# Appendix — Tucker v. Fischbein

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 815

## Text

Volume I: la-298a 2)

no.__ Of-[7/¥

In the Supreme Court of the
United States

May Term 2001

C. DELORES TUCKER and WILLIAM TUCKER,
her husband,

Petitioners
VS.

RICHARD FISCHBEIN; TIME, INC.;
BELINDA LUSCOMBE; NEWSWEEK MAGAZINE,
and JOHNNIE ROBERTS,

Respondents

APPENDIX
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT

ANGINO & ROVNER, P.C.
RICHARD C. ANGINO

I.D. No. 07140

Counsel for Petitioners

C. De cker and as

Willa Tugker- ee
4503 North Front Street TEUEI VED
Harrisburg, PA 17110 oe
(717) 238-6791 MAY | 5 dul

Clare Printing, Box 100, Sayre, PA] 18840-1570) 858-3a44% |

APPENDIX

Volume I: pp. 1la-298a
Order of the United States Court of Appeals for the Third

Circuit dated February 14,2001 ............ la
Opinion and Order of the United States Court of Appeals

for the Third Circuit dated January9,2001 ...... 3a
Trial Court Opinion and Order for the Eastern District of

Pennsylvania dated February9,1999.......... 33a
Commonniet ied Faby Si, 1007 2 ee 48a
I i a ae, 63a
The Source Magazine ad, October 1995, pp. 20-21 ..... 10la
fey Oh, 2007 Mowe Mameee . 6 5 te ke 104a
August 1, 1997 Los Angeles Times article .......... 108a
August 5, 1997 New York Daily Newsarticle ........ 110a
August 4, 1997 USA Today article .............. 1l3a
August 2, 1997 The Baltimore Sunarticle .......... 1l4a
August 2, 1997 The Washington Post article ......... 1l6a
September 1, 1907 Jet article ................. 118a
August 5, 1997 The Philadelphia Tribune article ...... 120a
August 6, 1997 Philadelphia Daily News article ....... 12la
August 11, 1997 Music News of the World article ...... 123a
August 2, 1997 Philadelphia Daily News article ....... 127a
August 13, 1997 Philadelphia Weekly article. ........ 130a
Johnnie Roberts’ notes of conversation with Richard Angino 132a
Richard Angino’s memo dated December 11,1997 ..... 144a

Deposition of Transcript of Johnnie Roberts dated July 1,
RO ak a ea a a 147a

APPENDIX
Volume II: pp. 299a-590a
Deposition of Transcript of Johnnie Roberts dated July 1,

Ee Oe er aa a ee 147a
September 1, 1997 Newsweek article............. 383a
Amended Complaint filed August 27,1997 ......... 384a
lke ck he bw 44-0548 6 0 Od 40la
September 22, 1997 Time article ............... 443a
Deposition Transcript of Richard C. Angino, dated July 22,

De Mek ee WS. dad oe ee 8 ew ae we 444a
Wesley G. Pippert’s CV and reports dated September 16

TE sak 6a wp" ess Oo v8 4 2 38 4's 8 569a

Deni Elliot’s CV and reports of September 16, 1998, and
IE Prominent gangsta rap groups are described as “pre -
sent[ing] tales of gangs and violence,” “offer[ing] hard hiting depiction of crack-

ats and murderous

cocaine related crime,” and featuring “a marriage of languid
gang mentality.” Id.

6a
Appendix

1997, Mrs. Tucker and her husband, William Tucker, filed a com-
plaint in the United States District Court for the Eastern District of
Pennsylvania (Tucker II), alleging that the lyrics in two songs by
deceased rapper Tupac Shakur on an album called All Eyez On Me
had attacked Mrs. Tucker using “sexually explicit messages, offen-
sively coarse language and lewd and indecent words” and that she
had received death threats because of her activities. Named as
defendants were Shakur's estate; Interscope, which had produced
Shakur’s album; and four other companies, including TimeWarner,
Inc., which allegedly maintained a financial interest in Interscope.
Asserting claims for intentional infliction of emotional distress, slan-
der, and invasion of privacy, Mrs. Tucker sought damages for medical
expenses and mental injury. In paragraph 50, the Complaint alleged
that her “husband, William Tucker has as a result of his wife’s
injuries, suffered a loss of advice, companionship and consortium”
Tucker II Compl. ¢ 50 (emphasis added), App. at 23. Loss of
consortium means loss by one spouse of “whatever of aid, assistance,
comfort, and society [one spouse] would be expected to render or
to bestow upon [the other].” Hopkins v. Blanco, 302 A.2d 855, 856
(Pa. Super. 1973), aff'd, 320 A.2d 139 (Pa. 1974). Loss of consortium
includes, but is not limited to, “impairment of capacity for sexual
intercourse.” Restatement (Second) of Torts § 693(1) (1977); see also
W. Page Keeton, Prosser and Keeton on Torts 931 (5th ed. 1984).

The filing of the Tuckers’ lawsuit spawned numerous articles
that focused on the “loss of consortium” claim. Among them was an
article printed by the Philadelphia Daily News on August 2, 1997,
in which the lawyer representing Shakur's estate, Richard Fischbein,
was quoted as saying: “[I]t is hard for me to conceive how these lyrics
could destroy her sex life . . . but we can only wait for the proof to
be revealed in court.” App. at 30. Following the Philadelphia Daily
News article, wire and news services throughout the country picked
up the story, and many of them quoted or paraphrased Fischbein’s
comment interpreting the Tuckers’ claim as seeking compensation
for damage to their sex life.

On August 20, 1997, Newsweek reporter Johnnie L. Roberts
telephoned the Tuckers’ attorney, Richard C. Angino, regarding an

ee et ee ee

7a
Appendix

upcoming Newsweek story about the lawsuit. According to Angino,
he informed Roberts that, although loss of consortium could mean
loss of sex in some cases, it did not mean that in this case. See App.
at 645. Roberts disputes Angino’s account of this conversation.

On August 26, 1997, Roberts interviewed Fischbein in connec-
| tion with the story. Roberts’s notes show that Fischbein told him that
one of the claims in the Tuckers’ complaint involved interference
with sexual relations. In addition to speaking with Fischbein and
Angino, Roberts read the complaint and looked up the definition of
consortium before writing his article. On September 1, 1997,
Newsweek printed an article written by Roberts and entitled “Grab-
bing at a Dead Star.” The article stated: “Even C. Delores Tucker,
the gangsta rap foe, wants a chunk [of Tupac Shakur’s estate]. She
and her husband claim that a lyrical attack by Tupac iced their sex
life.” App. at 90. Although the article did not mention the conversa-
tion between Roberts and Angino, it did quote Fischbein as com-
menting as follows regarding the loss-of-consortium claim: “I can’t
wait to hear the testimony on that subject.” Id.

The next day, the Tuckers filed an amended complaint in
Tucker II (the “First Amended Complaint”), which included an
additional claim against Fischbein for making “false and misleading
statements regarding the claim herein, through published state-
ments that C. Delores Tucker filed suit because of a ‘loss of her sex
life.’” App. at 1711. The amended complaint was served on
Fischbein and the other defendants, including TimeWarner, Inc.

On September 12, after he was served with the First Amended
Complaint, Fischbein gave an interview to Time reporter Belinda
Luscombe concerning the Tuckers’ case. Luscombe stated in depo-
sition that Fischbein had told her that “this was a lawsuit about
emotional distress and one of the things affected were [sic] her
sexual relationship with her husband.” See App. at 2197. Time
printed Luscombe’s article, entitled “Shakur Booty,” on September
15, 1997. See App. at 34. Although the article did not quote
Fischbein, Luscombe admitted in her deposition that she based the
article solely on her interview with Fischbein and on other articles,

8a
Appendix

most of which appear to be derived from Fischbein’s initial com-
ments to the press in early August.

On October 1, 1997, the Tuckers filed the complaint that is the
subject of this action (Tucker III). The complaint alleges that
Fischbein, Time, Inc. (“Time”), and Newsweek, Inc. (“Newsweek”)
defamed the Tuckers by characterizing their loss of consortium claim
in Tucker II as a claim for loss of sexual relations. Specifically, the
Tuckers maintain that Mrs. Tucker's reputation as a moral leader was
compromised when Time and Newsweek printed Fischbein’s char-
acterization of her suit as one to recover for the lyrics’ effect on her
sex life.

Time, Newsweek, and Fischbein each moved for summary
judgment, and the District Court granted their motions, holding that
the statements in question were not capable of a defamatory mean-
ing and, alternatively, that the Tuckers, who conceded that they were
“public figures,” could not adequately prove that the defendants
acted with “actual malice.” Although the defendants had also con-
tended that the Tuckers could not prove that the statements were
false, the Court made no explicit holding on that question. This
appeal followed.

I.

“[A]lthough a defamation suit has profound First Amendment
implications, it is fundamentally a state cause of action.” McDowell
v. Paiewonsky, 769 F.2d 942, 945 (3d Cir. 1985). In this appeal, our
first duty is to resolve a question of state law, i.e., whether the Tuckers
adduced sufficient evidence to show that the statements in question
were defamatory under Pennsylvania law. If the plaintiffs satisfied
that burden, we must then determine if the First Amendment
precludes recovery. See Steaks Unlimited, Inc. v. Deaner, 623 F.2d
264, 270 (3d Cir. 1980).

Under Pennsylvania law, a defamation plaintiff bears the bur-
den to show:

(1) The defamatory character of the communication.

(2) Its publication by the defendant.

9a
Appendix

(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory
meaning.
(5) The understanding by the recipient of it as intended
to be applied to the plaintiff.
42 Pa. Cons. Stat. Ann. § 8343(a) (1998). Under Pennsylvania law,
the court must decide at the outset whether a statement is capable
of defamatory meaning. See Thomas Merton Ctr. v. Rockwell Int'l
Corp., 442 A.2d 213, 215-16 (Pa. 1981). If the court determines that
the statement is capable of a defamatory meaning, the jury must then
decide whether the recipient actually understood the statement to
be defamatory. See Corabi v. Curtis Publ’g Co., 273 A.2d 899, 904
(Pa. 1971).

A statement is defamatory if “it tends so to harm the reputation
of another as to lower him in the estimation of the community or to
deter third persons from associating or dealing with him.” Id. (citing
Birl v. Philadelphia Elec. Co., 167 A.2d 472, 476 (Pa. 1960)). Accord
Restatement (Second) of Torts § 559. A court must examine the
meaning of the allegedly defamatory statement in context, see Beck-
man v. Dunn, 419 A.2d 583, 586 (Pa. Super. 1981), and must evaluate
“the effect [it] is fairly calculated to produce, the impression it would
naturally engender, in the minds of the average persons among
whom it is intended to circulate.” Corabi, 273 A.2d at 907. While it
is not enough that a statement is embarrassing or annoying, see
Bogash v. Elkins, 176 A.2d 677, 678 (Pa. 1962), a court should not
dismiss a complaint unless it is “clear that the publication is incapable
of a defamatory meaning.” Vitteck v. Washington Broad. Co., 389 A.
2d 1197, 1200-01 (Pa. Super. 1978).

The statements at issue here were the following:

(1) The statement in Time’s September 22, 1997, article,

“Shakur Booty,” that “[t]he prize for the most bizarre suit . . .

goes to anti-rap warrior C. Delores Tucker, who claims that
remarks made about her on Shakur's Album All Eyez on Me

10a
Appendix

caused her so much distress that she and her husband have not
been able to have sex. She wants $10 million.” App. at 1634.

(2) The statement in Newsweek's September 1, 1997,
article, “Grabbing at a Dead Star,” that “Mrs. Tucker] and her
husband claim that a lyrical attack by Tupac iced their sex life.”
App. at 90.

(3) Fischbein’s comment, quoted in an August 2, 1997,
Philadelphia Daily News article, that “it's hard for me to
conceive how these lyrics could destroy her sex life... but we
can only wait for the proof to be revealed at trial.” App. at 29.

(4) Fischbein’s August 20, 1997, statement to Newsweek
columnist Johnnie L. Roberts that Mrs. Tucker was bringing
suit, in part, to recover for damage to her sex life, and his
statement, quoted in the Newsweek article, that “I can’t wait
to hear her testimony on that subject.” App. at 31.

(5) Fischbein’s statement to Belinda Luscombe of Time
that Tucker II “was brought for emotional distress and that part
of that was that . . her sexual relationship with her husband
was affected.” App. at 2197.

The District Court held that none of these statements could
have a defamatory meaning. The Court concluded that, although the
statements might be annoying or embarrassing, they could not
support a cause of action for defamation. The Court stated: “There
is a vast difference between being annoyed and/or embarrassed on
the one hand, and being disgraced and ridiculed to the extent that
one’s reputation is harmed and lowered in the estimation of the
community, on the other.” Dist. Ct. Op. at 6.

We cannot agree with the District Court's analysis. Statements
considerably milder than or comparable to those at issue here have
been held by the Pennsylvania Supreme Court to be capable of a
defamatory meaning. For example, in Birl v. Philadelphia. Elec. Co.,
167 A. 2d 472 (Pa. 1960), the Pennsylvania Supreme Court held that
a statement that an employee quit without notice was capable of a

lla
Appendix

defamatory meaning because recipients could conclude that the
employee lacked honor and integrity “and was not a person to be
relied upon insofar as his business dealings were concerned.” Id. at
476. In Cosgrove Studio & Camera Shop v. Pane, 182 A.2d 751 (Pa.
1962), the Pennsylvania Supreme Court held that an advertisement
was capable of a defamatory meaning because it implied that a
competitor had bad business practices and might lead a recipient to
question the competitor's integrity. Id. at 754.

Reading the statements at issue in this case in context and
looking at the impression that they were likely to engender in the
minds of the average reader, we conclude that each is capable of a
defamatory meaning. Mrs. Tucker has led a campaign against the
immorality of gangsta rap and those who profit from it. The state-
ments made by the defendants—to the effect that Mrs. Tucker and
her husband brought a $10 million lawsuit because Shakur's lyrics
damaged their sex life—carry numerous disparaging implications.
Because of the inherent implausibility of the idea that lyrics alone
could cause millions of dollars of damage to a couple's sexual rela-
tionship, the statements were capable of making the Tuckers look
insincere, excessively litigious, avaricious, and perhaps unstable.
Furthermore, the statements tended to suggest that the Tuckers are
hypocritical, that after condemning the gangsta rap industry for
profiting from pornography, the Tuckers were only too willing to
open up their own sex life for public inspection in order to reap a
pecuniary gain. In the more colloquial language used by the defen-
dants themselves, the statements suggested that the Tuckers were
“[g]rabbing [a]t a [d]ead [s]tar[’s]” “[b]ooty” and were willing to take
the witness stand at trial and publicly provide the testimony about
their sex lives that Fischbein “[couldn’t] wait to hear.” Such state-
ments were capable of lowering the Tuckers’ reputation in the eyes
of the community and of causing others to avoid associating with
them.

It is worth noting that, not only were the defendants’ state-
ments capable of a defamatory meaning, but the Tuckers adduced
evidence that their reputations were in fact adversely affected. See
42 Pa. Cons. Stat. Ann. § 8343(a)(4) (requiring plaintiff to prove that

12a
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the recipient understood the statement as defamatory). In a Phila-
delphia Daily News article dated August 6, 1997, the author stated:
“I also appreciate how some people felt betrayed when she filed a
$10 million suit that has trivialized her and her movement. For a
week now, even some of her most consistent supporters have been
questioning her motives and snickering over the suit’s allegation that
her sex life has been ruined by a couple of Tupac Shakur raps.” App.
at 2143. An August 17, 1997, Chicago Sun-Times article noted: “{I)n
my eyes Tucker has suffered a self-inflicted blow to her credibility.
... Seems to me the real humiliation comes when a woman who has
fought hard against gangsta rap makes the very personal and embar-
rassing claim that a couple of those very songs ruined her love life.”
App. at 265-66.

In short, the District Court erred when it held that the defen-
dants’ statements were not capable of a defamatory meaning under
Pennsylvania law. The statements had the tendency to lower the
Tuckers in the estimation of the community and to deter third

rsons from associating with them. We must therefore examine
whether the First Amendment poses a bar to the Tuckers’ claim.

II.

When a public official or public figure sues for defamation, the
First Amendment demands that the plaintiff prove both that the
statement was false and that it was made with “actual malice.”
Hustler Magazine v. Falwell, 485 U.S. 46, 52 (1988) (emphasis in
original omitted); New York Times Co. v. Sullivan, 376 U.S. 254,
279-80 (1964); Curtis Publ’g Co. v. Butts, 388 U.S. 130, 162-65
(1967) (Warren, C.J., concurring) (applying the New York Times
standard to public figures); U.S. Healthcare v. Blue Cross of Greater
Philadelphia, 898 F.2d 914, 931 (3d Cir. 1990).

A. Actual malice

Under New York Times v. Sullivan and its progeny, actual
malice means “knowledge that [the statement] was false or. . .
reckless disregard of whether it was false or not.” New York Times,

13a
Appendix

376 U.S. at 279-80. A public figure must adduce “sufficient evidence
to permit the conclusion that the defendant entertained serious
doubts as to the truth of his publication.” St. Amant v. Thompson,
390 U.S. 727, 731 (1967). “[A] court ruling on a motion for summary
judgment must be guided by the New York Times ‘clear and con-
vincing’ evidentiary standard in determining whether a genuine
issue of actual malice exists—that is, whether the evidence presented
is such that a reasonable jury might find that actual malice has been
shown with convincing clarity.” Anderson v. Liberty Lobby, 477
U.S. 242, 257 (1986).

1. Fischbein

The Tuckers assert two grounds for holding that Fischbein
acted with actual malice. First, the Tuckers argue that Fischbein, as
a lawyer, should have known that a claim for loss of consortium may
not have anything to do with damage to sexual relations. It follows,
the Tuckers contend, that Fischbein was at least reckless when he
told the press that Mrs. Tucker was trying to recover for injury to her
sex life.

We reject this argument. A claim for loss of consortium may
concern e to sexual relations and, with respect to the period
prior to the service of the Tuckers’ First Amended Complaint, there
is no evidence that Fischbein was informed that Mr. Tucker's con-
sortium claim did not refer to damage to sexual relations. Nor is there
evidence from which a jury could find that Fischbein entertained
serious doubts about the truthfulness of his statements at any time
before the filing of the First Amended Complaint. Consequently,
the record is insufficient to show by clear and convincing evidence
that Fischbein was guilty during this period of anything more than
negligence in jumping to the conclusion that Mr. Tucker's loss-of-
consortium claim related, at least in part, to sex. See St. Amant, 390
U.S. at 731; Time, Inc. v. Pape, 401 U.S. 279, 290 (1971) (“The
deliberate choice of an interpretation, though arguably reflecting a
misconception, was not enough to create a jury issue of ‘malice’
under New York Times.”). The Tuckers point out that Fischbein, as
the representative of Shakur's estate, had a motive for discrediting

l4a
Appendix

Mrs. Tucker, but circumstantial evidence of Fischbein’s motive alone
cannot satisfy the actual malice standard.

The Tuckers’ second argument regarding Fischbein, however,
does have merit. As previously noted, on August 27, 1997, the
Tuckers filed their First Amended Complaint, which added
Fischbein as a defendant and sought millions of dollars in damages.
The basis for adding Fischbein was set out in Paragraph 46, which
averred that Fischbein had “made false and misleading statements

ing the claim herein, through published statements that C.
Delores Tucker filed suit because of a ‘loss of her sex life.’” App. at
1711-12 (emphasis added). It is undisputed that Fischbein was
personally served with this complaint before his interview with Time
magazine reporter Belinda Luscombe on September 12, 1997.”
Nevertheless, according to Luscombe’s deposition, Fischbein told
her during this interview that the Tuckers were attempting to re-
cover for damage to their sexual relationship.

Based on this sequence of events, we are convinced that a
reasonable jury could find by clear and convincing evidence that, at
least as of the date of the service of the First Amended Complaint,
Fischbein had actual knowledge that the Tuckers were not seeking
to recover for damage to their sexual relationship. Since the First
Amended Complaint alleged that Fischbein had defamed the Tuck-
ers by stating that they were attempting to recover for damage to
their sexual relations, a reasonable jury could certainly conclude that
an attorney who read the complaint would understand that the
Tuckers were not going to attempt to recover for such damage.
(Indeed, it would be hard to interpret the First Amended Complaint
any other way.) Fischbein states that he did not read the First
Amended Complaint before speaking to Luscombe, but a reason-
able jury could believe that a person who is added as a defendant in
a multi-million dollar lawsuit is very likely to read the complaint
shortly after receiving it in order to see why he or she has been sued.

2. This argument does not apply to any statements made by Fischbein prior
to August 27, 1997, including the comments published by the Philadelphia Daily
News and the August 26 interview with Roberts of Newsweek.

15a
Appendix

A reasonable jury could disbelieve Fischbein’s story and find by clear
and convincing evidence that Fischbein did read the First Amended
Complaint before the interview. We must therefore reverse the
judgment of the District Court insofar as it dismissed the Tuckers’
claim against Fischbein with regard to the statements to Luscombe.

The dissent disagrees with our conclusion on this point be-
cause, in the dissent’s view, “(t]he language of the Amended Com-
plaint, in the context of the Tuckers’ previous statements and actions,
was insufficient to indicate a change in their attitude toward alleging
a loss of sexual relations.” Dissent at 24. But even if we agreed with
the dissent’s characterization of the Tuckers’ prior statements,’ the
following stark facts remain: (a) the Amended Complaint added
Fischbein as a defendant and was served upon him; (b) the Amended
Complaint asserted that Fischbein had defamed the Tuckers by
stating that “C. Delores Tucker filed suit because of a ‘loss of her sex
life’ ” (App. at 1711-12); and (c) the Amended Complaint sought
millions of dollars in damages. Surely a reasonable jury could find,
by clear and convincing evidence, that Fischbein knew, after reading
the Amended Complaint, that, whether or not the Tuckers had
previously been seeking to recover for damage to their sexual rela-
tionship, they were no longer doing so.*

3. The dissent seems at times to make findings of fact. For example, the
dissent opines that “the statements made by the Tuckers and their attorney were
deliberately cagey and equivocal so that they could, if they wished, introduce
evidence of impotence and sexual disfunction at trial.” Dissent at 22. This amounts
to a finding of fact regarding the intent of the Tuckers and their attorney, and it is
the province of the trier of fact, to make such a finding.

4. The dissent “find[s] it ironic that [we] believe[ ] there could be actual
malice in a statement so similar to [the following statement] attributed to Mr. Tucker
in The Philadelphia Tribune” (Dissent at 27):

Pointedly asked how the lyrics could affect his sex life, he said, “That's
just a brief reference [in the lawsuit]—a small part of it. We have to represent
the situation as accurately as we can and the only way to experience it is to
have it happen to you.”

16a
Appendix

2. Roberts and Newsweek

The Tuckers’ case against Roberts and Newsweek includes
some evidence from which a reasonable jury could infer actual
malice, but not the clear and convincing evidence needed to survive
summary judgment. Accordingly, we must affirm the District Court's
grant of summary judgment in favor of Roberts and Newsweek.
Viewing the evidence in the light most favorable to the Tuckers, their
attorney, Richard C. Angino, spoke with Roberts on August 20, 1997,
six days before Roberts wrote “Grabbing at a Dead Star.” According
to Angino, he told Roberts in the course of this phone call that
“consortium can mean, in some cases, sex. I said most of the time it
doesn’t and it doesn’t in this case.” Angino Dep., App. at 636.

Other statements in Angino’s deposition severely weaken the
Tuckers’ position, however, and make it impossible for them to
satisfy the clear and convincing standard. For instance, when asked
exactly what he said to put Roberts on notice that the Fuckers’ claim
did not involve impairment of sexual relations, Angino replied: “I
said only in the rarest of cases would you have a count that actually
involves sex. I'm under oath, so I cannot say to you that I said
specifically, this case does not involve sex.” App. at 431 (emphasis

App. at 1631 (brackets in original).
At most, however, this statement may show Mr. Tucker's intent at the time
of the article, in August 1997. It hardly establishes that the Tuckers were
to recover for damage to their sexual relations after they later filed the
Complaint.
an the dissent’s interpretation of the statement attributed to Mr.
Tucker in the article, while certainly reasonable, is not compelled. Without

the exact question posed by the er (and the ion is

may epee yet iwc Papdi cm 9 ility that Mae Tackle ely
referring to his claim for loss of consortium, which need not necessarily have
pertained to sex. In other words, he may have said that the loss of consortium claim
was “just a brief reference [in the lawsuit]—a small part of it.” If evidence of this
statement is admitted at trial, it will be for the trier of fact to interpret it.

17a
Appendix

added). Actual malice requires a plaintiff to establish that the defen-
dant had a subjective belief that the statement was false when made,
and Angino’s equivocation about the exact words he used defeats any
hope the Tuckers might have of proving actual malice on the part of
Roberts or Newsweek by clear and convincing evidence. Therefore,
we affirm the District Court's entry of summary judgment in favor
of those parties.

3. Luscombe and Time

The Tuckers set forth 24 theories under which, they assert, it
could be found that Belinda Luscombe and Time acted with actual
malice in connection with the “Shakur Booty” article of September
15, 1997. Many of these theories are grounded on allegations of poor
journalistic practices—e.g., that Luscombe had a preconceived sto-
ryline; that she did not follow Time's editorial guidelines; that she
_ failed to conduct a thorough investigation; and that she copied from

other stories but changed their language without a factual basis. As
the District Court found, these theories of actual malice are without
support in the case law. While we will discuss only a few of these
theories below, we have carefully considered and rejected all of
them.

The Supreme Court has made clear that even an extreme
departure from professional standards, without more, will not sup-
port a finding of actual malice. See Harte-Hanks Communications,
Inc. v. Connaughton, 491 U.S. 657, 665 (1989). Likewise, a failure
to investigate, standing alone, does not constitute actual malice. See
St. Anant v. Thompson, 390 U.S. at 730-31; Marcone v. Penthouse
Int'l Magazine for Men, 754 F.2d 1072, 1089 (3d Cir. 1985).

The Tuckers assert that Luscombe avoided the truth by relying
on biased sources while ignoring the Tuckers’ news release, which
explained the import of their Complaint. Although the Supreme
Court has held that purposeful avoidance of the truth may support
a claim of actual malice, the evidence here falls short. In Harte-
Hanks, the Court held that there was sufficient evidence of actual
malice where, among other things, a reporter failed to interview a

18a
Appendix

key witness to events being reported in a story, and the circum-
stances suggested that this was done for fear that the witnesses’
statement might contradict the story the paper was committed to
running. See 491 U.S. at 682-83. Likewise, in Curtis Publishing Co.
v. Butts, 388 U.S. 130 (1967), the Court found actual malice when
the Saturday Evening Post failed to make adequate investigative
efforts in the face of notification that the report they were about to
print was false. Id. at 169-70. The element present in Harte-Hanks
and Butts but lacking here is evidence from which a reasonable jury
could infer that Luscombe doubted the veracity of her story. See
Harte-Hanks, 491 U.S. at 692.

The Tuckers assert that the service of the First Amended
Complaint on Time-Warner, Inc., the parent corporation of Time,
Inc., which publishes Time magazine and employs Luscombe,
should have put Luscombe on notice that the Tuckers did not seek
recovery for injury to their sex life. This argument is far-fetched.
Time-Warner, Inc., a huge media and entertainment conglomerate,
was served because it was one of the original defendants due to its
alleged connection with Interscope Records. There is no evidence
that Luscombe or anyone else actually involved with the “Shakur

article was given or read the First Amended Complaint, and
unlike Fischbein, neither Luscombe nor anyone else employed by
Time magazine was named as a defendant in that complaint. The
Tuckers have simply adduced no evidence (let alone clear and
convincing evidence) that Luscombe or anyone else involved with
the “Shakur Booty” article was aware that the Tuckers did not intend
to include injury to their sex life as a component of the loss of
consortium claim.

We likewise see no merit in the Tuckers’ argument that
Luscombe and Time acted with actual malice because they copied
other stories but then changed their language without a factual basis.
Although the circumstances under which an article is changed may
sometimes be enough to show actual malice, the present case does
not fall into that category. This case is readily distinguishable from
St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d 1309 (3d Cir.
1994). In St. Surin, a newspaper reporter interviewed an Assistant

19a
Appendix

United States Attorney who confirmed that St. Surin was being
investigated but refused to comment on whether charges would be
brought. An editor, however, “changed it to read that the govern-
ment expected to file charges against St. Surin the following week.”
Id. at 1318. We held that the evidence, viewed in the light most
favorable to St. Surin, showed that the editor was aware of facts
showing that her changes to the article in question made it false.
See id.

In this case, there is no comparable evidence. The “Shakur
Booty” article was clearly derived in large part from previously
published articles and did not change the import of those articles in
any material way. Moreover, as discussed above, there is no evidence
here from which a reasonable jury could find that Luscombe was on
notice that the facts related in her story were false. Accordingly, we
affirm the District Court's grant of summary judgment in favor of
Time and Luscombe. :

B.

Although the District Court based its judgment only on de-
famatory meaning and actual malice, it stated: “Counsel for all
defendants have made various other arguments, not the least of
which is that the statements were true. By not commenting on them,
I have not necessarily rejected them.” Dist. Ct. Op. at 13. On appeal,
the defendants argue that the decision of the District Court may be
affirmed on the alternative ground that the Tuckers have not ad-
duced sufficient evidence that any of the challenged statements
were false when made. Although we may affirm a decision on an
alternative ground, see, e.g., Erie Telecomms., Inc. v. City of Erie,
853 F.2d 1084, 1089 n.10 (3d Cir. 1988), we decline to do so here.

Truth is an affirmative defense under Pennsylvania law, see 42
Pa. Const. Stat. Ann. § 8343(b)(1), but the United States Supreme
Court has held that a public figure must bear the burden of proving
falsity. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767,
776 (1985) (holding that “the common law's rule of falsity—that the
defendant must bear the burden or proving truth—must similarly
fall here to a constitutional requirement that the plaintiff bear the

20a
Appendix

burden of showing falsity”); see also Steaks Unlimited, Inc. v. Deaner,
623 F.2d 264, 274 n.49 (3d Cir. 1980) (suggesting that Pennsylvania's
practice of placing the burden of proving truth on the defendant is
probably unconstitutional); Dunlap v. Philadelphia Newspapers,
Inc., 448 A.2d 6, 13-14 (Pa. Super. 1982) (same). Thus, even though
Fischbein’s comments to Luscombe are capable of a defamatory
meaning, and even though he may have uttered them with actual
malice, Fischbein cannot be held liable unless the Tuckers can prove
that the comments were false.

We conclude that the Tuckers have pointed to proof that is
sufficient to show, either by a preponderance or by clear and con-
vincing evidence,’ that Fischbein’s statements to Luscombe after the
filing of the First Amended Complaint were false.° The First
Amended Complaint alleged that Fischbein had defamed the Tuck-
ers when he said that they were trying to recover for damage to their
sexual relations. In light of that allegation, it seems clear—and a
reasonable jury could certainly find—that the First Amended Com-
plaint itself did not seek to recover for such damage. (Surely a
reasonable jury could find that, if the Tuckers’ case had gone to trial
under the Amended Complaint, the Tuckers did not intend to seek
to recover both on the theory that Mr. Tucker suffered a loss of
consortium and that Fischbein defamed them by asserting that they
intended to recover for a loss of consortium.) Fischbein, however,
supposedly told Luscombe that “this was a lawsuit about emotional

5. The Supreme Court has explicitly declined to decide whether the plaintiff
must prove falsity by a preponderance of the evidence or by clear and convincing
evidence. See Harte-Hanks. 491 U.S. at 661 n.2 (declining to resolve the issue, but
acknowledging disagreement among the circuits). Compare Firestone v. Time, Inc.,
460 F.2d 712, 722-23 (Sth Cir. 1972) (Bell, C.]., concurring) (arguing for a clear and
convincing standard) with Goldwater v. Ginzburg, 414 F.2d 324, 341 (2nd Cir.
1969) (suggesting a preponderance of the evidence standard) and Rattray v.
National City, 51 F. 34783, 793, 801 (9th Cir. 1995) (adopting Coldwater).

6. Because we have held that there is not sufficient evidence that Fischbein
acted with actual malice prior to that date, we need not and do not decide whether
there was enough evidence to show that the statements he made during that period
were false.

21a
Appendix

distress and one of things affected were [sic] her sexual relationship
with her husband.” App. 2197. We hold that there was sufficient
evidence of falsity to go to the jury.

III.

Finally, we hold that the District Court correctly denied the
Tuckers’ motions to depose in-house counsel at Time and Newsweek.
This Court exercises plenary review over a discovery order regarding
claims of attorney-client privilege. See Livingstone v. North Belle
Vernon Borough, 91 F.3d 515, 524 (3d Cir. 1996). The communica-
tions with in-house counsel involved here were clearly for the
purpose of rendering legal advice and therefore are privileged. The
Tuckers argue that the privilege was waived because in-house coun-
sel reviewed stories “in the regular course of business.” This argu-
ment is frivolous. That reporters regularly consult with in-house
counsel to discuss potential liability for libel does not thereby de-
prive those communications of the protection of the attorney-client
privilege. See, e.g., Upjohn Cv. v. United States, 449 U.S. 383, 394
(1981) (holding that communications between corporate counsel
and a corporation’s employees made for the purpose of rendering
legal advice are protected by the attorney-client privilege); Liberty
Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1302 (D.C. Cir.
1988) (“Pre-publication discussions between libel counsel and edi-
tors or reporters would seem to come squarely within the scope of
the privilege as defined in Upjohn.”).

IV.

In sum, we affirm the District Court's grant of summary judg-
ment as to Time and Newsweek, but reverse in part as to Fischbein.
We also affirm the District Court’s denial of the Tuckers’ motion to
compel the deposition of the in-house counsel at Time and
Newsweek. The case is remanded in part for proceedings consistent
with this opinion.

22a
Appendix

NYGAARD, Concurring and Dissenting.

I agree with much of what the Majority says in its well-reasoned
opinion for the court. I disagree, however, with its conclusion with
respect to defendant Richard Fischbein and therefore respectfully
dissent. I conclude that the District Court did not err; that a reason-
able jury could not find that Fischbein acted with actual malice when
speaking to Time magazine reporter Belinda Luscombe; and, that
summary judgment should be affirmed in its entirety.

I begin with the Majority’s conclusion that “prior to the service
of the Tucker's first Amended Complaint, there is no evidence that
Fischbein was informed that Mr. Tucker's consortium claim did not
refer to damages to sexual relations.” I agree, but I believe that the
Majority dramatically understates the point. There is a substantial
amount of uncontradicted evidence suggesting that, prior to the
filing of their Amended Complaint, the Tuckers did intend to in-
clude sexual damages within their loss of consortium claim. For
clarity, I will summarize this evidence in list form below:

I. In his deposition, the Tuckers’ attorney, Mr. Angino,
stipulated that at the time the suit was commenced, the original
complaint itself provided no indication that a claim for inter-
ference with sexual relations was not being pursued, and that
someone reading the Tuckers’ complaint might assume that it
alleged damage to sexual relations. (App. 566-70). In my opin-
ion, unless otherwise stated, it is axiomatic that a loss of con-
sortium claim includes a claim for loss of sexual relations.

II. Mr. Angino also admitted in his deposition that when
the suit was initiated, he was not sure whether the Tuckers
sought recovery for damage to their sexual relations. (App.
576). He stated that “the purpose of the consortium count was
to cover everything . . . every way in which Mr. Tucker was
affected, every way.” (App. 575). The record does not contain
any facts to the conirary.

III. The Tuckers themselves have failed to state, either in
their depositions or in affidavits, that they had ruled out any

23a
Appendix

facet of their consortium claim at the time they originally filed
it.

IV. The report of Dr. Harold Mignott, Mr. Tucker's phy-
sician, reveals that Mr. Tucker had “a significant amount of
difficulty with impotence” at the same time that he suffered a
“significant amount of stress” resulting from the “harassment”
and “investigation” of both himself and his wife. The report was
dated approximately one month before the Tuckers filed their
claim for loss of consortium. (App. 583).

V. On July 31, 1997, the Tuckers issued a news release
about the Tucker II lawsuit.’ Nothing in the press release
disclaimed damages for interference with sexual relations.
(App. 2072-73).

VI. After observing the media’s reaction to the consortium
claim, Mr. Tucker had the opportunity in at least three separate
interviews to clarify that he and his wife were not seeking
compensation for injury to their sexual relations. Instead, Mr.
Tucker confirmed in all three interviews that interference with
sexual relations was indeed an element of their claims. (App.
1630-31; 2142-43; 2145).

VII. On August 13, 1997, in an interview with Philadel-
phia Weekly, Mr. Angino had a similar opportunity to clearly
state for the public record that the Tuckers were foregoing any

7. The complaint in Tucker II is itself a confusing farrago of missteps and
errors. Appellants’ attorney never discussed the loss of consortium claim with the
Tuckers. (App. 518). The complaint was drafted by a law student. It misrepresented
one song by taking “snippets of words from actual lyrics, words that are separated
by many, many verses and run(ning] them together as if they are a continuous
statement,” creating what appellants’ attorney now admits was “a gross and delib-
erate misrepresentation.” (App. 534). The appellant's attorney neither listened to
nor read the lyrics of the song that he alleges was defamatory. He never conducted
a fact check of any of the critical allegations in the complaint. Indeed, he did not
even sign it, nor is it clear from the record that he even read the final draft. His wife
(who is not an attorney) signed it for him.

24a
Appendix

claims stemming from interference with sexual relations. How-
ever, Mr. Angino failed to do so. Instead, he stated that loss of
consortium “is a standard addition to lawsuits of this type and
refers to all aspects of the marital relationship, not necessarily
sex.” (App. 2148-49) (my emphasis).

VIII. On August 21, 1997, the Tuckers issued yet another
press release. It again failed to disavow any claim arising out of
Mr. Tucker's impotency or injury to the Tuckers’ sexual rela-
tionship. Instead, the release confirmed the existence of such
a claim and expressed the Tuckers’ frustration that too much
of the media's attention was focused on that aspect of the case:
“ ‘All the media gleefuily jumped on the so-called sex part in
the suit that called attention to loss of consortium, which was
put in there by my husband Bill, not by me,’ [Mrs. Tucker]
added, obviously nettled.” (App. 464).

IX. The Tuckers have admitted that neither they, nor Mr.
Angino, nor anyone on their behalf, ever called Fischbein, at
any time, to correct his misunderstanding of the Tuckers’ loss
of consortium claim. (App. 571, 1968).

The Tuckers have failed to provide any evidence, other than the
language in their Amended Complaint, to suggest that they did not
intend to claim loss of sexual relations. Instead, it is obvious to me
that the statements made by the Tuckers asnd their attorney were
deliberately cagey and equivocal so that they could, if they wished,
introduce evidence of impotence and sexual dysfunction at trial.”

In spite of substantial evidence to the contrary, the Tuckers still
claim that all of Fischbein’s statements were made with actual
malice; that is, with the “knowledge that [they were] false or with

8. Another way of approaching this issue is to ask whether at trial, given the
general loss of consortium that the Tuckers originally alleged, it would have been
proper for the District Court to allow introduction of evidence of Mr. Tucker's sexual
dysfunction. The answer clearly is yes.

25a
Appendix

reckless disregard of whether [they were] false or not.” New York
Times v. Sullivan, 376 U.S. at 279-80. According to the Majority, the
Tuckers present two independent arguments in support of their
position. Although I remain unconvinced that they clearly articulate
even one, I will, for the sake of discussion, address both arguments

in turn.

First, the Tuckers seem to suggest that Fischbein’s legal train-
ing put him on notice that loss of consortium does not always imply
harm to sexual relations. According to their brief:

Fischbein, who is a lawyer who knows the definition of
consortium, knew at the time that he talked to the Los Angeles
Times and the Philadelphia News and all of the other newspa-
pers, including Time and Newsweek, that Mrs. Tucker did not
claim in the Tucker I complaint that her sex life had been
destroyed by the lewd lyrics of Tupac Shakur . . . Certainly a
jury could find that Mr. Fischbein’s uttering his sexual spin
throughout this period constituted malice as defined by the
Supreme Court.

(Appellants’ Br. at 46-47). The Majority quickly dismisses this argu-
ment, and there is no need to consider it further, except that I
question the Majority’s suggestion that Fischbein may have been
negligent during the period prior to the filing of the Amended
Complaint. Again, I emphasize that all of the evidence before the
court indicates that the Tuckers, at least originally, did intend to
pursue damages for loss of sexual relations. It is hard for me to
imagine how Fischbein may have been negligent in any way.

Until this point, my concerns with the Majority’s opinion have
been fairly minor. I strongly disagree, however, with its disposition
of the Tuckers’ second main argument. According to the Majority,
the Amended Complaint clearly disavowed any intent to pursue
damages for loss of sexual relations. As such, a jury could find that
Fischbein had read the complaint, and that his subsequent com-
ments to Time magazine constituted actual malice.’ Although I

9. I agree with the Majority that a reasonable jury could find, in light of the
high stakes surrounding the law suit, that Fischbein had read the Amended

26a
Appendix

readily admit that this position is more compelling than the Tuckers’
first argument, I still cannot agree. The language of the Amended
Complaint, by itself, is simply insufficient to convince a reasonable
jury, under a clear and convincing evidence standard, that Fischbein
had actual knowledge that the Tuckers were not seeking to recover
damages for loss of sexual relations

Before explaining my position, I want to be absolutely clear
about two points. First, I agree with the Majority that, other than
the Amended Complaint, “there is no evidence” that Fischbein
acted with actual malice.'° Thus, even under the Majority’s decision,

Complaint prior to his interview with Time. I disagree, however, with the Majority’s
conclusory statement that “it would be hard to interpret the First Amended
Complaint any other way.” In light of the Tucker's previous statements, and their
penchant for ambiguity, I do not believe that a reasonable jury could establish actual
malice based solely upon the Tuckers’ five line paragraph.

10. The Tuckers contend that they indicated, through personal interviews
and statements by their attorney, that did not intend to allege loss of sexual
relations. This is simply not supported by the record. For example, in their Second
Amended Complaint, they claim that their attorney told a Newsweek Reporter
“unequivocall the complaint did not allege . . . that the actions of Defendants
related in the foriginal} complaint had anything to do with their sex life.” (App. 24).
Their attorney's signature on this complaint. During his deposition, how-
ever, Mr. Angino admitted “I said only in the rarest of cases would you have a
count that actually involves sex. I’m under oath, so I cannot say to you that I said
specifically, this case does not involve sex.” (App. 646). This is but one of many
examples where The Tuckers were vague and am in their public statements
and in their declarations to this Court. The Tuckers also argue that the Webster's
dictionary definition of consortium supports their case. (App. 25). I did a quick
check to verify this claim. Using the Internet (see www.dictionary.com, accessible
via www.websters.com). I obtained the following definition of consortium:

3. Law. The right of a spouse to the company of, help of, affection of,

and sexual relations with his or her mate.

Unless this definition has changed radically in the past three years, Webster's cuts
strongly against the Tuckers. In sum, none of this “evidence” is sufficient to
persuade a reasonable jury that any of the defendants acted with actual malice in
“misinterpreting” the Tuckers’ claims.

27a
Appendix

the Tuckers’ entire claim rests solely upon the language in the
Amended Complaint. As the Tuckers admit in their brief, only two
paragraphs, out of the seventy-one contained in the complaint,
address the question of sexual relations:

45. Defendant [Fischbein] has continued to defame and
harass plaintiff by holding her up in a false light even after the
complaint in this matter was filed on June 21, 1997.

46. Defendant Fischbein made false and misleading
statements regarding the claim [asserted in the original com-
plaint], through published statements that C. Delores Tucker
filed suit because of a “loss of her sex life.” The statement was
untrue, and defendant Attomey Fischbein should have known

it was untrue.

(App. 1711-12). Second, the Tuckers filed the Amended Complaint
on August 27, 1997. The only statements made by Fischbein after
that date, and thus the only potentially actionable comments, were
those to Time magazine reporter Belinda Luscombe. I agree with
the Majority that all other comments were made without actual
malice. Thus, the question over which the Majority and I disagree
is a fairly narrow one, and I would characterize it in the following
manner: After all of the Tuckers’ actions and comments to the
contrary, did the language in the Amended Complaint sufficiently
clarify the parameters of the loss of consortium claim so that a
reasonable jury could find that Fischbein’s comments to Time maga-
zine were made with a reckless disregard for the truth? I strongly

believe the answer is no.

The language of the Amended Complaint, in the context of the
Tuckers’ previous statements and actions, was insufficient to indicate
a change in their attitude toward alleging a loss of sexual relations.
In spite of all the media attention, and all the harm that it supposedly
caused, the complaint failed to contain a simple, categorical state-
ment that the Tuckers were foregoing any claim for interference with
sexual relations. Instead, it continued to allege that Mr. Tucker had
“suffered a loss of . . . consortium,” using the very same language
that was contained in the original Tucker II complaint. (App. 1713).

28a
Appendix

The only addition was a short paragraph stating that Mrs. Tucker did
not file the original suit because of a loss of sexual relations. It said
nothing about Mr. Tucker, who had originally filed the loss of con-
sortium claim. And, as their own attorney testified, “when you
damage one spouse, you damage the other spouse in each and every
way.” (App. 566). My conclusion is underscored by the fact that one
month later, and simultaneous with the filing of the complaint at
issue in this appeal, the Tuckers filed a Second Amended Complaint
to Tucker II, in which they unequivocally stated, for the first time,
that they were not seeking damages for interference with sexual
relations. This came far too late to serve as an effective form of notice
to Fischbein.”

Even if the language of the complaint did clearly communicate
the Tuckers’ position, as the Majority so holds, it is not clear to me
that this evidence by itself is enough to support a jury's finding of
actual malice. I am deeply troubled by the fact that, in spite of

11. With gravam Second -
plaintiffs’ Bocenkir, akin as billows in his Sone ec klal ae aess
Q. And why did you feel there was a need to have—to file a Second
Amended Complaint?
A. I couldn't believe how dense the defense were.
Q. And in the Second Amended Complaint, you placed a dictionary
definition of consortium; is that correct?
A. That was a joke. It was really a joke.
Q. Well, wait a minute, sir. Are you saying that you were perpetrating a
joke in a Federal Court Complaint; is that what you are telling me?
A. That’s what I'm telling you. I said if I had to actually give you a
dictionary definition...
Q. So you were you were playing around a little bit in a Federal Court
Complaint; is that correct?
A. I was saying look consortium means this.
Q. So you were playing around a little bit.
A. You—you might say that.
App. 829-30.

29a
Appendix

intense media scrutiny and its concomitant pressures, the Tuckers
never publicly clarified the nature of their suit or contacted
Fischbein directly, until they filed the complaint in this case. In
short, they did nothing to curb public scrutiny other than amend
their original complaint to include new claims. After the numerous
public comments and accusations by the Tuckers, it is simply un-
reasonable to require Fischbein to infer solely from the language of
the Amended Complaint that the Tuckers had changed their posi-
tion.

Finally, even if the Amended Complaint by itself was enough
to support a jury finding of actual malice, I do not believe that
Fischbein’s comments were reckless. As previously discussed, the
only comments made subsequent to the filing of the Amended
Complaint were those to Time magazine on September 12, 1997.
According to Luscombe’s uncontradicted notes and testimony,
Fischbein stated only that Tucker II “was brought for emotional
distress and that part of that was that her sexual relationship with her
husband was affected.” (App. 2197). Time magazine did not quote
Fischbein, and Luscombe’s article relied heavily upon seven pre-
vious articles, all published in respected sources from Rolling Stone
to The Washington Post prior to the filing of the Amended Com-
plaint. I find it ironic that the Majority believes there could be actual
malice in a statement so similar to one attributed to Mr. Tucker in
The Philadelphia Tribune (my emphasis):

Pointedly asked how the lyrics could affect his sex life, he
said, ‘That's just a brief reference [in the lawsuit]—a small part
of it. We have to represent the situation as accurately as we can
and the only way to experience it is to have it happen to you.’

As previously discussed, in addition to this statement, there is a
substantial amount of evidence that indicates that the Tuckers origi-
nally did bring their suit, at least in part, to recover for loss of sexual
relations. Regardless of whether they later changed their position, a
literal reading of Fischbein’s statement to Time reveals no “reckless

disregard for the truth.”

30a
Appendix

‘The record demonstrates that Fischbein, at the time of his
conversation with Time magazine, (1) was not aware that the Tuckers
intended to relinquish their claims for interference with sexual
relations, and (2) even if he was, his comments were not reckless. As
a result, I conclude that the Tuckers cannot meet their burden of
demonstrating facts sufficient to show that Fischbein made any
statements that he suspected were false. As such, I would affirm the

grant of summary judgment in its entirety.
A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

3la
Appendix

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1139

C. DELORES TUCKER;
WILLIAM TUCKER, her husband

Vv.

RICHARD FISCHBEIN; BELINDA LUSCOMBE;
NEWSWEEK MAGAZINE; JOHNNIE L. ROBERTS;
TIME INC.

C. Delores Tucker;
William Tucker,
Appellants

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 97-cv-06150)
District Judge: Honorable Ronald L. Buckwalter

Argued October 1, 1999
BEFORE: NYGAARD, ALITO, and ROSENN, Circuit Judges.

32a
Appendix

JUDGMENT

This cause came on to be heard on the record from the United
States District Court for the Eastern District of Pennsylvania and
was argued on October 1, 1999.

On consideration whereof, it is ordered and adjudged that the
judgment of the District Court entered on February 9, 1999, be and
the same is hereby AFFIRMED as to appellees Belinda Luscombe,
Time, Inc., Johnnie L. Roberts, and Newsweek Magazine. The
judgment is REVERSED as to appellee Richard Fischbein and the
case is REMANDED for proceedings consistent with the opinion
of this Court.

The parties shall bear their own costs.
ATTEST:

/s/Marcia M. Waldron
Clerk

DATED: 9 January 2001

33a
Appendix

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION
NO. 97-6150

C. DELORES TUCKER and WILLIAM TUCKER, her husband,
Plaintiffs,
V.

RICHARD FISCHBEIN, TIME INC., BELINDA
LUSCOMBE, NEWSWEEK MAGAZINE and JOHNNIE L.
ROBERTS,

Defendants.

MEMORANDUM
BUCKWALTER., J. February 9 , 1999

Defendants Time Inc., Belinda Luscombe, Newsweek Maga-
zine, Johnnie L. Roberts and Richard Fischbein have all filed mo-

tions for summary judgment.
I. COMPLAINT AGAINST TIME AND LUSCOMBE

Essentially, the complaint against Time and Luscombe is that
despite (1) the dictionary definition of consortium; (2) interviews
given by plaintiffs’ attorney that plaintiffs’ sex life had nothing to do
with the complaint; and (3) the filing of an amended complaint with
the allegation in paragraph 46 that “Defendant Fischbein made false
and misleading statements that C. Delores Tucker filed suit because
of a ‘loss of her sex life.’ ” Luscombe, a writer, employee, servant and
agent of Time, Inc. wrote an article in the People section of the
September 22, 1997 issue entitled “Shakur Booty” stating:

34a
Appendix

The prize for the most bizarre suit, however, goes to
antirap warrior C. Delores Tucker, who claims that lewd re-
marks made about her on Shakur’s album “All Eyez On Me”
caused her so much distress that she and her husband have not
been able to have sex. She wants $10 million.

Am. Compl. $22.

The above article, according to plaintiffs, constitutes a defama-
tory and malicious statement that Time and Luscombe knew was not
the truth when written and knew that it would, upon publication,
embarrass and humiliate plaintiffs. Plaintiffs’ counsel admits that
plaintiffs, Mr. and Mrs. Tucker, are public figures and that they
therefore have the burden of proving that the Time article at issue
was published with actual malice.

By way of a brief background, in September of 1993, the
plaintiffs began a crusade against gangsta rap, which they viewed as
being pornographic, drug oriented and misogynistic. Plaintiffs at-
tempted through various methods to publicize their crusade. One
method, among others, was by filing lawsuits. Other methods in-
cluded appearances at shareholder meetings of large corporations,
meeting throughout the country with public officials, attendance at
Congressional hearings and before state legislatures, and leading of
street demonstrations in Philadelphia, New York and Washington,
D.C. It was, however, the filing of their lawsuit on July 21, 1997,
against, among others, the estate of Tupac Shakur, a famous gangsta
rap performer, which ultimately prompted Time's September 15,
1997 article.

Before the Time article, approximately 60 newspapers and
magazines published similar articles about the lawsuit. Among them
were: The Associated Press, The Baltimore Sun, The Dallas Morning
News, The New York Daily News, The Philadelphia Daily News, The
Minneapolis Star-Tribute, The Washington Post and Newsweek, to

35a
Appendix

name a few. It is interesting to note that virtually all of these
publications “sensationalized” the story by referring to how the
Tuckers claimed that their sex life had been ruined by Tupac Shakur's
rap lyrics. The most common theme of these stories printed before
the Time article was that Mrs. Tucker said the anguish from the lyrics
undermined “or cut down on” her sex life with her husband.

Of the 66 accounts of the lawsuit submitted in Time and
Luscombe’s Exhibits, only the August 21, 1997 edition of The Wash-
ington Post ignored the sex angle of other papers, although not

entirely. Its report under “Names & Faces” was as follows:

Activist C. Delores Tucker, head of the National Political
Congress of Black Women, has sued the estate of slain rap artist
Tupac Shakur, saying his lyrics slandered her and damaged her
relationship with her husband of more than 40 years, William
Tucker.

Tucker and former U.S. drug policy director William
Bennett campaigned to stop the distribution of violent and
graphic “gangsta” rap and rock lyrics. She sued Shakur's estate
fur $10 million earlier this week in Philadelphia, claiming that
Shakur’s 1996 CD “All Eyez On Me,” which contains deroga-
tory sexual references to her, caused her “great humiliation,
mental pain, and suffering” and contributed to loss of her
husband's “advice, companionship and consortium.”

“It's hard for me to conceive how these lyrics could
destroy her sex life,” said Richard Fischbein, an attorney who
oversees Shakur's estate.

The Washinaxon Post, Aug. 2, 1997, at C3 (attached as Exhibit 17 to
Defs. Mem.).

For purposes of this opinion, it is clear that nowhere in the
complaint originally filed against the Estate of Tupac Shakur on July
21, 1997, or in the amended complaint filed September 2, 1997, is
there a specific reference to the “sex life” of either plaintiff. in both
complaints, paragraphs 50 of original and 52 of the amended, the
following allegation is made:

36a
Appendix

Plaintiffs husband, William Tucker has as a result of his
wife's injuries, suffered a loss of advice, companionship and
consortium.'

Compl. 450; Am. Compl. $52.

In their summary judgment motion, Time and Luscombe
argue that plaintiffs, in order to defeat the motion, must demonstrate
that a rational jury could find that Luscombe’s statements published
by Time:

(1) were defamatory;

(2) were statements of potentially verifiable facts as opposed

to opinion;

(3) were of and concerning both plaintiffs;

(4) were false;

(5) resulted in injury to them; and

(6) were published with actual malice.

See Defs. Mem. at 15.

I will discuss in some detail items (1) and (6). While it is not
clear at this stage of the proceedings, I find, with regard to the
remaining arguments presented in items (2) through (5), that there
is some validity to Time and Luscombe's claims.

Time and Luscombe’s claim that whether the statement was or
was not defamatory is a matter to be dealt with initially by the court.
In this regard, plaintiffs quote at length from Judge Giles’ opinion

1 Consortium. Conjugal fellowship of husband and wife, and the right of each
to the company, society, cooperation, affection, and aid of the other in even conjugal
relation. Loss of “consortium” consists of several elements, encompassing not only

material services but such intangibles as society, b gon ee and
sexual relations. Black’s Law Dictionary 309 (6th ed. ).

1990)(citations omitte

37a
Appendix

in Weinstein v. Bullick, 827 F. Supp. 1193 (E.D. Pa. 1993). In that
opinion, Judge Giles cited Pennsylvania cases supporting the follow-
ing propositions:

(1) The threshold question in a defamation action is whether
the publication is capable of defamatory meaning. This is for the

court to decide.

(2) If the court finds a statement could be construed as defama-
tory, it is for the jury to determine if it was so understood by the
recipient.

(3) A communication is defamatory if it tends to harm the
reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing with
him.

(4) In determining defamatory meaning, the court must look
to the effect that it is fairly calculated to produce; the impression it
would naturally engender in the minds of average persons among
whom it is intended to circulate.

(5) The statement must be reviewed in the entire context.
See id. at 1196-97.

Time and Luscombe generally agree with those statements of
Pennsylvania law but add that “[A] defamatory communication
‘necessarily involves the idea of disgrace’ and tends to cause others
to ‘ostracize and shun’ the subject.” See Defs. Mem. at 31 (quoting
Beckman v. Dunn, 419 A.2d 583, 586-87 (Pa. Super. 1980)). See also
W. Page Keeton et al., Prosser and Keeton on Law of Torts § 111, at
739 (4th ed. 1971 )(stating that a defamatory communication “in-
volves the idea of disgrace” and “reflects upon [the subject's] char-
acter”).

The statement by Time and Luscombe could certainly be
annoying and also embarrassing to the plaintiffs. But such effect
cannot form the basis for a defamation action. There is a vast

38a
Appendix

difference between being annoyed and/or embarrassed on the one
hand, and being disgraced and ridiculed to the extent that one’s
reputation is harmed and lowered in the estimation of the commu-
nity, on the other. I cannot see the latter happening from Luscombe’s

statement published by Time in this case. Thus, I find it is not
defamatory as a matter of law.

Quite apart from the issue of whether the statements are
defamatory is the matter of actual malice as applicable to this case.
Plaintiffs, in their effort to show that this issue deserves a jury
determination, has listed 24 matters which they say circumstantially
show malice. The majority of these 24 matters (15 by my count) deal
with the alleged inadequate investigation by Luscombe before writ-
ing the story. I have paraphrased them as follows:

(3) Time/Luscombe’s failure to obtain Tucker I complaint
before reporting on its contents.

(4) Time/Luscombe’s preconceived story line.

(5) Time/Luscombe’s reliance upon Fischbein.

(6) Time/Luscombe’s adopting Fischbein’s sexual spin
without quoting him.

(7) Time/Luscombe’s ignoring the plaintiffs 7/31/97 news
release and news articles saying media was distorting Tuckers’
claim.

(10) Time/Luscombe’s failure to contact plaintiffs’ lawyer.

(11) Time/Luscombe’s failure to ask the critical question
as to whether Mrs. Tucker claimed that lewd lyrics destroyed

her sex life.

(12) Time/Luscombe’s selecting articles and story lines
that supported their story.

(15) Time/Luscombe’s not attempting to get the other
side of the story.

(16) ee poe failure to include mandated docu-
ment in the Time Library.

39a
Appendix

(17) Time/Luscombe’s failure to.conduct a proper inves-
tigation of a story that was not “hot news.”

(18) Plagiarizing other stories.
(19) Time/Luscombe’s writing a story on an unfamiliar
subject without consultation.

(20) Time/Luscombe’s failure to be aware of the amended
complaint averring falsity of media spin.

- (24) Luscombe’s swearing under oath that she did not
even see JET article when it is in her Time Library source file
and highlighted.

See Pls. Mem. at 13. Two of the remaining nine items deal with
Time/Luscombe’s failure to conform to its own guidelines and the
Professional Journalists Code of Ethics. Three more items allege the
publishing of the false statement because of its sensational value and
failure to retract it. And the two remaining types of conduct listed
by Plaintiffs are Time’s post-suit actions intending to preclude dis-
covery, and Luscombe’s swearing under oath that she principally
relied on Rolling Stone and Newsweek magazines in her story when
she expressed doubt in her deposition.

The problem, as I see it, with plaintiffs’ argument is that it lacks
support in case law. As stated earlier, the plaintiffs admit that they
are public figures and that therefore they have the burden of proving
that Time published Luscombe’s article with actual malice.

In Masson v. New Yorker Magazine, 501 U.S. 496, 511, 111 S.
Ct. 2419, 2429 (1991), the Court expressed the manner in which the
First Amendment limits libel laws by summarizing existing law as
follows: :

The First Amendment limits California's libel law in
various respects. When, as here, the plaintiff is a public figure,
he cannot recover unless he proves by clear and convincing
evidence that the defendant published the defamatory state-

40a
Appendix

ment with actual malice, i.e., with “knowledge that it was false
or with reckless disregard of whether it was false or not.” New
York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S. Ct.
710, 726, 11 L.Ed.2d 686 (1964). Mere negligence does not
suffice. Rather, the plaintiff must demonstrate that the author
“in fact entertained serious doubts as to the truth of his publi-
cation,” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct.
1323, 1325, 20 L.Ed.2d 262 (1968), or acted with a “high
degree of awareness of ... probable falsity,” Garrison v. Louisi-
ana, 379 U.S. 64, 74, 85 S. Ct. 209, 215, 13 L.Ed.2d 125 (1964).

The Masson court went on to explain that the “actual malice under
The New York Times standard should not be confused with the
concept of malice as an evil intent or a motive arising from spite or
ill will.” Id. Referring to the term “actual malice” as one that can
“confuse as well as enlighten” and opining that “the phrase may be
an unfortunate one,” the Court concluded that, “[I]n place of the
term actual malice, it is better practice that jury instructions refer to
publication of a statement with knowledge of falsity or reckless
disregard as to truth or falsity.” Id. at 511, 111 S. Ct. at 2430.

With the above summation of the legal setting into which this
case falls, the question is: Can plaintiffs demonstrate sufficient
material facts in dispute, which if viewed in favor of plaintiffs, could
support a rational jury’s finding by clear and convincing evidence
that Time and Luscombe published the alleged libelous statement
with malice? They cannot, in my judgment, because the record,
viewed in favor of plaintiffs, the non-moving party, suggests, at best,
that Time and Luscombe were negligent in failing to investigate the
factual basis of its published statements about plaintiffs.

The allegation that Time’s law department improperly equated
consortium with sex provides no evidence of malice for several
reasons, not the least of which is that equating consortium with sex

Appendix

is not the least bit unusual. Moreover, the suggestion that not
permitting in-house counsel to testify, a decision which I upheld,
somehow equates to malice is not logical. The same is true when
plaintiffs state that the noncompliance with professional in-house
standards of conduct somehow fairly imply malice. At most, this also
implies carelessness not rising to the level of reckless disregard for
the truth.

The uncontested record, as earlier eluded to, reveals that
Luscombe relied on previously published reports in reputable pub-
lications. Several cases suggest that this type of good faith reliance
precludes a finding of malice as a matter of law. See McFarlane
v. Sheridan Square Press, Inc., 91 F.3d 1501, 1510 (D.C. Cir. 1996).
In short, there is no clear and convincing evidence that Time and
Luscombe “in fact entertained serious doubts as to the truth” of the
article or that Time and Luscombe had a “subjective awareness of
probable falsity.” This high standard of proof, as established in
McDowell v. Paiewonsky, is simply not met on the summary judg-
ment record before this court. See 769 F.2d 942, 951 (3d Cir. 1985).

II. COMPLAINT AGAINST NEWSWEEK, INC.
AND JOHNNIE L. ROBERTS

The sum and substance of plaintiffs’ complaint against
Newsweek and Roberts is that the following article was defamatory:

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43a
Appendix

Johnnie L. Roberts, Legal Affairs Grabbing at a Dead Star,
Newsweek, Sept. 1, 1997, at 48.

Among other defenses, Newsweek and Roberts, like Time end
Luscombe, contend that the article is not defamatory and that the. __
plaintiffs cannot prove actual malice. For substantially the:same /
reasons as set forth in the Time/Luscombe discussion, I do not find
the language “iced her sex life,”and the statement later in the article
that Mrs. Tucker “can no longer have sex with her husband” are
defamatory, in the entire context of the article. That such language
can be annoying and embarrassing is certainly possible, but it is not
sufficient for a defamation action.

As to actual malice, or the lack thereof, it is difficult to deter-
mine from plaintiffs’ brief exactly what they are relying upon to show
actual malice with regard to the Newsweek/Roberts account. The
primary factor stems from a conversation between plaintiffs’ attor-
ney and Johnnie Roberts. Viewing this factor most favorably for
plaintiffs would result in a finding that plaintiffs’ attorney told
Roberts before he wrote the story that “consortium can mean, in
some cases, sex. I said most of the time it doesn’t and it doesn’t in
this case.” Angino Dep. at 165, lines 15-17 (attached as Exhibit 6 to
Pls. Mem.). Newsweek and Roberts admit in their reply brief that a
finding that Roberts was lying could support a finding of actual
malice. But the record on summary judgment falls far short of clear
and convincing evidence that Roberts was lying in his deposition.
Plaintiffs’ counsel concedes this when he says in his deposition, “I
don’t think when he [Johnnie Roberts] testified in his deposition that
he was lying.” Id. at 163, lines 11, 12.

What plaintiffs seem to be arguing is that plaintiffs’ counsel
told Roberts that this lawsuit was not about sex but that Roberts went
ahead and wrote his story while flat out denying that version of his

44a
Appendix

conversation with Plaintiffs’ counsel. Unfortunately for plaintiffs, as
virtually conceded by plaintiffs’ counsel, this is not the way it hap-
pened.
The following exchange took place at the deposition of Roberts
by plaintiffs’ attorney:
Q. Did I say that she couldn't have any sex with her
husband?
].R. No.
Q. Is that she could no longer have sex?
J.R. No, you didn’t use those precise words, no.
Q. Where did you get the words, “Can no longer have sex
with her husband?”
J.R. That's one of the definitions of consortium, that it
affects sexual relationships.
Roberts Dep. at 219, lines 2-17 (attached as Exhibit 13 to Pls. Mem.).
Tinenhap oemstenehe ae aneniner a
tiffs’ was to the loss of consortium
claim, but that he chose to ignore it in light of his of
consortium. Simply not accepting ’ counsel's version of
of consortium, especially in light of his other investigatory efforts,
See Defs. Mem. (Roberts thereto), is insufficient .o support a
claim of actual malice. By that I am saying that the evidence does
not, as a matter of law, support plaintiffs’ theory that Newsweek
published the Tucker story knowing that it was false or with a reckless
disregard as to its truth or falsity. Moreover, plaintiffs’ attorney even
told Roberts that consortium can in some cases mean sex, even
though in this case, it does not.

Appendix

III. COMPLAINT AGAINST FISCHBEIN

comments are incapable of being defamatory. I agree. Fischbein was
quoted in the Philadelphia Daily News as saying “[I]t’s hard for me
to conceive how these lyrics could destroy her sex life ... [bjut we
can only wait for the proof to be revealed in court.” Jamal E. Watson
and Jim Smith, A Dirty Rap, Philadelphia Daily News, Aug. 2, 1997,
at 5 (attached as Exhibit E to Def. Mem.). Fischbein was also quoted
in Newsweek as saying, “I can’t hardly wait to hear testimony on that
subject.” Johnnie L. Roberts, Legal Affairs—Grabbing at a Dead
Star, Newsweek, Sept. 1, 1997, at 48.

In viewing plaintiffs’ lengthy but largely irrelevant briefin reply
to Fischbein’s motion, it seems that the chief gripe of plaintiffs’
counsel is that Fischbein has made a mockery out of the discovery
process. Out of a 45 page brief, pages 7 to 45 are nothing more than
extracted portions of Fischbein’s deposition testimony.

Plaintiffs’ brief refers only to Fischbein’s “defamatory sexual
spin.” Assuming that Fischbein made the exact remarks as attributed
to him, I am convinced they are not defamatory as I have defined
that term in this opinion.

Counsel for all defendants have made various other arguments,
not the least of which is that the statements were true. By not
commenting on them, I have not necessarily rejected them.

An appropriate order follows.

46a
Appendix

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION
NO. 97-6150

C. DELORES TUCKER and WILLIAM TUCKER, her husband,
Plaintiffs,
Vv.

RICHARD FISCHBEIN, TIME INC., BELINDA
LUSCOMBE, NEWSWEEK MAGAZINE and JOHNNIE L.
ROBERTS,

Defendants.

ORDER

AND NOW, this 9 day of February, 1999, it is hereby OR-
DERED that summary judgment is GRANTED in favor of Time
Inc., Belinda Luscombe, Newsweek Magazine, Johnnie L. Roberts
and Richard Fischbein and against C. Delores Tucker and William
Tucker, in accordance with the accompanying memorandum.

BY THE COURT:
/s(RONALD L BUCKWALTER, J.

47a
Appendix

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION
NO. 976150

C. DELORES TUCKER and WILLIAM TUCKER, her husband,
Plaintiffs,

V.

RICHARD FISCHBEIN, TIME INC., BELINDA
LUSCOMBE, NEWSWEEK MAGAZINE and JOHNNIE L.
ROBERTS,

Defendants.

ORDER
AND NOW, this 10th day of February, 1999, in light of this

court's decision granting summary judgment in favor of all defen-
dants, it is hereby ORDERED that Defendants’ Motion to Disqual-
ify (Docket No. 66), and Defendants’ Motion to Exclude Plaintiffs’
Expert Testimony (Docket No. 76) are DENIED as MOOT.

BY THE COURT:

/s(RONALD L. BUCKWALTER, J.

48a
Appendix

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION NO. 97CV-4717
FILE JUL 21 1997

C. DELORES TUCKER and
WILLIAM TUCKER, her husband,

Plaintiffs
Vv
MTS, INC. ta TOWER RECORDS; INTERSCOPE, INC.;
INTERSCOPE RECORDS; TED FIELD; TIME WARNER;
JAMES IOVINE; SEAGRAM CO.; MCA INC.; MERRILL
LYNCH; DEATH ROW RECORDS, INC.; DAVID KENNER;

and AFENI SHAKUR as administratrix of the ESTATE OF
TUPAC SHAKUR,

Defendants
JUDGE

JURY TRIAL DEMANDED

COMPLAINT

1. Plaintiff C. Delores Tucker is the chair of the nonprofit
National Congress of Black Women, Inc. She is the former Secretary
of State of the Commonwealth of Pennsylvania and Chair of the
Democratic National Committee Black Caucus and the National
Board of N.A.A.C.P.

9. Plaintiff C. Delores Tucker resides in the Commonwealth of
Pennsylvania.

TAT Ee eee ee! ee ee

49a
Appendix

3. Plaintiff William Tucker is married to C. Delores Tucker and
resides in the Commonwealth of Pennsylvania.

4. Defendant MTS, Inc., under the trade name of Tower
Records, is a California Corporation with its principal place of
business in California.

5. Defendant Interscope, Inc. is a California Corporation with
its principal place of business in California.

6. Defendant Interscope Records is a California General Part-
nership with its principal place of business in California.

7. Defendant Ted Field is an owner or partner and/or has a
financial interest in Interscope Records and resides in a state other
than Pennsylvania.

8. Defendant Time Warner has or had a financial interest in
Interscope Records, and its principal place of business is in a state
other than the Commonwealth of Pennsylvania.

9. Defendant James ovine is the President of Interscope
Records and resides in a state other than Pennsylvania.

10. Defendant Seagram Co. is a company with a financial
interest in Interscope and has its principal places of business outside
of the Commonwealth of Pennsylvania.

11. Defendant MCA Inc. and/or Universal are corporations
with a financial interest in Interscope and principal places of busi-
ness in a state other than the Commonwealth of Pennsylvania.

50a
Appendix

12. Defendant Merrill Lynch is a business entity with a finan-
cial interest in Interscope and its principal place of business in a state
other than the Commonwealth of Pennsylvania.

13. Defendant Death Row Records, Inc., is a California Cor-
poration with its principal place of business in California.

14. David Kenner is an attorney representing Death Row
Records, Inc., may have a proprietary and/or other financial interest
in Death Row Records, and resides outside the Commonwealth of
Pennsylvania.

15. Defendant Afeni Shakur who resides in a state other than
Pennsylvania is the Administratrix of the Estate of deceased Defen-
dant Tupac Shakur.

16. At all times relevant to this Complaint, up until his death
on September 13, 1997, deceased Defendant Tupac Shakur was a
servant, agent, apparent agent and/or employee of Defendant Death
Row Records and was acting within the course and scope of employ-
ment for Death Row Records.

17. At all times relevant to this Complaint, James Iovine was a
servant, agent, and/or employee of Interscope Records and was

acting within the course and scope of employment for Interscope
Records.

18. At all times relevant to this Complaint, David Kenner was
a servant, agent, and/or employee of Death Row Records, Inc. and

was acting within the course and scope of employment for Death
Row Records.

PE er ee

Sla
Appendix

19. At all times, relevant to this Complaint, Defendant Inter-
scope Records had an exclusive distribution agreement with Defen-
dant Death Row Records through which Interscope Records clistrib-
uted under its label, recordings produced by Defendant Death Row
Records.

20. At all times relevant to this Complaint, Defendant Inter-
scope Inc., was the managing general partner of Defendant Inter-
scope Records.

21. At all or various times relevant to this Complaint, Inter-
scope Records was 50% owned by Seagram Co.’s MCA Inc.

22. At all or various times relevant to this Complaint, Inter-
scope Records was owned in part by Time Warner or Time Warner
had a financial interest in Interscope.

23. Prior to February, 1996, Plaintiff C. Delores Tucker was
the leader of a large group of religious, moral, and law abiding
citizens who marched, lobbied, and campaigned against the porno-
graphic and drug oriented misogynistic lyrics of “gangsta” rap as
created, promoted, distributed, and marketed by various defendants
to minors without restriction.

24. “Gangsta rep” is a sla..g expression using vernacular for the
word “gangster” which, by definition refers to one engaged in
anti-social or criminal behavior. Furthermore, the music contains
vile, profane, obscene and indecent lyrics which glorify drugs, vio-
lence, and illicit sex. “Rap” or “Hip Hop” is a form of music, more

spoken than sung, and can be distinguished from “gangsta rap” in

52a
Appendix

that it chronicles life in the ghetto without obscene and indecent
lyrics, and may have redeeming social value.

25. Various defendants involved with Death Row Records and
“gangsta” rappers take pride in the sex, drugs and “gangsta” violent
behavior and its influence on increased record sales.

26. Plaintiff has focused her attention on stopping the produc-
tion and distribution of said music to impressionable youth, because
it tends to corrupt the morals of minors, in violation of 18 Pa.C.S.A.
§6301(a), that some of it is obscene and unprotected by the Consti-
tution, and some is “explicitly sexual material” in violation of 18
Pa.C.S.A. §5903(c). See Exhibits “A” and “B” attached hereto.

27. Said efforts met with widespread support across political,
racial and economic lines, including support from William Bennett,
former U.S. Secretary of Education, U.S. Senator Joseph Lieber-
man, Majority Leader and Vice Presidential candidate Robert Dole,
and General Colin Powell.

28. In February, 1996, Defendant Interscope Records, distrib-
uted under its label, “All Eyez On Me”, which is a record containing
music performed by deceased Defendant recording gangsta rap
superstar Tupac Shakur and produced by Defendant Death Row
Records.

29. Contained on the aforementioned recording entitled “All
Eyez on Me” are recordings entitled “Wonda Why they Cail B” and
“How Do You Want It.”

Diy asta inne vw

53a
Appendix

30. Contained in the aforementioned recording entitled “How
Do You Want It” were lyrics stating “C. Delores Tucker you're a
mother fucker, instead of trying to help a brother you destroy a
nigga.”

31. Contained in the aforementioned recording entitled
“Wonda Why they Call B” were lyrics stating “Got your legs up trying
to get rich. Keep your head up and your legs closed Dear Ms.
Delores Tucker” alluding to prostitution and tells why women are
called bitches.

32. In January, 1996, Plaintiff C. Delores Tucker engaged in a
lawful protest against the sale of gangsta rap music to minors by
Defendant MTS, Inc., under the trade name of Tower Records, in
Philadelphia, Pennsylvania.

33. On March 2, 1996, Plaintiff again, in the exercise of her
constitutional right to protest, engaged in a protest on the premises
of Defendant, MTS, Inc., under the trade name of Tower Records,
in Philadelphia, Pennsylvania to stop the sale to minors of sound
recordings containing sexually explicit lyrics as expressly prohibited
by 18 Pa. C.S.A. §5903 and 18 Pa. C.S.A. §6301(a). See Exhibits “A”
and “B”.

34. As a result of her lawful protest, Plaintiff was arrested,
handcuffed, and forcibly removed by police from the premises of
Defendant MTS, Inc., under the trade name of Tower Records

o4a
Appendix

35. The aforementioned removal of Plaintiff C. Delores Tucker
from the premises of Defendant MTS, Inc., under the trade name
of Tower Records, took place under the express direction or with the
knowledge and consent of Defendant MTS, Inc., under the trade
name Tower Records.

36. Sometime after February 1, 1996, Defendant MTS, Inc.,
under the trade name of Tower Records, nevertheless offered for
sale and sold to minors the aforementioned sound recording entitled
“All Eyez On Me”, and other gangsta rap albums containing sexually
explicit messages, offensively coarse language and lewd and inde-
cent words about Plaintiff C. Delores Tucker.

37. Defendants all participated in various ways, in the conceiv-
ing of the idea, creating the recording, the marketing/distributing
and not recalling “All Eyez On Me” which contained sexually explicit
messages, offensively coarse language, and lewd and indecent words
about Plaintiff C. Delores Tucker in violation of 18 Pa. C.S.A. §5504.

38. In August, 1995, Defendant Interscope filed suit against
Plaintiff C. Delores Tucker in California charging her, inter alia, with
Inducement to Breach the Contract between Death Row and Inter-
scope.

39. Defendants knew full well that Plaintiff had done no such
thing and filed the false claim only to embarrass her, to cause

emotion distress and to deter her crusade against gangsta rap.

55a
Appendix

40. In May, 1997, the U.S. District Court for the Central
District of California (Case No. CV 95-5444), Judge M. Takasugi
issued an opinion that there was no breach of contract and that
Plaintiff did not induce a breach of the contract as alleged by
Interscope, which of course they already knew.

41. Following the lawsuits and the release of the aforemen-
tioned recordings, Plaintiff, C. Delores Tucker has reasonable fear
for her life because violence and death play a central role in the
gangsta rap arena. Indeed, two prominent murders have been re-
ported since the unsolved murder of Tupac Shakur in September,
1996.

42. Since the lawsuits and the release of the aforementioned
recordings Plaintiff, C. Delores Tucker has received death threats.

43. The lawsuits and the release of the aforementioned record-
ings were intended to and did cause Plaintiff C. Delores Tucker
severe emotional distress.

44. By using vile and offensive language, the recordings have
held her up as an object of scorn to more than 5,000,000 people,
including children in Philadelphia and elsewhere.

45. Since the lawsuits and the release of the aforementidned
recordings C. Plaintiff C. Delores Tucker has suffered defamation
of character and reputation.

46. Plaintiff, who is frequently called upon to speak at churches
throughout the country, is a moral and religious daughter of a
well-known, respected Philadelphia minister, now deceased, and has

56a
Appendix

siblings, extensive family, relatives, and thousands of friends in
Phila ia and throughout the country and world, who have heard
or heard about the said recording and lawsuit.

47. As a result, Plaintiff C. Delores Tucker, has incurred medi-
cal expense; has undergone mental pain, suffering, and inconven-
ience; loss of life’s pleasures; fears for her life; has lost her personal
freedom to travel freely where and when she desires; and claim is
made therefor. |

48. As a result of the aforesaid injuries, Plaintiff C. Delores
Tucker will incur medical expense; will undergo mental pain, suffer-
ing, and great inconvenience; loss of life’s pleasures; fear for her life;
lose her personal freedom to travel freely where and when she
desires; and claim is made therefor.

49. Asa result, Plaintiff C. Delores Tucker has been, and in the
future will be, subject to great humiliation and embarrassment, and
claim is made therefor.

50. Plaintiff's husband, William Tucker has as a result of his
wife's injuries, suffered a loss of advice, companionship and consor-
tium.

WHEREFORE, Plaintiffs C. Delores Tucker and William
Tucker demand judgement against Defendants in an amount in
excess of $10,000,000, exclusive of interest and costs, and in excess
of any jurisdictional amount requiring compulsory arbitration.

57a
Appendix

COUNT I—INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS

C. Delores Tucker and William Tucker v. MTS, Inc., tla
Tower Records, Interscope Inc., Interscope Records, Ted
Field, James Iovine, Seagram Co.,

MCA Inc., Merrill Lynch, Death Row Records, Inc., Estate
of Tupac Shakur, Afeni Shakur as Administratrix of the
Estate of Tupac Shakur
Time Warner, and David Kenner.

51. Paragraphs 1 through 50 of this Complaint are incorporated

herein by reference.
52. Deceased Defendant Tupac Shakur’s conduct as set forth

above was extreme and outrageous.

53. As a direct and proximate result of Defendant Tupac
Shakur’s extreme and outrageous conduct as set forth above, Plaintiff
C. Delores Tucker suffered severe emotional distress including but
not limited to, feelings of fright, shock, humiliation, and outrage.

54. Defendants all participated in various ways, including the
bringing of lawsuits, submitting Plaintiff Tucker to eleven days of
depositions, the conceiving of the idea, creating the recording, the
marketing/distributing and not recalling “All Eyez On Me” for the
specific purpose of causing Plaintiff C. Delores Tucker to suffer
extreme distress, fear for her life, and to lessen her resolve against
“gangsta” rap.

55. Defendants’ actions as set forth above constituted extreme
and outrageous conduct that evidence a wanton disregard for the

58a
Appendix

safety and well-being of Mrs. Tucker sufficient to merit an award of
punitive damages, and claim is made therefor.

WHEREFORE, Plaintiffs C. Delores Tucker and William
Tucker demand judgment against Defendants in an amount in
excess of $10,000,000, exclusive of interest and costs, and in excess
of any jurisdictional amount requiring compulsory arbitration.

COUNT II—SLANDER

C. Delores Tucker and William Tucker v. MTS, Inc., t/a
Tower Records, Interscope Inc., Interscope Records, Ted
Field, James Iovine, Seagram Co., MCA Inc., Merrill
Lynch, Death Row Records, Inc., Afeni Shakur as
Administratrix of the Estate of Defendant Decedent Tupac
Shakur

56. Paragraphs 1 through 55 of this Complaint are incorporated
herein by reference.

57, Deceased Defendant Tupac Shakur’s aforementioned lyr-
ics referring to Plaintiff C. Delores Tucker in “All Eyez On Me” were
false and defamatory when produced, marketed, distributed and
sold.

58. Deceased Defendant Tupac Shakur's aforementioned de-
famatory lyrics were eres with malice, meaning that said lyrics
were produced with knowledge that they were false.

59. Defendants other than Deceased Defendant Tupac Shakur
knowingly participated in the creation, marketing, distribution, and
sale of the slanderous recording “All Eyez On Me” and refused to
recall same even though there was precedent involving anti-semitic
lyrics by Michael Jackson.

EE und Aw osn soqed p,l.— 0 83ns, DSSIN Aji» Ap2LaS

NPCO726

63a
Appendix

CHARLES B. ORTNER

GEOFFREY L. THOMAS, SB# 51701

BELINDA R. OREM, SB# 98442

PAUL, HASTINGS, JANOFSKY & WALKER

Twenty-Third Floor
555 South Flower Street

Los Angeles, California 90071-2371

(213) 683-6000

BERTRAM FIELDS, SB# 24199

GREENBERG, GLUSKER, FIELDS, CLAMAN &

MACHTINGER

1900 Avenue of the Stars
Suite 2000

Los Angeles, California 90067
(310) 553-3610

Attorneys for Plaintiff

INTERSCOPE RECORDS, INC., as managing
general partner of INTERSCOPE RECORDS,

a California general partnership

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

INTERSCOPE RECORDS,
INC., a California corporation,
as managing general partner of
INTERSCOPE RECORDS, a
California general partnership,
Plaintiff,
VS.
C. DELORES TUCKER, an in-
dividual; and ATLANTIC VEN-

TURES, INC., a Delaware cor-
poration,

Defendants.

CASE NO. 95-5444 RMT (CTx)
COMPLAINT FOR INDUCE-
MENT TO BREACH CON-
TRACT, INTENTIONAL IN-
TERFERENCE WITH CON-
TRACT AND PROSPECTIVE
BUSINESS ADVANTAGE;
UNFAIR BUSINESS PRAC-
TICES AND UNFAIR COM-
PETITION; INJUNCTIVE
RELIEF AND DAMAGES

(JURY TRIAL DEMANDED)

64a
Appendix

Plaintiff brings this action against defendants for the claims
specified below and seeks injunctive relief and damages as follows:
PARTIES

_ 1. The plaintiff is Interscope Records, Inc., a California corpo-
ration, as the managing general partner of INTERSCOPE REC-
ORDS, a California general partnership (“Interscope”). Interscope
has its principal place of business in the Central District of Califor-
nia, Western Division. Interscope is a joint venture partnership
between Interscope Records, Inc. and Atlantic Ventures, Inc., a
nominal defendant herein.

2. Interscope is informed and believes, and based thereon
alleges, that the defendant, C. Delores Tucker (“Tucker”), an indi-
vidual, resides in and is a citizen of a state other than California.

3. Interscope names as a nominal defendant, against which it
seeks no relief in this action, Atlantic Ventures, Inc. (“Atlantic”), a
Delaware corporation, headquartered in the state of New York.

65a
Appendix

JURISDICTION AND VENUE
4. Jurisdiction exists in this action under the principle of diver-
sity of citizenship, 28 U.S.C. §1332, in that the matter in controversy
exceeds $50,000, exclusive of interest and costs; and the Plaintiff and
all of the defendants are citizens of different states.

5. Venue is properly laid in this District pursuant to 28 U.S.C.
§ 1302. Interscope is informed and believes, and based thereon
alleges, that at all relevant times Tucker engaged in certain wrongful
acts alleged below in the Central District of California, Western
Division, and engaged in other unlawful, acts outside this District
which caused injury to Interscope in this District. Accordingly,
venue properly lies in this District.

GENERAL ALLEGATIONS

6. Interscope is a California general partnership consisting of
Interscope Records, Inc. and Atlantic Ventures, Inc. (“Atlantic”), an
affiliate of Time Warner Inc. (“Time Warner”). Interscope is one of
the most successful record labels in the world.

7. Interscope has entered into valuable exclusive contractual
arrangements with other record companies which furnish to Inter-
scope recordings by artists for exclusive distribution through the

66a
Appendix

Interscope label. Among such companies is Death Row Records,
Inc. (“Death Row Records”), with whom Interscope has an exclusive
distribution agreement (the “Death Row Records Contract”).

8. Interscope'’s exclusive contractual relationship with Death
Row Records, and Time Wamer’s involvement in the Interscope
partnership, have been widely publicized, and upon information and
belief, are known by Tucker.

9. Beginning in mid-1995 and continuing to the present,
Tucker, together with others whose identities are currently unknown
to Interscope, embarked upon and has continued to engage in a
scheme and conspiracy to destroy Interscope by committing extor-
tion, threats and other unlawful acts. Among other things, Tucker
has (a) attempted to induce Death Row Records to breach the Death
Row Records Contract; (b) interfered with Interscope’s valuable
relationship with Death Row Records; (c) damaged Interscope’s
reputation and credibility in the music industry; and (d) attempted
to induce Atlantic and Time Warner to breach their fiduciary obli-
gations to Interscope. Interscope is informed and believes, and on
that basis alleges, that Tucker has pursued such unlawful acts in
order to create a record distribution company to distribute record-
ings produced by Death Row Records and other record companies
and recording artists, for her own personal and financial gain.

67a
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10. Specifically, in or about July or August, 1995, Tucker
attempted to pressure Death Row Records into severing its relation-
ship with Interscope and appointing Tucker and her associates as
Death Row Records's exclusive representative to negotiate a pro-
duction and distribution agreement directly with Time Warner. As
Tucker well knew, if Death Row Records proceeded on that course,
it would result in a breach by Death Row Records of the Death Row
Records Contract and a breach by Atlantic and Time Warner of their
fiduciary obligations to Interscope, which would effectively destroy
Interscope.

11. In order to induce Death Row Records to accede to her
unlawful demands, Tucker engaged in extortion and other improper
conduct in or about July and August of 1995, including the following:

(a) In a meeting in Seattle, Washington, attended by Suge
Knight (“Knight”), the Chairman of Death Row Records, David
Kenner (“Kenner”), the attorney for Death Row Records, and oth-
ers, Tucker told Knight that she wanted to set up a record distribu-
tion company which she would control, and in which Knight would
have an interest. She made it clear to Knight that Death Row
Records’ willingness to break away from Interscope was an integral
part of her scheme. Tucker stated that she had had numerous private
conversations about her plan with Gerald Levin (“Levin”), the
Chairman of the Board of Directors of Time Warner, and Michael
Fuchs (“Fuchs”), the Chairman of the Warner Music Group, and

68a
Appendix

that they were prepared to support Tucker by putting up “incredible
amounts of money.” Tucker stated, however, that Levin and Fuchs
would go along with Tucker only if they believed that Tucker had
the ability to control the lyrics on recordings produced by Death
Row Records. Therefore, Tucker attempted to induce Knight into
deceiving Levin and Fuchs into believing that she could control the
lyrics, even though Knight made it clear to Tucker that he would not.
permit such control. In order to accomplish her deception, Tucker: .
sought to have Knight agree to a false and fraudulent press release,
and to stand beside Tucker at a press conference to falsely convey
to Levin and Fuchs that she could control Knight and Death Row
Records.

(b) In numerous telephone calls and meetings thereafter,
Tucker and her associates threatened Knight that if he did not cause
Death Row Records to break away from Interscope, Tucker would
use her power and influence, and would cause Time Warner to use
its power and influence, to get the Government “to go after” Knight
and his attorney, by investigating and prosecuting them. Knight was
specifically threatened that as a result he would spend the rest of his
life in jail.

(c) Furthermore, Tucker and her associates threatened that if
Knight did not cause Death Row Records to break away from

Interscope, Tucker would use her influence with the press, and Time
Warner would use “billions of dollars to manipulate the press” to

69a
Appendix

destroy Knight and Death Row Records. Knight was told, “Even
something completely innocent can be made to look terrible.”

(d) Tucker told Knight that he could avoid terrible conse-
quences if he would cooperate with her, that Time Warner would
pay him “an enormous amount of money,” and that Knight would be
given an ownership interest in her contemplated record distribution
company, if Knight would authorize Tucker and her associates to
negotiate a deal on behalf of Death Row Records with Time Warner,
which would “eliminate Interscope.”

(e) Subsequently, Tucker claimed that she had spoken with
Fuchs, and that Fuchs was prepared to have Time Warmer pay
Knight $80 million, and build two state of the art recording studios
for him, if Knight would cooperate with Tucker.

(f) Tucker and her associates continued to apply pressure upon
Knight and Death Row Records. On August 7, 1995, Tucker or her
associates told Knight that Fuchs was flying from New York to Los
Angeles that evening “to close the deal” with Knight. Tucker deliv-
ered to Knight a letter for Knight's signature, which Tucker had
prepared, which would appoint Tucker and her associates as Death
Row Records’ exclusive representative to negotiate an “acceptable
contract relationship with Time Warner regarding the production
and distribution” of Death Row Records’ recordings.

70a
Appendix

(g) Throughout Wednesday, August 8, 1995, Knight received
numerous telephone messages from Tucker or her associates that
Fuchs was at Dionne Warwick's home in Los Angeles waiting to meet
with Knight. As the day progressed, they told Knight that Fuchs had
assured them that if he was not satisfied with the terms previously
proposed to Knight to eliminate Interscope, Fuchs was willing to be:
flexible in the negotiations. Finally, Knight was told that Fuchs had
been waiting for eight hours to meet with Knight, and had to get on.
a plane to fly back to New York, and, therefore, Knight was urged to
immediately meet with Tucker, Fuchs and others to consummate a
deal.

(h) During the evening of August 8, 1995, Knight received a
telephone call from Tucker or her associates stating that Fuchs was
flying back to New York, and wanted to call Knight from his airplane.

12. The foregoing conduct by Tucker and her associates was
unlawful, in bad faith, and in furtherance of her scheme and con-
spiracy.

71a
Appendix

FIRST CLAIM FOR RELIEF

[Inducing Breach of Contract, Interfering with Contractual
Relations and Prospective Business Advantage]

13. Interscope realleges and incorporates by reference Para-
graphs 1 through 12, inclusive, as though set forth at length.

14. The Death Row Records Contract is a valid and existing
contract between Interscope and Death Row Records. Interscope
is informed and believes, and on that basis alleges, that Tucker had
knowledge of the Death Row Records Contract and intentionally
attempted to induce a breach by Death Row Records or to disrupt
the Death Row Records Contract through unlawful means. In so
doing, Tucker's purpose was to damage Interscope’s credibility with
recording artists, songwriters, and producers, and to interfere with
Interscope’s prospective business advantage, in order to accomplish
her scheme of establishing a record distribution company which
would, among other things, distribute recordings, produced by
Death Row Records.

15. As a direct result of the actions of Tucker and her associ-
ates, the contractual relationship between Interscope and Death
Row Records has been disrupted, and Interscope has suffered actual
and potential damages in an amount as yet unknown. Interscope
shall amend its complaint to set forth the amount of its damages
when ascertained.

72a
Appendix

16. The wrongful acts by Tucker were willful, wanton, mali-
cious, and oppressive, and were undertaken with the intent to injure
Interscope and to further Tucker's scheme and conspiracy to estab-
lish a record distribution company for her own profit and gain. Such
conduct therefore justifies an award of exemplary and punitive
damages in an amount to be proven at trial.

SECOND CLAIM FOR RELIEF
[Injunctive Relief]

17. Interscope realleges and incorporates by reference its
allegations in paragraphs 1 through 12, inclusive, as though set forth
at length.

18. Interscope is informed and believes, and on that basis
alleges, that Tucker, and others acting in concert with Tucker, intend
to continue to cause damage and injury to Interscope unless en-
joined, by, among other things, (a) seeking to induce Death Row
Records to breach the Death Row Records Contract, (b) interfering
with the Death Row Records Contract, and (c) interfering with
Interscope’s prospective business advantage.

19. Interscope has suffered and will continue to suffer irrepa-
rable harm, for which Interscope does not have an adequate remedy

at law, unless Tucker and her associates are enjoined.

73a
Appendix

20. Accordingly, Interscope is entitled to a preliminary injunc-
tion and permanent injunction prohibiting Tucker, and all those
acting in concert with Tucker, from (a) attempting to induce Death
Row Records, or any other party to a contract with Interscope, to
breach any existing contract; (b) interfering with Interscope’s exist-
ing contractual relationships; and (c) tortiously interfering with
Interscope’s prospective business advantage.

THIRD CLAIM FOR RELIEF

(Injunctive Relief For Attempting To Induce A Breach
of Fiduciary Duty]

21. Interscope realleges and incorporates by reference its
allegations in paragraphs 1 through 12, inclusive, as though set forth
at length.

22. Tucker knowingly, willfully and intentionally, and through
the use of unlawful means, has attempted to induce Time Warner,
and its subsidiary, Atlantic, to breach their fiduciary obligations to
Interscope, and to destroy the relationship between the partners
comprising Interscope.

23. Interscope is informed and believes, and on that basis
alleges that, unless enjoined, Tucker intends to continue to attempt
to induce Time Warner and Atlantic to breach their fiduciary obli-
gations to Interscope. Such unlawful conduct by Tucker and her
associates will continue to disrupt the relationship between the

74a
Appendix

partners comprising Interscope, will create uncertainty in the music
industry about Interscope’s stability and viability, and will cause a _
loss of credibility and other irreparable harm to Interscope.

24. Interscope does not have an adequate remedy at law for
the full amount of damages and injury suffered as a result of the
unlawful actions by Tucker and her associates.

25. Accordingly, Interscope is entitled to a preliminary injunc-
tion and permanent injunction prohibiting Tucker, and all those
acting in concert with her, from seeking to induce Time Warner
and/or Atlantic to breach their fiduciary obligations to Interscope,
or to otherwise unlawfully interfere with the business relationship
between the partners comprising Interscope.

FOURTH CLAIM FOR RELIEF
[Unfair Business Practices and Unfair Competition]

26. Interscope realleges and incorporates by reference its
allegations in paragraph 1 through 12, inclusive, as though set forth

at length.
27. The wrongful conduct by Tucker and her associates alleged
above constitutes unfair business practices and unfair competition

75a
Appendix

in violation of Interscope’s rights under California Business and
Professions Code Section 17200 et seq.

28. As a direct and proximate result of the foregoing unfair and
unlawful conduct, Interscope has incurred irreparable harm and has
been deprived of its property rights for which Interscope has no

remedy at law.

29. Interscope is entitled to a preliminary injunction and a
permanent injunction to prohibit Tucker, and all those acting in
concert with her, from violating the foregoing statute; and Inter-
scope is further entitled to all other relief against Tucker and her
associates as is authorized by the statute.

WHEREFORE, Plaintiff prays judgment as follows:
1. For compensatory damages in amount to be proven at trial;

2. For exemplary and punitive damages in an amount to be
proven at trial;

3. Fora preliminary injunction and permanent injunction to |
restrain Tucker, and all those acting in concert with her, from
continuing to engage in extortion and other unlawful activities for
the purpose of (a) inducing or attempting to induce a breach of

76a
Appendix

contract by any party to a contract with Interscope, including but
not limited to the contract between Death Row Records and Inter-
scope; (b) interfering with Interscope’s prospective business advan-
tage; (c) inducing or attempting to induce Time Warner and/or
Atlantic to breach their fiduciary obligations to Interscope; (d)
interfering with the business relationship between the partners
comprising Interscope; and (e) engaging in unfair business practices
and/or unfair competition.

4. For reasonable attorneys fees and costs expended in the
prosecution of this action, to the full extent permitted by law;

5. For pre-judgment interest to the full extent authorized by
law; and

6. For such other and further relief as this Court may deem
just and proper.

DATED: August 15, 1995

CHARLES H. ORTNER
GEOFFREY L. THOMAS
BELINDA K. OREN

PAUL, HASTINGS JANOFSKY &
WALKER

By /s/Charles B. Ortner

Attorneys for Plaintiff

77a
Appendix

BERTRAM FIELDS

GREENBERG, GLUSKER, FIELDS,
CLAMAN & MACHTINGER

By /s/Bertram Fields

Attomeys for Plaintiff

78a
Appendix

David E. Kenner

16000 Ventura Blvd., Fifth Floor
Encino, CA 91436

(818) 995-1195

Bar Number 41425

Attorney for Plaintiff,
DEATH ROW RECORDS, INC.

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
CASE NO. 95-5503

(Related Case No. 95-5444RMT(CTx))
DEATH ROW RECORDS, COMPLAINT FOR VIOLA-
INC., a California corporation, TIONS OF THE RACKETEER
isis INFLUENCED AND COR-
Plaintiff, RUPT ORGANIZATIONS ACT:
INTENTIONAL INTERFER-
; ENCE WITH CONTRACT
C. DELORES TUCKER, NA- AND PROSPECTIVE BUSI-
TIONAL POLITICAL CON- NESS ADVANTAGE; EXTOR-
GRESS OF BLACK WOMEN, TION; UNFAIR BUSINESS
INC., TIME WARNER. INC., PRACTICES; ABUSE OF
WARNER MUSIC GROUP. PROCESS; CLAIM FOR IN-
INC., MICHAEL FUCHS., and JUNCTIVE RELIEF AND

GERALD LEVY, DAMAGES

Defendants. DEMAND FOR JURY TRIAL

VS.

Plaintiff brings this action against Defendants for the claims
specified below and seeks injunctive relief and damages as follows:

I. INTRODUCTION AND OVERVIEW OF ACTION

1. This is an action by Death Row Records, Inc. (hereinafter
referred to as “Death Row Records”) against individuals C. Delores
Tucker (hereinafter referred to as “TUCKER’), the National Politi-
cal Congress of Black Women (hereinafter referred to as
“NPCBW”), Time Warner, Inc. (hereinafter referred to as “TIME
WARNER’), Warmer Music Group, Inc. (hereinafter referred to as

79a
Appendix

“WARNER MUSIC”), Michael Fuchs (hereinafter referred to as
“FUCHS”) and Gerald Levin (hereinafter referred to as “LEVIN”).
This action seeks injunctive relief and damages against Defendants
for multiple violations of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U. S. C. §§1961-68, as well as
various other violations of federal and state laws.

Introduction to the Parties:

2. Death Row Records is a African-American owned inde-
pendent record company founded approximately three years ago.
Its artists are among the most popular in the music industry and its
success is virtually unparalleled. Since approximately 1992, Death
Row Records has had an exclusive contract with Interscope Records,
whereupon Interscope Records has been the sole distributor of
Death Row Records’ recordings. Interscope Records is a general
partnership, which is an affiliate of TIME WARNER, who holds a
fifty-percent interest in all Interscope Records holdings.

3. Defendant TUCKER is the National Chair of the NPCBW
organization. While the specific purposes of this organization are
unknown to plaintiffs, its title suggests a purpose of promating the
role of African-American women in this nation. The allegations
against Defendant TUCKER, set forth in this complaint, include her
actions as a representative or officer of this organization, as well as
her actions as an individual, in furtherance of the enterprise alleged
in this complaint.

4. The NPCBW organization is further alleged as a separate
Defendant responsible for the acts in furtherance of the enterprise
as alleged in this complaint.

5. TIME WARNER, a corporation with its principal place of
business in New York, owns a fifty percent share of Interscope
Records and by its conduct has acted unlawfully in its business
practices and its dealings in concert with Defendant TUCKER and
NPCBW in furtherance of the enterprise against the interest of
Plaintiff alleged in this complaint.

6. WARNER MUSIC, a corporation which is an affiliate of
Defendant TIME WARNER, has acted unlawfully, through its

80a
Appendix

business practices and its dealings with Defendant TUCKER in
furtherance of the enterprise alleged in this complaint.

7. LEVIN is the Chairman of the Board of Directors of Defen-
dant TIME WARNER , and FUCHS is Chairman of the Defendant
WARNER MUSIC. Defendant FUCHS and LEVIN, both as indi-
viduals as well as in their representative capacity, have acted unlaw-
fully in their business practices and their dealings with and through
Defendant TUCKER, and in furtherance of the enterprise alleged
in this complaint.

Overview of the Action:

8. The success of Death Row Records as an independent
record company is virtually unparalleled. Since its inception, Death
Row Records has sold approximately fourteen million records account-
ing to gross receipts in excess of $100 million. Although Death Row
Records’ artist roster includes significant talent in the rhythm and blues
genre, it also releases rap music. Rap music is a style of music wherein
a combination of talking, as well as singing, is set to hip-hop style music.
Death Row Records’ principal artists, most notably Dr. Dre and Snoop
Doggy Dog, have “crossed over” from appearing regularly on the rap
charts to noticeable appearances on the rhythm and blues charts as well.
The music charts are an expression of the sales and popularity of various
forms of recorded music.

9. Much of Death Row Records’ music chronicles the obser-
vations and experiences of young African-America, often describing
experiences and observations arising from the urban ghettos of this
country. These observations and experiences represent a part of life
in America that is non-mainstream and that the government, prior
to the popularity of rap music, was able to control, limit and keep
from the middle class. The current appeal of this music to suburban.
America has caused great concern to the government, politicians and
others, looking to benefit from and capitalize on these events.

10. Rap lyrics often describe observations and experiences
previously shared only by those whose common denominator was an
urban ghetto upbringing. However, these lyrics address subjects
including abandonment, murder, rape, and a variety of other societal
ills. These very same subjects when reported on and exploited by

coy ee

8la
Appendix

network and other news-like broadcast shows in language under-
standable to their audience, are perceived to be nothing more than
a way to increase ratings and profits for mainstream media. These
networks and other news shows are not picketed because they only
purport to describe and relate these events. As a result they are not
accused of advocating the conduct about which they report.

11. While Death Row Records’ rap artists, through their music
and lyrics, do nothing more than report and explain societal ills,
Death Row Records itself has been criticized, threatened, coerced,
and heid up to ridicule in a vicious and malicious attempt to curtail
its success. These attacks are orchestrated to continue until the
profits realized by Death Row Records can be redirected to the
Defendants in such a way as to appear to appease these criticisms.
These attacks which are originated by TUCKER and her cohort
co-Defendants, are made not only in response to the music but in an
attempt to enrich the Defendants themselves. The fact that history and
news within the ghetto is conveyed by the observations and experiences
of rappers in a “ghetto rhetoric” is, as compared to the network and
other news shows, a distinction in form but not substance.

12. Although many of the expressions of the artists on the
Death Row Records, label have been criticized as controversial, by
some, the artistic freedom of expression the label provides to its
artists allows them to convey their thoughts in a way that is mean-
ingful to their primary audiences. Because interest in this form of
expression transcends the ghetto and extends to every part of Amer-
ica, this artistic freedom of expression has contributed significantly
in keeping Death Row Records on the cutting edge of relevance to
its audience and a current industry leader.

13. Interscope Records has been a constant supporter of the
artistic, intellectual and First Amendment rights of Death Row
Records’ recording artists since it became their distributor. The
relationship between these entities and the public's great demand
for Death, Row Records’ music had established a solid business
relationship and proved to be a lucrative venture.

14. For the past 13 months, Defendant TUCKER and the
other Defendants have participated in a unlawful scheme to sub- -

82a
Appendix

stantially interfere with and/or destroy the continuing and resulting
success of Death Row Records and Interscope Records, for financial
gain, furtherance of enterprise and control over musical content. As
alleged in this complaint, this scheme generally began with Defen-
dant TUCKER and possibly the other Defendants’ commencing a
smear campaign against Defendant TIME WARNER, Interscope
Records and Death Row Records, premised on complaints about
the “explicit” lyrical content of some of the music that was being
released through these entities. This campaign, primarily directed
toward Defendant TIME WARNER, was andis an apparent attempt
to induce action through political pressure. Defendant TUCKER
has made it clear on diverse occasions that one of her goals is to sever
the ties between TIME WARNER and Interscope Records. In
furtherance of this objective, she has written articles, appeared on
television commercials and even picketed the TIME WARNER
shareholder's meeting on or about June 1, 1995. Defendant NPCBW
is believed to be funding, supporting, or otherwise contributing to
Defendant TUCKER’s campaign to force TIME WARNER to sever
its relationship with Interscope Records, ostensibly due to the lyrics of
some of the material recorded by Death Row Records artists.

15. As further alleged in this complaint, the actual motivation
of Defendant TUCKER and other Defendants became apparent on
July 7, 1995 when Defendant TUCKER, Dionne Warwick, Melba
Moore and others arranged a meeting with representatives from
Death Row Records in Seattle, Washington. Dionne Warwick and
Melba Moore are African-American women with significant back-
grounds in the area of recorded music. Representing Death Row
Records at this meeting was Suge Knight, the Chief Executive
Officer of Death Row Records (hereinafter referred to as “Knight”).
During the course of this meeting, Defendant TUCKER indicated
to Knight that her interest and goals went far beyond the mere
regulation of lyrical content. Defendant TUCKER indicated that
she was most interested in the formulation of an African-American
owned and controlled distribution company in the music industry.
It thereafter became readily apparent that this was the sole purpose
for the presence of Warwick and Moore at this meeting. This July 7,

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1995 meeting clearly illustrates how the ca

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1807%3A2. Public record. Not legal advice.