Mark Stern
The Ruderman Family Foundation sued a Colorado media company and its owner under federal law, Section 1981, and two state laws, claiming Defendants discriminated against it by refusing to contract with it because of its race (Jew). The Defendants had done a pilot podcast for the Plaintiff, fully aware it was a Jewish entity and aware that it promoted causes within Israel. The Plaintiff was very happy with the pilot, and requested that the Defendants contract to produce a series of podcasts for it. In the ensuing discussions, Plaintiff insisted that Defendants vet anyone for, among other things, their position on Israel’s actions in Gaza and the West Bank, and exclude anyone whose views might be deemed antisemitic under the International Holocaust Remembrance Alliance’s definition of antisemitism. To this end, Plaintiffs said Defendants would be required to search all the information any such person or entity put online.
Defendants declined to do so, stating they “ha[d] made the decision not to work with the Ruderman Family Foundation. …. Our shared passions for climate change solutions, indigenous rights and sovereignty, racial and social equity, disability inclusion, and more, are values we also passionately believe in. These issues were the impetus for us establishing [our media company]; an opportunity to do impact work that moves society closer to making the planet a healthier, safer, and more loving place for everyone. That means that we must take a stance on the occupation of Palestine and its people. It is not our intention to mischaracterize your foundation in any way, and this letter is in no way a condoning of antisemitism. Antisemitism is quite clearly wrong and something we detest and will continue to stand up against – as a company and as individuals. It is abhorrent, and history and the arc of justice will side with those who know that, just as they will for those who will not remain silent in the midst of the destruction of the native people and culture of Palestine.”
Plaintiff sued, asserting that Defendants’ statement and refusal to contract constituted unlawful discrimination. NLG member Counsel in Colorado, Cheryl Trine, referred the case to NLG-Mass Chapter member Mark Stern. With considerable assistance from Attorney Trine, Stern along with another NLG-Mass member Alan Jay Rom filed a 12(b)(6) motion asserting that the complaint itself established that Defendant’s motivation had nothing to do with antisemitism, a 12(b)(1&3) motion as to a companion claim under G.L. 93A, sec. 11, and a 21-day demand for dismissal of a frivolous suit pursuant to Rule 11.
Among other things, the Defendants asserted that the Plaintiff’s reliance on the International Holocaust Remembrance Alliance definition of antisemitism was inappropriate as the definition was too overreaching, defining acts that are not antisemitic as being so. (See article by Mark Stern on said definition.)
Settlement discussions occurred. Near the end of the 21-day period Plaintiff filed a voluntary dismissal of the case, and Ruderman’s Counsel, Matthew Horvitz of GhoulstonStorrs wrote that the discussions failed because of the tone and aggressive nature of Defendants’ counterproposal. To that accusation, Stern responded:
“… while I understand that different lawyers have different approaches, I do not believe my approach was particularly aggressive (only protective of my clients’ reputations) in light of the fact that your client already had done damage to their reputations by falsely accusing them of antisemitism, which accusation it published in a public forum and which will hang over their heads for all eternity. Doing that harmed my clients and likely will continue to harm them.”
Referencing the two articles identified above, Stern further responded, “ … your Client’s reliance on what I consider to be a definition of antisemitism that actually promotes antisemitism by being so over inclusive” may explain why I, a person who among other things never met his grandparents due to the Holocaust, come to the defense of those falsely accused.”
