Case 0:17-cv-60426-UU Document 169 Entered on FLSD Docket 06/04/2018 Page 10 of 22
made in New York “where the New York legislature has spoken regarding the breadth of its
privilege,” the court held that New York law should apply to the affirmative defense. Id. So too
here; the affirmative defenses asserted by Defendants exist to protect speakers, not to provide
Plaintiffs a remedy. Furthermore, the decision to publish the Dossier was made in New York,
and accordingly, New York has a strong interest determining the applicability of the affirmative
defenses. D.E. 1-3 ¶ 10; D.E. 1-2, p. 21. The first two of the relevant Section 6 factors,
therefore, weigh in favor of applying New York law.
The third also weighs in favor of applying New York law, but not as forcefully. Two
related defamation suits are pending against Defendants in New York. 4
Defendants have
asserted the same privileges there that are at issue here. Applying New York law to those
privileges, therefore, tends to promote predictability and uniformity of result.
Defendants go a step further and argue that it is “absurd” that their decision to publish the
Dossier could be protected in one jurisdiction and unprotected in another. D.E. 133, p. 17.
Hardly—that is the nature of our federalist system. See Murphy v. F.D.I.C., 208 F.3d 959, 965
(11th Cir. 2000) (“‘Our system contemplates differences between different states’ laws’”)
(quoting In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1175 (D.C. Cir. 1987),
aff’d sub nom. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 109 (1989)). Still, applying New
York law to Defendants’ privileges would tend to foster predictability and uniformity of result,
and therefore, this factor weighs somewhat in favor of applying New York law.
4
The Court may take judicial notice of the existence and nature of other lawsuits. See generally United States v.
Jones, 29 F.3d 1549, 1553 (11th Cir.1994); Universal Express, Inc. v. S.E.C., 177 Fed. Appx 52, 53 (11th Cir.
2006).
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