Former FTC Commissioner Wright’s defamation suit against former students he dated can proceed, Virginia judge says

31 May 2024
By Ben Brody

A defamation lawsuit filed by former Federal Trade Commissioner Joshua Wright against two former students and colleagues who accused him of sexual misconduct can proceed, a Virginia state court judge ruled today.

Circuit Court Judge Patrick Blanch denied a so-called plea in bar by defendants Elyse Dorsey and Angela Landry, saying that Wright had alleged sufficient facts in his second amended complaint to justify the legal basis of his suit against them.

In ruling, Blanch said Dorsey, Landry and Wright had raised “very difficult” issues.

Wright and his firm Lodestar Law & Economics are suing the two women in the Circuit Court of Fairfax County for defamation in which they seek an injunction and $108 million in damages. He filed an amended complaint after another Virginia judge dismissed the first complaint because Wright hadn’t alleged specific defamatory statements.

Dorsey and Landry have said, in public statements and their filings in the case, that the relationships with Wright were improper because of the power imbalance between teacher and students, and later, as senior and subordinate colleagues. They’ve also said that Wright retaliated against them after the relationships ended. Some of these contentions spilled into public, including in an interview the two women did with Law360, a sister publication of MLex and part of the LexisNexis Group.

In their plea in bar, Dorsey and Landry had argued that Virginia law barred suits over their statements because they spoke honestly on matters of public concern. Wright, they said, was trying to punish them for speaking out about his behavior. They also said they had absolute immunity for testimony given to George Mason University — as they would in a court — in relation to a sexual harassment investigation against Wright. Until the middle of 2023, the former FTC commissioner was a professor at the university, where he taught the women when they were students.

In his opposition, Wright argued that the relationships were consensual and lasted long beyond the women’s student years. That gave Dorsey and Landry sufficient knowledge that they weren’t being truthful about their statements, according to Wright. Such knowledge would be an exemption to the limits on lawsuits for comments. He said that, far from retaliating, he actually aided Landry’s career after the end of their relationship, and that he broke up with Dorsey rather than the other way around, suggesting he couldn’t have retaliated for her move.

Power imbalance

The judge said there was “not even a question” that the power imbalance at the start of the relationships, and the fact that GMU is public, meant the two women’s comments on Wright’s using “his students as a dating pool” were on issues of public concern.

He called it “shocking” that Wright’s conduct did not violate university policy at the time.

Nonetheless, the judge came back repeatedly to the notion that Dorsey and Landry would have to know if they were lying. Because Wright’s allegations that the defendants were untruthful had to be accepted so as to judge their legal sufficiency, the two women couldn’t end the lawsuit via protections for comments on matters of public concern.

The judge agreed with Wright that the fact that the two women were in the relationships meant that, if a fact-finder agreed with Wright’s allegations, they would be sufficient to allege Dorsey and Landry knew or should have known they made false statements. That knowledge would be different from defamation involving third parties like media figures who might know first-hand what was true, Blanch said. Nor could Dorsey and Landry simply say they were expressing their feelings or experiences: even with “defective recollection,” they were responsible for what they should have known, he said.

Blanch emphasized he was not assessing the credibility of Wright’s allegations, only making a judgment about their legal sufficiency.

GMU probe

The denial of the plea in bar was the second for Dorsey and Landry. In February, Judge Brett Kassabian found that three of four statements attributed to Landry in Wright’s amended complaint contained a “provably false factual contention.” He rejected Landry’s argument that the statements were opinions lacking defamatory sting.

In response to demurrers, however, Wright had filed two amended complaints. On the question of knowledge of falsity, Blanch, who handled the case for scheduling reasons, adopted similar reasoning to Kassabian, who had denied the prior plea in bar.

Dorsey and Landry had launched the most recent effort to stop the suit in response to new state precedent and the incorporation of statements from the GMU investigation, according to their attorneys.

Wright had made leaps in logic, failed to support his allegations and confused mere ill will with the law’s ”high bar” for determining that they knew or should have known they were lying, they said in their filings.

The plea in bar also said the “quasi-judicial” aspects of the GMU probe — such as notice of a written complaint, the availability of attorney advisers and the use of federal guidelines that included provisions to protect the accused — meant they had absolute immunity for their statements as they would in a true judicial proceeding.

“This does look like a lawsuit,” said Meghan Gosline of Hancock Daniel, an attorney for Dorsey. She said that Dorsey and Landry “did the right thing” in speaking with GMU and, in Dorsey’s case, filing a Title IX complaint.

“There was no other avenue for them to use,” Gosline said. If Blanch didn’t find that such a forum entitled victims to absolute immunity, coming forward would mean those who speak with such investigations open themselves up to lawsuits like the one Wright filed.

Wright’s team countered that he had met the law’s standards on knowledge in his factual pleadings. In the filings, Wright, who was not present today, also disputed that comments on personal relationships are a matter of public concern and insisted that the GMU investigation did not offer enough protections to give Dorsey and Landry absolute immunity over their statements.

“This is an issue of adults — consenting adults,” said Wright lawyer Jason Greaves of the Binnall Law Group. Greaves conceded that the two relationships, which were concurrent with each other and Wright’s marriage, were “ill-advised.”

Greaves also called the contentions about absolute privilege in the GMU investigation a “hail Mary” because of the loss on the prior plea in bar.

In his ruling today, Blanch also disagreed with Dorsey and Landry about the nature of the GMU process. The case law on whether it qualified as quasi-judicial wasn’t “as ideally clear as we would like,” he had said earlier. Ultimately, though, he found that the investigation didn’t include “adequate safeguards” or sufficient redress against potential perjury and was not held by a state body like a regulator.

He said he was sympathetic to the difficulty of coming forward and the possibility that figures accused of misconduct would intimidate their victims if the latter’s statements were even theoretically actionable. In the final analysis, though, he found that the setup of the forum simply wouldn’t justify absolute immunity.

— With assistance from Khushita Vasant.