From: Steven S. Biss,

Attorney At Law
300 West Main Street, Suite 102 Charlottesville, Virginia 22903

April 6, 2022

To: David E. McCraw

Senior Vice President & Deputy General Counsel The New York Times Company
620 Eighth Avenue
New York, New York 10018 mccrad@nytimes.com

(and) Davey Alba
dalba@bloomberg.net davey.alba@gmail.com

RE: Malone v. The New York Times Company et al.

Dear Mr. McCraw and Ms. Alba:

I represent Dr. Robert W. Malone in connection with his claims against The New York Times Company (“NYT”), Davey Alba (“Alba”) and unknown editors and publishers for defamation, defamation by implication and insulting words.

On April 3, 2022, NYT published an article on its website written by Alba, entitled “The Latest Covid Misinformation Star Says He Invented the Vaccines”.

Expectedly, NYT and Alba repeatedly republished the Article via social media. [See, e.g., hers Twitter Post 1 and her Twitter Post 2].

The Article contains false and defamatory statements of fact of or concerning Dr. Malone, including:

1. The headline misrepresents that Dr. Malone is the “Latest Covid Misinformation Star” and further states that “[e]ven two years into the pandemic, new misinformation stars are being minted”;

2. The Article falsely accuses Dr. Malone of “spreading unfounded claims about the vaccines and the virus”;

3. The Article falsely states that “in recent months, as the coronavirus pandemic has persisted, he has taken up an entirely different role: spreading misinformation about the virus and vaccines on conservative programs”;

4. The Article misrepresents that “Dr. Malone joins medical professionals and scientists, like Dr. Joseph Mercola and Dr. Judy Mikovits, whose profiles have grown during the pandemic as they spread misinformation about mask-wearing and convoluted conspiracy theories about virus experts like Dr. Anthony Fauci”;

5. The Article misrepresents that “Dr. Malone has twisted legitimate policy debates to use them as cover for continuing to spread misinformation and to advance claims about the pandemic that are demonstrably incorrect”;

6. “Robert Malone is exploiting the fact that data-driven course correction is inherent to the scientific process to peddle disinformation. It’s extraordinarily dishonest and morally bankrupt”.

The qualities disparaged by NYT and Alba – Dr. Malone’s honesty, veracity, integrity, judgment, morals and ethics as a licensed medical doctor – are peculiarly valuable to Dr. Malone and are absolutely necessary in the practice and profession of any medical doctor. The Article ascribes to Dr. Malone conduct, characteristics and conditions, including, without limitation, intent to deceive and defraud, misinformation, disinformation, grifting and financial exploitation, that would adversely affect his fitness to be a medical professional and to conduct the business of a medical doctor. See, e.g., Goulmamine v. CVS Pharmacy, Inc., 138 F.Supp.3d 652, 659 (E.D. Va. 2015) (that a physician has committed misconduct worthy of losing his license to practice medicine or dispense controlled substances is sufficiently similar to suggesting an attorney has committed conduct worthy of disbarment); Echtenkamp v. Loudoun County Public Schools, 263 F.Supp.2d 1043, 1064 (E.D. Va. 2003) (statements that “could be construed  either imply or to state directly that plaintiff lacks integrity or is unfit for her profession” where actionable); Carwile v. Richmond Newspapers, 196 Va. 1, 8, 82 S.E.2d 588 (1954) (“Every false and unauthorized imputation, spoken, written, or printed which imputes to a business or professional man conduct which tends to injure him in his business or profession is libelous and actionable without allegation or proof of special damages.”).

In addition to the above false statements, the Article misrepresents Dr. Malone’s credentials, role and achievements in the development of mRNA technology and vaccines:

7. The Article misrepresents that “[w]hile he was involved in some early research into the technology, his role in its creation was minimal at best”; and

8. The Article misstates that “[t]he idea that he is the inventor of mRNA vaccines is a totally false claim”.

Significantly, Dr. Malone offered to show Alba the evidence concerning his research and invention of the mRNA technology, but Alba refused to review it.

NYT and Alba’s false statements were immediately understood to convey a defamatory meaning about Dr. Malone, see, e.g.:

(“Recently @daveyalba wrote a profile on Robert Malone, who is a lushly bearded, pro-COVID money vortex fueled by his own self-aggrandizing mythology & anti-vaccine fantasies. He profits from the suffering of others”);

(“Dr. Robert Malone says he helped invent mRNA vaccines and has been wronged for decades. Now he’s spreading unfounded claims about the vaccines and the virus”);

(“Not only does Dr. Malone embellish his credentials and spread deadly misinformation, he also attacks his critics in very dangerous ways”);

(“The first rule of COVID grifters: ‘Robert Malone is exploiting the fact that data- driven course correction is inherent to the scientific process to peddle disinformation. It’s extraordinarily dishonest and morally bankrupt’”);

(“Robert Malone Spreads Falsehoods About Vaccines”);

(“Dr Robert Malone has leapt to prominence as one of the leading voices spreading COVID-19 misinformation. He has done this on the false claim that he ‘invented’ mRNA technology”);

(“this was a really great piece by @daveyalba about someone i have been particularly curious about: Dr. Robert Malone, who claims to be the inventor of the MRNA vaxx. Now, he spends his time peddling misinfo about Covid & the vaxx”);

(“I wish the NYT would just come out and say he’s a liar rather than ‘spreading misinformation”);

(“COVID-19 has been a godsend for conspiracy influencers, who have seized the chance to spread confusion about the vaccine no matter how many people they hurt”);

(“ There’s gold in them thar hills: Robert Malone, who styles himself as the inventor of mRNA vaccines and has become a major source of vaccine misinformation, makes at least $31,200 a month from Substack, plus frequent appearances on conservative TV”);

(“ Robert Malone is a liar and a fraud. 2. He did not ‘invent’ the vaccines. 3. What’s up with framing this fraud as a ‘star?’”)

NYT and Alba’s false and defamatory statements injured Dr. Malone’s reputation and business. Dr. Malone’s reputation as a medical professional has been severely compromised.

Demand is hereby made for an immediate public retraction of the false and defamatory statements in the Article, a written apology, and compensation for the presumed and actual damages suffered by Dr. Malone, including the insult, pain, humiliation, embarrassment, mental suffering and injury to his reputation.

In order to mitigate the damage you have caused, the retractions must prominently notify NYT’s online advertisers, subscribers, and viewers, and NYT and Alba’s social media followers, that NYT and Alba retract and withdraw the scandalous statements in the Article.

NYT and its agents are hereby on NOTICE that Dr. Malone contends that the statements in the Article are false and defamatory. Nunes v. Lizza, 12 F. 4th 890, 901 (8th Cir. 2021) (“‘Republication of a statement after the defendant has been notified that the plaintiff contends that it is false and defamatory may be treated as evidence of reckless disregard.’ Restatement (Second) of Torts § 580A cmt. d (Am. L. Inst. 1977). Lizza tweeted the article in November 2019 after Nunes filed this lawsuit and denied the article’s implication. The pleaded facts are suggestive enough to render it plausible that Lizza, at that point, engaged in ‘the purposeful avoidance of the truth.’”). Demand is further made upon NYT and Alba to cease and desist from any further publication and/or republication of the false and defamatory statements.

My client wishes to resolve this matter amicably and without litigation. If you refuse to take the above action within 30 days of the date of this letter, or if the retractions are insufficient, he intends to take appropriate legal action to protect his rights and interests.

Call or email me if you have any questions.

Yours very truly,

Steven S. Biss