for BigTrial.net
The Philadelphia Inquirer is playing hardball with former columnist Stu Bykofsky, who famously sued the paper for defamation after his going-away party went nuclear.
On June 29th in the Philadelphia Court of Common Pleas, the Inquirer filed a lawsuit against Bykofsky alleging that in defending his reputation, he had violated a non-disparagement clause that he signed three years ago when he took a buyout.
In the lawsuit, which the head of Bykofsky's union says described as unprecedented, the Inquirer is seeking to recoup from Bykofsky "gross pay in the amount of $58,738.56," as well as "payment of his COBRA medical expenses for a period of eight months."
Ross, who termed the newspaper's lawsuit "a pretty desperate measure," said that "in all the buyouts the Inquirer has had over the past 20 years, they have never sued a former Guild member for violating the terms of the buyout."
"It's like shooting somebody and then sending them a bill afterwards for cleaning the blood stains off the carpet," said Mark Schwartz, Bykofsky's lawyer. "What are they thinking, that in the middle of this, they're going to scare us? I'm looking forward to trying this case."
And instead of asking for $58,000, Schwartz said, he'll be asking a jury for millions.
Bykofsky, who declined comment, filed his defamation lawsuit over his July 12, 2019 going-away party held in the Inquirer newsroom, after Pulitzer Prize-winning architecture critic Inga Saffron trashed Byko as a sexist, ethically challenged print dinosaur with "a taste for child prostitutes in Thailand."
The Inquirer lawsuit is the latest salvo in a legal war that's fueled by dueling briefs over whether Bykofsky's defamation case should be dismissed on summary judgment.
In a bloody exchange of excerpts from depositions in the case, Bykofsky admitted that he had patronized a 26 year-old prostitute three or four times during his infamous 2011 trip to Thailand.
That was something Bykofsky did not mention in the column that Saffron used to trash him at his going away party. As far as Schwartz is concerned, however, Saffron's remarks were still defamatory.
"She said he had a taste for child prostitutes, but at no time did he have sex with a child prostitute," Schwartz said.
Meanwhile, in her deposition, Saffron had to admit she got some important facts wrong during her attack on Bykofsky. She also had to say that although she usually apologizes when she gets something wrong, she never apologized to Bykofsky.
Asked at deposition why she savaged Byko, Saffron replied, “I still don’t know what possessed me.”
When he took his buyout, the newspaper's lawsuit alleges, Bykofsky signed an agreement "that he will not make or cause to be made any oral or written statement that disparage, are inimical to, or damage the reputation of the Employer . . . "
"This agreement includes, but is not limited to, any statements or postings made online. To the extent postings exist as of the date of this Agreement, Employee hereby agrees to delete or remove such postings at the time of execution of this Agreement."
Although "Bykofsky agreed to refrain from disclosing confidential information of the Inquirer," the newspaper's lawsuit says, "Bykofsky was determined to make Saffron and the Inquirer look bad in any potential story written about the retirement party."
The Inquirer's lawsuit says that Bykofsky violated his non-disparagement clause by giving videos of his going away party to Philly mag, and by being quoted as saying that the video made Saffron look like she was “a lying, bitter, malicious, crazy person."
The Inquirer lawsuit claims that Bykofsky also violated his non-disparage clause when his lawyer openly admitted to leaking office emails from top Inquirer executives to bigtrial.net. In those emails, "Bill Marimow, a well- known figure in Philadelphia journalism circles" described Saffron’s behavior at the Bykofsky going-away party as “unprofessional” and “vindictive.”
"On information and belief, Schwartz, as counsel and agent to Bykofsky, released those emails to Mr. Cipriano because he thought those emails cast a negative light on Saffron and the Inquirer, and because he thought it would be beneficial to his representation of Bykofsky," the Inquirer lawsuit says.
The Inquirer lawsuit claims that Bykofsky again violated the non-disparage clause when he told Philly mag, “I can’t decide what I liked best – the demonstrable lies, the careless factual errors, the false impressions, or the guilt by association."
"As a result of Bykofsky’s breaches of the Separation Agreement, the Inquirer has suffered damage," states the lawsuit filed by Raymond McGarry of Brown McGarry Nimeroff LLC.
The leaked Inquirer emails, published in an Aug. 2, 2021 Big Trial blog post, revealed that Bill Marimow, the Inquirer's former top editor and a two-time Pulitzer Prize winner, told his daughter and a trio of friends that he thought Saffron's "diatribe" delivered at Stu Bykofsky's going away party was "totally inappropriate,""an unmitigated disaster," as well as "vindictive, mean-spirited and shocking."
The emails also disclosed how the Inquirer's top editors were closely monitoring social media in the aftermath of the going-away party debacle, while engaging in damage control while dealing with a nosy reporter from The Washington Post. Finally, the emails showed that top Inky editors were openly rooting for Saffron over her attack on Bykofsky.
The leak prompted the Inquirer's lawyers to file written questions known as interrogatories in court seeking to get Bykofsky to divulge whether he was the confidential source who leaked the emails to Big Trial.
Imagine a major metropolitan newspaper using the courts to try and out a confidential source. Schwartz responded by publicly outing himself as the confidential source, while attacking the Inquirer for "rank journalistic hypocrisy."
In its June 6th motion for summary judgment, the Inquirer, seeking to get the defamation case dismissed, described Bykofsky as a "long time, attention-getting columnist" who "wrote an ambiguous, first-person column about the sex industry in Thailand that was published in the Philadelphia Daily News."
"Saffron’s shorthand reference to the Thai column," which she described as his "taste for child prostitutes in Thailand," was, according to the Inquirer lawyers, a "rational interpretation of Bykofsky’s ambiguous column that echoed how others had reacted to the column before her."
According to the Inquirer's lawyers, that "makes it impossible for Bykofsky to prove that Saffron made that reference with 'actual malice'— or, in other words, with knowledge of its falsity or reckless disregard for its truth."
The Inquirer motion also claims that during his going-away party, Bykofsky admitted that he "drank about two-thirds of a pint of Jack Daniels whiskey.
And that's the most innocuous thing that Bykofsky admitted to during his deposition.
"Bykofsky testified at his deposition that he paid to have sex with a prostitute named Gail three or four times during his 2011 trip to Thailand, even though he knew it violated Thai law," the Inquirer's lawyer writes in his motion for summary judgment.
"Gail worked at a club called Baby Dolls, where Bykofsky’s friend . . . introduced him to her," the Inquirer motion states. In his deposition, Bykofsky described Baby Dolls as “a place at which you can take women out and have sex with them.”
"At the club, Bykofsky and Gail agreed on the sex acts they would perform (intercourse), the amount of time they would spend together (overnight), and the price (the equivalent of 60 dollars in the local currency," the Inquirer motion states.
"After Bykofsky paid the owner a 15-20 dollar 'bar fine' for leaving with an employee, Bykofsky and Gail went out to dinner and then to the condominium he was renting for his time in Pattaya," the Inquirer motion states. "Bykofsky had sex with Gail that night and on two or three other occasions during his trip."
"According to Bykofsky, who was 69 years old at the time, Gail told him that she was 26," the Inquirer motion states. "Bykofsky believed that she “had no marketable skills but a rentable body.”
"He did not feel bad paying her to have sex with him," the Inquirer motion states. "To the contrary, he explained, 'I felt, actually, good about giving her money because I knew it would help her.'”
"Gail told him Bykofsky that her husband had left her and that she now had no way to support her two-year-old son other than being a prostitute," the Inquirer motion states. "Thus, in Bykofsky’s words, 'Gail was forced by circumstances into the trade.'”
"Bykofsky testified that he did feel bad that Gail 'was in that situation' and 'was having to do that,'" the Inquirer motion states.
During his deposition, Bykofsky defended himself by saying that prostitution being illegal in Thailand is a "technical law" that's not enforced.
"My prefix is Mr., not Saint Bykofsky," the columnist told the Inquirer's lawyers, who had plenty more to say in their motion to dismiss the defamation case about Bykofsky's sexual adventures.
"In discovery, Bykofsky produced many photos of Gail that he had saved from their time together," the Inquirer motion states. "He also produced a series of photos of him kissing and touching two scantily clad “bar girls in one of the clubs that we were in.”
"Bykofsky testified that they were probably prostitutes, too, but that he did not pay them for sex," the Inquirer motion states.
While Schwartz argues that his client was defamed, the Inquirer's lawyers argue that you can't defame a guy who admits to patronizing prostitutes in Thailand.
"But even if Saffron’s reference to the column was somehow flat-out wrong, what she said did not “paint [Bykofsky] in a worse light,” the Inquirer motion states.In their response motion filed July 5th, Bykofsky's lawyers, Eli Segal & Michael Schwartz, state that Saffron had a "vendetta against Mr. Bykofsky" and "published from her prepared script a vicious tirade against him, falsely and maliciously accusing him of sexual immorality and criminal conduct, including engaging in and having a 'taste' for child prostitutes, along with other statements that were admitted by Ms. Saffron to be false."
Those other statements which seem pretty tame compared to the pedophile charge happened, when "Ms. Saffron admitted that she made other factually inaccurate statements about Mr. Bykofsky in her speech, including that she was 'wrong' and 'misspoke” about Mr. Bykofsky not going the Bicycle Coalition for comment on his stories."
During her deposition, Saffron also admitted she was wrong about Bykofsky's "relationship with Ted Beitchman," whom Saffron had claimed was a close friend of Bykofsky's."
"Ms. Saffron admitted that she is willing to apologize when she makes a mistake but would not apologize for her admitted misstatements about Mr. Bykofsky," Bykofsky's lawyers wrote.
"Ms. Saffron admitted that the Mr. Bykofsky’s column did not say that he has a “taste for child prostitutes” and that Mr. Bykofsky stated twice in his column that he feels bad about the state of prostitution in Thailand," Bykofsky's lawyers wrote.
The brief filed by Bykofsky's lawyers is sprinkled with quotes from depositions in the case from other party-goers.
In a deposition, Bykofsky's lawyers wrote, David Lee Preston, the editor "who organized the retirement party and invited Ms. Saffron to speak about Mr. Bykofsky, admitted that Ms. Saffron had a 'longstanding feud' with Mr. Bykofsky."
In a deposition, Bykofsky's lawyers wrote, David Lee Preston, the editor "who organized the retirement party and invited Ms. Saffron to speak about Mr. Bykofsky, admitted that Ms. Saffron had a 'longstanding feud' with Mr. Bykofsky."
After the party was over, Preston said, Saffron apologized to him but she never got around to apologizing to Bykofsky.
In his deposition, former Inquirer editor Marimow stated that Ms. Saffron’s statements were “deplorable" and “unmitigated poppycock.”
Sam Wood, a former news editor who attended Mr. Bykofsky’s retirement party, referred to Saffron’s statements about Mr. Bykofsky as a “thorough public castration” and stated that he had “never seen anything like it.”
Jennifer DeHuff, a freelance journalist who was in attendance at the going-away party, testified that she was “shocked” and “appalled” by Ms. Saffron’s “brazenness” and “disrespect.”
Michael Schefer, a former newspaper editor who used to edit Mr. Bykofsky’s work said in his deposition that Saffron's statement about Mr. Bykofsky’s “taste for child prostitutes” was “very far out” and false."
Schefer was also critical of newsroom management's public response to the flap over the party. Instead of inviting other reporters to watch the video, Schefer said, Inquirer editor Gabe Escobar "should have stated that what Saffron did was 'inexcusable.'"
Schefer also said that the Inquirer emails where Inquirer editors were openly rooting for Saffron reminded him of a "sports reporter rooting for the home team."
I'll leave the final word to Bykofsky.
At his deposition, Bykofsky declared, “Once your name is smeared, it’s impossible to unsmear it. And now my name is spread all over the internet, which can never be fully scrubbed with a false, malicious accusation that I am a pedophile. "
"You think that wouldn’t harm your reputation?" Bykofsky asked. "Anyone not familiar with my work, reading that, could reasonably believe that it must be true. After all, it was said by a Pulitzer Prize winner in The Inquirer Newsroom during Inquirer hours, with Inquirer editors there."
"And no one stopped her," Bykofsky concluded. "And, in fact the editor then defended her. Never reprimanded her. Advised other reporters to go see the tape for themselves. What do you think, counsel? Have I been damaged?"