself. In other

6
words, the four proposed amici were already permitted to present their arguments

in connection with the substantive appeal, but did not do so. There is no need for

them to present those arguments on this procedural motion.3

Second, the amici’s claimed “interests” and the purported public policy

arguments they set forth in support of reargument are irrelevant. See, e.g., Media

AmBr (NYSCEF Doc. No. 22) at 1-2 & n.2; Grand AmBr (NYSCEF Doc. No. 23)

at 1, 5-10; Non-Profit AmBr (NYSCEF Doc. No. 24) at 4-5. The issue presented

by this appeal implicates nothing more than the standard application of well-settled

New York law. The pile-on of proposed amici are just an attempt at political

pressure. The interests of the proposed amici are simply not implicated by this

case. See, e.g., Columbus Monument Corp., 73 Misc. 3d at 971 (rejecting amicus

brief because, inter alia, amicus’s application was “solely to express support for

[the defendant’s] position”); see also Dental Soc’y of State of N.Y. v. New York

3
Although the Court of Appeals rules provide for the filing of amicus briefs on motions for
reargument or leave to appeal, there is no such rule in the appellate division. This is because,
when the Court of Appeals reviews a motion for reargument or leave to appeal, it does not know
anything about the case before it. This is in marked contrast with motions for reargument or
leave to appeal before the appellate division, where the court is already familiar with the case
and its own decision. Here, the First Department already considered everything before it and
rendered a unanimous decision, after fully considering most, if not all, that the proposed amici
point out in their proposed briefs. Accordingly, allowing the proposed amici briefs on the instant
motion for reargument or leave to appeal would merely be a waste of resources, as the First
Department already considered everything relevant before making their unanimous decision.

7
State Tax Comm’n, 1987 WL 272396, at *1 (Sup. Ct. Albany Cnty. Sept. 8, 1987)

(rejecting amicus whose “interest is partisan with petitioner’s”); 210 E. 68th St.

Corp. v. City Rent Agency, 34 N.Y.2d 552, 552 (1974). Their briefs merely rehash

theirs and Appellant’s failed arguments, and, as explained below, do not

demonstrate that the Court overlooked or misapprehended any points.

On balance, the factors weigh against granting the four amici’s request to

file briefs in support of Respondent’s motion for reargument, and their proposed

briefs should be rejected.4

B. The Proposed Amicus Briefs Should Be Rejected Outright On The

Issue Of Leave To Appeal Because They Duplicate Arguments
Made By Respondent

This Court should also reject the four amici’s proposed briefs in support of

leave to appeal. “[L]eaveworthy cases are ones in which ‘the issues are novel or of

public importance, present a conflict with prior decisions of this Court, or involve a

conflict among the departments of the Appellate Division.’” City of New York v.

4
The amici also continue to improperly rely on evidence outside of the record on this appeal.
See, e.g., Hoylman AmBr (NYSCEF Doc. No. 25) (relying on Affirmation of Cory D. Struble
and exhibits thereto). In the event that the Court accepts any of the four proposed briefs, it
should ignore the amici’s discussion of non-record evidence. See Price, 16 Misc. 3d at 553
(“inclusion of factual material” by an amicus “is almost always improper”); Cruz v. Mt. Sinai
Hosp., 191 A.D.2d 325, 326 (1st Dep’t 1993) (rejecting “evidence dehors the record and not that
which was adduced by defendants at trial”); People v. Archer, 68 A.D.2d 441, 449 (2d Dep’t
1979), aff’d on other grounds, 49 N.Y.2d 978 (1980) (“improper … to raise issues and cite
alleged errors … never raised or cited by appellant”).

8
2305-07 Third Ave., LLC, 142 A.D.3d 69, 75 (1st Dep’t 2016) (quoting 22

NYCRR § 500.22(b)(4)). Leave to appeal is particularly unwarranted where the

decision at issue “involves the consideration, not so much of general principles of

law, as of the rights of the parties under a very peculiar state of facts—a state of

facts not likely to be repeated. It is not of such a nature as to justify the allowance

of an appeal.” Martin v. City of New York, 152 N.Y.S. 8, 10 (1st Dep’t 1915). The

amici have not satisfied these standards.

The Court should further deny the filing of the proposed amicus briefs on

Respondent’s motion for leave to appeal because the briefs duplicate arguments

made by Respondent, and thus would not be of assistance to this Court. The

viewpoint of the amici is already being presented in the papers, and Respondent

should not be permitted to gain an advantage by repetitive briefing. New York

courts routinely reject amicus curiae briefs under such circumstances. See, e.g.,

Mayer, 110 Misc. 2d at 351 (denying leave to appear as an amicus where “[a]ll

possible points of view are represented by counsel in this proceeding, [and]

nothing will be served by allowing additional appearances.”); Household & Com.

Prod. Ass’n, 65 Misc. 3d at 842 (same). Here, the proposed amici briefs merely

rehash theirs and Appellant’s failed arguments, and, as explained below, do not

9
demonstrate that there is anything “novel” or “of public importance” implicated by

the Court’s decision here.

Again, the legal issue presented before this Court is narrow in scope and

concerns the application of well-settled New York law. The concerns of the

proposed amici are already well known and addressed by Respondent in her

voluminous papers. The proposed amici do everything to stir political interest, but

do nothing to advance any non-duplicative legal arguments on the present issue.

On balance, the factors weigh against granting the four amici’s request to

file briefs in support of Respondent’s motion for leave to appeal, and their

proposed briefs should be rejected.

II. None Of The Amici’s Proposed Briefs Offer Any New Information That
Would Be Of Assistance To The Court

A. Senator Hoylman

Senator Brad Hoylman, who was the Senate sponsor of the 2020

amendments to New York’s anti-SLAPP statute, also seeks leave to submit an

amicus brief. The crux of Senator Hoylman’s brief is his statement that, “[a]s co-

author and Senate sponsor of the 2020 amendments, Senator Hoylman intended for

the statute, as amended, to apply to all cases pending at the time of enactment, with

retroactive application.” Hoylman AmBr (NYSCEF Doc. No. 25) at 3. There are

a number of problems with this brief, and each one is fatal to the motion.
10
 First, Senator Hoylman’s personal intent is entirely irrelevant to the question

of the intent of the legislative body, as a whole. The Court of Appeals has

recognized that “the isolated statements of ... individual legislators ... cannot

establish legislative intent.” Kuzmich v. 50 Murray St. Acquisition LLC, 34 N.Y.3d

84, 94 (2019) (citation omitted); see also Majewski v. Broadalbin-Perth Cent. Sch.

Dist., 91 N.Y.2d 577, 586-87 (1998) (statements of individual legislators “simply

indicate that various people had various views”). This is doubly-true for “post-

enactment statements,” which, even if given by “one who sponsored the law in

question, are irrelevant as to the law’s meaning and intent.” McKechnie v. Ortiz,

132 A.D.2d 472, 475 (1st Dep’t 1987), aff’d, 72 N.Y.2d 969 (1988).5

5
See also Pittston Coal Grp. v. Sebben, 488 U.S. 105, 118-19 (1988) (“The Secretary and private
petitioners cite favorable postenactment statements by key sponsors of the BLBRA. Since such
statements cannot possibly have informed the vote of the legislators who earlier enacted the law,
there is no more basis for considering them than there is to conduct postenactment polls of the
original legislators.”); Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 132 (1974)
(“post-passage remarks of legislators, however explicit, cannot serve to change the legislative
intent of Congress expressed before the Act’s passage”); Matter of Daniel C., 99 A.D.2d 35, 41
(2d Dep’t), aff’d, 63 N.Y.2d 927 (1984) (“Regardless of the contents of any memorandum
written by a drafter of legislation, the legislation stands for what its words manifest and not the
inner thoughts of a draftsman. This is especially true because ‘there is no necessary correlation
between what the draftsman of the text of the bill understands it to mean and what members of
the enacting legislature understood” (citations omitted)); In re Doe, 19 S.W.3d 346, 352 (Tex.
2000) (“[C]ourts construing statutory language should give little weight to post-enactment
statements by legislators. Explanations produced, after the fact, by individual legislators are not
statutory history, and can provide little guidance as to what the legislature collectively intended.”
(citations omitted)); Labor & Farm Party v. Elections Bd., State of Wis., 117 Wis. 2d 351, 356
(1984) (“It is inappropriate ... for a court to rely on the statements of a member of the legislature
as to what the legislature intended when enacting a statute.”).

11
 In addition to being irrelevant, efforts by a sitting legislator to influence the

judicial interpretation of a statute, after it has been enacted, are highly problematic

in that they threaten to undermine fundamental separation of powers principles.

See, e.g., Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542, 544–45 (7th

Cir. 2003) (“An appeal should therefore not resemble a congressional hearing. …

The fact that powerful public officials or business or labor organizations support or

oppose an appeal is a datum that is irrelevant to judicial decision making, except in

a few cases, of which this not one, in which the position of a nonparty has legal

significance.”); Johnson v. Morris, 87 Wash. 2d 922, 926 (1976) (“Petitioner cites

no authority for the proposition that the legislature is empowered to retroactively

‘clarify’ an existing statute, when that clarification contravenes the construction

placed upon that statute by this court. Such a proposition is disturbing in that it

would effectively be giving license to the legislature to overrule this court, raising

separation of powers problems.”).

No single senator has the power to legislate by fiat, and particularly not after

the enactment of a law. Senator Hoylman has no more power to dictate the Court’s

reasoning than a single judge has to compel legislative amendments. If the

legislature believes that the courts have misinterpreted a statute, the appropriate

12
course of action is to amend that legislation, not to seek to influence the judicial

process through amicus filings.

Second, notwithstanding Senator Hoylman’s assertions in his proposed

amicus brief, the actual anti-SLAPP bill, which Senator Hoylman drafted, contains

no language indicating retroactive intent. This stands in stark contrast with other

recent bills that Senator Hoylman sponsored, in which the clear language expressly

states that retroactive application is intended. See, e.g., 2021 Senate Bill S692

(Jan. 6, 2021)6 (“This act shall take effect immediately and shall apply to all

pending and future proceedings.”); 2019 Senate Bill S15 (Jan. 9, 2019)7 (“This act

shall take effect immediately and shall apply to all pending and future

proceedings.”); 2019 Senate Bill S6385 (June 7, 2019)8 (“This act shall take effect

immediately and shall be deemed to have been in full force and effect on and after

April 1, 2019.”); 2018 Senate Bill S7780 (Feb. 22, 2018)9 (“An act relating to

granting retroactive eligibility to apply for enhanced Tier 3 status to former New

6
Available at https://www.nysenate.gov/legislation/bills/2021/s692.
7
Available at https://www.nysenate.gov/legislation/bills/2019/s15.
8
Available at https://www.nysenate.gov/legislation/bills/2019/s6385.
9
Available at https://www.nysenate.gov/legislation/bills/2017/s7780.

13
York City police officer Mark Rivera.”); 2017 Senate Bill S94 (Jan. 4, 2017)10

(“This act shall take effect immediately and shall apply to all pending and future

proceedings.”); 2015 Senate Bill S498 (Jan. 7, 2015)11 (“This act shall take effect

immediately and shall apply to all pending and future proceedings.”). Clearly,

Senator Hoylman knows how to draft a statute that clearly reflects retroactive

intent. Thus, if he indeed intended the statute to apply retroactively, it appears that

he chose not to include language to that effect in recognition that the legislature, as

a whole, had no such intent.

Third, although Senator Hoylman’s brief states that “[n]o counsel for any

party authored this brief in whole or part” (Hoylman AmBr (NYSCEF Doc. No.

25) at 1 n.1), this does not tell the whole story. Senator Hoylman’s counsel on this

motion—Ellyde Thompson and Cory Struble of Quinn Emanuel—are

simultaneously counsel for Mark Geragos, in a defamation action in New York

County Supreme Court commenced by the Appellant in this case, Mr. Gottwald.12

10
Available at https://www.nysenate.gov/legislation/bills/2017/S94.
11
Available at https://www.nysenate.gov/legislation/bills/2015/s498/amendment/original.
12
Gottwald v. Geragos, pending in the Supreme Court of the State of New York, New York
County, Index. No. 162075/2014.

14
Mr. Geragos is a disgraced13 California attorney who previously represented the

Respondent, Ms. Sebert, including in this case. In 2014, while Mr. Geragos was

representing Respondent, he falsely accused Mr. Gottwald of raping the world

famous pop star, Lady Gaga, an outrageous claim that Lady Gaga immediately

denied. In his ongoing litigation against Mr. Gottwald, Mr. Geragos has attempted

to avail himself of the 2020 amendments to the anti-SLAPP law by asserting a

counterclaim against Mr. Gottwald under Civil Rights Law § 70-a, despite the

frivolous nature of his defense.

The fact that Mr. Geragos’s attorneys in that related litigation are

simultaneously representing amicus herein speaks volumes regarding on whose

behalf their brief was actually filed. At the very least, this casts substantial doubt

on the credibility of this brief, and whether the “interests” of counsel are

sufficiently separate from those of Respondent.

13
According to press reports, Mr. Geragos has been accused of misusing millions of dollars in
settlement funds which were allocated for victims of the Armenian Genocide, and was an alleged
un-indicted co-conspirator of Michael Avenatti in the criminal complaint against Avenatti for
alleged extortion of Nike. See https://www.latimes.com/california/story/2022-04-05/california-
state-bar-will-investigate-armenian-genocide-victim-payments;
https://www.latimes.com/california/story/2022-03-23/fraud-los-angeles-cheated-armenian-
genocide-victims; https://www.latimes.com/california/story/2022-03-23/how-why-reported-
armenian-genocide-story; https://www.latimes.com/local/lanow/la-me-mark-geragos-michael-
avenatti-qa-20190326-story.html.

15
 Fourth, aside from the irrelevant references to Senator Hoylman’s (unstated)

personal intent, the brief either presents arguments that Respondent has already

fully briefed to this Court on the underlying appeal at issue, or is briefing now in

connection with her motion for reargument or leave to appeal. The Senator’s

arguments regarding the meaning of caselaw and legislative history of the 1992

and 2020 statutes are duplicative and not helpful to the Court. Compare Hoylman

AmBr (NYSCEF Doc. No. 25) at 5-12, with Mot. (NYSCEF Doc. No. 20) at 8-10,

17-34. And he has no personal knowledge of the intent of the legislature, or any

individual legislator, with respect to the 1992 statute.

Finally, Senator Hoylman’s brief attaches numerous exhibits, which were

not part of the record on appeal. Such documents are not appropriate for

consideration, either on a motion for reconsideration or a motion for leave to

appeal; and they certainly are not appropriate to be submitted as part of an amicus

brief. See Price, 16 Misc. 3d at 553 (“inclusion of factual material” by an amicus

“is almost always improper”); Cruz, 191 A.D.2d at 326 (rejecting “evidence dehors

the record and not that which was adduced by defendants at trial”); Archer, 68

A.D.2d at 449 (“improper … to raise issues and cite alleged errors … never raised

or cited by appellant”).

16
 B. Catherine Reddington and Maria Kím Grand

Catherine Reddington and Maria Kim Grand (the “Grand Amici”) seek leave

to file an amicus brief in furtherance of their individual interests in pending

litigations in which they are defendants. The Court is aware of both pending cases,

as Respondent cited each in her briefing on the underlying appeal at issue. See

Respondent Br. (NYSCEF Doc. No. 8) at 13, 42, 43 (citing Coleman v. Grand, 523

F. Supp. 3d 244 (S.D.N.Y. 2021)); id. at 14, 42, 44, 55, 56 (citing Goldman v.

Reddington, 2021 WL 4099462 (E.D.N.Y. Sept. 9, 2021)). No doubt, the Grand

Amici would prefer the Court reverse its Order, as doing so would benefit them in

their own pending litigation. But the self-interested views of individual parties to

pending litigation are not helpful to the Court in assessing the narrow legal issue

before the Court. More importantly, however, the Grand Amici’s proposed Amicus

brief either presents arguments that Respondent has already fully briefed to this

Court on the underlying appeal at issue, or is briefing now in connection with her

motion for reargument or leave to appeal. Neither is a proper purpose of an amicus

brief. See William P. Pahl Equip. Corp., 182 A.D.2d at 27 (“Reargument is not

designed to afford the unsuccessful party successive opportunities to reargue issues

previously decided”); Columbus Monument Corp., 73 Misc. 3d at 974 (rejecting

amicus brief where “[t]here are no unique legal issues raised by movant, which

17
are related to the matter at hand, to support the granting of amicus curiae status.”

(emphasis in original)).

The Grand Amici first present a series of arguments purportedly supporting

reargument: (i) the alleged “remedial” nature of the 2020 Amendments; (ii) the

proper retroactivity analysis to be employed, and the proper interpretation of

Regina Metro. Co., LLC v. New York State Div. of Hous. & Cmty. Renewal,

35 N.Y.3d 332 (2020) (“Regina”); (iii) the concept of “vested rights”; (iv) the

drafting history of the 2020 Amendments; and (v) the pre-existing use of the

phrase “commenced or continued” in section 70-a(1) of the Civil Rights Law (but

not in section 76-a). See Grand AmBr (NYSCEF Doc. No. 23) at 5-10.

Respondent, however, fully presented each of these arguments on the underlying

appeal. See, e.g., Respondent Br. (NYSCEF Doc. No. 8) at 14-19 (addressing

“remedial” argument and retroactivity analysis standards); id. at 37 n.7 (addressing

Regina); id. at 28-32 (addressing “vested rights”); id. at 19-22 (addressing drafting

history); id. at 47-49 (addressing “commenced or continued” language). Thus

none of these arguments are properly presented on a motion for reargument,

regardless of whether they are raised by Respondent or by the amici. See Mangine

v. Keller, 182 A.D.2d 476, 477 (1st Dep’t 1992) (motion for reargument not

18
intended “to serve as a vehicle to permit the unsuccessful party to argue once again

the very questions previously decided”).

With respect to Respondent’s request for leave to appeal, the Grand Amici

argue three points: (i) their belief that the retroactivity question might impact other

pending cases; (ii) the theoretical possibility of inconsistent verdicts; and (iii) that

the question presented is “novel,” because the amici claim there is a conflict

between Regina and a prior case, In re Gleason (Michael Vee, Ltd.), 96 N.Y.2d

117 (2001). See Grand AmBr (NYSCEF Doc. No. 23) at 11-14. But these points

are just variations of the same arguments Respondent herself asserts in her motion

for leave to appeal. See Mot. (NYSCEF Doc. No. 20) at 16 (purported impact on

other “defendants in pending cases”); id. at 18-21 (purportedly inconsistent

interpretations); id. at 2, 15, 17 (purportedly “novel” issue). There is no utility

whatsoever in permitting the Grand Amici to simply rehash the legal arguments

already before the Court.

C. Media Amici

A number of “prominent media companies, press organizations, and

publishers” (the “Media Amici”) also seek leave to submit an amicus brief, but that

brief too should be rejected. Media AmBr (NYSCEF Doc. No. 22) at 1-2. Like

the Grand Amici, the interest of the Media Amici appears to be limited to the

19
impact of the Court’s Order on a small number of cases that were either recently

decided, or which remain pending. While the Media Amici describe the impact of

the Order as “profound,” the reality is much more limited. After all, the sole issue

before the Court—retroactivity—could only even theoretically impact defamation

lawsuits in New York that were filed before November 2020, but that remained

pending as of that time. It should therefore not be difficult for the Media Amici to

determine the full universe of cases involving media defendants even potentially

impacted by the Order. (Presumably, every defamation defendant that could

potentially rely on the 2020 Amendments would have raised them already, given

that they have been law for 18 months at this point.) The Media Amici, however,

identify less than 10 such cases.14 In other words, the narrow issue of retroactive

14
The only cases identified in the Media Amici’s proposed brief that readily appear to involve
“media” defendants (in the broadest sense) are: Palin v. New York Times Co., 510 F. Supp. 3d 21
(S.D.N.Y. 2020) [filed June 27, 2017]; Sackler v. Am. Broad. Companies, 71 Misc. 3d 693 (Sup.
Ct. N.Y. Cnty. 2021) [filed May 31, 2019]; Veritas v. New York Times Co., 2021 WL 2395290
(Sup. Ct. Westchester Cnty. Mar. 18, 2021) [filed November 2, 2020]; Reus v. ETC Hous. Corp.,
72 Misc. 3d 479 (Sup. Ct. Clinton Cnty. 2021) [filed November 2018]; Massa Constr., Inc. v.
Meany, 2021 WL 4321438 (Sup. Ct. Ontario Cnty. May 13, 2021) [filed February 5, 2020];
Griffith v. Daily Beast, 2021 WL 2940950 (Sup. Ct. N.Y. Cnty. July 13, 2021) [filed January 23,
2020]; Lindberg v. Dow Jones & Co. Inc., 2021 WL 3605621 (S.D.N.Y. Aug. 11, 2021) [filed
October 20, 2020]; Kesner v. Buhl, 2022 WL 718840 (S.D.N.Y. Mar. 10, 2022) [originally filed
May 31, 2019, and transferred to New York on May 4, 2020]. None of these cases present the
same six-year period of potential retroactivity that pertains to the case before the Court; indeed,
most of these cases were filed less than a year before the 2020 Amendments. The Media Amici
also claim that Shahidullah v. Shankar, 2022 WL 286935 (D. Md. Jan. 31, 2022), “appl[ied]
New York’s anti-SLAPP statute retroactively[.]” Media AmBr (NYSCEF Doc. No. 22) at 5 n.3.
20
application of the 2020 Amendments does not impact the media or the press as a

whole; at most, it could only theoretically impact the small number of individual

defendants in pending (or recently-decided) litigations.

Regardless, the arguments presented by the Media Amici are either

duplicative of arguments presented by Respondent herself, or pertain in no way to

the purported interests or expertise of the Media Amici. The initial portion of the

Media Amici’s proposed brief simply characterizes the history of the 2020

Amendments—as does Respondent’s own motion. Compare Media AmBr

(NYSCEF Doc. No. 22) at 2-5, with Mot. (NYSCEF Doc. No. 20) at 8-10. There

is little benefit in presenting the Court with multiple characterizations of legislative

history, when the Court surely interpreted that legislative history for itself.

The Media Amici next argue (as noted above) that the Court’s Order

purportedly will have “profound” effects on media organizations. See Media

AmBr (NYSCEF Doc. No. 22) at 7-10. This second argument of the Media

Amici’s proposed brief actually appears to focus on the impact of the 2020

Amendments generally (which is not even at issue), as opposed to anything truly

specific to the narrow issue of retroactivity. Regardless, Respondent already

That action, however, was filed on December 12, 2020, after the 2020 Amendments became
effective. See Shahidullah, Case No. 20-CV-3602 (D. Md.), Dkt. No. 1.

21
makes the same argument in her own briefing. See Mot. (NYSCEF Doc. No. 20)

at 16.

The Media Amici then raise (again) conflicting decisions from lower courts,

which (again) has already been argued by Respondent. Compare Media AmBr

(NYSCEF Doc. No. 22) at 11-16, with Mot. (NYSCEF Doc. No. 20) at 15-22.

What is notable about the Media Amici’s proposed brief, however, is that it focuses

on cases where there should be no conflict. Two of those cases are pending in

New York County Supreme Court, and are thus bound to follow the Order. See

Media AmBr (NYSCEF Doc. No. 22) at 11-14 (citing Griffith v. Daily Beast,

Index No. 100114/2020 (Sup. Ct. N.Y. Cnty.) and Sackler v. Am. Broad.

Companies, Index No. 155513/2019 (Sup. Ct. N.Y. Cnty.)). The third case, Reus

v. ETC Hous. Corp., 72 Misc. 3d 479 (Sup. Ct. Clinton Cnty. 2021), is also raised

in Respondent’s motion, and mentioned retroactivity only in a footnote, without

independent analysis. Id. at 485 n.1. While that decision was recently affirmed,

the Third Department’s decision did not even mention retroactivity, or even the

anti-SLAPP statute generally. See Reus v. ETC Hous. Corp., -- N.Y.S.3d --, 2022

WL 617904 (3d Dep’t Mar. 3, 2022). And the Media Amici’s purported concern

that federal courts will not know what authority to follow is not unique to this case.

The same “concern” could be raised with respect to every state-law issue that has

22
not been specifically addressed by the Court of Appeals, yet federal courts are able

to function just fine even without such direct guidance from New York’s highest

court.

The Media Amici’s final argument is particularly objectionable. The Media

Amici purported to describe the procedural posture of this very case, to which none

of them are parties. See Media AmBr (NYSCEF Doc. No. 22) at 16. The Court

does not need an amicus to explain the procedural posture of this case, and the

Media Amici certainly have no outside expertise to offer on that topic.

D. Legal Momentum, Equal Rights Advocates, and the National

Women’s Law Center

Legal Momentum, Equal Rights Advocates, and the National Women’s Law

Center also seek leave to file an amici brief (the “Non-Profit Amici”). This brief

should also be rejected. Like the Media Amici, the Non-Profit Amici stress the

importance of the 2020 amendments to the anti-SLAPP law in general. But the

virtue of the anti-SLAPP amendments in general is not at issue. All that is at issue

on this appeal is whether those amendments may properly be deemed to apply

retroactively to this case. That the statute was enacted for a beneficial purpose

bears in no way on that issue.

Aside from this irrelevant discussion, the Non-Profit Amici simply rehash

legal arguments regarding the interpretation of the legislation and its history, and
23
the case law concerning retroactivity. A ll of these arg uments can be, a nd have

been, made by Respondent, and the Non-Profit Amici's duplicative rec itatio n

thereof is not he lpfu l to the Court. Compare Non-Profit AmBr (NYSCEF Doc.

No. 24) at 15-20, with Mot. (NYSCEF Doc. No. 20) at 8- 10, 17-34.

CONCLUS ION

The Court shou ld deny all fou r proposed amici's motions for permiss ion to

file amicus curiae briefs in support of Respondent' s motion fo r reargument or

leave to appeal.

Dated: New York, New York MITCHELL SILBERBERG & KNUPP LLP
Apri l 22, 2022

By: ~ ~ ~ ~ ~ ~ _ . L . . ~ ~ ~ : , , : = : = --
Christine Lepera (ct l@ sk .com)
Jeffrey M. Mov it Umm@ msk.com)
437 Madison A ve., 25 th Floor
New York, New York I 0022-7001
Te lephone: (212) 509-3900
Facsimile: (2 12) 509-7239

Attorneys for Plainlijj~-Appellanls Lukas:::

Golfwald p/k/a Dr. Luke, Kasz Money, inc.
and Prescription Songs, LLC

24