Aaron Moss, Ricardo Cestero, and Steve Stein of Greenberg Glusker’s Litigation Department, along with Intellectual Property Department Chair Jesse Saivar, prevailed on a motion for summary judgment on behalf of client Barstool Sports in the Southern District of New York on March 29, 2021.

The dispute arises from a high-profile federal lawsuit that actor and comedian Michael Rapaport brought against Barstool, its founder Dave Portnoy and other Barstool personalities, in which Rapaport alleged that Barstool wrongfully terminated a talent agreement that it had entered into with him, defrauded him by not using good faith efforts to obtain a show for him on Barstool’s satellite radio channel, and defamed him by making dozens of statements relating to him being a racist, a fraud, having herpes, and abusing his ex-girlfriend. Barstool filed a counterclaim alleging that it had properly terminated the talent agreement because Rapaport had brought himself and Barstool into public disrepute by attacking Barstool’s fans on Twitter.

After almost two years of litigation and more than a dozen depositions, Barstool filed a motion for summary judgment as to Rapaport’s fraud and defamation claims, and Rapaport filed a motion for summary judgment as to his fraud and defamation claims, along with six of his breach of contract claims. Lauren Fishelman and Vera Serova, and co-counsel Barry Werbin of Herrick Feinstein LLP, assisted with the summary judgment briefing.

The Southern District of New York ruled entirely in Barstool’s favor, issuing a 64-page decision in which it:

  • Granted summary judgment for Barstool as to Rapaport’s fraud claims, finding that they were barred under New York law because they “impermissibly duplicate[d]” the subject matter of one of his breach of contract claims;
  • Granted summary judgment for Barstool as to Rapaport’s defamation claim, finding that some of the allegedly defamatory statements were “inherently subjective assessments that are incapable of being proven objectively false,” others were non-actionable statements of opinion based on their tone and context, and others would not be understood by a reasonable audience to convey factual accuracy;
  • Denied Rapaport summary judgment as to his six breach of contract claims and decided, on its own, to dismiss one of those claims; and
  • Denied Rapaport summary judgment as to Barstool’s counterclaim that Rapaport had materially breached the talent agreement by attacking Barstool’s fans, finding that Barstool had alleged genuine issues of material facts for a jury to decide. 

Greenberg Glusker is Barstool’s principal litigation firm, handling or overseeing numerous disputes, including IP infringement suits and a wiretapping suit before the Massachusetts Supreme Judicial Court. Greenberg Glusker also handles all of Barstool’s day-to-day transactional matters including its talent deals, content distribution arrangements, branded content agreements, merchandising transactions, IP licensing, backend technology agreements, and its large trademark portfolio.