The following e-filed documents, listed by NYSCEF document number (Motion 002) 20, 21, 22, 23, 24, 27, 28, 33, 34, 35, 36, 37, 38, 44, 46, 50, 56, 57, 60 were read on this motion to DISMISS COMPLAINT. The following e-filed documents, listed by NYSCEF document number (Motion 003) 40, 41, 42, 43, 45, 47, 48, 49, 51, 52, 58, 59, 61 were read on this motion to DISMISS COUNTERCLAIM. Over the course of 75 days in 2020, Defendant Emily Gellis Lande (“Gellis”), an Instagram “influencer,” published over 4,500 Instagram posts assailing Plaintiffs Tanya Zuckerbrot and Tanya Zuckerbrot Nutrition, LLC, d/b/a/ F-Factor (“F-Factor” and, collectively, “Plaintiffs”). This barrage of posts leveled serious, specific accusations against Plaintiffs, often in intensely personal and vulgar terms. Gellis claimed, among many other things, that F-Factor products contained harmful ingredients, that the diet caused severe health problems, that F-Factor suppressed consumer complaints and engaged in unlawful activity, and that Zuckerbrot personally “sen[t] people” to harm or harass Gellis. The statements were broadcast to Gellis’s growing audience of Instagram followers — at least 200,000 of them — and attracted the attention of mainstream media outlets.1 Plaintiffs allege that Gellis’s accusations are simply false. According to Plaintiffs, Gellis’s unfounded attacks caused “enormous financial harm, reputational damage, and devastating emotional distress.” F-Factor’s monthly revenue plummeted from over $1 million to $90,000. Plaintiffs filed this action asserting claims against Gellis for defamation, product disparagement, deceptive trade practices, intentional infliction of emotional distress, and civil harassment. Gellis filed a counterclaim seeking to recover damages from Plaintiffs for filing this lawsuit as a strategic lawsuit against public participation (“SLAPP”) in violation of New York’s recently amended anti-SLAPP law. Gellis moves to dismiss Plaintiffs’ Complaint, and Plaintiffs move to dismiss Gellis’s counterclaim. For the reasons set forth below, Defendant’s motion to dismiss is granted in part and denied in part, and Plaintiffs’ motion to dismiss Defendant’s counterclaim is granted. In summary: Plaintiffs state viable claims for defamation and product disparagement. They sufficiently allege that Gellis made or republished false statements with actual malice — that is, with knowledge of their falsity or with reckless disregard of whether they were false. Although the First Amendment gives Gellis broad freedom to express her thoughts and opinions, vulgar or otherwise, she does not have legal immunity to publish false factual information about people or products under the gauzy cloak of being “authentic” and “raw.” Of course, whether some or all of her statements were indeed false is a fact question that cannot be decided on this motion. Plaintiff’s’ claims asserting that Gellis engaged in deceptive trade practices, intentional infliction of emotional distress, and civil harassment are dismissed, as is Gellis’s anti-SLAPP counterclaim. FACTUAL BACKGROUND2 A. Zuckerbrot, F-Factor, and Gellis Zuckerbrot is the creator of the “F-Factor Diet,” “a groundbreaking dietary program focused on high-fiber foods” (Compl.
3, 35 [NYSCEF 1]). She is an internationally-known dietitian, the author of two bestselling books endorsing the health benefits of fiber, an advisor in private practice to thousands of clients, including celebrities, business, and government leaders, and is also a lecturer, consultant, spokesperson, and national media personality to boot (id. 3). Zuckerbrot’s company, F-Factor, helps support Zuckerbrot’s efforts to promote the F-Factor diet (id. 50). Among other things, the company manufactures high-fiber protein powders and protein bars for customers following the F-Factor diet (id.
