Fox Prevails in Lawsuit Brought by Hunter Biden Whistleblower Against Tarlov

In a landmark decision for media defendants, U.S. District Judge J. Paul Oetken today granted Fox News co-host Jessica Tarlov’s motion to dismiss Tony Bobulinski’s $30 million defamation lawsuit and ordered Bobulinski to pay Tarlov’s legal fees under New York’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. The ruling marks the first instance in which a federal court has applied New York’s mandatory fee-shifting anti-SLAPP provisions, and it underscores the robust protections afforded to journalists and commentators under defamation law when reporting or expressing opinions on matters of public concern.

Below, we provide a comprehensive overview of the dispute—from the on-air remark that gave rise to the lawsuit, through the procedural journey in the Southern District of New York, to the broader legal and policy implications of Judge Oetken’s decision.

1. Case Summary and Procedural Posture

• Parties:

  • Plaintiff: Tony Bobulinski, former business associate of Hunter Biden

  • Defendant: Jessica Tarlov, co-host of Fox News’s “The Five”

• Claim: Bobulinski alleged that Tarlov falsely stated on air that “a Trump Super PAC paid for Tony Bobulinski’s lawyers’ fees,” harming his reputation and business prospects.

• Procedural History:

  1. Complaint Filed (March 2024): Bobulinski sued for defamation, seeking $30 million in compensatory and punitive damages, plus costs and attorney’s fees.

  2. Tarlov’s Anti-SLAPP Motion (April 2024): Under New York Civil Rights Law § 76-a, Tarlov moved to dismiss for failure to state a claim and to recover attorney’s fees.

  3. Court Decision (June 2024): Judge Oetken granted the motion to dismiss and awarded attorneys’ fees to Tarlov, applying the anti-SLAPP fee‐shifting provision in a federal forum.

2. Factual Background

2.1 Bobulinski’s Public Profile

Tony Bobulinski first entered the national spotlight in October 2020, when he alleged that then-Democratic presidential candidate Joe Biden and his family were involved in overseas business dealings. Those claims received extensive media coverage, and Bobulinski granted high-profile interviews on cable news programs. His subsequent dispute with Fox News over the handling of those interviews set the stage for his later defamation action against Tarlov.

2.2 The On-Air Comment

On January 24, 2024, during an episode of Fox News’s panel show The Five, host Judge Jeanine Pirro and co-hosts—including Jessica Tarlov—discussed Bobulinski’s congressional testimony. In the course of that discussion, Tarlov remarked:

“Okay, a Trump Super PAC paid for Tony Bobulinski’s lawyers’ fees.”

The statement implied that Bobulinski’s legal defense was bankrolled by a pro-Trump political action committee—a claim Bobulinski immediately denied.

2.3 Demand for Retraction and First Clarification

Within twenty-four hours of the broadcast, Bobulinski’s attorney Jesse Binall sent a demand letter to Fox News, insisting that Tarlov retract her statement “on air today” and apologize, or face litigation. The next morning, Tarlov addressed the comment on radio, clarifying:

“What I meant to say is that the law firm representing Mr. Bobulinski was paid by a Trump PAC. I have seen no indication those payments were made in connection with Mr. Bobulinski’s legal fees and he denies that they were.”

Bobulinski’s counsel declined the clarification as insufficient and demanded a “complete retraction and apology.”

3. The Defamation Complaint

3.1 Core Allegations

In March 2024, Bobulinski filed suit in the Southern District of New York, alleging:

1. False Statement of Fact: That Tarlov knowingly or recklessly claimed a Trump Super PAC covered his legal expenses.

2. Defamation Per Se: That the statement impugned Bobulinski’s professional integrity and business reputation.

3. Damages: Seeking $30 million for harm to reputation, emotional distress, and punitive damages, plus costs and fees.

3.2 Legal Thresholds in New York Defamation Law

Under New York law, to survive a motion to dismiss, a defamation plaintiff must plausibly allege:

• A false statement of fact “of and concerning” the plaintiff.

• Publication to a third party.

• Fault amounting to at least negligence on the part of the defendant.

• Injury to reputation or special damages if not defamatory per se.

For statements “of and concerning” a public figure, the plaintiff must also allege “actual malice”—that the defendant knew the statement was false or acted with reckless disregard for its truth.

4. Tarlov’s Anti-SLAPP Motion

4.1 The New York Anti-SLAPP Statute

Effective March 2020, New York’s anti-SLAPP statute (Civil Rights Law § 76-a) allows dismissal of meritless defamation claims that target speech on matters of public interest. Notably, it includes a fee-shifting provision:

“In any such action, the court shall award to the moving party costs and attorney’s fees… unless the court determines that the moving party has not met its burden.”

Although enacted as state law, the New York statute’s fee-shifting clause applies in federal diversity cases—an issue of first impression addressed in Tarlov’s motion.

4.2 Grounds for Dismissal

Tarlov argued that Bobulinski’s complaint failed to state any actionable claim because:

1. Statement of Opinion: Tarlov’s remark was not a verifiable assertion that a Super PAC paid his fees, but rather an exchange of opinion about public testimony.

2. Lack of Actual Malice: Even if treated as a statement of fact, Bobulinski did not plausibly allege that Tarlov acted with knowledge of falsity or reckless disregard.

3. Not Defamatory Per Se: Under the “professional conduct exception,” a statement only qualifies as defamation per se if it directly relates to unfitness for a trade or profession—whereas Tarlov’s comment did not impugn Bobulinski’s professional competence.

5. Judge Oetken’s Analysis and Ruling

5.1 Dismissal for Failure to State a Claim

In his June 5 opinion, Judge Oetken agreed that Bobulinski’s complaint was legally deficient:

• Opinion vs. Fact: The court held that reasonable viewers would interpret Tarlov’s corrected statement as rhetorical commentary, not a binding factual claim.

• Professional Conduct Exception: Citing Biro v. Condé Nast, 807 F.3d 541 (2d Cir. 2015), Oetken noted that per se defamation requires statements about “professional competence, integrity, or work-related abilities.” Bobulinski’s generic claim did not meet that standard.

• Fault Requirement: Even if the statement were factual, Bobulinski failed to allege facts showing Tarlov knew it was false or recklessly disregarded the truth.

Oetken therefore concluded that “the pleadings do not give rise to a plausible inference of defamation,” warranting dismissal under Rule 12(b)(6).

5.2 Application of Anti-SLAPP Fee-Shifting

Turning to Tarlov’s request for attorneys’ fees, Judge Oetken broke new ground:

“Because the Court concludes that the mandatory fee-shifting provision of New York’s anti-SLAPP law applies in federal court, Tarlov’s motion for attorney’s fees is also granted.”

The court held that, under the Erie doctrine, federal courts in diversity cases must apply state substantive law—including statutory fee-shifting. Oetken rejected arguments that anti-SLAPP fees are merely procedural, emphasizing the statute’s punitive and deterrent objectives.

He awarded Tarlov full recovery of reasonable fees, instructing the parties to confer on the proper amount.

6. Reactions and Significance

6.1 Fox News Statement

A Fox News spokesperson praised the ruling:

“This landmark decision dismisses meritless allegations against Jessica Tarlov and marks the first federal court award of attorney’s fees under New York’s anti-SLAPP statute. We are gratified that the court recognized both the strength of our legal position and the importance of protecting free speech.”

6.2 Bobulinski’s Response

Bobulinski’s legal team has not yet indicated whether they intend to appeal. In a brief statement, spokesperson Stefan Passantino said:

“While we are disappointed, we respect the court’s process. We are reviewing the decision and evaluating next steps to vindicate Mr. Bobulinski’s rights.”

6.3 Implications for Media and Defamation Practice

This decision carries several important takeaways:

1. Anti-SLAPP in Federal Courts: The ruling confirms that New York’s robust anti-SLAPP fee-shifting can apply in federal diversity cases, potentially deterring frivolous defamation suits against journalists and commentators.

2. High Bar for Public Figures: Courts continue to enforce strict standards—requiring specificity, plausibility, and a showing of actual malice—when public figures sue for defamation.

3. Speech on Matters of Public Concern: Commentary on political and public-policy topics remains broadly protected, even if it critiques individuals’ motives or funding sources.

Media organizations and hosts nationwide are likely to cite the decision as a powerful precedent for defending against similar suits.

7. Conclusion

The dismissal of Tony Bobulinski’s $30 million defamation claim and the award of attorneys’ fees to Jessica Tarlov mark a pivotal moment in the interplay between defamation law, anti-SLAPP protections, and First Amendment values. Judge Oetken’s carefully reasoned opinion not only vindicates a press commentator’s right to robust debate on political matters, but also extends the reach of state-level anti-SLAPP safeguards into the federal realm. As litigation over public discourse and “cancel culture” intensifies, this decision stands as a robust affirmation of free speech and a caution to would-be plaintiffs: the courts will not tolerate lawsuits intended to silence open discussion of matters that truly matter.