The appeals court ruled that the Richs' claims were outrageous enough to sustain a suit for inflicting emotional distress. | Mary Altaffer/AP photo legal Court reinstates suit against Fox News over Seth Rich murder saga

A federal appeals court has reinstated a lawsuit filed by the parents of murdered Democratic National Committee staffer Seth Rich against Fox News over its role in an alleged scheme to falsely link Rich to the disclosure of DNC emails to WikiLeaks.

A three-judge panel of the 2nd Circuit Court of Appeals ruled unanimously Friday that a lower-court judge was wrong to dismiss the suit in which Joel and Mary Rich alleged they were targeted by Fox, its reporter Malia Zimmerman and a wealthy Texas money manager, Ed Butowsky, in a bizarre scheme to drag the Riches’ murdered son into an international controversy over hacked Democratic emails.


The appeals court panel said the Riches’ suit had enough merit — at least on its surface — to allow the case to proceed.

“We have no trouble concluding that — taking their allegations as true — the Riches plausibly alleged what amounted to a campaign of emotional torture,” Judge Guido Calabresi wrote, joined by Judges Christopher Droney and Stefan Underhill.

The Riches’ suit, which named Zimmerman and Butowsky as defendants along with the cable news channel, was not framed as a defamation case, but instead as a complaint for intentional infliction of emotional distress and for interference with a contract the family had with a private investigator who also worked for Fox, Rod Wheeler.

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The suit alleges that Butowsky paid for the Riches to retain Wheeler, fed him unsubstantiated information that a federal official said Rich had been in contact with WikiLeaks prior to his death, then arranged for Fox to publish stories on that alleged link. The Riches’ attorneys claim Wheeler wasn’t allowed to comment to the media without permission from the family but Fox made his comments public anyway, taking advantage of his previous allegiance to the network.

U.S. District Court Judge George Daniels said those alleged steps, taken individually, were not so outrageous to sustain a suit for inflicting emotional distress, but the appeals court said when all the claims were considered they did meet the standard.

“These allegations, taken together, plausibly rise to the level of extreme and outrageous conduct,” Calabresi said. The 2nd Circuit panel also noted that the defendants knew that the Riches were in extreme distress because of their son’s death and allegedly pressed forward with the scheme despite that.

Calabresi’s opinion seeks to sidestep First Amendment concerns by noting that the plaintiffs will still be required to prove “actual malice” to prevail with the suit, essentially that the defendants knew the WikiLeaks link was false or acted with reckless disregard for whether it was true or not.

The appeals court ruling also says the case doesn’t tee up the issue of whether ordinary newsgathering could trigger liability for interfering in a source’s contract pledging confidentiality to someone else.

“The allegations — which we have to take as true — are that Zimmerman and Butowsky (i) intentionally planted a biased investigator to gain the trust of a grieving family; (ii) fed false information to the investigator with the sole purpose of exploiting that investigator’s relationship with the family to give credence to a politically motivated story; and (iii) knew, from the very start, that this story was nothing more than a false conspiracy theory,” Calabresi wrote. “All that is more than enough to counter any possible justification.”

The judges also seemed troubled that while Fox retracted Zimmerman’s reports and deleted them from the network’s website, related segments from Fox host Sean Hannity’s program remain online.

“To this day, Fox News makes available online at least two videos repeating, almost verbatim, the content of the Zimmerman story,” Calabresi wrote, adding that the court found the videos up as recently as Thursday.

“We would not wish what we have experienced upon any other parent – anywhere,” the Riches said in a statement. “We appreciate the appellate court’s ruling and look forward to continuing to pursue justice.”

A statement from Fox and a separate comment from an attorney for Butowsky expressed disappointment in the appeals court’s ruling, but said the suit will eventually run aground because the key claims in it are simply not true.

“The court’s ruling today permits Mr. and Mrs. Rich to proceed with discovery to determine whether there is a factual basis for their claims against Fox News,” the Fox statement said. “And while we extend the Rich family our deepest condolences for their loss, we believe that discovery will demonstrate that Fox News did not engage in conduct that will support the Riches’ claims. We will be evaluating our next legal steps.”

Butowsky’s lawyer, Ty Clevenger, noted that the appeals court was required at the early stage of the suit to assume that all the claims in the Riches’ complaint were accurate.

“It’s a setback for us, but only a temporary one,” Clevenger told POLITICO. “The Second Circuit had to accept the Rich’s allegations as true for purposes of a motion to dismiss. We’re confident we can prove that those allegations are not true, so we still expect to prevail in the end.”

Calabresi, Underhill and Daniels were appointed by President Bill Clinton. Droney is an appointee of President Barack Obama.