Sexual harassment crusader Lisa Bloom asked the full Ninth Circuit to weigh in on ex-
A three-judge panel’s March 25 ruling allowing Wynn to go forward with the suit created a new standard for assessing the “actual malice” needed to prove libel, the former TV personality and daughter of famed women’s rights advocate Gloria Allred said Thursday.
“The Panel’s decision appears to require a publisher not only to second-guess the factual accuracy of a witness’s statements despite having no reason to doubt them, but also requires a publisher to doubt the subjective beliefs of the witness,” according to the petition seeking rehearing en banc. That’s at odds with U.S. Supreme Court precedent and would open a split with other federal circuits, Bloom said.
Wynn’s lawsuit concerns a March 22, 2018, press release issued by Bloom and her firm. It “suggests” Wynn directly or indirectly instructed that female performers in the resort’s ShowStoppers productions “strip down to bras and panties, put on heels, and apply extra makeup so as to be sexually appealing” to Wynn and that Angelina Mullins’ role in the shows was reduced because she wouldn’t comply, the Ninth Circuit said in the ruling.
Testimony from Mullins and another show worker may have made it clear before the press release was issued that Mullins lacked personal knowledge that the instructions came from Wynn and that Mullins only assumed they did, the panel said. A jury could find actual malice from Bloom’s and her firm’s decision to publish the press release anyway, the panel said.
The release was issued in the wake of a series of published reports in January 2018 accusing Wynn of a decade-long pattern of sexual misconduct, after which he stepped down as Wynn Resorts’ chief executive officer and the company was fined $20 million by Nevada gaming regulators.
That backdrop, allegations that the strip-down instructions “were conveyed by Wynn’s right-hand man,” and her “decades of experience” handling workplace sexual harassment cases convinced Bloom that Mullins’ allegations were credible, notwithstanding the panel’s conclusion that contrary statements should have prompted Bloom to doubt Mullins’ account and investigate further, the petition said.
“Every witness to whom Appellants spoke concluded Wynn was behind the stripping requirements and the retaliation Mullins experienced,” according to the petition.
Allowing the panel’s decision to stand will add a new rule “that a witness, whether a source for a reporter’s story or a client for an attorney’s statements,” must state that she knows with absolute certainty that her story is true and based on direct, personal knowledge, Bloom said.
That “unprecedented requirement” has no foundation in defamation and libel law, she said.
Randazza Legal Group PLLC represents Bloom and her firm. Peterson Baker PLLC and Pisanelli Bice PLLC represent Wynn.
The case is Wynn v. Bloom, 9th Cir., No. 20-15388, petition for rehearing en banc 4/8/21.